Intercon I (Zercom)

National Labor Relations Board - Board Decisions

Jan 31, 2001

333 N.L.R.B. 223 (N.L.R.B. 2001)

INTERCON I (ZERCOM) 223
Intercon I (Zercom) and International Brotherhood
of Electrical Workers. Case 18–CA–14533
January 31, 2001
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
LIEBMAN
AND HURTGEN
On October 6, 1998, Administrative Law Judge Wil-
liam J. Pannier III issued the attached decision. The
General Counsel filed exceptions and a supporting brief;
the Charging Party filed cross-exceptions and a support-
ing brief; and the Respondent filed cross-exceptions, a
supporting brief, a responsive brief to the General Coun-
sel’s exceptions and an answering brief to the Charging
Party’s cross-exceptions.1
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,2 and conclusions
only to the extent consistent with this Decision and Or-
der.
The judge found, inter alia, that employee Suzanne
Witha’s resignation from her job did not constitute a
constructive discharge, in violation of Section 8(a)(3)
and (1) of the Act, under either the traditional construc-
tive discharge theory3 or the “Hobson’s Choice” doc-
trine.4 For the reasons set forth below, we disagree with
the judge, and find that Witha’s resignation constituted a
constructive discharge under the Hobson’s Choice doc-
trine.5

1 No exceptions were filed to the judge’s findings that the Respon-
dent violated Sec. 8(a)(1) of the Act by (1) threatening employees with
plant closure and relocation if they selected a union as their representa-
tive, and (2) threatening employees with retaliation, termination, dis-
charge, and reprimand for discussing unions or union-related subjects
during company time. Further, no exceptions were filed to the judge’s
finding that the Respondent did not violate Sec. 8(a)(3) and (1) of the
Act by issuing an oral warning to employee Suzanne Witha on June 17,
1997.
2 The Respondent has excepted to the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law
judge’s credibility resolutions unless the clear preponderance of all the
relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for
reversing the findings.
3 Under the National Labor Relations Act, a traditional constructive
discharge occurs when an employee quits because his employer has
deliberately made the working conditions unbearable and it is proven
that (1) the burden imposed on the employee caused, and was intended
to cause, a change in the employee’s working conditions so difficult or
unpleasant that the employee is forced to resign, and (2) the burden was
imposed because of the employee’s union activities. Grocers Supply
Co., 294 NLRB 438, 439 (1989); and Crystal Princeton Refining Co.,
222 NLRB 1068, 1069 (1976).
4 Under the Hobson’s Choice theory, an employee’s voluntary quit
will be considered a constructive discharge when an employer condi-
tions an employee’s continued employment on the employee’s aban-
donment of his or her Section 7 rights and the employee quits rather
than comply with the condition. Hoerner Waldorf Corp., 227 NLRB
612, 613 (1976).
“A constructive discharge is not a discharge at all but a
quit which the Board treats as a discharge because of the
circumstances which surround it. Such situations may
arise when an employer confronts an employee with the
Hobson’s Choice of either continuing to work or forego-
ing rights protected by the Act.” Multimatic Products,
288 NLRB 1279, 1348 (1988). As stated above, under
the Hobson’s Choice line of cases, an employee’s volun-
tary resignation will be considered a constructive dis-
charge when an employer conditions the employee’s
continued employment on the employee’s abandonment
of his or her Section 7 rights and the employee quits
rather than comply with the condition. Hoerner Waldorf
Corp., 227 NLRB 612 (1976).6
In this case, the undisputed facts show that in early
June 1997, Witha contacted the Union about organizing
and discussed the matter with her coworkers to assess
their interest. The judge found, and we agree, that as a
result of Witha’s organizing attempt, Supervisor Deborah
Williams unlawfully threatened Witha and other employ-
ees with retaliation if they discussed the Union on com-
pany time and plant closure if the Union were selected.
Witha was also issued an unlawful written warning for
her allegedly poor work quality and “negative attitude,”
and was notified that she would be transferred to the day
shift for 4 days for additional training and reevaluation.
Further, Witha was informed that if she did not improve
her “negative attitude” and unsatisfactory work perform-
ance within 4 days, the Respondent’s next action would
be “termination,” as stated in Witha’s written warning.
As a result of this unlawful written warning and transfer,
Witha resigned her employment.
The warning and transfer, the judge found, violated
Section 8(a)(3) and (1) of the Act because they were pre-
textual and discouraged Witha from supporting the Un-
ion. The judge also found that the reference to Witha’s
“negative attitude” was a euphemism for her prounion
activity, and that Witha could infer that the Respondent’s
unlawful conduct was a form of retaliation for her union

5 Because we find an unlawful constructive discharge under the
Hobson’s Choice doctrine, we find it unnecessary to pass on the judge’s
finding that Witha was not constructively discharged under the tradi-
tional constructive discharge theory.
6 “To condition employment upon the abandonment by the employ-
ees of the rights guaranteed them by the Act is equivalent to discharg-
ing them outright for union activities.” Atlas Mills, Inc., 3 NLRB 10,
17 (1937).
333 NLRB No. 30
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 224
activities. Despite the Respondent’s unlawful conduct,
the judge concluded, however, that Witha’s resignation
in response to the Respondent’s unfair labor practices did
not constitute a Hobson’s Choice constructive discharge
because, inter alia, the Respondent’s words and conduct
did not expressly convey that Witha would be terminated
if she did not abandon support for the Union.7
Not every case where an employee quits in reaction to
an unfair labor practice constitutes a constructive dis-
charge. We conclude, however, that under the particular
circumstances presented here, Witha’s resignation consti-
tutes a constructive discharge in violation of Section
8(a)(3) and (1). We find that the Respondent’s conduct
led Witha to reasonably believe that she was compelled
to choose between abandoning her union support or be-
ing terminated. When the Respondent told Witha that
she had 4 days to improve her “negative attitude,” a
euphemism for prounion activity,8 the Respondent effec-
tively told Witha that she had 4 days to abandon her
prounion attitude if she wanted to preserve her job. As a
result, Witha was presented with the Hobson’s Choice of
relinquishing her statutory rights or facing termination.
She resigned rather than abandon her union support.
Although the Respondent did not literally state that
Witha had to abandon her support for the Union as a
condition of her continued employment, we find, con-
trary to our colleague, that the Respondent’s message
was unmistakable and that the Hobson’s Choice was
clearly and unequivocally conveyed to Witha. The term
“negative attitude” as used by the Respondent was a code
word for union support. The Respondent’s conduct,
therefore, led Witha to reasonably believe that continuing
to support the Union and continuing her employment
were incompatible. Thus, she was compelled either to
abandon her statutory rights or to quit.9

7 The judge also implied that the Hobson’s Choice doctrine is only
applicable where an employer curtails the Sec. 7 rights of already rep-
resented employees, and is not applicable in cases where the employees
are currently unrepresented. We disagree. The Board’s case law
clearly establishes that an unrepresented employee who quits because
his employment is conditioned on abandonment of statutory rights can
be found to have been constructively discharged in violation of the Act.
See, e.g., Swain Mfg., 201 NLRB 681, 683 (1973).
8 See, e.g., James Julian Inc. of Delaware, 325 NLRB 1109 (1998).
9 To establish a Hobson’s Choice constructive discharge, the choice
“must be clear and unequivocal and the employee’s predicament not
one which is left to inference or guesswork on his part.” ComGeneral
Corp., 251 NLRB 653, 657–658 (1980), enfd. 684 F.2d 367 (6th Cir.
1982). Contrary to our dissenting colleague, we find that this test has
been met. Under the circumstances, Witha’s predicament was not left
to guesswork or inference. She was told that if she did not improve her
“negative attitude” within 4 days she would be terminated. In this case,
the judge found, and we agree, that “negative attitude” is equivalent to
union support. Thus, in our view, Witha was clearly and unequivocally
given the choice of foregoing her union activity or being terminated.
In finding that Witha would not have reasonably be-
lieved that her termination was imminent, the judge re-
lied on the Respondent’s decision not to fire Witha on
the day that it issued its disciplinary warning and trans-
fer. In our view, the fact that Witha was not immediately
terminated does not mitigate the Respondent’s clear mes-
sage that Witha faced “termination” if she did not aban-
don her prounion attitude within 4 days. Witha was not
required to wait 4 days to be dismissed by the Respon-
dent for continuing to support the Union. Because the
term “negative attitude” used by the Respondent is a
euphemism for union activity, a prudent person in
Witha’s position would reasonably believe that the Re-
spondent would fire her if she did not forego her union
activity. Such a belief was particularly reasonable in
light of the Respondent’s other threats found unlawful in
this case.10 The conclusion is inescapable that the option
given to Witha, tantamount to a choice to refrain, within
4 days, from continuing to support the Union or be ter-
minated, was made an unlawful condition of her contin-
ued employment. For these reasons, we find that Witha
was faced with a Hobson’s Choice and reasonably re-
signed rather than forsake her statutory rights. Accord-
ingly, we conclude that Witha’s resignation constituted a
constructive discharge in violation of Section 8(a)(3) and
(1) of the Act. Hoerner Waldorf, supra. See also Swain
Mfg. Co., supra.
AMENDED CONCLUSIONS OF LAW
1. By threatening to retaliate against employees for
discussing unions and union-related subjects on company
time and by threatening closure of the Aitkin, Minnesota
facility and relocation of its operations should the em-
ployees become represented by a union, the Respondent
has violated Section 8(a)(1) of the Act.
2. By issuing a written warning notice to employee
Suzanne Witha and announcing her transfer to the day
shift, and by causing Witha to be constructively dis-
charged because of her sympathies for and activities on

Witha understood that choice and resigned to avoid it. We believe the
message was loud and clear, and left little to the imagination, that
Witha was required to abandon her union support or face termination.
See generally Mayrath Co., 132 NLRB 1628, 1630 (1961), enfd. in
pertinent part 319 F.2d 424 (7th Cir. 1963) (“reasonable inference”
from an employer’s ordering employees to take off their union buttons
or “leave” was that employees would be discharged if they did not
remove their union buttons; employees were given a Hobson’s Choice
of foregoing their protected right to wear union buttons or being dis-
charged).

10 The Respondent violated Sec. 8(a)(1) of the Act by threatening
employees with adverse employment consequences if they were caught
discussing the Union or union-related subjects at the Respondent’s
facility, and by threatening plant closure and relocation if the employ-
ees became unionized.
INTERCON I (ZERCOM) 225
behalf of the International Brotherhood of Electrical
Workers, the Respondent has violated Section 8(a)(3)
and (1) of the Act.
3. The Respondent has not violated the Act in any
other manner alleged in the complaint.
4. By the above conduct, the Respondent has engaged
in unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
AMENDED REMEDY
Having found that the Respondent engaged in unfair
labor practices in violation of Section 8(a)(1) and (3) of
the Act, we shall order the Respondent to cease and de-
sist therefrom and to take certain affirmative actions de-
signed to effectuate the policies of the Act. We shall also
order the Respondent, within 14 days from the date of
this Order, to offer Suzanne Witha immediate and full
reinstatement to her former position or, if that position no
longer exists, to a substantially equivalent position, with-
out prejudice to her seniority or other rights or privileges
previously enjoyed. In addition, we shall order the Re-
spondent to make Witha whole for any loss of earnings
and other benefits she may have suffered as a result of
the Respondent’s discrimination against her from June
19, 1997. Backpay shall be computed in accordance
with F. W. Woolworth Co., 90 NLRB 289 (1950), with
interest as prescribed in New Horizons for the Retarded,
283 NLRB 1173 (1987).
We shall also order the Respondent, within 14 days
from the date of this Order, to remove from its files any
reference to the unlawful discharge of Witha; the em-
ployee counseling report issued to her on June 19, 1997;
and her intended transfer to the day shift on June 23,
1997, and within 3 days thereafter, notify Witha in writ-
ing that this has been done and that the discharge, the
employee counseling report and the intended transfer to
the day shift will not be used against her in any way.
ORDER
The National Labor Relations Board orders that the
Respondent, Intercon I (Zercom), Aitkin, Minnesota, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening termination, discharge, reprimand, or
any other form of retaliation against employees for dis-
cussing union or union-related subjects during company
time, and threatening to close the Aitkin facility if the
employees selected International Brotherhood of Electri-
cal Workers, or any other labor organization, as their
exclusive collective-bargaining representative.
(b) Issuing employee counseling reports to, transfer-
ring to another shift, or otherwise discriminating against
Suzanne Witha, or any other employee, because of their
support and activities, or because of their suspected sup-
port and activities, for the labor organization named in
subparagraph (a) above, or for any other labor organiza-
tion.
(c) Causing the constructive discharge of employee
Suzanne Witha, or any other employee, because of sup-
port for and activities on behalf of the above-named Un-
ion or for any other labor organization.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Suzanne Witha full reinstatement to her former job, or if
that job no longer exists, to a substantially equivalent
position, without prejudice to her seniority or any other
rights or privileges previously enjoyed.
(b) Make Suzanne Witha whole for any loss of earn-
ings and other benefits suffered as a result of the dis-
crimination against her, in the manner set forth in the
amended remedy section of this decision.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharge of
Suzanne Witha; all copies of and references to the em-
ployee counseling report issued to her on June 19, 1997;
and the intended transfer of Witha to the day shift on
June 23, 1997, and within 3 days thereafter, notify Witha
in writing that this has been done and that the discharge,
the employee counseling report and the intended transfer
will not be used against her in any way.
(d) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all
other records necessary to analyze the amount of back-
pay due under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its Aitkin, Minnesota facility copies of the attached no-
tice marked “Appendix.”11 Copies of the notice, on
forms provided by the Regional Director for Region 18,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,

11 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 226
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, it shall duplicate and mail,
at its own expense, a copy of the notice to all current
employees and former employees employed at the Aitkin
facility at any time since June 17, 1997.
(g) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

MEMBER HURTGEN, dissenting in part.
I agree with my colleagues that the Respondent vio-
lated Section 8(a)(3) and (1) of the Act by issuing a writ-
ten warning to employee Suzanne Witha and transferring
her to the day shift. However, contrary to my colleagues,
I find that the Respondent did not constructively dis-
charge Witha in violation of Section 8(a)(3) and (1) of
the Act.
I agree with the “traditional” principles concerning a
constructive discharge. In those limited situations, the
employer, for discriminatory reasons, imposes working
conditions that are so difficult or unpleasant as to force
an employee to resign. The inference in such cases is
that the employer intended the foreseeable consequence
of the employee’s resignation. In this case, I agree with
the judge that Witha was not subjected to working condi-
tions that were so difficult or unpleasant that she was
forced to resign.
I also agree with the “Hobson’s Choice” theory of con-
structive discharge in the narrow circumstance where the
employee is presented with the stark choice of (1) ceas-
ing Section 7 activity and (2) discharge. In such circum-
stances, I believe that the employee (who wishes to con-
tinue with Section 7 activity) need not wait for the dis-
charge. She can resign, and such resignation will be con-
sidered a constructive discharge.
However, as stated in ComGeneral Corp., 251 NLRB
653, 657–658 (1980), the Hobson’s Choice must be
“clear and unequivocal and the employee’s predicament
not one which is left to inference or guesswork on his
part.” In the instant case, the choice was less than clear
and unequivocal. The employee was told that her
choices were (1) improving her work and her “negative
attitude” and (2) discharge. The phrase “negative atti-
tude” may have been a euphemism for union activity.
However, it was not “clearly and unequivocally” such a
euphemism. Morever, her work was deficient in at least
one respect (doing work pursuant to instructions which
she questioned, rather than first checking with the engi-
neer as required). Even if the employee thought that her
choice was between foregoing Section 7 activity and
discharge, that was only her inference. Under ComGen-
eral, that is not enough to support a constructive dis-
charge.
My colleagues rely on Mayrath Co., 132 NLRB 1628
(1961). The case offers them no support. In that case,
the employees were ordered to take off their union but-
tons or leave employment. The Hobson’s Choice was
clear and unequivocal. Further, although the Board used
the language “reasonable inference in that case,” it is
clear from the more recent case of ComGeneral that the
correct test is “clear and unequivocal.” In sum it was not
“clear and unequivocal” that Witha was faced with the
choice of (1) foregoing Section 7 activity and (2) dis-
charge. Accordingly, her resignation was not construc-
tive discharge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT threaten you with termination, dis-
charge, reprimand, or any other form of retaliation be-
cause you discuss unions or union-related subjects during
company time.
WE WILL NOT threaten to close our Aitkin, Minne-
sota facility, or threaten that it possibly might be closed,
if you select the above-named Union, or any other union,
as your collective-bargaining representative.
WE WILL NOT issue written warnings to, announce
that we intend to transfer to another shift, or otherwise
discriminate against employee Suzanne Witha, or any
other employee, because of support for, and activities on
behalf of, the above-named Union, or any other union, or
to discourage other employees from supporting the
above-named union or any other union.
WE WILL NOT constructively discharge employee
Suzanne Witha, or any other employee, because of their
INTERCON I (ZERCOM) 227
support for and activities on behalf of the International
Brotherhood of Electrical Workers, or any other union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer Suzanne Witha full reinstatement to her
former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to her senior-
ity or any other rights or privileges previously enjoyed.
WE WILL make Suzanne Witha whole, with interest,
for any loss of earnings and other benefits she suffered as
a result of our discrimination against her.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharge of Suzanne Witha; all copies of and any
references to the employee counseling report issued her
on June 19, 1997; and the intended transfer of Witha to
the day shift on June 23, 1997, and WE WILL, within 3
days thereafter, notify Witha in writing that this has been
done and that the discharge, employee counseling report
and the intended transfer will not be used against her in
any way.

INTERCON I (ZERCOM)

Karen Nygren Wallin, for the General Counsel.
Steven C. Miller (Law Offices of Martin L. Garden), of Min-
neapolis, Minnesota, for the Respondent.
Mary Harrigan, International Representative, of Lombard,
Illinois, for the Union.
DECISION
STATEMENT OF THE CASE
WILLIAM J. PANNIER III, Administrative Law Judge. I
heard this case in Aitkin, Minnesota, on February 4, 1998. On
October 9, 1997,1 the Regional Director for Region 18 of the
National Labor Relations Board (the Board) issued a complaint
and notice of hearing, based on an unfair labor practice charge
filed on June 24 and amended on September 5, alleging viola-
tions of Section 8(a)(1) and (3) of the National Labor Relations
Act (the Act). All parties have been afforded full opportunity
to appear, to introduce evidence, to examine and cross-examine
witnesses, and to file briefs. Based on the entire record, on the
briefs which were filed, and on my observation of the demeanor
of the witnesses, I make the following
FINDINGS OF FACT
I. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
This case presents issues of whether unlawful statements had
been made to employees on June 17 and 19, in violation of
Section 8(a)(1) of the Act. Additionally, it is alleged that,

1 Unless stated otherwise, all dates occurred during 1997.
based upon motives unlawful under the Act, one employee had
been issued an oral warning on June 17 and, on June 19, re-
ceived a written warning and a notice of transfer from night to
day shift, accompanied by a threat of termination if her per-
formance and attitude did not improve by June 26. Those as-
sertedly unlawful actions, it is further alleged, forced that em-
ployee to work under intolerable conditions and led her to con-
clude that she would inevitably be fired. So, she quit on June
19. The General Counsel argues that, given the circumstances
confronting her, that employee either had been constructively
discharged or, alternatively, had reasonably anticipated that she
would soon be discharged. See MDI Commercial Services, 325
NLRB 53–54 (anticipated discharge) and 65 (constructive dis-
charge) (1997).
Those allegations arise within an overall framework of facts
which are undisputed and in many instances acknowledged to
have occurred. First, at all material times Intercon I (Zercom)
(Respondent) has been a Minnesota corporation with an office
and place of business in Aitkin, engaged in the contract manu-
facturing and nonretail sale and distribution of cable and har-
ness assemblies. Respondent admits that at all material times it
has been an employer engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act, based on the further
admissions that, in conducting the above-described business
operations during calendar year 1996, it purchased goods val-
ued in excess of $50,000 which it received at its Aitkin facility
directly from points outside of the State of Minnesota and, also,
sold goods valued in excess of $50,000 which it shipped from
that Aitkin facility directly to points outside of Minnesota.
Second, although the record is not altogether clear about the
subject, it seems undisputed that until some point during late
1996 or very early during 1997 Respondent had been owned by
a company which has been referred to as CSI. At that point
ownership passed to another company, referred to as Nortech.
As will be seen in subsection C below, Nortech’s attitude to-
ward unions is mentioned during the course of allegedly unlaw-
ful statements attributed to Line Leader, Deborah Williams
Weimer, an admitted statutory supervisor and agent of Respon-
dent at all material times.2
Third, prior to February, Bob Schrieker had been Respon-
dent’s Aitkin plant manager. His January 7 performance re-
view of alleged discriminatee, Suzanne Witha is discussed be-
low. On February 10 he was succeeded as plant manager at
Aitkin by Ted Youker who remained in that position until the
following October, when he was terminated. While serving in
2 During June she had been unmarried and her last name was Wil-
liams. Afterward, she married, with her last name becoming Weimer.
As her surname had been Williams during June and inasmuch as for the
most part she was referred to as Williams during the events at issue in
the instant proceeding, for clarity she will be referred to as Williams
during this decision.
When testifying, Williams characterized her position during June as
assistant line leader. But, the answer admitted the allegation that her
title had been line leader. The latter is the title which will be utilized
here when referring to her position, because an admission in pleadings
constitutes a judicial admission which no party is at liberty to later
contradict, even through its witnesses. See, e.g., Soo Line R. Co. v. St.
Louis Southwestern Ry. Co., 125 F.3d 481, 483 (7th Cir. 1997).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 228
the position of plant manager, it is admitted, Youker had been a
statutory supervisor and agent of Respondent. As will be seen
in subsection D below, it is Youker to whom the decision to
discipline Witha on June 19 is attributed.
Fourth, several areas—lines one and two, mold room, of-
fices—occupy the Aitkin production floor. All of the com-
plaint’s allegations are based on events concerning line one
employees. Employees on that line assemble electrical cables.
That is accomplished at two rows of seven tables, set back to
back so that the two rows are adjoining and employees working
at each row face those working at line one’s opposite row of
tables. Located on the end tables of the rows, facing each
other, are testers. They are used to test the sufficiency of elec-
trical cable assemblies performed by line one employees. At
one table at the other end of the lines of tables is a stripper. All
other tables in both rows are assigned to employees classified
as permanent or temporary assemblers. Witha was one such
permanent assembler. Williams served as line leader for line
one at all times material to events in this proceeding.
Fifth, to understand what occurred during June, it is neces-
sary to describe some aspects of line one electrical cable as-
sembly. Cables of various types are received there for assem-
bly. They must first be prepped, by sliding casings over the
ends and cutting back the cables’ sleeving to expose ends of the
cable wires covered by that sleeving. Those wires are con-
nected and soldered to a connector. Connectors also are of
various types. The important point about them, for one defense
which is raised, is that a connector must correspond to the cas-
ing at the cable end to which that connector is soldered. For
example, as illustrated by the photographs which are Respon-
dent’s Exhibits 2 and 3, there is a D-sub casing and connector
and, in addition, a Hirose casing and connector. Each is so
different, as those exhibits reveal, that an experienced assem-
bler should not confuse the two: attach the wrong connector to
the wrong cable end.
For each job, the assembler completes one cable connection,
referred to as the first article. Using a tester, the assembler
ascertains if the connection is open or miswired. If so, the as-
sembler is responsible for correcting the defect. Once the first
article tests out, it is taken to the line leader who inspects and
signs off on it. Then, it is taken to the plant manager who, if
satisfied with it, also signs off on the first article. Succeeding
assemblies for that job are then made pursuant to that of the
first article.
With respect to materials received by an assembler for a par-
ticular job, in addition to parts and a parts list, also received are
instructions, called the green bar, and a print or drawings show-
ing how the parts should match once assembled. If there is a
discrepancy—parts not included that are shown on the green
bar or print, or a green bar that differs in some respect from the
supposedly corresponding print—a long-posted instruction
directs assemblers not to start the job, but instead to “CALL
THE ENGINEER.” During June that had been Joe Ranweiler
who occupied an office located a few feet from one end of line
one.
In practice, apparently, assemblers did not always follow that
posted instruction. For example, Line Leader Diane Passig
testified that when she had been a line one assembler during
June and had discovered a discrepancy between the green bar
and supposedly corresponding print, she would stop assembling
“and either address a supervisor or an engineer.” Similarly,
Line Leader Kathy Wiitala testified that, while an assembler,
she had, “Stopped the work in process and either gone to the
engineer or gone to Deb [Williams] or anyone.” And assembler
Suetta Banks, a onetime night shift lead, testified, “I usually go
to the person who has built the cables before.”
Even so, all three of those witnesses acknowledged having
seen the posted instruction directing assemblers to go the engi-
neer. More importantly, given the events on June 16, Witha
testified, “Well, just if Joe [Ranweiler] was available you
would just take it to Joe and if he wasn’t then you would, you
know, talk to your supervisor and find out what to do from
there.” As to the latter alternative, however, Witha testified, “I
never did. He [Ranweiler] was always there but that was the
policy to stop the job.”
Sixth, Witha was hired by Respondent as an electrical as-
sembler on October 7, 1996. While she had no experience
working with cables, she had over a decade’s experience as an
electrical assembler, a fact which Youker acknowledged: “Sue
obviously had ten or twelve years experience in some manufac-
turing with electronic assemblies.” She was assigned to work
on line one.
At that time there was only a day shift for line one employ-
ees, from 7 a.m. to 3:30 p.m. Overtime was common, usually
for an hour or an hour-and-a-half, though sometimes for as
much as 2 hours. Ordinarily, overtime was worked before 7
a.m., but sometimes it was worked after 3:30 and occasionally
both before 7 a.m. and after 3:30 p.m.
During November 1996 Respondent began assigning then-
line one assembler Banks to work, in effect, a night shift. Ini-
tially, she worked by herself. But, by June 2, two other line one
assemblers had been added: Becky Steele and, on June 1 or 2,
Suzanne Witha. By then night shift was scheduled for 3:30
p.m. to midnight, though overtime before or after those hours,
sometimes both, was common.
The evidence concerning Witha’s performance history does
not all point in a single direction. In her probationary perform-
ance review of January 7, then-Plant Manager Schrieker gave
Witha excellent ratings in the majority of performance catego-
ries and satisfactory ratings in all others. On the evaluation he
wrote that Witha brought “prior knowledge and leadership
skills from prior employers,” and “fit in well with the team and
constantly strives to meet our quality and std [?] requirements.”
On February 13 Williams prepared a performance review for
Witha. On it Williams wrote that Witha “needs to find a happy
medium between speed and accuracy,” but listed Witha’s
strengths as “fast learner, good problem solver, very easy to
work with.”
Beyond that, Williams never contradicted Witha’s testimony
that, when presenting the February 13 evaluation, Williams had
said that Witha “was like the cream of the crop. I was always
willing to do any jobs that——job that was given to me. I was
always on time, never cutting it to the wire, ready to start work.
My appearance was always good. Friendly,” and that “she
would have gave [sic] me an excellent but Ted did not believe
in giving an excellent review because that left no room for im-
INTERCON I (ZERCOM) 229
provement.” Indeed, Youker characterized Witha as “a fantas-
tic employee” whom he had recommended “to be a supervisor
for nights, to be considered for one of those positions.”
On the other hand, Williams claimed generally, “Whenever
we had a problem and tried to show Sue her errors we were—
—like I said before we were met with arguments and a lot of
hostility.” Asked to provide examples, however, Williams
testified, “I can’t give you a specific example other than it was
an ongoing——it was an ongoing issue.” The best she could
muster was an order for which Witha had closed back shells on
June 11, in the process smashing wires inside the shells which,
in turn, caused shorts when tested. Yet, when she described her
conversation with Witha about that job, Williams testified that
Witha had said only “I couldn’t have possibly have done that.”
Williams provided no testimony showing with particularity
that, in the course of discussing that mistake, Witha had dis-
played “hostility,” nor that Witha had begun arguing. It should
not escape notice, nonetheless, that day-shift assembler Terry
Krumm, a witness called by the General Counsel, did testify to
having overheard Williams criticize the quality and quantity of
Witha’s work, a couple of weeks before the latter left on June
19. Still, neither Krumm nor any other witness corroborated
Williams’ assertions about Witha being argumentative and
becoming hostile when her performance had been criticized
prior to June 17.
Seventh, in addition to her transfer to night shift, a parallel
sequence of events involving Witha began unfolding on June 1.
She contacted International Brotherhood of Electrical Workers
(the Union), an admitted labor organization within the meaning
of Section 2(5) of the Act. International Representative Mary
Harrigan suggested that Witha contact coworkers to ascertain
the extent of their interest in representation by the Union.
Witha testified, “I started asking employees what their interest
would be” in becoming represented by the Union.
Quite sketchy is the evidence regarding Witha’s contacts
with Respondent’s other employees. She testified that she had
spoken with “[a]bout fifteen” people and had done so “[k]ind of
all over,” in “their area,” during “the beginning of June some
time.” However, Witha never described with specificity what
had been said during her encounters with any of those ap-
proximately 15 coworkers. Nor did she identify any one of the
employees to whom she had spoken. No other employee testi-
fied having been approached by Witha concerning the Union.
Nevertheless, as discussed further in subsection C below, Wil-
liams admitted that by June 17 she had been made aware, by an
employee, that talk about a Union was taking place at the Ait-
kin facility.
There is no direct evidence that Witha’s name had been men-
tioned to Williams, nor to any other supervisor, in connection
with the union activity at Aitkin. Still, there is no evidence that
any employee other than Witha had been approaching cowork-
ers about their possible interest in union representation. That
is, while other employees may have been discussing among
themselves what had been said to them by Witha, there is no
evidence that any other employee also had undertaken to in-
quire of coworkers about their interest in becoming represented.
So far as the record shows, only Witha had been making such
inquiries among Respondent’s employees prior to June 19.
Against that background occurred the events of June 16
through 19. When she reported for night-shift work on June 16
Witha was assigned responsibility for completing assembly of
D-sub casings and remaining prep work on 75 cables, after
which she was to wire and solder that end of those cables to
their D-sub connectors. It is undisputed that no heat shrink, for
covering wires exposed after soldering, had been among the
parts supplied for that job. Nor was heat shrink required in the
green bar for that job. Witha testified that she felt heat shrink
was necessary and that she stopped the job to ask Williams
about its omission, but the latter told her to do the job pursuant
to the green bar’s instructions. Witha never claimed that, pur-
suant to the fifth above-enumerated point, she had tried to con-
tact Engineer Ranweiler about the omitted heat shrink, though
it is not disputed that he had been present when Witha had
started the job.
Witha finished the 75 cables during her night shift on June
16. Williams testified that, after arriving for work on June 17,
she learned not only that no heat shrink had been applied to the
D-sub exposed wires on the cables, but that connectors had
been soldered to the wrong ends of approximately 20 cables.
Exploration during the hearing was conducted as to whether
some other employee could have made such incorrect assem-
blies. However, that exploration yielded no viable alternative
employee to with a—assuming that misconnections had been
made, in fact.
Of course, Witha would not arrive for work on June 17 until
the night shift was scheduled to commence work at 3:30 p.m.
Before then, during the morning, Williams admittedly ad-
dressed the day-shift line one employees about the Union, as
described in subsection C below, making statements which
allegedly violated the Act. Once she arrived for work, Witha
was chewed out by Williams about the June 16 cable work.
After that, Williams spoke to the three line one night-shift em-
ployees about the Union, again making allegedly unlawful
statements.
Witha acknowledged having been upset and angered at being
accused of misperformance, given that she had questioned Wil-
liams on June 16 about the omitted heat shrink. As described in
subsection C below, Witha spoke about the subject on June 17
with another line leader, with Engineer Ranweiler and with
Plant Manager Youker. The next day she telephoned Youker to
say that she would not be reporting for work because she was
sick. After receiving that call, Youker reached a decision to
issue a written warning to Witha and, in addition, to transfer her
to day shift from June 23 through 26, assertedly for further
training.
During her day shift on June 19, then-line one assembler
Passig was summoned to Youker’s office and issued a verbal
warning for, according to Passig, “my attitude and my big
mouth and my performance as an assembler.” It is undisputed
that, in the course of issuing that warning to her, Youker told
Passig that discussing union on company time would be
grounds for termination, a threat alleged to have violated Sec-
tion 8(a)(1) of the Act.
When Witha arrived for work that afternoon, she was ush-
ered into Youker’s office where she was issued the written
warning and informed of her transfer to day shift on the follow-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 230
ing Monday. “Poor work quality and negative attitude” are
recited on the warning as “the problem.” Written in the “Su-
pervisor Comments:” portion is, “Work quality and her poor
attitude cause a negative affect on the rest of the plant.” “Em-
ployee will go back on the day shift and her work and attitude
must improve immediately,” the warning states, under “Ex-
pected improvement and/or standards for the future,” with
Witha’s “Next Review” listed to occur on “6/27/97.” After
“Next action if employee does not meet the improve-
ment/standards required:” is written, “Termination.”
Following that meeting Witha returned to work. As de-
scribed further in subsection D below, at 5 p.m. she left work,
writing on her daily time report the single word, “Done.” She
made no further effort to contact Respondent; it made no fur-
ther effort to contact her about continuing to work for it.
B. Work Performed by Witha on June 16
As mentioned in the preceding subsection, when Witha ar-
rived for work on June 16 she was assigned 75 cables which
she was to prep and on which she was to assemble the D-sub
connectors. By then, that work had already been started by
day-shift part-time assembler Rose Blakesley to fill out her
workday. Blakesley had finished a few of the cables.
When she began examining the job, Witha testified that she
discovered that no heat shrink had been included to cover wires
left exposed after the D-sub connectors had been soldered to
the cables. She further testified that no heat shrink was re-
quired on those wires by either the job’s green bar or print,
though it was required and included for the connectors’ pins. It
is undisputed that heat shrink is not always required to cover
exposed wires on some projects. Nonetheless, Witha felt that
she should stop the job and verify that heat shrink should not be
applied over the wires exposed after the D-subs were soldered
to the cables.
Despite the outstanding instruction to bring such problems to
Engineer Ranweiler, who still was present at the Aitkin facility
that afternoon, Witha testified that she spoke with Line Leader
Williams about the heat shrink. As a line leader, Williams
possessed no authority to make changes to green bars, prints
and parts lists; only Ranweiler possessed that authority.
During later conversations, Williams would claim that she
had no recollection of being spoken to by Witha on June 16
about the heat shrink. Witha testified that she had asked Wil-
liams about it and that Williams had said it “wasn’t necessary.”
That testimony by Witha was corroborated by day-shift assem-
bler Mona McCarthy, who was still at the facility finishing out
her shift that day on line one. McCarthy testified that she had
overheard Williams telling Witha, “‘Well, if it’s not in the
green bar then don’t deviate from it,’ more or less.” More im-
portantly, asked, based obviously upon information later con-
veyed to him about the incident, if Witha had gone to her su-
pervisor about the heat shrink, Plant Manager Youker an-
swered, “Yes, she did.”
Witha testified that, notwithstanding the direction she had
received from Williams, she remained concerned about the
absence of heat shrink on the wires which would be exposed.
She inspected the few D-sub connections which Blakesley had
completed before leaving, discovering that Blakesley had put
heat shrink over those wires on the cables which she had com-
pleted. Witha then conferred with Banks about the subject.
Both women testified that Witha asked what Banks thought
should be done and, testified Banks, “I said ‘If it’s not in the
green bar don’t put it on.’” Thereafter, Witha completed work
on the D-sub ends of the 75 cables, without applying heat
shrink to the wires left exposed on them.
Next morning Williams took the rack of those cables to
Blakesley for completion. At that point the lack of heat shrink
was discovered. However, Respondent effectively concedes
that its absence had not been inconsistent with the green bar’s
instructions. Engineer Ranweiler admitted that he had later
added heat shrink for those wires to the green bar for those
cables. Thus, had absence of heat shrink been the only asserted
deficiency in Witha’s June 16 work, there would be ample basis
for concluding that she had been responsible for no more than
having failed to check on June 16 with Ranweiler. But, Re-
spondent contends that there was a second problem with some
of the cables assembled by Witha on June 16.
Both Williams and Blakesley testified to discovering on the
morning of June 17 that D-sub connectors had been soldered to
the opposite ends of the cables – to the ones for Hirose connec-
tors. That is a serious mistake in two respects. First, as pointed
out in subsection A, above, such a misconnection is so obvious
that it should never be made or overlooked by an experienced
assembler. Indeed, Witha admitted as much. Second, correc-
tion of such a mistake is time-consuming, requiring that the
connectors be taken off, the solder be cleaned out of those con-
nectors, the wires be re-tinned, and the connectors then re-
assembled correctly.
Witha never denied specifically having assembled D-sub
connectors to Hirose ends of cables on June 16. On the other
hand, she did deny that there had been anything wrong with
those cables other than the lack of heat shrink applied to ex-
posed wires at the cables’ D-sub ends. As pointed out in sub-
section A above, to buttress Witha’s general denial the General
Counsel pursued essentially two avenues. First, assuming ar-
guendo that some wrong connections had been made, the Gen-
eral Counsel raised the possibility that an employee other than
Witha might have done so. But, no such conclusion is tenable
in light of the evidence presented.
Witha acknowledged having worked on all of the cables,
save the few which Blakesley had completed before having left
work on June 16. Beyond that, the record suggests no one else
who could have worked on those cables prior to June 17—no
alternative worker is suggested by the evidence. All else aside,
there is no basis for inferring that Blakesley’s few assemblies
might have been performed incorrectly. As pointed out above,
Witha testified that she had inspected Blakesley’s assemblies,
to ascertain if heat shrink had been applied to them. Had
Blakesley assembled connectors to those cables’ wrong ends,
surely that would have been noticed by so experienced an elec-
trical assembler as Witha. Yet, Witha never claimed that she
had observed any incorrect work when she examined the work
which Blakesley had performed.
The second avenue proved somewhat more fruitful for the
General Counsel. Essentially, the argument proceeds, there had
been no misassemblies whatsoever, but instead Respondent had
INTERCON I (ZERCOM) 231
created that assertion out of whole cloth, to provide a seemingly
legitimate reason for having disciplined Witha, thereby disguis-
ing its true motivation which had been unlawful. In fact, there
is a basis for such an argument, given the evidence of work
which actually was performed on those cables during day shift
on June 17.
It must be remembered that Hirose connectors had to be as-
sembled to those cables on June 17, inasmuch as Witha had
been assigned assembly only of the D-subs. So, completion of
those cables’ assembly was going to be, and was, required on
June 17, regardless of the work performed by Witha during the
preceding night shift. Based on the testimony, four people
were identified as having worked on those 75 cables during day
shift on June 17: Blakesley, Williams, Diane Passig, and Kathy
Wiitala. Only Blakesley claimed to have removed D-sub con-
nectors from the cables’ Hirose ends. Williams testified that
she and Blakesley had assembled the cables’ Hirose ends, but
made no mention of having been involved in removing D-sub
connectors from Hirose cable ends.
Williams did testify that she had first brought the cables to
Blakesley and Passig for completion on June 17, after which
the lack of heat shrink and asserted misassemblies had been
discovered. But, when questioned about the work which she
had performed on those cables on June 17, Passig testified that
the only corrections which she had made to them had been “to
put heat shrink on a string on a drain wire.” After that, testified
Passig, “we also finished closing the cables.” Interestingly,
Passig referred to “the job that myself and Kathy Wiitala had
done that day,” but made no mention of Blakesley having
worked on those cables during day shift on June 17. Wiitala
never claimed that she had needed to reverse connectors on
cables on which she worked on June 17.
C. Conversations on June 17
Both Williams and Youker testified that the former had re-
ported to the latter during the day shift on June 17 about the
cables on which Witha had worked. Yet, their accounts of that
conversation were not always consistent. Youker testified that
he had been told by Williams, “That they had been wired
backwards basically, that the D sub was on the Hirose end, the
Hirose end was on the D sub end, and that there was a problem
with the heat shrink.” Williams advanced a more generalized
description of her remarks to Youker: “Well, I told him what
we had come into, that this had been a problem that we had
had. Well, the second morning we had come into rework be-
cause, you know, a couple days before that we had come into
smashed wires on D subs and this time it was—you know, it
was a pretty big—pretty big mistake.” Williams further testi-
fied that it was decided that “we’ll talk to her when she came in
and point it out to her and that would . . . probably be that,”
but Youker testified, “at that time I wanted to talk with Sue
about the problem.”
Before any conversation with With a—whether between her
and Youker, only, or with both Youker and Williams—could
occur on June 17, conversations occurred with respect to an-
other subject. Williams testified that she had been approached,
she did not specify when, by day-shift assembler Joanne Os-
triech, who expressed concern “about how much more money
was going to be taken out of her paycheck if we were union-
ized.” Williams was not asked to describe that conversation in
any greater detail; Ostriech was not called as a witness to ex-
plain what she had said to Williams about the Union.
“I didn’t feel [the employees] were getting the full story
and—I mean from a background of 37 years with family mem-
bers that were in the union I wanted them to understand that it
wasn’t going to be—I don’t think it was [what they] thought it
was going to be,” testified Williams and so, “I wanted them to
know that one of the things to watch out for was chances of the
company closing, that they were under no obligation to stay
there whether we got a union in there or not, and also to let
them know that talking about it on company time was not per-
mitted.” Threats of closure and of retaliation for discussing the
Union on company time are unlawful statements alleged to
have been made by Williams to employees on June 17.
Day-shift line one employees were assembled by Williams
following Respondent’s morning shipper—i.e., supervisors—
meeting. Passig testified that Williams had said, “Ted had
gotten wind that there was talk of a union,”3 after which Wil-
liams had warned that such talk “wouldn’t be tolerated, that
Nortech wouldn’t hear of it and if we were caught discussing it
on company time that we’d be terminated.” Wiitala testified
that she did not recall the exact words used by Williams on
June 17, but that the latter had mentioned “reports that there
had been some people talking to union officials about possibly
getting a union to come in,” and that “if we were found out who
was talking to the union there would be a possibility of some
reprimanding being done,” though Wiitala was not certain
whether Williams had mentioned loss of jobs for doing so.
Wiitala also testified that Williams had said “that Nortech
frowned on unions and that there would be a possibility they
could close our plant if a union should come in.” But, when it
was pointed out that in her prehearing affidavit she had stated
that she did not recall if Williams had said anything about the
plant closing or moving if the Union came in, Wiitala an-
swered, “No, I don’t think she said anything about it closing.”
Of course, as quoted above, Williams admitted that possible
plant closing had been one message that she had wanted to
communicate to line one employees, in the course of talking to
them about the Union.
Part-time assembler Krumm gave testimony about a series of
ongoing remarks by Williams concerning the consequences of
unionization. Williams disputed none of that testimony by
Krumm. As to what had been said on June 17, Krumm recalled
only that Williams had said, “That someone had been talking
about a union and that it wasn’t allowed on company property

3 Passig admitted that her prehearing affidavit’s description of Wil-
liams’s statements made no mention of conveying a message from
Youker, nor of having gotten instructions from him. Nevertheless, the
affidavit’s account was neither read into the record nor was the affida-
vit offered as an exhibit. Accordingly, it is not possible to conclude
that Passig’s affidavit account did not recite that Williams had said
“Ted had gotten wind that there was talk of a union.” Williams denied
that, before Witha had left on June 19, she had been instructed by any-
one in management to talk to employees about the Union. But, she did
not deny having told employees that Youker had said that he “had
gotten wind that there was talk of a union.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 232
or on company time.” Over the next week or two, as Williams
and the employees worked on line one, Krumm testified that
Williams had warned that there would be reprimands for any-
one caught talking to union officials and “that maybe Nortech
wouldn’t want a union there, that they could just move it some-
place else. Shut the plant down and move.”
Witha testified that when she arrived for work on June 17 an
“angry” Williams had accused her (Witha) of having done “all
the cables wrong.” According to Witha, she replied that she had
asked Williams about those cables, but Williams retorted “that I
didn’t and that she didn’t want to . . . come in to a bunch of
rework.” These are the remarks upon which the General Coun-
sel bases the allegation of unlawfully motivated oral warning.
Williams agreed that she had broached the previous night’s
cable work when Witha reported for work on June 17: “I recall
telling her that this was like the second or third day we had had
to come in and do rework on . . . jobs that had been done the
night before and the problem we had with this one was, you
know, it took several hours to correct and put us behind for the
day.” Interestingly, when asked specifically, Williams testified
that she had told Witha that the problem was not just the omit-
ted heat shrink and, further, when asked specifically if she had
told Witha about putting the connections on wrong cable ends,
Williams responded, “Yes, I did.” Yet, in her narrative descrip-
tion of this conversation, Williams advanced no spontaneous
description of having said anything to Witha about D-sub con-
nectors having been assembled on the Hirose cable ends nor,
for that matter, the reverse.
Asked about Witha’s response to what had been said to her,
Williams testified, “Well, her immediate response was she had
asked me the question about the heat shrink which I absolutely
did not recall her asking me, and from there it just got hostile
and argumentative.” There is no basis for concluding that Wil-
liams had not been afforded an opportunity to describe any
statements about purported criticism about connectors being put
on the wrong cable ends. She was asked specifically if Witha
had denied having done that. But, Williams sidestepped a di-
rect answer to that question: “Well, she was the one who had
worked on the job up to, you know, that point.”
Beyond the substance of what had been said by the two
women, there can be no question that their conversation did
evolve into an argument. Banks observed it. She testified, “It
was quite obvious, quite loud.” Passig, still at work when
Witha had arrived that day, testified that some of that conversa-
tion had been conducted in normal conversational tone, but part
of the time it had been, “A little loud I suppose.”
After her exchange with Williams, Witha started to work.
But a few minutes later she was included in a conversation
between Williams and the three night-shift line one assemblers.
Witha testified that Williams said “there was [sic] rumors of a
union, of union activity, and that if we want a union that’s fine
to do it on our own time but any union discussion during com-
pany time would be grounds for immediate dismissal, and that
if a union were to come in within six months nobody would
have a job.” Similarly, Banks testified that Williams “said that
there were rumors that we were talking about union in the plant
and that if it was continued that the people talking would be
terminated and that the plant would close and leave the area”—
that “they’d move to a different area.”
Over the course of the remainder of that afternoon Witha
spoke with three officials regarding her work on June 16. She
spoke about it with Line Leader Kathy Laughlin. It is undis-
puted that Laughlin agreed that Witha had followed the green
bar by not applying heat shrink to the D-sub cable ends’ ex-
posed wires and, also, agreed that Williams made derogatory
remarks about and showed no respect for the employees. It
also is undisputed that, during that latter discussion, Witha had
characterized Williams as a “rotten c--t.” However, neither
Youker nor Williams testified that Laughlin had reported that
remark by Witha. And there is no other evidence which would
supply a basis for concluding that either Williams or, more
importantly in view of his decision-making role, Youker had
knowledge as of June 19 that Witha had so characterized Wil-
liams to Laughlin.
Witha also engaged Engineer Ranweiler in a discussion of
her D-sub cable assemblies. Both testified that she had re-
ported that she had assembled the cable ends as provided by the
green bar. Ranweiler acknowledged that the heat shrink had
been “the only issue that she brought to me.” Not surprisingly,
given posted instructions described in subsection A above, it is
uncontroverted that Ranweiler had asked why Witha had not
gotten the job “signed off” with him, as she did with other jobs.
There is no evidence concerning what, if any, reply Witha had
made to that question.
It also is uncontradicted that Witha complained to Ranweiler
about Williams as a supervisor. Pointing out that she had ques-
tioned Williams about the heat shrink, Witha stated that Wil-
liams was “a bad line leader” and was “not answering a ques-
tion properly or whatever,” as Ranweiler put it. However, al-
though he described generally that Witha had been “very upset
and irritated at,” and seemed to be “trying to get me to side
with her to basically be against,” Williams, as well as “just
upset at Debbie and wanting to let me know that,” Ranweiler
never attributed to Witha any derogatory remark about Wil-
liams, such as the above-mentioned one which Witha had made
to Laughlin about Williams.
Significantly, Ranweiler testified that, during his conversa-
tion with Witha, “My only objective was to—if it was incorrect
and wasn’t correct on the green bar was to get it added on to
there. So that in future jobs that it was very clear that that heat
shrink needed to be on there.” In fact, as pointed out in subsec-
tion B, above, Ranweiler acknowledged that he subsequently
had made that correction to the green bar for that job.
The final official with whom Witha spoke on June 17 had
been Plant Manager Youker. Their conversation occurred at
the facility’s copier. Each testified to having wanted to speak
to the other. As will be seen, however, Youker’s explanation
for wanting to speak with Witha encountered heavy going in
view of the overall evidence presented by the record.
Witha testified that she had approached Youker. “This is
bullshit,” she testified that she had told him, “because I kind of
got reamed out in front of everybody, and that there was noth-
ing on the parts list, nothing on the print, nothing in the instruc-
tions, and that I had questioned this beforehand,” after which he
had asked if she wanted to “get together with Deb and discuss
INTERCON I (ZERCOM) 233
it” in his office. To that question, she testified that she had
replied, “We’ve already discussed it and I know what her posi-
tion is. She is saying that I never asked so I really don’t see
any point in it.”
Actually, Youker did not contradict Witha’s description of
their conversation at the copier. During cross-examination, he
acknowledged that she had begun the conversation by bringing
up the heat shrink problem. Witha “expressed to me that Deb
had not been clear on the heat shrink on the cables and we dis-
cussed that,” he agreed. During direct examination, Youker
provided a fairly complete narrative description of the heat
shrink problem. But, during that description, he made no men-
tion of D-sub and Hirose cable ends. Asked specifically if he
had “talked to” Witha about that, Youker responded, with some
seeming uncertainty, “we—yeah, we mentioned that,” and, in
response to a followup specific question, “She didn’t really
deny it, no.” But, in contrast to his narrative account of what
had been said about the heat shrink, Youker advanced no like
description of what assertedly had been “mentioned” at the
copier about D-subs and Hiroses. As it turns out, that is not the
only problem for Respondent revealed by examination of
Youker’s testimony concerning his conversation with Witha at
the copier.
First, in the course of explaining why he had wanted to talk
to Witha at the copier, Youker actually minimized whatever
mistakes might have occurred on the 75 cables. Thus, he testi-
fied that he had been “concerned about the fact that we had a
problem with quality and the fact that we had to take our key
cable assemblers” and assign them to rework at the expense of
“losing production in another area.” But, testified Youker, that
had not been his main concern: “this was such a small incident,
such a small issue,” and, further, “as I said this was not a big
issue to me. We were going to talk this out and be done with it
so I assumed the next day we could just rationally talk this
thing out and have it done.” In fact, the evidence shows that
mistakes are not all that uncommon on work performed by
Respondent’s Aitkin assemblers.
Second, as of June 17, testified Youker, his biggest concern
about Witha had been her purported negative or bad attitude: “it
sounded like Sue was starting a lot of fires in different places so
I said I’m just going to go up and talk with her and iron this
thing out. So I went out to the copy machine to make—.”
Then, Youker testified, “I wanted to discuss the problems with
her attitude at that time,” but Witha appeared “very agitated.
Very abrupt. Her body language told me right away that she
was not in a state to be really pressured or talked to so I just
thought to myself the best thing I can do at this point is to let
her cool off and I’ll pull her in tomorrow. We’ll have a discus-
sion.” Yet, “attitude,” as opposed to quality of work, turned out
to be a difficult criticism for Youker to support, as discussed in
the following points.
Third, Youker testified that his concern about Witha’s sup-
posed negative or bad attitude had arisen, in part, because of
what had assertedly been reported to him when “a couple of
people [came] in and [said] there was a lot of friction going on
on the line,” identifying those people as Diane Passig, Becky
Steele and “another employee also and I don’t recall who that
was but I remember there were three employees.” Indeed, as
his testimony progressed, Youker appeared to be trying to for-
tify the significance of what employees purportedly had re-
ported: “The fact was [Witha] caused much turmoil in the
plant,” and Witha “decided that she was going to undermine the
authority of her line leader.” Yet, Williams never corroborated
that assertion. Although she complained about Witha’s assert-
edly hostile and argumentative conduct, Williams never
claimed that she felt that Witha had been attempting to under-
mine her authority as line leader. Nor did Williams testify that
she had ever discussed such a possibility with Youker.
Beyond that, Passig appeared as a witness. But, she never
corroborated Youker’s account of her having complained to
him about Witha causing “a lot of friction” on line one. Nor
did Passig testify that, in fact, Witha ever had done so. More-
over, neither Steele nor any other employee appeared and gave
testimony either about Witha having engaged in such miscon-
duct or about having complained to Youker about it.
Fourth, in the course of describing events which had led him
to want to talk with Witha, and about his copier conversation
with her, Youker testified, “I talked to Joe Ranweiler” who
purportedly reported, “That Sue had come in to him basically
not so much discussing the cable problem but complained more
about Deb than anything else.” Of course, as described above,
that was pretty much what Ranweiler did testify had occurred
when Witha had spoken to him on June 17. The difficulty
which that conversation poses for Youker’s descriptions of
events which had led him to want to talk to Witha that after-
noon, at the copier, is that Witha had not reported for work on
June 17 until 3:30 p.m. and Ranweiler testified that he had re-
ported her remarks to Youker when the two men “went to
lunch,” at which luncheon discussion Ranweiler testified that
he had described for Youker what Witha had said “the day
before.” To be sure, Ranweiler almost immediately expressed
some uncertainty about whether it had been “the day before.”
Nonetheless, Youker and Ranweiler’s luncheon conversation
could not have occurred on June 17, inasmuch as Witha had not
arrived for work that day until after lunch. Therefore, Youker
could not have been relying upon anything said to him by Ran-
weiler, as Youker claimed he had been, when he (Youker)
spoke with Witha at the copier.
Finally, as his testimony progressed, Youker began to add to
his accusations against Witha. After having complained about
her attitude toward Williams, toward being criticized, and to-
ward proper maintenance of order in the Aitkin facility, Youker
abruptly threw in, during cross-examination, that Witha had
been “throwing stuff around.” Challenged regarding that
abruptly injected complaint about Witha, Youker claimed that
she had thrown around, “Cables, you know, like picking a cable
up here and just tossing it like this and doing her work and just,
you know, really being—.” Youker did not claim that he had
seen Witha do that. Nor did he claim that Williams or any
other line leader had reported having seen Witha throwing
around cables. Instead, Youker testified that he had learned
from “other employees” that Witha had been doing that. But,
he never identified any one of those “other employees.” Not
one employee appeared as a witness and testified to having
seen Witha “throwing stuff around,” nor to having seen her
“tossing” around cables.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 234
D. Events of June 18 and 19
Youker testified that no decision to discipline Witha had
been made by him when he had spoken to her at the copier on
June 17. In fact, he claimed that, “Everything would have
stopped if Sue and I could have spoke[n] that day at the copy
machine. We would not have pursued anything any further.
I’m sure we could have ironed everything out then.” Of course,
he admittedly had not said anything to Witha about purported
attitude problems at the copier. But, he blamed on Witha that
failure to have done so: “That didn’t take place because of her
hostility and you just couldn’t communicate with her or this
whole thing could have been avoided and Sue would have still
been with the company.” Furthermore, Youker did not claim
that, even after that conversation, he had made any decision on
June 17 to discipline Witha: “I just thought to myself the best
thing I can do at this point is to let her cool off and I’ll pull her
in tomorrow. We’ll have a discussion.”
Williams, however, claimed that “the next morning when I
came in it had been determined that they were going to have a
disciplinary meeting with her [Witha].” There can be no ques-
tion about the fact that Williams was referring in that testimony
to Wednesday, June 18. As discussed below, Witha did not
report for work that afternoon. And with respect to that as-
serted disciplinary decision, Williams testified, “We were going
to have it the 18th but she didn’t come to work.”
Youker did not advance any testimony about having made
such a disciplinary decision so early as by the morning of June
18. As mentioned in the preceding subsection, he and Ran-
weiler had lunch. By then, Ranweiler testified, he had spoken
with Williams. When he asked her “what was the problems”
with the cables worked on by Witha on June 16, he claimed that
Williams had responded only that “a certain number of these
cables had been soldered with the D sub end on the end that had
the Hirose back shell already on it as in Exhibit R-3.” Interest-
ingly, while he made no mention of Williams having said any-
thing about the missing heat shrink when he had asked her
“what was the problems,” Ranweiler did testify, “I don’t re-
member at that point if we went and changed the green bar at
that time to reflect the proper—that’s what we do.”
When he later that day had lunch with Youker, Ranweiler
testified, “discussions at that point came up as far as what had
happened, how hostile and irritated or agitated or whatever like
that the day before” With assertedly had been: “Sue was talk-
ing about Debbie and we discussed that at that time, and about
the issue of which end the D sub went on and also briefly the
issue of the heat shrink,” testified Ranweiler. Youker testified
only that Ranweiler had said, “That Sue had come in to him
basically not so much discussing the cable problem but com-
plained more about Deb than anything else”—about, “Being
treated unfairly and just, you know, that she was being unrea-
sonable and she just tried to explain the problem and that that
didn’t happen and that was basically it.” In recounting his
luncheon conversation with Ranweiler, Youker once more
made no spontaneous reference to having discussed “the issue
of which end the D sub went on.” Moreover, though not in-
volved in disciplinary decisions or supervision of employees,
Ranweiler testified, Ted may have mentioned that he was going
to speak to her.” As a result, both Youker and Ranweiler por-
trayed the situation as more investigatory than disciplinary by
the time of lunch on June 18, notwithstanding the testimony by
Williams that a disciplinary decision already had been made by
the morning of June 18.
Youker appeared to be testifying that his decision to disci-
pline Witha did not occur until that afternoon when she tele-
phoned him to give notice that she would not be reporting for
work on June 18. That call occurred before Witha was sched-
uled to report at 3:30 p.m. “I was upset and I didn’t feel well,”
she testified, so she called Youker and “told him that I didn’t
feel well and that I would not be in today and there was a pause
and he said ‘Okay’ and I said ‘Okay’. I said ‘goodbye’ and
hung up.”
Youker testified that when called by Witha on June 18, she
“was very short, very abrupt with me on the phone, said ‘I’m
not coming in.’ I said ‘Okay. Why?’ She says ‘I don’t feel
good’ and basically she hung up the phone so I didn’t get a
chance to speak with her at all that day other than that very
brief fifteen second conversation.” Yet, cross-examination led
Youker to concede that employees ordinarily report in such
calls only that they are sick and that is about the extent of such
conversations. “No normally, no,” he testified, do employees
explain why they are sick and why they are calling; only
“[s]ometimes they will” do so, he acknowledged.
Nevertheless, Youker testified that after Witha’s call, “at that
point it became clear that there was more going on with her
attitude because she hadn’t cooled off at all after all night to
think about it so I decided then that we needed to do something
because the other employees—my concern with this as a pro-
duction manager is that it affects all other people in the plant
and my main concern is that production goes out the door.” He
added, “I can’t have that affected so I needed to nip that in the
bud because I was in fear that she was undermining the author-
ity of our supervisor and myself with that so I needed to take
care of it right away. So we decided upon the formal written
statement.”
Youker never explained who “we” had been—certainly not
Williams, as she denied having been involved in making the
decision to issue the written warning to Witha: “I was not in a
position to really do that at that time.” Furthermore, Youker
never did explain with particularity how Witha’s sick call
would adversely affect production of other employees at the
Aitkin facility, nor how such a call would undermine supervi-
sion there. Certainly there is neither contention nor evidence
that sick calls are extraordinary events at Respondent’s Aitkin
facility, nor that they sometimes display to coworkers an atti-
tude detrimental to production and plant discipline.
As described in subsection A, above, Witha received the
written warning and was notified of the transfer to day shift at a
meeting during the afternoon of June 19. Before that happened
that day, however, another disciplinary action was taken by
Respondent that day. It is alleged that, in the course of doing
so, a statement was made which violated Section 8(a)(1) of the
Act.
Shortly after noon on June 19, assembler Passig was sum-
moned by Williams to Youker’s office. With Youker present,
Williams said that Passig had displayed a bad attitude by
“[g]rumbling about wages” and “that the new people were sick
INTERCON I (ZERCOM) 235
of hearing me in the lunchroom.” After Williams finished her
remarks, Youker said that Passig “could consider that a verbal
warning,” and that she could improve her attitude, Passig testi-
fied, “Basically by keeping my mouth shut.” Someone brought
up the Union and, Passig testified, without dispute, Youker
“brought out a legal book and said that, you know, it was
against the law to discuss union on company time, that it would
be grounds for termination.”
Passig then said that in view of what had been said to her,
she felt that she wanted a transfer to a line supervised by a line
leader other than Williams, or else she (Passig) would quit.
After brief discussion between themselves, Youker and Wil-
liams agreed to Passig’s request and, shortly afterward that
same afternoon, Passig was transferred.4
Turning back to Witha, shortly after she began work on June
19 she also was summoned to Youker’s office where she was
read, line-by-line, and issued a copy of the written warning and,
in addition, was told that she would be transferred on Monday,
June 24 to day shift where she would be working until reviewed
on Thursday, June 27 and could be terminated if that review did
not reveal improvement in her work and attitude. Those facts
are not disputed. Others warrant closer inspection.
Consistent with Youker’s testimony about whatever mistakes
made on June 16 being “such a small incident, such a small
issue,” as described in subsection C above, both Youker and
Williams testified that the subject of Witha’s performance had
occupied but a small portion of the June 19 disciplinary meet-

4 As pointed out above, the complaint alleges that Youker had
unlawfully threatened Passig during the June 19 meeting. After direct
examination of Passig had been completed, the General Counsel sud-
denly moved to amend the complaint to allege that the verbal warning
issued to her had been unlawfully motivated, in violation of Sec.
8(a)(3) and (1) of the Act. I denied that motion.
By February 4, 1998, the date of the hearing, more than 6 months
had passed since the verbal warning had issued to Passig. True, the
charge underlying the complaint alleged violation of Sec. 8(a)(3) of the
Act. But it did so only with respect to “a constructive discharge [of]
employee Sue Witha.” Obviously, the Government knew, or should
have known, about the verbal warning to Passig when the complaint
issued on October 9. After all, it had issued to her during the course of
a meeting in which, it is alleged specifically, Youker had made an
assertedly unlawful remark to Passig. Beyond that, Passig’s testimony
about that meeting was elicited by the General Counsel during direct
examination, not by Respondent. Cf., Pincus Elevator & Electric Co.,
308 NLRB 684 (1992). Consequently, there is no basis for inferring
that issuance of that verbal warning to Passig somehow came as a sur-
prise to the General Counsel at the hearing. To the contrary, it is fair to
conclude that the Government knew about it before the hearing had
commenced. Yet, when preliminary motions were invited after the
hearing commenced, no motion to amend the complaint was made at
that time. Nor, so far as the record discloses, was Respondent’s coun-
sel given any notice prior to the hearing that there was a possibility that
an amendment might be made to the complaint.
The Board traditionally allows complaint amendments during hear-
ings. See, e.g., Performance Friction Corp., 319 NLRB 859 (1995).
That is normally allowed, however, when unexpected evidence is ad-
duced. Unexpectedness cannot be said to have existed here. Simple
fairness dictates that respondents be informed off all alleged unlawful
conduct at the earliest point possible, so that they are able to marshal all
evidence needed to present a complete defense to all misconduct attrib-
uted to them.
ing. “No, not a great deal” of time, Youker testified, had been
spent discussing Witha’s performance. Similarly, while Wil-
liams testified that Witha was told “we seemed to have prob-
lems with her quality,” Williams further testified, “I guess the
biggest problem about it was when approached with different
issues as far as quality was concerned it was always met with a
hostile argumentative response,” such as, “It wasn’t her fault.
None of these things were ever her fault. It was someone else’s
fault.” Indeed, asked to explain the very purpose of the written
warning, Williams conceded that it had only been “in small part
her work because of the mistakes.”
If Witha’s attitude truly had been Respondent’s concern, that
leads naturally to evaluation of a second consideration. Both
Williams and Youker claimed that the transfer to day shift had
been to provide further training for Witha. “Training,” of
course, can be a nice generality, susceptible of being advanced
to provide a legitimate shield for what, in reality, is a concealed
sword of retaliatory action because of union activity. Once that
shield is pushed aside here, it is difficult to understand exactly
how further training might improve asserted employee recalci-
trance. Respondent presented no evidence whatsoever that its
training encompassed, or ever had encompassed, attitude im-
provement. So far as the evidence discloses, training supplied
no more for Respondent’s employees than opportunity to be-
come more proficient in job performance. Respondent was not
concerned with Witha’s job performance; it claimed that it had
been her hostility, abruptness, argumentativeness which sup-
posedly had given rise to concern. There is simply no evidence
that ongoing training, as supplied by Respondent, would ad-
dress those purported concerns.
Witha denied that any explanation had been provided to her
during the June 19 meeting as to what was meant by poor atti-
tude. She also denied having been told what she could do to
improve her attitude nor, for that matter, her performance.
When Williams was asked what explanation had been given to
Witha as to why training was being imposed, Williams side-
stepped a direct answer, responding first, “Well, I believe that’s
why we were going to bring her back,” and, then, “As far as I
recall she was told she was going to come back for training and
evaluation and that was why we wanted her back during the
day.” Youker, to whom Williams attributed those remarks, as
well as the decision to transfer Witha to day shift, never really
explained precisely how he felt that further training might im-
prove Witha’s attitude.
Before he left work that day, Youker testified, he had gone to
where Witha had resumed work on line one, at about 4 p.m.,
and, observing that she was upset and angry, assured her that it
was not “a big deal” and “that we can work through this”.
Witha denied that such a conversation had occurred. No other
assembler working on line one that day at 4 o’clock corrobo-
rated Youker’s testimony: testified to having seen him ap-
proach and speak to Witha. To the contrary, Wiitala testified
that she had worked until approximately 4:30 p.m. on June 19,
but had no recollection of seeing Youker approach Witha on
line one, after having seen the latter return from Youker’s of-
fice. Even more certain was night shift assembler Banks.
“No,” she answered firmly, when asked if Youker had spoken
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 236
to anyone on line one before leaving work on June 19, after the
“highly agitated” Witha had returned from Youker’s office.
Banks also testified that, after Williams and Youker had left
for the day on June 19, she had been told by Witha that the
latter was being returned to day shift. “I figured she was out of
there,” testified Banks and she told as much to Witha. Thus,
Witha testified that she had been told by Banks, “It’s been nice
knowing you.”
As she tried to continue working on June 19, Witha testified,
“I was having a very hard time concentrating and even focus-
ing,” because “I was really depressed and . . . if I built it right
and I followed all my procedures and everything I had no
chance staying there,” inasmuch as it appeared “that this was
just a way to get me out.” So, she signed out, writing “Done”
on her daily time report: “I just really felt I had no future left.”
II. DISCUSSION
There can be no legitimate doubt about a conclusion that Re-
spondent’s line one employees had been threatened with
retaliation if they were caught discussing the Union at Respon-
dent’s Aitkin facility. As set forth in section I,C, supra, Wil-
liams admitted that she had set out on June 17 to “let [employ-
ees] know that talking about [a union] on company time was
not permitted.” Moreover, Williams never disputed that she
had warned employees of adverse employment consequences
should they be caught doing so.
True, the employees’ testimony did not always correspond
regarding the precise adverse employment consequences enun-
ciated by Williams, should someone be caught discussing the
Union, a union or union-related subjects on company time.
Yet, Williams never denied actually having made any of those
types of threats. Moreover, there is ample basis for concluding
that Williams had threatened more than one adverse employ-
ment consequence, for being caught engaging in such discus-
sions, on each occasion when she raised the subject and, be-
yond that, on the various occasions when she addressed that
subject with employees. Inherently, after all, reprimand, termi-
nation, and dismissal are not mutually inconsistent personnel
actions; more than one could be taken, without excluding the
possibility of another, as well. Therefore, I conclude that the
undisputed evidence credibly establishes that Williams did
threaten adverse employment consequences would be directed
against employees caught talking about the Union, unions, and
union-related subjects during company time.
The statutory protection accorded under the Act by the Su-
preme Court to workplace discussion of unions among employ-
ees has been reviewed in MDI Commercial Services, supra, 325
NLRB 33 at 71–72, and in Koronis Parts, Inc., 324 NLRB 675,
695, 696 (1997). There is no evidence that Respondent has any
rule prohibiting or restricting workplace discussion among
employees of non-work-related subjects. Thus, by warning
employees of adverse employment consequences for discussing
the Union, unions, or union-related subjects during company
time, Williams had singled out only statutorily protected dis-
cussions for prohibition. Beyond that, utilization of the phrase
“company time” naturally conveys both work and paid non-
work—breaks, lunch periods—times, thereby imposing an
overly broad and unlawful prohibition. See, e.g., Limestone
Apparel Corp., 255 NLRB 722 fn. 1 (1981), enfd. 705 F.2d 799
(6th Cir. 1982); and Florida Steel Corp. v. NLRB, 529 F.2d
1225, 1230–1231 (5th Cir. 1976). Therefore, by Williams’
threats of employment retaliation against employees caught
discussing the Union, unions, or union-related subjects during
company time, Respondent violated Section 8(a)(1) of the Act.
Any argument that those remarks had represented no more
than a single statutory supervisor’s opinion, and did not truly
reflect an antiunion position by Respondent, is dispelled by the
uncontested evidence regarding what occurred on June 19,
during Passig’s meeting with Williams and Youker. As de-
scribed in section I,D, supra, during that meeting Youker
warned that discussion of unions on company time would be
grounds for termination. Aside from the fact that his warning
constitutes an independent violation of Section 8(a)(1) of the
Act, it also demonstrates that similar threats by Williams repre-
sented not simply her personal view, but the antagonistic view
toward unions harbored by Respondent.
It also is alleged that on June 17 Williams “threatened em-
ployees with either termination or more onerous working con-
ditions for talking about union-related subjects, the latter of
which would cause them to quit their employment.” If true, of
course, such an allegation would be evidence supporting the
constructive discharge allegation involving Witha. Yet, al-
though Williams did make threats of termination, there is no
evidence either that she threatened more onerous working con-
ditions or, more importantly, warned of causing employees to
quit. Therefore, I shall dismiss the “more onerous working
conditions” alternative to that allegation, as well as the “cause
them to quit their employment” portion of it.
Beyond the June 17 prohibitions and threats connected to it,
the complaint alleges that Williams also warned of the possibil-
ity that Nortech might close the Aitkin facility, and relocate its
operations, should employees become represented by the Un-
ion. In fact, Williams never disputed the testimony of employ-
ees Wiitala, Krumm, Witha, and Banks that she (Williams) had
warned that the Aitkin facility might be closed should its em-
ployees become unionized, with operations there being relo-
cated. To the contrary, Williams conceded that such a possible
consequence had been one of the messages that she wanted to
communicate to employees on June 17. In consequence, the
credible evidence establishes that Williams did warn employees
that their unionization could lead to closure of the Aitkin facil-
ity and to relocation of the operations conducted there.
Threats of closure are regarded as one of the “hallmark” and
most serious violations of the Act. See, e.g., Koronis Parts,
Inc., supra at 691. True, an employer can make predictions
about the consequences of employees exercising statutorily
protected activities. However, such “prediction[s] must be
carefully made on the basis of objective fact to convey an em-
ployer’s belief as to demonstrably probable consequences be-
yond its control.” Schaumberg Hyundai, 318 NLRB 449, 450
(1995), citing NLRB v. Gissel Packing Co., 395 U.S. 575
(1969). Obviously, Nortech could control whether or not to
close the Aitkin facility; that was seemingly within its power.
Respondent presented no evidence during the hearing of any
objective facts showing that consequences beyond its or
Nortech’s control would force closure of the Aitkin facility,
INTERCON I (ZERCOM) 237
should employees working there select representation by the
Union. Certainly, Williams did not convey any such fact to
employees on June 17, in the course of warning them of possi-
ble closure.
To be sure, Williams warned only of a possibility of closure
of the Aitkin facility, should employees working there become
unionized. Nevertheless, equivocation hardly diminishes the
impact of unlawful threats. See discussion, L’Eggs Products
236 NLRB 354, 388 (1997), enfd. in pertinent part 619 F.2d
1337 (9th Cir. 1980), and cases cited therein.
Similarly, the coercive impact of such threats is hardly less-
ened by a supervisor’s portrayal of an unlawful threat as being
a personal opinion of that supervisor. Winkler Bros. Co., 236
NLRB 1371, 1372 (1978). Nor can Respondent take solace in
some sort of defense that Williams had been doing no more
than conveying “friendly advice” to line one’s employees on
June 17, about possible job loss resulting from closure should
the Union become their bargaining agent. For, “warnings of
Company retaliation cast as friendly advice from a familiar
associate might be more credible, hence more offensive to
[Section] 8(a)(1) than generalized utterances by distant com-
pany officials.” NLRB v. Big Three Industries Gas & Equip-
ment Co., 579 F.2d 304, 311 (5th Cir. 1978), cert. denied 440
U.S. 960 (1979). Accord: NLRB v. Dover Corp., 535 F.2d
1205, 1209 (10th Cir. 1976), cert. denied 429 U.S. 978 (1976);
Seligman and Associates, Inc. v. NLRB, 639 F.2d 307, 309 (6th
Cir. 1981). Therefore, Respondent violated Section 8(a)(1) of
the Act when Williams threatened that the Aitkin facility might
by closed by Nortech, and operations there relocated, should
employees working there become represented by the Union.
Those violations of Section 8(a)(1) of the Act provide a sig-
nificant background for Respondent’s issuance of a written
warning to, and transfer to day shift of, Suzanne Witha. That
is, they display Respondent’s animus toward unions and toward
unionization of employees working at the Aitkin facility where,
of course, Witha was employed. Still, as pointed out in subsec-
tion A above, it must not escape notice that there is no direct
evidence that Respondent had known about Witha’s union
sympathies and activities as of June 19. Even so, direct evi-
dence is not essential to a conclusion that knowledge of union
activities existed at the time of alleged discriminatory conduct.
“This ‘knowledge’ need not be established directly, however,
but may rest on circumstantial evidence from which a reason-
able inference of knowledge may be drawn.” (Citation omit-
ted.) Montgomery Ward & Co., 316 NLRB 1248, 1253 (1995).
See also Alumbaugh Coal Corp. v. NLRB, 635 F.2d 1380, 1384
(8th Cir. 1980); Webco Bodies, Inc. v. NLRB, 595 F.2d 451,
454 (8th Cir. 1979); Davis Supermarket v. NLRB, 2 F.3d 1162,
1168 (D.C. Cir. 1993), cert. denied 511 U.S. 1003 (1994).
There is ample basis for inferring that Respondent had
known—or, at least, suspected, see Handicabs, Inc., 318 NLRB
890, 897 (1995), enfd. 95 F.3d 681 (8th Cir. 1996), cert. denied
521 U.S 1118 (1997), and cases cited therein—that Witha had
been active on behalf of the Union. Prior to June 17 Witha had
been inquiring of employees about their interest in representa-
tion by the Union and, in the process, she had directed inquiries
to a not insubstantial number of her coworkers. Williams ad-
mitted that she had learned that union conversations were oc-
curring from an employee, Joanne Ostriech. Williams never
testified in any detail regarding everything said to her by
Ostreich about those activities. Ostreich did not appear as a
witness to describe what all she had said to Williams about the
union activities then occurring at the facility. Still, Williams
admitted that it had been based on Ostreich’s information that
she (Williams) had set out to inform employees of the restric-
tion on union discussions among employees and the possible
consequences of unionization. Those meetings with employees
tend to demonstrate so great a concern by Williams, about un-
ion activity in progress at Aitkin, that it seems difficult to be-
lieve that Williams would not have asked Ostriech about the
identity of the employee who was doing the talking about a
union. Indeed, Williams never denied having been told by
Ostriech that Witha was that employee.
There are other factors which tend to further support an in-
ference of knowledge, as well as tending to undermine Respon-
dent’s defense that its motivation for disciplining Witha on
June 19 had been a legitimate one. Prior to June, Witha had an
exemplary employment record. Once her union activity began
in early June, however, Respondent abruptly began regarding
her work as deficient. Yet, in the end, Youker minimized the
significance of any purported work deficiencies, asserting in-
stead that it had been Witha’s supposed “negative attitude”
which really had led to his decision to discipline her. But, as
discussed in greater detail below, Respondent was never really
able to substantiate that assertion, save to the extent that Witha
had protested about being publicly admonished by Williams
over the lack of heat shrink on cables which Witha had assem-
bled on June 16. The unreliability of the defense advanced by
Respondent, coupled with the considerations enumerated in the
preceding two paragraphs, supply ample basis for inferring that,
by June 19, Respondent had become aware, or at least sus-
pected or believed, that Witha was the source of the union dis-
cussion which Ostriech had reported to Williams.
The fact that Witha was the lone employee who had con-
tacted the Union and, so far as the record discloses, was the
only employee making inquiries of coworkers on the Union’s
behalf are objective factors which serve as indicators of unlaw-
ful motivation. See, e.g., Concepts & Designs, 318 NLRB 948,
952–953 (1995), enfd. 101 F.3d 1243 (8th Cir. 1996), and cases
cited therein. So, too, is the timing of the June 19 discipline:
shortly after Witha began engaging in union activity and even
more proximately to Ostriech’s report to Williams about the
union activity. Handicabs, Inc., supra, 318 NLRB at 897, and
cases cited therein. Respondent’s unlawful statements to em-
ployees demonstrate both its hostility toward unionization of
Aitkin employees and, also, its willingness to resort to unfair
labor practices to thwart that from happening. Hall v. NLRB,
941 F.2d 684, 688 (8th Cir. 1991).
The totality of the foregoing considerations establish the
threshold showing, which the General Counsel must make, that
Respondent’s animus toward unions and toward unionization of
its Aitkin facility employees had motivated it to discipline the
Union’s lone activist, Suzanne Witha, on June 19, under the
methodology provided in Wright Line, 251 NLRB 1083 (1980),
enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982), approved in NLRB v. Transportation Management
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 238
Corp., 462 U.S. 393 (1983), as modified in Office Workers’
Compensation Programs v. Greenwich Colleries, 512 U.S. 267,
276–278 (1994). See Rose Hills Co., 324 NLRB 406 fn. 4
(1997). Of course, in following that methodology, what should
not be lost sight of is the fact that the motivation being evalu-
ated is that of the official who made the alleged discriminatory
decisions. “The state of mind of the company officials who
made the decision . . . reflects the company’s motive for” those
decisions. Abilene Sheet Metal, Inc. v. NLRB, 619 F.2d 332,
336 (5th Cir. 1980). See also Advanced Installations, Inc., 257
NLRB 845, 854 (1981), enfd. mem. 698 F.2d 1231 (9th Cir.
1982).
Youker and Williams claimed that the former had been the
official who had decided on June 19 to issue a written warning
to Witha and to transfer her the following Monday to day shift.
Some doubt about his lone role in that decision is raised as a
result of his use of the pronoun “we,” mentioned in section I,D,
supra, but there is no choice to accept the defense as presented
by Respondent. As probably can be discerned from the review
of the testimony and other evidence in section I, Youker gave
testimony so at odds with other evidence, including objective
considerations, and so uncorroborated as to significant points,
that it cannot be accorded reliability.
In the end, Youker minimized Respondent’s accusation of
Witha’s supposed work deficiencies—“[p]oor work quality”—
as the true reason for the June 19 discipline of her. Still, that
accusation should not be overlooked, altogether. Witha never
actually denied the testimony about her work deficiencies on
June 11. Even so, Youker testified that prior to June 17 he only
had heard about “little things that come up but nothing that
really stands out in my mind.” In fact, not only did he not tes-
tify that the June 19 discipline had been motivated by deficien-
cies on June 11, but he never claimed that he had been even
aware of any mistakes which Witha might have made on that
date. Obviously, it is impossible to rely for motivation upon
something of which the decision-maker had no knowledge at
the time of making a decision. See, e.g., ABF Freight System v.
NLRB, 510 U.S. 317, 321–322 (1994). Beyond that asserted
June 11 incident, there is no particularized evidence of deficient
work performed by Witha prior to June 16.
Turning to the work which Witha had performed on June 16,
despite the testimony of Blakesley and Williams, it is difficult
to conclude that Witha truly had assembled D-sub connectors to
the Hirose ends on 10 to 20 cables. Even a brief examination
of Respondent’s Exhibits 2 and 3 reveals that assembly of that
connector to the other cable end is a “mistake” of quite obvious
proportions. For an assembler to have done that on so many
cables, during a single shift, would appear to transcend the
realm of mistake and enter that of deliberateness, even of sabo-
tage. Yet, Respondent voiced no assertion of gross misperfor-
mance on June 17 through 19. To the contrary, Youker claimed
that he had regarded Witha’s June 16 “mistakes” as no more
than “a small incident, such a small issue”.
Of course, the accusation that connectors might have been
assembled to the wrong cable ends is one which lends legiti-
macy to Respondent’s defense. Yet, any contention that an
experienced assembler such as Witha could have done so obvi-
ously incorrect work is virtually unbelievable on its face. And
the unsupported evidence, eventually minimized by Youker, of
such a mistake having occurred seemed contrived and unreli-
able.
There is no basis for assuming or speculating that Respon-
dent had been aware on June 19 that it might have to confront
an unfair labor practice charge regarding its June 19 discipline
of Witha. The more plausible inference is that it disciplined
Witha, to deter her from continued activities on behalf of the
Union and to make of her an example to others as to what
might occur to them should they engage in like conduct, see,
e.g., Handicabs, Inc., supra, 318 NLRB at 897–898, and cases
cited therein, but then had to construct a seemingly legitimate
defense once a charge had been filed, given the wording “Poor
work quality” on the written warning.
Obviously, the lack of heat shrink would not satisfy that
criticism. It had not been called for by the green bar. It had not
been included among the parts for the 75 cables’ D-sub ends.
Moreover, Witha had asked Williams about that omission,
while the two of them were at line one and could be overheard
by other line one assemblers, such as McCarthy. Afterward,
Engineer Ranweiler had corrected the green bar, to provide for
heat shrink at that connection. In such circumstances, criticism
for “[p]oor work quality” would hardly be supported by
Witha’s failure to have applied heat shrink on June 16.
It should not escape notice that Witha could justifiably have
been criticized for not having taken the heat shrink omission
problem to Ranweiler on June 16, rather than taking it to Wil-
liams. But, Respondent has not claimed that failure to do so
had been a reason for its discipline of Witha and I am not at
liberty under the Act to supply reasons not advanced by a re-
spondent. See, e.g., Super Tire Stores, 236 NLRB 877 fn. 1
(1978). In any event, failure to inquire of Ranweiler on June 16
about the omission is an offense of which Williams was no less
culpable than Witha. In sum, I conclude that there is no credi-
ble evidence of D-sub assembly to the wrong cable ends on
June 16, but instead that Respondent has advanced that asser-
tion based upon no fact other than its desire to construct a
seemingly legitimate defense for having disciplined Witha on
June 19.
Of course, in the final analysis, Youker abandoned even that
defense as a basis for his decision to discipline Witha, testifying
instead that his actual concern had been about her “negative
attitude.” Given the evidence, however, it is difficult to con-
clude that such a phrase was being utilized by him as other than
a euphemism for Witha’s union support and activities. Many of
Youker’s assertions in that connection are not corroborated. As
set out in Section I.C., supra, the two, possibly three, employ-
ees who purportedly had complained that “a lot of friction was
going on on the line,” as a result of Witha’s supposed miscon-
duct, never appeared as witnesses to corroborate that assertion.
In fact, one of them—Diane Passig—did appear as a witness.
But, she never claimed to have made such a report to Youker
and, beyond that, never testified to any “friction” which Witha
had created. Of course, “friction” may have been but another
euphemism used to describe Witha’s inquiries on behalf of the
Union which had upset at least one employee, Joanne Ostreich.
Rendering his assertions of “negative attitude” even more
unreliable was Youker’s attempt to embellish it during cross-
INTERCON I (ZERCOM) 239
examination. Suddenly, he added that Witha had been “throw-
ing stuff around” and, committed to support that assertion, then
claimed “that was brought to me by the other employees.” The
addition of that assertion, under the circumstances, appeared to
represent nothing more than an effort to fortify Respondent’s
defense that Witha’s discipline had been legitimate. Surely, an
offense so flagrant as “throwing stuff around” would have been
developed during direct examination, had such conduct been a
reality. And, once more, no employee testified either to having
made such a report to Youker, nor to having observed Witha
engage in such activity.
It is abundantly clear that Witha had become upset at being
criticized for not having applied heat shrink to the June 16 as-
semblies. Yet, her reaction, while perhaps sometimes strident,
is not particularly surprising, given the situation, and it seems
unlikely that Youker would have so regarded it, absent other
considerations. After all, Witha had followed the green bar as
directed by her line leader, the latter being a fact which Youker
admitted having known. To be sure, the stridency of Witha’s
anger at the situation reached the point where she made a crude
remark to Line Leader Laughlin about Williams which was
crude. But, there is no evidence that Laughlin had repeated that
remark to either Williams or Youker. In fact, neither one testi-
fied to having known about it prior to the hearing. Thus, that
remark cannot serve to legitimize Respondent’s defense: “an
employer obviously cannot be motivated by facts of which it is
not aware at the time it makes its decision.” (Citation omitted.)
Respond First Aid, 299 NLRB 167, 169 fn. 14 (1990). See also
Singer Co. v. NLRB, 429 F.2d 172, 179 (8th Cir. 1980).
In fact, save for Witha’s reaction to having been criticized
about the omitted heat shrink, Youker did not supply any par-
ticularized testimony about any occasion when Witha had un-
dermined management’s authority. He did attempt to rely upon
her June 18 sick call as evidence of negative attitude: “at that
point it became clear that there was more going on with her
attitude because she hadn’t cooled off at all after that night to
think about it so I decided then that we needed to do some-
thing.” It should not escape notice that the latter portion of that
answer is at odds with the testimony given by Williams. As
pointed out at the beginning of section I,D, supra, Williams
testified that when she had arrived for work on the morning of
June 18 there already had been a determination “to have a dis-
ciplinary meeting with” Witha. Beyond that, Youker conceded
that the substance of Witha’s sick call had not been all that
different, if at all, from other sick calls placed to him by other
employees on other occasions. Nor did he ever explain with
particularity how her call “undermine[d]” his authority and that
of Williams, much less how it “affect[ed] all the other people in
the plant.” Facially, those phrases sound nice. But, in the cir-
cumstances, they do not serve to conceal the lack of substance
beneath them.
One other point should not escape unnoticed. Both Youker
and Williams testified that Witha’s transfer to day shift on June
23, with evaluation of her to occur on June 26, had been in-
tended to provide her with training. In fact, training is an ongo-
ing process at Respondent. But, as with the phrases in the pre-
ceding paragraph, “training” seemed to be advanced as an ex-
planation without substantive support. At no point did Youker
explain precisely what type of “training” he assertedly believed
would be supplied to Witha. To accept Respondent’s defense is
to conclude not that Witha did not know how to perform her
work, for which training would serve as a corrective, but that
she had become a recalcitrant and belligerent employee. There
is no evidence that training supplied to employees by Respon-
dent would serve to correct recalcitrance and belligerence. In
short, the term simply does not fit the situation as Respondent
has sought to portray it with respect to Witha.
In sum, a review of the entirety of the record establishes that
Youker’s explanations are uncorroborated at some points, are at
odds with credible evidence and objective considerations at
other points, and are sometimes simply illogical. That review
supports my conclusion, formed while watching him testifying,
that Youker was not being candid and that his accounts were
not reliable. In consequence, Respondent has not presented a
credible explanation for the discipline meted out to Witha on
June 19. Given that conclusion and the above-enumerated
factors showing that Witha’s discipline had been motivated by
her union activities, I conclude that a preponderance of the
credible evidence establishes that she was disciplined on June
19 in retaliation for her, those activities, and to make an exam-
ple of what could happen to employees who engaged in like
statutorily protected activity. See, e.g., NLRB v. Shedd-Brown
Mfg. Co., 213 F.2d 163, 175 (7th Cir. 1954); and Rust Engi-
neering Co. v. NLRB, 445 F.2d 172, 174 (6th Cir. 1971).
Therefore, by issuing a written warning to, and by announcing
a transfer to day shift of, Suzanne Witha, Respondent violated
Section 8(a)(3) and (1) of the Act.
I do not conclude, however, that an unlawfully motivated
oral warning had been issued to Witha on June 17, as alleged in
the complaint. To be sure, Williams unfairly chewed out Witha
that day, over the heat shrink. Yet, there is no evidence that,
under Respondent’s disciplinary scheme, a chewing out is tan-
tamount to a verbal warning. To the contrary, an illustration of
the latter was provided on June 19, in connection with what
happened to Passig, as described in section I,D, supra. Obvi-
ously, what happened to Passig differed considerably from
what occurred on June 17 when Witha was chewed out by Wil-
liams. In the circumstances presented here, a chewing out, no
matter for what actual motive, does not constitute a personnel
action showing “discrimination in regard to hire or tenure of
employment or any term or condition of employment,” within
the meaning of Section 8(a)(3) of the Act. Therefore, I shall
dismiss that allegation.
Left for consideration is Witha’s June 19 resignation which
the General Counsel argues is a constructive discharge or, pos-
sibly, action taken by Witha in response to an anticipated dis-
charge. Facially, there is a certain appeal to application of one
or both of those doctrines to the situation presented here. Re-
spondent had threatened to retaliate, including by termination,
against employees who talked about union on company time.
Witha had been the only employee who had been active on
behalf of the Union. She was issued a pretextual written warn-
ing for misconduct which is not supported by the evidence and,
also, which she obviously knew to be unwarranted. She was
notified of a transfer to first shift, and warned of termination
when evaluated four days after the transfer, which made no
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 240
sense and which objectively appeared to be intended to deter
her from further support for the Union. Yet, application of the
doctrine of anticipated discharge, and that of constructive dis-
charge, is prevented by closer examination of what occurred
here in the context of certain fundamental principles developed
under the Act.
Were this a situation involving no more than a victimized
employee and a wrongdoing employer, then there would be a
certain appeal to, as it were, “sock it to” the wrongdoer in favor
of the victim. The problem with so simple an approach is that
more than an interest on the part of private parties is involved
in cases arising under the Act. The Act operates “in the public
interest in order to enforce a public right.” NLRB v. Threads,
Inc., 308 F.2d 1, 8 (4th Cir. 1962). See also Nathanson v.
NLRB, 344 U.S. 25, 27 (1952). In consequence, public policy
must be taken into account in evaluating application of doc-
trines, such as anticipated and constructive discharges, devel-
oped and applied under the Act.
In the area of discrimination, one public policy is that the
Act should not be interpreted and applied in a manner which
results in discouraging gainful employment. For example, in
the interest of a “healthy policy of promoting production and
employment,” Phelps-Dodge Corp. v. NLRB, 313 U.S. 177, 200
(1941), unlawfully discharged employees must seek interim
employment, not merely to mitigate their losses, see discussion,
Electrical Workers 401 (Stone & Webster Enineering Corp.),
266 NLRB 870, 875 (1983), but to implement a policy of not
encouraging “a skilled and healthy worker to remain idly un-
employed . . . [but instead] . . . encouraging him to obtain a
job.” NLRB v. Madison Courier, 505 F.2d 391, 397 (D.C. Cir.
1974).
That policy “of promoting production and employment” also
guides evaluation of situations at the other end of the overall
spectrum of employment: in situations where employees resign
from gainful employment ostensibly in response to their em-
ployers’ unlawful conduct. In such situations, the Board has
cautioned that “it seems ill advised as a matter of policy to
encourage employees to quit their jobs whenever they suffer
any unlawful condition, at least if they have avenues for reme-
dying that condition.” Lively Electric, 316 NLRB 471, 473
(1995). As a result, given availability of proceedings under the
Act to remedy unfair labor practices, the Board has “long held
that there is no constructive discharge where an employee quits
in protest against an unfair labor practice.” Kogy’s Inc., 272
NLRB 202, 202 (1984). Indeed, even where discriminatorily-
motivated unfair labor practices have occurred, the Board has
held that “mere existence of discrimination is insufficient to
warrant consideration of abandonment of employment as a
constructive discharge.” (Footnote omitted.) Algreco Sports-
wear Co., 271 NLRB 499, 500 (1984).
Turning to the first so-called prong of the constructive dis-
charge doctrine, the only change effected in Witha’s working
condition, by the transfer announced on June 19, had been that
she would be transferred to day shift the following week.
There is no evidence that, while work there, she would have
suffered any diminution in pay or benefits, nor that she could
reasonably have anticipated that any such diminution would
occur. Although she preferred night shift work for personal
reasons, there is no evidence that, as a result of the transfer,
Witha would have been placed in the position, because of other
considerations, of having to resign rather than abandon some
pressing personal burden. Cf. American Licorice Co., 299
NLRB 145 (1990). After all, by June 19 Witha had been work-
ing on night shift for less than a month. For almost 8 months
before that, she had been working for Respondent on day shift,
without any apparent personal burden having arisen that neces-
sitated her transfer to night shift and without any apparent bur-
den existing that would require her to continue working on that
shift.
The first prong of the constructive discharge doctrine re-
quires a showing of more than “difficult or unpleasant” work-
ing conditions—it necessitates a showing that “the change be so
‘difficult and unpleasant’ as to force resignation.” (Footnote
omitted.) Algreco Sportswear Co., supra. In view of the pre-
ceding paragraph’s considerations, that showing cannot be said
to have been made here.
Turning to the second prong of constructive discharge doc-
trine—Hobson’s choice between continued exercise of statu-
tory rights and continued employment—the General Counsel
argues ably that Witha was effectively being told on June 19
that Respondent would discharge her on June 26 unless she
improved her “negative attitude”—a euphemism for prounion
sympathy and activity. In fact, many of the elements of
Witha’s situation are ones on which the Board has relied, in
cases cited by the General Counsel, when concluding that con-
structive discharges have occurred. Nevertheless, able argu-
ment and some similarities in prior cases cannot blindly dictate
the result in cases where different circumstances are presented.
The Hobson’s choice prong arose in contexts where already
represented employees were told that their employers were
changing the bargaining status quo: were withdrawing recogni-
tion from their historic bargaining agent and were unilaterally
changing, usually reducing, their existing employment terms.
See, e.g., Superior Sprinkler, Inc., 227 NLRB 204, 210 (1976).
Here, it should not escape notice, the status quo as of June 19
was that Respondent’s assemblers were not represented and,
moreover, no diminution of any of Witha’s employment terms
was threatened, save to the extent of a seemingly temporary
transfer to another shift.
Obviously, an employee such as Witha could infer that the
transfer to day shift, along with the warning notice, was in-
tended as some form of retaliation for her activities on behalf of
the Union—that “negative attitude” was a euphemism for pro-
union attitude. Still, abandonment of support for the Union was
not stated expressly as a condition for her continued employ-
ment after June 26. At no point did either Youker or Williams
state that Witha would have to abandon support for the Union
to continue working for Respondent. Cf. Hoerner Waldorf
Corp., 227 NLRB 612, 612–613 (1976).
That may seem to be a difference without distinction. Yet,
viewed from an objective perspective, it cannot be said as of
June 19 that Respondent truly intended to fire Witha on June 26
if she continued supporting the Union. Threats “of some future
action which may or may not be carried out . . . may be nothing
more than an unlawful bluff for which the Act provides an ap-
propriate and direct remedy.” (Citation omitted.) Groves Truck
INTERCON I (ZERCOM) 241
& Trailer, 281 NLRB 1194, 1195 (1986). Even in the seminal
classic Hobson’s choice situation—where continued recogni-
tion of an incumbent and perpetuation of existing benefits are
the issue—the Board has distinguished between “resigning in
the face of the unlawful withdrawl [sic] of union recognition
and termination of existing benefits and membership,” on the
one hand, and “quitting in anticipation that such may take place
later,” on the other. Marquis Elevator Co., 217 NLRB 461,
461 (1975). No constructive discharge occurs in the latter
situation.
As concluded above, Witha had been one victim of unlawful
threats of retaliation for discussing the Union during company
time and of closure and, as well, had been the victim of an
unlawfully motivated written warning and transfer. Those un-
fair labor practices can be remedied through the Act’s proce-
dures. There is no argument that Witha had been unaware of
that statutory mechanism. Even so, she was in contact with the
Union and it is the charging party in this proceeding. Surely, it
could have advised her of the existence of unfair labor practice
proceedings, to provide a remedy for the unlawful conduct
directed toward her.
Respondent is a wrongdoer. But, there is no evidence suffi-
cient to support even an inference that its unlawful conduct,
viewed as an objective matter, had been aimed at, or intended
to, compel Witha to quit. Indeed, it appears that Youker had
been genuinely surprised to learn on June 20 that Witha had
resigned. Beyond that, there is no basis for inferring that Re-
spondent could likely have anticipated that Witha would resign
over a written warning and a transfer to day shift, even one
providing for evaluation of her performance four days later.
Therefore, “no matter how reasonable [Witha’s] fear of future
discharge by Respondent might have been, it does not permit
[her] to elevate, unilaterally, the issuance of the warning [the
transfer and the unlawful threats] into an unlawful discharge in
the circumstances here.” (Footnote omitted.) Aero Industries,
314 NLRB 741, 742 (1994).
In the context of what already has been said, resolution of
Witha’s resignation under the anticipated discharge doctrine is
relatively straightforward. That doctrine rests on finding that,
despite absence “of formal words of firing,” the actual “words
or actions of the employer would logically lead a prudent per-
son to believe his tenure had been terminated.” NLRB v. Trum-
ball Asphalt Co. of Delaware, 327 F.2d 841, 843 (8th Cir.
1964). See also Ridgeway Trucking Co., 243 NLRB 1048,
1048–1049 (1979). Of course, the very fact that Witha had
been effectively told that her employment would be continuing,
albeit on a different shift and with an evaluation imminent, is
strong evidence that her tenure was not being terminated, at
least not as of June 19.
Certainly, there were no accompanying statements on June
19 that Witha should “get out of here,” nor that she should
“find another company to work for.” Cf. Romar Refuse Re-
moval, 314 NLRB 658, 670 (1994). Nor is there evidence of
the types of employer conduct—direct accusation of being a
union “organizer[ ]”, demand for return of company property
needed for Witha to perform her job, statements about not be-
ing trusted anymore—which led the discriminatee “to believe
that he was soon to be discharged” in MDI Commercial Ser-
vices, supra. To the contrary, Respondent’s termination-
possibility statement on June 19 cannot be said to have been
any less a “bluff,” which “may or may not be carried out,” than
was the fact in Groves Truck, supra, under the second construc-
tive discharge prong.
To conclude, as an objective matter, that in the circum-
stances presented on June 19, an employee could believe that
her tenure had been terminated would be to reach a result con-
trary to the underlying policy of promoting continued employ-
ment. After all, had Respondent truly intended to fire Witha,
there was no need on June 19 for it to go through the process of
first transferring her to another shift. No seeming impediment
existed to merely discharging her on June 19, without the need
for a charade of transfer to first shift. That course is a strong
indication that, as of June 19, Respondent had been bluffing
and had made no decision to fire Witha. Therefore, I shall
dismiss the unlawful discharge allegation.
CONCLUSION OF LAW
Intercon I (Zercom) has committed unfair labor practices af-
fecting commerce by issuing a written warning notice to, and
by announcing a transfer to day shift of, employee Suzanne
Witha on June 19, 1997, because of her sympathies for and
activities on behalf of International Brotherhood of Electrical
Workers, in violation of Section 8(a)(3) and (1) of the Act; and,
by threatening to retaliate against employees for discussing
unions and union-related subjects on company time and by
threatening closure of the Aitkin facility, and relocation of its
operations, should the employees working there become repre-
sented by a union, in violation of Section 8(a)(1) of the Act.
However, it has not violated the Act in any other manner al-
leged in the complaint.
REMEDY
Having concluded that Intercon I (Zercom) has engaged in
unfair labor practices, I shall recommend that it be ordered to
cease and desist therefrom and, further, that it be ordered to
take certain affirmative actions to effectuate the policies of the
Act. With respect to the latter, it shall be ordered to, within 14
days from the date of the Order, remove from its files the em-
ployee counseling report issued to Suzanne Witha on June 19,
1997 and, also, remove any reference to that employee counsel-
ing report and to the intended transfer of Witha to day shift on
June 23, 1997, and, within 3 days thereafter, notify Witha in
writing that this has been done and that the employee counsel-
ing report and intended transfer to day shift will not be used
against her in any way.
[Recommended Order omitted from publication.]