Kennametal, Inc.

National Labor Relations Board - Board Decisions

Aug 28, 2012

358 N.L.R.B. 921 (N.L.R.B. 2012)

KENNAMETAL, INC. 921

358 NLRB No. 108
Kennametal, Inc. and United Steelworkers, Local
5518, affiliated with United Steelworkers of
America, AFL–CIO, CLC. Case 01–CA–046689
August 28, 2012
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS GRIFFIN
AND BLOCK
On February 16, 2012, Administrative Law Judge Paul
Bogas issued the attached decision. The Acting General
Counsel and the Union filed exceptions and supporting
briefs. The Respondent filed an answering brief, and the
Acting General Counsel filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.1
The Board has considered the decision and the record
in light of the exceptions2 and briefs and has decided to
affirm the judge’s rulings, findings,3 and conclusions and
to adopt the recommended Order.4
ORDER
THE NATIONAL LABOR RELATIONS BOARD
ADOPTS THE RECOMMENDED ORDER OF THE
ADMINISTRATIVE LAW JUDGE AND ORDERS
THAT THE RESPONDENT, KENNAMETAL, INC.,
LYNDONVILLE, VERMONT, ITS OFFICERS,
AGENTS, SUCCESSORS, AND ASSIGNS, SHALL
TAKE THE ACTION SET FORTH IN THE ORDER.

1 Member Hayes is recused and did not participate in the considera-
tion of this matter.
2 No exceptions were filed to the judge’s finding that the Respondent
violated Sec. 8(a)(1) of the Act by threatening employees with reprisals
because of the Union’s grievance and unfair labor practice charge fil-
ings.
3 The Acting General Counsel and the Union have excepted to some
of 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 exam-
ined the record and find no basis for reversing the findings.
In affirming the judge’s findings, we do not adopt his characteriza-
tion of negotiator John Jamison’s September 16 statement as a “threat
of futility.” Additionally, although we agree with the judge that Plant
Manager Thomas Fletcher’s “dark cloud” statement is not, in these
specific circumstances, evidence of animus, we do not rely on Wild
Oats Markets, 339 NLRB 81 (2003), in affirming that finding.
4 We shall substitute a new notice to include the correct name of the
Respondent.
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 Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT threaten you with unspecified reprisals
because either you or the United Steelworkers, Local
5518, affiliated with United Steelworkers of America,
AFL–CIO, CLC, engage in protected union activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
KENNAMETAL, INC.

JoAnne P. Howlett, Esq., for the Acting General Counsel.
Charles P. Roberts III, Esq. (Constangy, Brooks & Smith,
LLP), of Winston-Salem, North Carolina, for the Respond-
ent.
Alfred Gordon, Esq. (Pyle Rome Ehrenberg, PC), of Boston,
Massachusetts, for the Charging Party.
DECISION
STATEMENT OF THE CASE
PAUL BOGAS, Administrative Law Judge. This case was tried
in Greenfield, Massachusetts, on November 1, 2, and 3, 2011.
The United Steelworkers, Local 5518, affiliated with United
Steelworkers of America, AFL–CIO, CLC (the Union) filed the
charge on March 3, 2011, and the amended charge on July 13,
2011. The Regional Director for Region 1 of the National La-
bor Relations Board (the Board) issued the complaint on July
29, 2011. The complaint alleges, inter alia, that Kennametal,
Inc. (the Respondent), at its Lyndonville, Vermont facility,
violated Section 8(a)(1) of the National Labor Relations Act
(the Act) by threatening employees with reprisals because of
922 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the Union’s grievance and unfair labor practice charge filings,
and violated Section 8(a)(3) and (4) by laying off seven em-
ployees in February 2011, and eliminating the day-shift posi-
tion of another because employees assisted the Union, engaged
in concerted activities, and participated in the Board’s process-
es. The Respondent filed a timely answer in which it denied
committing any of the violations alleged.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the Acting General Counsel, the Union, and the Respondent,
I make the following findings of fact and conclusions of law.1
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, manufactures metal works,
component parts, and tools at its facility located in Lyndonville,
Vermont, where it annually derives gross revenues in excess of
$500,000 and sells and ships from its Vermont facility goods
valued in excess of $50,000 directly to points located outside
the State of Vermont. The Respondent admits, and I find, that
it is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act and that the Union is a
labor organization within the meaning of Section 2(5) of the
Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts
The Respondent is a multinational corporation that employs
approximately 13,000 individuals worldwide and has a facility
in Lyndonville, Vermont. Immediately prior to the February
2011 layoff at issue in this litigation, the Respondent employed
94 individuals at the Lyndonville facility. The Lyndonville
facility operates on three shifts. The day shift (or first shift) is
from 7 a.m. to 3 p.m.; the evening shift (or second shift) is from
3 to 11 p.m.; and the night shift (or third shift), is from 11 p.m.
to 7 a.m. The Respondent manufactures steel taps–a category
of tools used to cut internal threads into other products—at the
Lyndonville facility.
Production and maintenance employees at the Lyndonville
facility are represented by the Union, which, according to the
most recent collective-bargaining agreement, was certified as
the employees’ bargaining representative in 1957. Leon Gar-
field, a Lyndonville employee, has been the president of the
local union since May 2009 and was chairman of the union
committee for approximately 7 years prior to that. From April
6, 2009, until April 5, 2011, Richard Brighenti was plant man-
ager for both the Lyndonville facility and the Respondent’s
facility in Greenfield, Massachusetts. After that period,
Brighenti continued as plant manager only for the Greenfield

1 On December 22, 2011, after the hearing in this matter had closed,
the Respondent filed a motion to submit three additional exhibits. In its
motion, the Respondent stated, inter alia, that the other parties agreed
the exhibits should be received and consented to their receipt. None of
the other parties have contradicted the Respondent’s representations. I
grant the unopposed motion and receive R. Exhs. 22, 23, and 24, into
evidence.
location. During the relevant time period, Keith Koski, who
works at the Respondent’s corporate headquarters in Latrobe
Pennsylvania, was the division director to whom Brighenti
reported. In his capacity as division director, Koski had author-
ity over eight of the Respondent’s facilities, including the
Lyndonville and Greenfield locations. Employees are repre-
sented by unions at four of the eight facilities in the division
overseen by Koski.2
On February 18, 2011, the Respondent laid off 7 employees
in the Lyndonville bargaining unit, reducing the total number of
employees there to 87. As required by the collective-
bargaining agreement, employees were selected for the layoff
based on seniority and given 3 days’ notice. Garfield, president
of the local union, was not among those laid off. However, as
part of the plan for operating the facility during the layoff, the
Respondent eliminated Garfield’s day-shift inspector position.
As a result, Garfield was one of between three and five individ-
uals who became “unassigned,” meaning that they did not have
permanent assignments. The Respondent’s practice with respect
to unassigned employees is to move those employees to other
openings within the employees’ departments (even if on anoth-
er shift) or, if no such openings exist, permit them to bid to fill
vacancies resulting from the layoff and the staffing plan. If
unassigned employees do not bid on jobs, or are not selected
for any jobs they bid on, the Respondent assigns them to jobs.
After Garfield’s inspector position was eliminated, the Re-
spondent informed him that he would be reassigned to the night
shift. Nevertheless, the Respondent chose Garfield for a tem-
porary day-shift assignment calibrating equipment. Garfield
continued in that day-shift assignment for some weeks, and in
early March 2011 he bid on a night-shift position in the cut-off
department. He was selected for that position based on seniori-
ty. As a result of the transfer to the night shift, Garfield could
not meet with employees on the day shift, or attend day-shift
meeting with management regarding union business, unless he
remained at the facility after the end of his own shift. For a
period of over 5 months following implementation of the 2011
layoff, the Respondent did not post any day-shift positions.
Garfield returned to the day shift in August 2011.
B. Recent History of Labor Relations
Since 2009, a variety of issues have arisen between the Un-
ion and the Respondent. These include: a dispute in 2009 about
whether the Respondent made a timely request to reopen the
expiring contract; an unfair labor practices charge over the July
2009 elimination of Garfield’s day-shift position;3 a 2009 un-

2 Besides the Lyndonville and Greenfield facilities, Koski oversaw
the Respondent’s operations in: Asheboro, North Carolina; Huntley,
Illinois; Irwin, Pennsylvania; Rockford, Illinois; Traverse City, Michi-
gan; and Victoria, British Columbia, Canada. The Steelworkers union
represents employees at the locations in Lyndonville, Irwin, and Victo-
ria. An electrical workers union represents employees as the Respond-
ent’s Greenfield facility.
3 This is a separate charge, involving a different transfer than the one
at issue in the instant case. Garfield was previously transferred to the
night shift when the Respondent laid off employees in 2009, but he
returned to a day-shift position in March 2010. The charge regarding
Garfield’s 2009 transfer was withdrawn before the Region reached a
KENNAMETAL, INC. 923
fair labor practices charge regarding the Company’s response to
information requests; and a grievance and unfair labor practices
proceeding over the Respondent’s February 2010 implementa-
tion of its “Management Based Safety Program” (MBS). MBS
is a safety training program. The parties dispute whether MBS
is connected to a policy regarding discipline for safety viola-
tions.
The Acting General Counsel contends that it was the prior
ULP hearing regarding the Respondent’s implementation of
MBS that motivated the Respondent, on February 18, 2011, to
announce the layoff seven employees and the elimination of
Garfield’s day-shift position. The record shows that the Re-
spondent implemented MBS without bargaining in February
2010—a year before the layoff. The Union attempted to bar-
gain over this implementation, but the Respondent maintained
that it was not required to bargain and it refused to do so. Soon
after implementation of MBS, the Union filed a grievance chal-
lenging the Respondent’s action. Then, on July 30, 2010, the
Union filed an unfair labor practices charge with the Board
regarding the MBS issue. The Regional Office investigated the
charge and, on December 28, 2010, issued a complaint regard-
ing the unilateral implementation of MBS. A hearing was held
before an administrative law judge (ALJ) on February 8 to 10,
2011. Of the eight employees who the Acting General Counsel
alleges were discriminated against because of the hearing, only
Garfield was shown to have testified or participated in that
unfair labor practice proceeding in any way. Indeed, none of
the other seven employees were shown to have engaged in any
union activity at all. During the prior hearing, the complaint
was amended to seek relief on behalf of two unit employees
who had been disciplined for safety violations. The ALJ issued
his decision on April 12, 2011, finding, inter alia, that the Re-
spondent had violated its duty to bargain with respect to both
the MBS program and a disciplinary policy regarding safety
violations, had unlawfully disciplined two employees pursuant
to that disciplinary policy, and had also failed to respond ap-
propriately to union information requests. As of February 1,
2012, the case was pending before the Board.
During 2010 negotiations for a successor to the expiring col-
lective-bargaining agreement, the Respondent’s lead negotiator
was John Jamison—an outside consultant who was not a man-
agement official or employee of the Company. The Respond-
ent’s bargaining committee also included Eric Huttenlocher (a
human resources manager who provided “support” at the
Lyndonville facility), and Brighenti. The Union’s bargaining
committee was led by Carl Turner, a representative from the
International union, and also included four Lyndonville em-
ployees—Garfield, Dave Brousseau (treasurer of the local un-
ion), John Eastman, and Terry Pray (vice president of the local
union). Regular bargaining commenced in September 2010,4
and during a session on September 16, the Respondent asked to
discuss the possible resolution of a number of outstanding

determination regarding its merits. Garfield’s day-shift position was
eliminated again at the time of the February 2011 layoffs, and the com-
plaint in this case concerns only that occurrence.
4 The parties had also engaged in unsuccessful early negotiations in
2009.
charges and grievances. The parties were able to dispose of
one or more of these matters; however, they made no progress
towards resolving the unfair labor practices charge regarding
MBS. Jamison, referencing a statement by the Respondent’s
chief human resources officer, stated that MBS was “a corpo-
rate top down initiative that’s being spread across all of Ken-
nametal both North American and our overseas locations,” and
which the Respondent would not waver on. He also stated that
Lyndonville was only 1 percent of the Respondent’s operation,
and that MBS was “not an issue [for the Union] to take a stand
on.” Turner responded that this was true “unless the law says
you have to bargain.” He took the position that the Union
would wait for the MBS issue to be resolved through the NLRB
process.5 After this, the parties did not discuss MBS further
during the 2010 negotiations and soon reached agreement on a
collective-bargaining agreement that was ratified on October 1,
2010.
Approximately 7 weeks after the February 18 layoff, Thomas
Fletcher took over for Brighenti as Lyndonville’s plant manag-
er. Fletcher arrived at the Lyndonville on February 28 to begin
training with Brighenti. He assumed the position of plant man-
ager on April 4, 2011. Fletcher was not involved with the
Lyndonville facility prior to February 28 and did not participate
in the decision to lay off employees or eliminate the day-shift
inspector position that Garfield occupied. In April and early
May, Fletcher held multiple “get-to-know-you” meetings with
employees. During these meetings he stated that it was im-
portant to end the “infighting between management and the
Union” and begin working “as a team,” and that there was a
“dark cloud” over Lyndonville. Fletcher admitted that he made
these remarks, but claimed that the “dark cloud” comment re-
ferred not to the union activity, but to the facility’s poor per-
formance. However, Pray who attended one of the meetings at
which Fletcher referenced the “dark cloud,” credibly testified
that Fletcher made no reference to production numbers or ser-
vice levels or “anything like that,” but did talk “about the
NLRB and stuff.” Brousseau, who attended the same meeting
as Pray, credibly testified that Fletcher did not state that the
cloud over Lyndonville had to do with poor service levels, but
did discuss “grievances, labor board charges and arbitration
cases.” Fletcher claimed that he discussed Lyndonville’s per-

5 This account is based on the largely consistent accounts of witness-
es for both the Acting General Counsel and the Respondent. The most
significant difference in the accounts is that the Acting General Coun-
sel’s witnesses testified that Jamison said the Lyndonville facility was
only 1 percent of Kennametal, whereas the Respondent’s witnesses
deny that any reference to “one percent” was made. I credit the Un-
ion’s witnesses on this point. I base this credibility determination
largely on the contemporaneous notes taken at the bargaining session
by Garfield and Pray. Both of these sets of notes report the “one per-
cent” remark. Moreover, Jamison’s reference to the 1-percent figure is
consistent with the gist of the argument he was making, which I under-
stand to be that since MBS was a corporatewide initiative it was not
something that the Lyndonville employees’ bargaining representative
could expect to stop. In addition, the evidence showed that the
Lyndonville work force was about 1 percent of the Respondent’s total
work force, lending plausibility to the claim that Jamison pointed that
out.
924 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
formance, but I found his testimony less credible than that of
Pray and Brousseau, at least with respect to the meeting they
attended. Pray and Brousseau testified in a clear and certain
matter regarding this issue. On the other hand, when pressed,
Fletcher conceded that he did not actually remember with any
specificity what he said during that meeting. (Tr. 493.)
C. The February 2011 Layoff
1. State of business prior to layoff
According to the Respondent, it implemented the February
2011 layoff in an effort to improve the Lyndonville facility’s
performance during a period of reduced business. Brighenti
and Koski both denied that the Union’s challenge to MBS
played any part in the layoff decision.
The Respondent evaluates the performance of the Lyndon-
ville facility largely based on the extent to which the facility’s
monthly cost for manufacturing the product it sells is lower or
higher than the cost the Respondent has set for that month in its
annual plan. If the cost is higher than what the Respondent’s
plan calls for it is referred to as an “unfavorable [or negative]
variance to plan.” If the cost is lower than what the Respond-
ent’s plan calls for it is referred to as a “favorable [or positive]
variance to plan.” Unfavorable variance performance generally
results when the facility does not have enough shipments to
absorb the costs of manufacture to the extent contemplated by
the plan. The fact that a facility posts unfavorable variance to
plan results does not mean that the facility is not generating a
profit for the Respondent, but rather that the facility is not
manufacturing the product as cheaply as the Respondent had
planned.
After posting favorable monthly variance to plan figures
from June to September 2010, the Lyndonville facility began to
have unfavorable variance performance, and for the most part
increasingly unfavorable performance, beginning in October
2010 and continuing through May 2011. After May, the vari-
ance to plan figures remained unfavorable but less dramatically
so.
The flow of orders received for the Lyndonville facility since
2008 has been uneven. In 2008, the number of pieces that were
ordered from Lyndonville on a monthly basis ranged from
88,626 to 141,373. In 2009, orders dropped sharply, ranging
only from 55,115 pieces to 92,410 pieces. Orders rebounded
somewhat in 2010 when the monthly range was from 72,443 to
161,816 pieces. During the first half of 2011, the orders
dropped again, ranging from 63,987 to 96,765, before rebound-
ing in June 2011.6

6 I take these figures from R. Exh. 18, which consists of records kept
by the Respondent in the ordinary course of business. Somewhat dif-
ferent figures appear for some months in R. Exh. 1, a summary docu-
ment prepared by the Respondent for this litigation. During a posthear-
ing telephone conference with all parties, the Respondent conceded that
the figures in the summary exhibit were erroneous to the extent that
they were inconsistent with the information in R. Exh. 18. I note also
that while the summary exhibit contains figures for January 2011 or-
ders—a key time for evaluating the workload at the time of the Febru-
ary 2011 layoff—I do not credit those January figures because the
The Respondent has reduced the size of the Lyndonville
work force in recent years. In 2008, the Lyndonville facility
had about 150 employees. However, even before the February
2011 layoff that number had shrunken to 94. By the time of the
hearing in the instant case, there were only 73 employees at the
Lyndonville facility.
Officials of the Respondent expressed concern about busi-
ness and performance at the Lyndonville facility in email com-
munications leading up to the February 2011 layoff. In an
email sent on January 31, 2011, Brighenti informed Koski that
the Lyndonville facility was “not where it needed to be” and
that it was going to miss the projections made to Tommy Green
—the management official in charge of the Respondent’s North
and South American manufacturing. Brighenti told Koski that
this was “caused by the lack of C[ustom ] S[olution] business.”
Brighenti ended the email by stating, “We will develop a plan
to recover this within the quarter.” In early February, Brighenti
informed Huttenlocher that a layoff was going to be necessary
if incoming orders were as low as they appeared to be. Ulti-
mately, Brighenti settled on a plan to reduce the Lyndonville
work force by about nine employees. He testified that, as a rule
of thumb, for each Lyndonville employee he laid off the Com-
pany would save $5000 per month in labor costs. On February
14, Brighenti sent an email to Koski stating that he was in the
process of finalizing a plan that included the layoff of seven
employees effective February 21 and the reduction of the re-
maining employees’ schedules to 32 hours per week for the
month of March. In the email, Brighenti wrote that the value of
custom solution orders for the Lyndonville facility “booked
into March” was $348,000, which was approximately $300,000
“lower than what we would expect to see at this time.” Koski
responded to Brighenti within minutes, asking whether the
layoff could be implemented sooner. Brighenti told Koski that
on February 15 he would give the employees selected for layoff
the contractually required 3-day notice. On February 23, Koski
notified Green that “due to lower than forecasted load” a “re-
duction plan” had been implemented for the Lyndonville work-
force.
Some time after February 10 and prior to February 15,
Brighenti had a phone conference with Garfield and Pray dur-
ing which he informed them that, due to the downturn in orders
for the Lyndonville facility, he was planning a layoff of be-
tween 5 and 10 employees. Brighenti asked for their permis-
sion to post a notice seeking volunteers for the layoff in order
to reduce the number of persons who would have to be laid off
involuntarily. The union officials agreed to that, and apparently
two employees volunteered for either layoff or retirement.
In addition to trying to address the situation at Lyndonville
through layoffs, Koski made efforts to improve matters by
bringing more work to the facility. In a March 1, 20011 email,
Koski asked the product manager for the product lines manu-
factured in the Lyndonville facility whether there was any
“‘quick’ opportunity to get [custom solution] business back
into” the Lyndonville facility. Koski explained that Lyndon-
ville was experiencing an “extremely low specials load,” result-

underlying business records contain no order figures at all for January
2011.
KENNAMETAL, INC. 925
ing in high unfavorable cost variance performance and reduc-
tions. On February 23, the Respondent announced that in order
to save additional labor costs the employees would have 4 un-
paid days off in March. Throughout March, Brighenti and
Koski communicated with each other about business conditions
at the Lyndonville facility and efforts to improve variance per-
formance there.
Contrary to the evidence that business was poor, Garfield
testified that he had seen no indications that workload was
down during the lead-up to the February 2011 layoff. He con-
ceded that he had been hearing about a “work slowdown” (Tr.
113–114), but stated that employees were busy and working
significant amounts of overtime. According to Garfield, before
Brighenti became plant manager there had been layoffs, but the
prior plant manager had always put off taking such steps until
employees began running out of work. The documentary evi-
dence buttresses Garfield’s testimony to some extent because it
shows that employees were working significant amounts of
overtime during the period leading up to the February 2011
layoff.7 For every week but one from October 2010 through
the first week of February 2011, over 10 percent of the total
hours employees worked were overtime hours. Such overtime
levels had been reached intermittently during the prior 3 years,
but the percentage of total hours that were overtime each week
was usually below 10 percent and not infrequently below 5
percent. The evidence shows that when the Respondent im-
plemented the layoff, it also reduced the amount of overtime
that the remaining employees were working. In March 2011,
shortly after the layoff, the weekly percentage of hours that
were overtime fell to between 2.1 and 3.7 percent. In April
2011, the overtime levels increased to approximately the same
levels that were seen leading up to the layoff, but in May and
the first part of June 2011 the overtime levels fell to under 10
percent again. Brighenti testified that the optimal overtime
level for the Lyndonville facility is between 8 and 15 percent of
total hours. This allows, he explained, for the Respondent to
cover for contingencies such as vacations.
2. The February 2011 layoff and staffing plan
In mid-February 2011, Brighenti told Sean Jewell, the day-
shift supervisor at the Lyndonville facility, that the facility had
“low incoming” orders. He directed Jewell to prepare a plan to
lay off up to 10 employees, and staff the facility with the re-
maining employees.8 Brighenti testified that the size of the
layoff was based on the need to adjust the size of the staff to the
reduced workload while minimizing retraining and the loss of
core competencies. Jewell, with the assistance of Tim Moris-
sette, the evening-shift supervisor, developed a plan to lay off
seven individuals, and delivered that plan to Brighenti on Feb-
ruary 17, 2011. Then next day, Jewell followed up with a
slightly revised version of the plan. Prior to the layoff there

7 The Respondent generally pays employees one and half times their
regular hourly wage rate for overtime hours, but in some circumstances
the overtime rate is twice the hourly rate.
8 The record shows that this conversation took place around the time
of the unfair labor practices hearing that was held regarding MBS on
February 8, 9, and 10, but does not show whether the conversation
occurred before or during or after that hearing.
had been 45 employees on the day shift, 28 on the evening
shift, and 21 on the night shift. Under the new staffing plan, the
number of employees on the day and evening shifts were re-
duced to 40 and 26 respectively, but the number of employees
on the night shift remained at 21. Brighenti testified that the
reason positions were eliminated on the day and evening shifts,
but not the night shift, was that the Respondent was “rebalanc-
ing” the shifts. This was also the reason given to employees at
the time of these changes. As part of the staffing changes
adopted around the time of the layoff, the Respondent ended up
increasing the number of employees on the night shift in at least
three departments—cut-off, coating, and OD—even while it
was reducing the overall numbers of employees. Brighenti
explained that rebalancing the staff more evenly across the
three shifts was advantageous to the Respondent because the
facility historically had a disproportionate number of employ-
ees on the day shift, which meant that some of the day-shift
employees would have to use less productive equipment while
the better equipment was used by others on the shift. At the
same time, the better equipment would sit idle for stretches
during the thinly staffed night shift. Rebalancing the shifts
meant that the Respondent’s employees could do more of their
work using the more productive equipment. The natural conse-
quence of this rebalancing was that some employees who had
previously worked on the day or evening shifts were likely to
be moved to the night shift. This effect was magnified during
the layoff since night-shift employees tended to have less sen-
iority and were therefore more likely to be laid off, leaving a
disproportionate number of vacancies on the night shift.
The record shows that in addition to laying off employees,
the Respondent saved labor costs by instituting four “short
weeks” in March 2011. During those weeks the employees
who were not affected by the layoff worked 4 days rather than
5 days. Brighenti notified the Union about this action at the
same time that it gave notice of the layoff.
The evidence shows that during the 6-month period of the
2011 layoff, the Respondent maintained the health insurance of
laid-off employees, and did not require those employees to pay
premiums. Under the collective-bargaining agreement, the
Respondent was not required to do this. The agreement pro-
vides that the Respondent would continue to pay the employ-
er’s share of the health insurance premium during the first 3
months of the layoff, but that the laid-off employee would pay
his or her share of the premium. After 3 months, the laid-off
employee could choose to either pay the full premium amount,
or terminate the health insurance coverage entirely. An em-
ployee’s monthly share of the health insurance premium ranges
from approximately $100 to $230, and the Respondent’s share
ranges from about $1300 to $1400. Brighenti testified that
unless the Respondent required laid-off employees to pay for
their health insurance as described in the collective-bargaining
agreement, the full $5000 per employee/per month savings that
the Respondent hoped to achieve by laying off employees
would not be realized. Based on the credible testimony of
Brighenti and Huttenlocher, I find that the Respondent’s provi-
sion of insurance benefits that exceeded those required by con-
tract was the result of an administrative oversight, not any in-
926 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tentional decision to cushion the blow to laid-off employees, or
forgo potential labor cost savings.
The layoff plan also called for the elimination of Garfield’s
day-shift assignment. Prior to the layoff there were four em-
ployees working in the inspection department. Garfield and
one other inspector were assigned to the day shift and one in-
spector was assigned to each of the other two shifts. The plan
prepared by Jewell eliminated one of the day-shift inspector
positions. Because he was the inspector with the least seniori-
ty, Garfield was the inspector who became unassigned. Accord-
ing to Jewell, the inspection position was chosen for elimina-
tion as part of the facility’s effort to move employees from
“indirect labor” positions to “direct labor” positions in which
they fabricated product. Moreover, Jewell testified, the Re-
spondent had been increasing its reliance on “self-
inspection”— a practice under which machine operators inspect
one another’s work, rather than relying on dedicated inspectors
do this. Even prior to the layoff, the Respondent had started
allowing employees on the evening and night shifts to self-
inspect the first piece in production runs.9 Thus, Jewell said, he
saw an opportunity to move an employee from an indirect labor
position to a direct labor position by reducing the number of
inspectors on the first shift, and using the former inspector to
perform production work. Jewell conceded that before he took
this action there was not a shortage of work for inspectors.
On February 21, 2011, Brighenti implemented the
layoff/staffing plan essentially as presented by Jewell. The
employees laid off were Roberta Borg, Gerald Fenoff, John
Heywood, Robert Hubbard, David Jeannotte, Steven Tanner,
and Harry Williams. In a February 18 email, Brighenti in-
formed Koski about Garfield’s transfer to the evening shift.
The email stated: “Garfield will be informed on Tuesday that
he will be going back to [night] shift as a result of the
L[yndonville] layoff.” Garfield was the only employee about
whose shift transfer Brighenti notified Koski, even though Gar-
field was not the only employee who was being transferred
between shifts. Brighenti testified, credibly in my view, that he
felt it was necessary to warn Koski about the Garfield’s trans-
fer, but not about that of other employees, because Garfield
had, in 2009, filed an unfair labor practice charge when he was
transferred to the night shift during a prior layoff. See supra fn.
4.
Shortly, after the layoff was announced, John Levesque, an
employee who had been assigned to a day-shift position in the
cut-off department, successfully bid on an opening that the
layoff created on the night shift.10 When Levesque left his day-
shift job subsequent to the layoff, the Respondent moved the
opening to the night shift. Jewell testified that this was done
pursuant to the general effort to even out staffing over the three
shifts. According to Jewell, Levesque’s day-shift position was

9 Garfield testified to his belief that the “self-inspection” system was
failing to catch problems early and thus was leading the Respondent to
produce larger amounts of defective product.
10 Levesque wanted to transfer from the day shift to the night shift
for personal reasons and, in December 2010, had asked Jewell, the day-
shift supervisor, if he could do so. Jewell denied the request, and
Levesque did not renew that request until the time of the layoff.
not “rebalanced” to the night shift as part of the initial
layoff/staffing plan because the Respondent did not want to
dislocate employees to a greater extent than necessary. Jewell
stated that when Levesque voluntarily left the day-shift position
he created the opportunity to even out shifts by moving the cut-
off position to the night shift without transferring the person
holding that position to another shift. Jewell testified about one
other instance when the same protocol was followed—i.e., an
employee left a day-shift position in the flute department, and
the vacancy was opened for bid as a night shift position. Jewell
did not expect Garfield to bid on the night-shift cut-off position,
but Garfield did and was selected based on his seniority. The
Respondent pays employees a 5-percent wage premium for
hours worked on the night shift.
After Garfield’s inspector position was eliminated, the Re-
spondent sometimes found it necessary to temporarily assign
noninspectors to perform inspection work on the day shift.
This would occur when the remaining full-time inspector on
that shift was unavailable. The record does not show that the
amount of time the noninspectors were used to perform inspec-
tion work was significant or hampered the noninspectors’ abil-
ity to complete their regular assignments. After moving to the
night-shift position in the cut-off department, Garfield re-
mained on the night shift for 5-1/2 months. Then, the Re-
spondent opened a day-shift position that Garfield applied for
and obtained.
On May 25, the Respondent recalled two of the laid-off em-
ployees—Fenoff and Williams—in order to fill vacancies cre-
ated when two other employees left the Company.
D. Prior Layoffs
At trial, evidence was introduced on the question of whether
the February 2011 layoff was consistent with the Respondent’s
prior actions at the Lyndonville facility. The evidence shows
that at least since early 2008, the Respondent has repeatedly
resorted to layoffs at times when the Lyndonville facility’s
variance to plan performance became unfavorable and/or when
orders were low. For example, from March to June 2008 the
facility’s variance to plan figures became increasingly unfavor-
able and the Respondent laid off 14 employees. There followed
a short period of relatively favorable variance performance
during which the Respondent did not carry out further layoffs.
The facility’s variance to plan performance became very unfa-
vorable starting in September 2008 and continuing until about
October 2009. The Respondent reacted by laying off 2 em-
ployees in October 2008, 11 employees in November 2008, 5
employees in January 2009, 11 employees in February, 2 em-
ployees in March, 12 employees in April, and 2 employees in
May. Throughout much of 2010, the facility’s variance to plan
performance was either favorable, or only moderately unfavor-
able, and during that year the Respondent did not carry out any
layoffs. Towards the end of 2010, the Lyndonville facility be-
gan having unfavorable variance to plan performance, and this
trend worsened during the first months of 2011. In February
2011, the Respondent carried out the layoff of seven employees
that is the subject of this litigation.
As with the February 2011 layoff/staffing plan, the plan that
was prepared for the layoff in 2008/2009 was developed by
KENNAMETAL, INC. 927
Jewell and Morissette. The written plans have very similar
formats. Both plans “rebalance” the three shifts, but the
2008/2009 plan did so much more dramatically than the 2011
plan. That plan decreased the number of employees on the day
shift from 70 to 46, and increased the number of employees on
the night shift from 10 to 23.
As discussed above, Garfield testified that during the days
leading up to prior layoffs he had observed employees running
out of work. He testified that during the days leading up to the
February 2011 layoff, however, there had not been a lack of
work. The overtime rate figures for periods leading up to prior
layoffs provide some limited support for Garfield’s perception.
The amount of overtime that employees were working was low
in February and March 2008, and January, February, and
March 2009—less than 5 percent of total hours—leading up to
layoffs during those years. However, during the period preced-
ing the layoff in February 2011, employees were working sig-
nificant amounts of overtime—8.81 to 12.37 percent of total
hours. At the same time, the evidence does not show that, dur-
ing the periods leading up to the prior layoffs, the Respondent
had the same degree of advance warning about the downturn in
workload that it had in 2011.
E. Complaint Allegations
The complaint alleges that the Respondent violated Section
8(a)(1) in late April and early May 2011 when Fletcher threat-
ened employees with unspecified reprisals for grievance and
unfair labor practices charge filings. The complaint also alleg-
es that the Respondent violated Section 8(a)(3) and (1) of the
Act on about February 18, 2011, by laying off employees Rob-
erta Borg, Gerald Fenoff, John Heywood, Robert Hubbard,
David Jeannotte, Steven Tanner, and Harry Williams, and on
about February 22, 2011, by eliminating the daytime inspector
job held by Leon Garfield and subsequently failing to post any
day-shift vacancies, because of employees’ union and concert-
ed protected activities. The complaint alleges that the Re-
spondent also violated Section 8(a)(4) and (1) of the Act by
laying off those seven employees, and by eliminating Garfield’s
daytime position and failing to post day-shift vacancies because
employees participated in the filing of unfair labor practice
charges and gave testimony in the unfair labor practice hearing
held on February 8 to 10, 2011.
III. ANALYSIS AND DISCUSSION
A. Section 8(a)(1)
The Acting General Counsel alleges that Fletcher’s statement
that there was a “dark cloud” over Lyndonville was a threat in
violation of Section 8(a)(1). As discussed above, at meetings
with employees in April and May 2011, Fletcher complained
about the ULP charges and “infighting between management
and the Union,” and warned employees that there was a “dark
cloud” over the Lyndonville facility. The Respondent contends
that Fletcher’s statements were not threats based on union ac-
tivity because the statements were made during a discussion of
the facility’s poor performance. However, the evidence
showed that, at least during the meeting attended by Brousseau
and Pray, Fletcher made the “dark cloud” comment in the con-
text of his complaints about the Union’s activity, not in the
context of any discussion of the facility’s performance.
Section 8(a)(1) of the Act makes it an unfair labor practice
for an employer “to interfere with, restrain, or coerce employ-
ees in the exercise of” the rights to engage in protected union
and concerted activity. In deciding whether an employer has
made a threat in violation of this prohibition, the Board applies
the objective standard of whether the remark would reasonably
tend to interfere with the free exercise of employee rights, and
does not look at the motivation behind the remark, or rely on
the success or failure of such coercion. Divi Carina Bay Resort,
356 NLRB 316, 320 (2010), enfd. 2011 WL 5560288 (3d Cir.
2011); Joy Recovery Technology Corp., 320 NLRB 356, 365
(1995), enfd. 134 F.3d 1307 (7th Cir. 1998); Miami Systems
Corp., 320 NLRB 71, 71 fn. 4 (1995), affd. in relevant part 111
F.3d 1284 (6th Cir. 1997). When applying this standard, the
Board considers the totality of the relevant circumstances.
Mediplex of Danbury, 314 NLRB 470, 471 (1994).
I conclude that Fletcher’s remarks during the meeting at-
tended by Brousseau and Pray constituted a threat of unspeci-
fied reprisals in violation of Section 8(a)(1). Under all the cir-
cumstances here, I find that employees would reasonably un-
derstand Fletcher’s comment to be a warning that the Union’s
charge and grievance activity was creating a “dark cloud” of
employer disfavor under which employees would work until
such activities were curtailed. Vic Koenig Chevrolet, Inc., 321
NLRB 1255, 1277 (1996) (violation of Sec. 8(a)(1) based on
employer’s statement that union activity meant it “had to worry
about this ‘black cloud’ instead of thinking about ‘our future,’”
and asked employees to end the union activity “so that we can
both make more money”); Ray-Loc, 265 NLRB 1663, 1665
(1982) (unlawful threat where employer said it would not be
ordering necessary parts until the union talk was settled and
“this dark cloud over us was gone”); Cf. Rogers Electric, Inc.,
346 NLRB 508, 520 (2006) (manager statements that employee
was a “chronic complainer” who had a “black cloud around
him” is a “veiled reference” to protected activity). The Re-
spondent’s claim that Fletcher was warning employees about
the need to improve performance metrics is unpersuasive for
the simple fact that during the meeting Fletcher did not discuss
performance, but rather complained about recent actions by the
Union.
For the reasons discussed above, I find that the Respondent,
by Fletcher, threatened employees with unspecified reprisals
for engaging in union activities, and therefore violated Section
8(a)(1) of the Act.11

11 The complaint does not allege a violation of Sec. 8(a)(1) based on
Jamison’s September 16, 2010 statement to the union bargaining com-
mittee that MBS was “not an issue [for the Union] to take a stand on.”
At trial, the Acting General Counsel argued that this statement was
evidence of animus, but stated that it was not alleged as a violation
because it occurred outside the charge filing period under Sec. 10(b) of
the Act. Tr. 217. The Board has held that statements made outside the
10(b) charge-filing period may nevertheless be used to establish ani-
mus. See Jack in the Box Distribution Center Systems, 339 NLRB 40,
52 (2003); Wilmington Fabricators, Inc., 332 NLRB 57, 58 fn. 6
(2000); and Kaumagraph Corp., 316 NLRB 793, 794 (1995).
928 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
B. Section 8(a)(3), (4), and (1)
1. February 2011 layoff
The Acting General Counsel argues that the February 2011
layoff of seven employees violated Section 8(a)(3) because the
Respondent was motivated by employees’ union and concerted
activities and also violated Section 8(a)(4) because the Re-
spondent was motivated, in particular, by employees’ participa-
tion in the prior unfair labor practice charge and hearing. Un-
der the Board’s Wright Line decision, in cases alleging viola-
tions of Section 8(a)(3) and/or (4), the Acting General Counsel
bears the initial burden of showing that the Respondent’s deci-
sion to take adverse action against an employee was motivated,
at least in part, by antiunion considerations. 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455
U.S. 989 (1982), approved in NLRB v. Transportation Man-
agement Corp., 462 U.S. 393 (1983); see also Verizon, 350
NLRB 542, 546–547 (2007) (applying Wright Line analysis to
allegations of discrimination in violation of Sec. 8(a)(4) as well
as Sec. 8(a)(3)). The Acting General Counsel may meet this
burden by showing that: (1) the employee engaged in union or
other protected activity, (2) the employer knew of such activi-
ties, and (3) the employer harbored animosity towards the un-
ion or union activity. ADB Utility Contractors, 353 NLRB 166,
166–167 (2008), enf. denied on other grounds 383 Fed. Appx.
594 (8th Cir. 2010); Intermet Stevensville, 350 NLRB 1270,
1274–1275 (2007); Senior Citizens Coordinating Council, 330
NLRB 1100, 1105 (2000); Regal Recycling, Inc., 329 NLRB
355, 356 (1999). Animus may be inferred from the record as a
whole, including timing and disparate treatment. See Camaco
Lorain Mfg. Plant, 356 NLRB 1182, 1185 (2011). If the Act-
ing General Counsel establishes discriminatory motive, the
burden shifts to the employer to demonstrate that it would have
taken the same action absent the protected conduct. ADB Utili-
ty, supra; Intermet Stevensville, supra; Senior Citizens, supra.
The Acting General Counsel has failed to satisfy the first el-
ement of the prima facie case since the record does not show
that a single one of the seven laid-off employees participated in
any way in the prior unfair labor practice charge and hearing, or
in any other union activity. The Acting General Counsel has
also failed to satisfy the second element of the prima facie
showing since the record does not show that the Respondent
knew, or believed, that any of the laid-off employees had en-
gaged in such activities. The Acting General Counsel’s failure
to meet either of the first two elements of the prima facie case
is a serious blow to its effort to prove that the layoff was dis-
criminatory. See, e.g., Reliable Disposal, Inc., 348 NLRB
1205, 1206 (2006) (prima facie case not established with re-
spect to laid-off employees where the employer was not shown
to have knowledge of their union activities, even though it did
have general knowledge of union activities, and of the specific
union activities of other employees); Geo. V. Hamilton, Inc.,
289 NLRB 1335, 1341 (1988) (no prima facie case that layoff
was discriminatory where the alleged discriminatee was a union
member who had engaged in union activity, but was not shown
to have engaged in union activity close in time to his dis-
charge).
If the allegation that the layoff was discriminatory has any
life, it resides in the Acting General Counsel’s argument that
even though it could not show that the alleged discriminatees
engaged in union activity or that the Respondent had reason to
believe that they had, a prima facie is established by the evi-
dence that the layoff was a tactic to blame the Union’s activities
for the loss of work, and to camouflage the Respondent’s al-
leged discrimination against Garfield. See brief of Acting Gen-
eral Counsel at page 34, citing McGaw of Puerto Rico, Inc.,
322 NLRB 438, 451 (1966), enfd. 135 F.3d 1 (1st Cir. 1997);
Weldun International, 321 NLRB 733, 734, and 748 (1996),
enfd. mem. in relevant part 165 F.3d 28 (6th Cir. 1998) (Table),
and Electro-Voice, Inc., 320 NLRB 1094, 1095 fn. 4 (1996).
The problem with this effort to side-step the first two elements
of the prima facie case is that the record is devoid of evidence
that the Respondent used the tactic described by the Acting
General Counsel. The record does not show that the Respond-
ent made any effort to cause employees to blame the Union for
the layoff. To the contrary, the evidence shows that Brighenti
and Koski, in communications with both employees and man-
agement officials, stated that the layoff was necessitated by a
decline in business and the facility’s deteriorating variance-to-
plan performance. There was no evidence of communications
in which the Respondent suggested to employees that the layoff
was connected to the Union’s activities regarding MBS or any
other labor-management issue. Indeed, the record does not
establish that the dispute regarding MBS was something that
employees in general were particularly concerned about. Given
that the Respondent had, over the last few years, repeatedly
resorted to layoffs at the Lyndonville facility, it is implausible
that management would expect employees to simply assume
that the February 2011 layoff was the result of the Union’s
activities.
In addition, much about the way the Respondent conducted
the layoff is inconsistent with the Acting General Counsel’s
contention that the action was designed to harm employees.
For example, the Respondent began the layoff by requesting
volunteers, an apparent effort to reduce the pain that the layoff
would cause employees. Cf. Twistex, Inc., 283 NLRB 660
(1987) (prima facie case supported, inter alia, by evidence that
employer did not seek volunteers for the layoff). In addition,
when two employees left the Respondent’s work force several
months after the layoff began, the Respondent recalled two of
the laid-off individuals. This is consistent with the view that
the Respondent was attempting to maintain what it considered
an appropriately-sized work force, not laying off people to
cause an injury that employees would blame on the Union.12

12 I also considered whether a lack of animus was evidenced by the
fact that the Respondent provided the laid-off employees with certain
health insurance benefits even though it was not required to do so under
the collective-bargaining agreement. However, the testimony of
Brighenti and Huttenlocher lead me to conclude that this was not done
intentionally, but rather resulted from an oversight. Therefore, I do not
consider the provision of those benefits to be evidence weighing against
a finding of animus. Because the record indicates that the continued
provision of health insurance was an oversight, I also do not view those
benefits as evidence that the layoff was not motivated by a desire to
save labor costs.
KENNAMETAL, INC. 929
Lastly, I note that in the three cases the Acting General
Counsel relies on for the proposition that a showing of union
activity by laid-off employees is not necessary to show a prima
facie case, the layoffs all took place in the context of a union
organizing campaign. See McGaw, supra; Weldun Internation-
al, supra; Electro-Voice, Inc., supra. An organizing campaign is
a highly charged circumstance and one that an employer might
be expected to see as engaging the work force as a whole, re-
gardless of a particular employee’s position regarding represen-
tation. All employees in the unit might soon have the oppor-
tunity to sign a union authorization card or vote in a representa-
tion election. Under such circumstances, it is plausible that
management would implement a layoff either in hopes that the
display of economic power will chill employees from support-
ing a union, or in order to render certain employees ineligible to
vote in an upcoming election. See, e.g., Hovey Electric, 302
NLRB 482, 488 (1991). That is especially true where, as in
McGaw and Electro-Voice, many of the employees included in
the layoff are union supporters. McGaw, 322 NLRB at 451
(employer “had knowledge that at least three” of the nine laid
off employees “were leaders in the [u]nion’s drive to organize
its employees, and suspected that a fourth . . . may also have
been involved”); Electro-Voice, 320 NLRB at 1110 (“All the
discharged employees were union partisans”). It is far less
plausible that the Respondent would take such extreme action
over the question of whether it had to bargain regarding a new
safety program, and in a context where not a single one of the
laid-off employees was a union partisan.
The Acting General Counsel has also failed to provide a ba-
sis for believing that the layoff was a tactic to camouflage un-
lawful discrimination against Garfield. On its face, this conten-
tion is rather farfetched and on closer inspection it fares no
better. The Acting General Counsel would have one believe
that the Respondent laid off seven individuals (all of whom
were presumably still needed at the facility and none of whom
had engaged in union activity), instituted shortened weeks for
the remaining employees, and implemented a new staffing plan
for the entire facility, all for the purpose of moving Garfield to
the night shift. The record contains no meaningful evidence
that the Respondent resorted to such a tactic, and absent such
evidence I cannot simply assume that it did. There are no
statements by managers or supervisors threatening retaliation
against Garfield and certainly none showing intent to use a
layoff to camouflage such retaliation. The Acting General
Counsel does not even explain why the Respondent would find
such camouflage necessary. If the Respondent wanted to move
Garfield to the night shift for unlawful purposes it could have
“camouflaged” its action by citing its existing initiatives to
rebalance shifts and eliminate indirect labor positions. Since
even with the layoff it relies on those initiatives, the layoff
would be somewhat superfluous as camouflage.
I also consider it implausible that the Respondent would be-
lieve it could garner so great an advantage by transferring Gar-
field to the night shift that it would be willing to engage in un-
necessary layoffs, shortened weeks, and plantwide staffing
changes to accomplish the transfer. Although moving Garfield
to the night shift would make it less convenient for Garfield to
meet with day-shift employees and address some union con-
cerns, the evidence does not show that Garfield would be una-
ble to continue engaging in those activities simply by remaining
at the facility after the night shift ended and the day shift began.
Moreover, while working on the night shift, Garfield would be
able to meet with night-shift employees. Even at times when
Garfield could not be present, there were other experienced
employees on the union committee—for example, Brousseau
and Pray—who work on the day shift.
Lastly, I note that after the Respondent implemented the
layoff and eliminated Garfield’s day-shift assignment, it select-
ed Garfield to remain on the day shift for a period of some
weeks in order to perform calibration work. If, as the Acting
General Counsel claims, the Respondent saw moving Garfield
to the night shift as so pressing an objective that it was willing
to lay off seven other employees and create a new staffing plan
in order to accomplish the reassignment, it is inconceivable that
the Respondent would then select Garfield for even a temporary
assignment on the day shift.
Assuming that the Acting General Counsel had succeeded in
side-stepping the first two elements of the prima facie case, it
would still fail to meet the third element—i.e., showing that the
Respondent harbored animus towards the Union or union activ-
ity. The attempt to show animus is made against the back-
ground of a longstanding bargaining relationship at the
Lyndonville facility. The Union was certified as the repre-
sentative of employees at the facility over 50 years ago in 1957.
Regular negotiations for the most collective-bargaining agree-
ment began in September 2010, and the Union and the Re-
spondent worked together well enough to ratify an agreement
only a month or so later on October 1, 2010. Of the eight fa-
cilities in the same corporate division as the Lyndonville facili-
ty, half are unionized.
The Acting General Counsel attempts to establish antiunion
motivation based on statements by Jamison and Fletcher, and
the timing of the layoff. The earlier of the two statements was
made by Jamison during the September negotiations that result-
ed in the ratified agreement. During the third day of negotia-
tions, the parties discussed the possibility of resolving a number
of outstanding grievances and charges, including the charge
that the Union filed approximately 6 months earlier regarding
the Respondent’s unilateral implementation of MBS. On the
subject of MBS, Jamison (the Respondent’s lead negotiator)
stated that: MBS was something that the Respondent was im-
plementing globally and corporatewide; Lyndonville was only
1 percent of the Company; the Company would not change its
position regarding MBS; and MBS was “not an issue [for the
Union] to take a stand on.” The Acting General Counsel con-
tends that Jamison’s statements are evidence of animus because
they constitute a threat the Respondent would retaliate if the
Union refused to back down regarding MBS. After considering
Jamison’s statements and the surrounding circumstances, I
conclude that they are not evidence of animus or a willingness
to retaliate against the Union for continuing to seek bargaining
over MBS. Jamison did not state, or imply, that the Respond-
ent planned to do anything other than continue refusing to bar-
gain over MBS. He did not allude to any type of adverse con-
sequences or state that continued resistance to MBS would
bring the facility into disfavor with the Respondent. To the
930 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
extent that what Jamison said can be understood as a threat, it is
as a threat of futility—i.e., that MBS was a corporatewide jug-
gernaut and that a union representing a very small portion of
the corporation’s employees could not hope to stop it. Such a
threat is consistent with the Respondent’s subsequent refusal to
bargain, but cannot reasonably be tied to the layoff. Moreover,
the evidence does not show that the dispute regarding imple-
mentation of MBS was the result of animus rather than of a
good faith disagreement about the necessity of bargaining over
that change. Thus the Respondent’s refusal to bargain, even if
unlawful, is not evidence of antiunion animus. See Denver
Post Corp., 328 NLRB 118 fn. 2 (1999) (unilateral change is
violation of Sec. 8(a)(5), but not evidence of antiunion animus);
Haynes-Trane Service Agency, 259 NLRB 83, 87–88 (1981)
(employer’s unlawful unilateral change is not evidence of ani-
mus where animus was not part of the showing regarding the
unlawful change).
In addition, I note that Jamison was not a permanent official
of the Respondent, but rather a consultant retained to serve as
the Company’s lead negotiator during bargaining for a new
contract. There is no evidence that Jamison had any input at all
into the February 2011 layoff, or even that he was still working
for the Respondent at the time of that layoff. Thus, whatever I
make of Jamison’s statements, I would be hard-pressed to see
them as connected to the February 2011 layoff.
The second statement that the Acting General Counsel relies
on as evidence of animus, is Fletcher’s April/May 2011 re-
marks about “infighting between management and the Union”
and the resulting “dark cloud” over the Lyndonville facility. As
is discussed above, I find that this statement did constitute a
threat of unspecified reprisals in violation of Section 8(a)(1). If
such a statement had been made before the layoff decision, by
someone who had a hand in that decision, it would likely be
strong evidence that antiunion animus was connected to the
layoff. However, in this case it is undisputed that Fletcher had
not even started at the Lyndonville facility when the layoff was
implemented and had no part in the layoff decision or the crea-
tion of the layoff staffing plan. Under these circumstances,
Fletcher’s threat is not connected to the layoff and does not
show antiunion animus relative to that action. Wild Oats Mar-
kets, 339 NLRB 81, 88 fn. 10 (2003) (statements by supervisor
do not show animus where supervisor had no part in the chal-
lenged decision).
According to the Acting General Counsel, unlawful motive
is also shown by the timing of the layoff, which was imple-
mented about a week after the close of the unfair labor practices
hearing at which MBS was an issue. The Acting General
Counsel hitches its case largely to what it characterizes as this
“striking” timing. As the Acting General Counsel states, it is
possible to show unlawful motivation based on the timing of an
adverse action.13 The problem with the Acting General Coun-

13 The Board has made clear that timing is an important factor in as-
sessing motivation in cases alleging discrimination based on union or
protected activity. See, e.g., LB&B Associates, Inc., 346 NLRB 1025,
1026 (2005), enfd. 232 Fed. Appx. 270 (4th Cir. 2007); Desert Toyota,
346 NLRB 118, 120 (2005); Detroit Paneling Systems, 330 NLRB
1170 (2000), enfd. sub nom. Carolina Holdings, Inc. v. NLRB, 5 Fed.
sel’s argument is that the timing here is not at all “striking” and
does not suggest unlawful motive. The dispute between the
Respondent and the Union regarding MBS was not a new one
at the time of the challenged layoff. Respondent implemented
MBS in February 2010, a full year prior to the layoff, and the
Union almost immediately disputed the Respondent’s action by
filing a grievance. The Union filed its unfair labor practice
charge regarding MBS on July 30, 2010, the Region investigat-
ed that charge, the Region issued a complaint on December 28,
2010, and a hearing was held on February 8–10, 2011. The
ALJ did not issue his decision at the close of the hearing, or
prior to the implementation of the layoff. Rather the decision
in favor of the Union issued on April 12, 2011—well after the
layoff was implemented. The Acting General Counsel’s focus
on the date when the unfair labor practice hearing closed, rather
than on any number of other dates during the lengthy course of
the MBS dispute, is convenient for purposes of its effort to
show a connection to the layoff, but that focus is not warranted
by anything other than the Acting General Counsel’s conven-
ience. The record does not show that in the course of the dis-
pute regarding MBS, the closing of the hearing stood out as a
moment when the Respondent would have been particularly
troubled over the MBS issue, or as one when the Respondent
would have seen a particular opportunity to influence the Un-
ion’s or employees’ actions. The Board has declined to draw an
inference of discrimination when the Acting General Counsel
picks a self-serving date in an effort to show that the timing of
an adverse action is suspicious, Newcor Bay City Division, 351
NLRB 1034, 1039–1040 (2007), and I decline to draw such an
inference under such circumstances here.
The Acting General Counsel contends that, because the evi-
dence does not show that Brighenti was planning the layoff
prior to when the hearing closed on February 10, the timing is
suspicious. I do not find this contention persuasive for a num-
ber of reasons. First, documentary evidence shows that by
January 31—prior to the February 2010 hearing—Brighenti had
already told his supervisor that he was going to develop a plan
to address declining business and poor variance performance at
the Lyndonville facility. The record shows that employee
layoffs were one of the plans that the Respondent had a history
of using under similar circumstances in the past. Moreover,
although there is no documentation showing that, prior to Feb-
ruary 10, Brighenti had settled on the layoff plan, there is also
no documentary evidence showing that he had not. The testi-
mony on that point was vague and, in my view, does not estab-
lish that the decision was made after February 10. Finally, even
assuming the Acting General Counsel had established that the
layoff decision was not made or contemplated until after Febru-
ary 10, that would not show unlawful motive because, for the
reasons discussed above, February 10 is not a particularly
meaningful date.
For the reasons discussed above, I conclude that the evidence
fails to establish a prima facie case that the layoff was unlaw-
fully motivated. Thus under Wright Line, the burden does not

Appx. 236 (4th Cir. 2001); Bethlehem Temple Learning Center, 330
NLRB 1177, 1178 (2000); American Wire Products, 313 NLRB 989,
994 (1994).
KENNAMETAL, INC. 931
shift to the Respondent to show that it would have made the
same decision absent the union activity. Even if I had conclud-
ed that the Acting General Counsel succeeded in making a very
weak prima facie case, I would find that the Respondent intro-
duced sufficient evidence that the layoff was motivated by
business conditions to rebut that prima facie case. As is dis-
cussed in greater detail above, the record shows that beginning
in October 2010 and continuing through May 2011 the
Lyndonville facility’s variance-to-plan performance became
increasingly poor, and that during the first months of 2011,
there was a slump in orders for the facility. Management offi-
cials discussed their concern over the State of the Lyndonville
facility’s business, and the need to address those concerns, in
written communications sent in January, February, and March
2011.
The Acting General Counsel argues that the Respondent’s
claim that the layoff was motivated by a desire to reduce labor
costs should be rejected because the wage rate the Respondent
had to pay employees to work overtime during the layoff was
higher than the straight-time rate it could have paid the laid-off
employees to do the same work. By reassigning employees in
such a way as to eliminate the need for overtime, the Acting
General Counsel suggests, the Respondent could have retained
laid-off employees and instead met any need to cut labor costs
by reducing overtime. This contention might be somewhat per-
suasive if the evidence showed that when the layoff was im-
plemented the Respondent had to increase overtime in order to
meet demand. Cf. Stamping Specialty Co., 294 NLRB 703, 713
(1989) (layoff was not unlawful where, inter alia, the evidence
did not show that reduced workforce prevented employer from
satisfying orders). However, the evidence shows, to the contra-
ry, that immediately after the Respondent implemented the
February 2010 layoff, it also dramatically reduced the amount
of overtime it was using at the facility. Thus, the Respondent
reduced labor costs through the layoff at the same time as it
reduced labor costs by cutting overtime. At no point during the
layoff does the record show that the Respondent’s use of over-
time exceeded the levels that were optimal for the facility.
At any rate, the question for me is not whether the layoff was
the most effective course of action to address business condi-
tions, but whether the layoff was discriminatorily motivated.
Newcor Bay, 351 NLRB at 1040; Gem Urethane Corp., 284
NLRB 1349 (1987). The Acting General Counsel’s evidence
regarding overtime does not show that the layoff was a bad
business decision, and certainly not that it was so inexplicably
bad a business decision as to justify a conclusion that some-
thing other than business concerns must have motivated it.
For the reasons discussed above, the allegations that the Re-
spondent violated Section 8(a)(3), (4), and (1) by discriminato-
rily instituting a layoff because of employee’s union and pro-
tected concerted activities and/or because of employees’ partic-
ipation in the unfair labor practices process are without merit.
The complaint allegations relating to the layoff should be dis-
missed.
2. Elimination of Garfield’s day-shift position
The complaint also alleges that the Respondent discriminated
in violation of Section 8(a)(3) and (4) by eliminating Garfield’s
day-shift position on about February 22 and subsequently fail-
ing to post any day-shift vacancies. The evidence presented
satisfies the first two elements of the Wright Line prima facie
case with respect to this allegation. Garfield has been active in
the Lyndonville facility’s union for many years and became the
president of the local union in May 2009. There is no doubt
that the Respondent was aware that Garfield participated in a
range of union activities and testified at the February 2011
unfair labor practices hearing regarding MBS. However, the
Respondent has failed to establish animus connected to the
decision to eliminate Garfield’s day-shift position and therefore
has not established a prima facie case. For the reasons dis-
cussed above, neither the statements of Jamison and Fletcher,14
nor the timing of the reassignment show such animus. I also do
not find animus based on the fact that on February 18, 2011,
Brighenti notified Koski that Garfield was being reassigned to
the night shift. This communication does not mention or allude
to any unlawful motive and I credit Brighenti’s testimony that
he alerted Koski to the reassignment because Garfield had filed
a charge the last time he was reassigned. I also note that the
suggestion that the Respondent was bent on interfering with
Garfield’s union activities by moving him to the night shift is
contradicted by the fact that, after eliminating Garfield’s day-
shift inspector position, the Respondent immediately selected
Garfield to stay on the day shift for a period of time in a tempo-
rary assignment.
Even assuming that the Acting General Counsel had suc-
ceeded in establishing a prima facie case, there would be no
violation since the Respondent has met its responsive burden
under Wright Line by showing that it would have taken the
same actions with respect to Garfield even absent any antiunion
animus. For the reasons discussed above, I conclude that the
layoff itself was motivated by lawful business reasons. Regard-
ing the related decision to eliminate Garfield’s day-shift posi-
tion, Jewell testified that this was done as part of the Respond-
ent’s effort to improve performance by moving employees from
indirect labor positions to direct labor positions. That explana-
tion is facially credible and Jewell’s testimony regarding it was
not undermined during cross-examination or by other evidence.
There is no dispute that the inspector position is “indirect” and
that, because Garfield was the inspector with the least seniority,
he was the one to be reassigned when an inspector position was
eliminated. Moreover, it is not disputed that, even before the
layoff, the Respondent was acting to reduce the need for in-
spectors by allowing employees to do self-inspections using a
buddy system. In addition, based on Jewell’s testimony and the
record as a whole, I credit Jewell’s statement that the reason he

14 I considered whether animus is shown by Fletcher’s April/May
2011 threat in light of the fact that the complaint allegation concerning
Garfield references not only the elimination of his position, but also a
subsequent failure “to post any vacated daytime positions for bid.”
However, the record does not show that during the period after Fletcher
became plant manager and before Garfield returned to the day shift in
August 2011, any daytime positions were vacated and not posted as
day-shift vacancies. Assuming the failure to post daytime positions is
itself alleged to be a violation, there is no evidence that Fletcher had a
part in any such decisions, and therefore, his animus has not been
shown to be relevant to such an allegation.
932 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
moved the day-shift position in the cut-off department to the
night shift was to further management’s plan to rebalance
shifts. The transfer of the cut-off position from the day shift to
the night shift was by no means a unique occurrence, but rather
part of an ongoing effort to rebalance shifts in order to better
exploit the facility’s most productive equipment. The staffing
plan that the Respondent put into effect in 2008 and 2009—
before the unfair labor practice proceeding regarding MBS—
reduced the number of employees on the day shift from 70 to
46 while increasing the number of employees on the night shift
from 10 to 23. Then, at the time of the February 2011 layoff,
the Respondent made further efforts to equalize staffing–
moving positions in the coating and OD departments from the
day shift to the night shift, and when a day-shift position in the
flute department became vacant, moving it to the night shift.
As part of the 2011 staffing plan, 5 of the 45 positions on the
day shift were eliminated, while the number of positions on the
night shift remained constant at 21.
The Acting General Counsel points out that the 2010 layoff
staffing plan called for Levesque to continue on the day shift in
the cut-off department, but when he voluntarily left that posi-
tion, the vacancy was posted on the night shift. I agree that this
is somewhat curious, but not so curious as to outweigh the
strong evidence indicating that the Respondent would have
made the same decision even absent Garfield’s activities on
behalf of the Union. See Merrilat Industries, 307 NLRB 1301,
1303 (1992) (The Respondent need only establish its Wright
Line defense by a preponderance of the evidence, and therefore
that defense “does not fail simply because not all of the evi-
dence supports it, or even because some evidence tends to ne-
gate it.”). Moving the opening to the night shift was consistent
with the Respondent’s ongoing efforts to rebalance the shifts.
In addition, Jewell credibly testified that when the cut-off va-
cancy was posted he had not even expected Garfield to bid on
the position.
For the reasons discussed above, the evidence does not show
that the Respondent violated Section 8(a)(3), (4), and (1) by
discriminatorily eliminating Garfield’s day-shift inspector posi-
tion and subsequently failing to post any day-shift positions for
bid. The complaint allegations relating to the elimination of
Garfield’s position and the failure to post day-shift positions
should be dismissed.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5).
3. The Respondent violated Section 8(a)(1) in April or May
2011 by threatening employees with unspecified reprisals be-
cause of the Union’s activities.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall order it to cease and desist therefrom
and to take certain affirmative action designed to effectuate the
policies of the Act.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended15
ORDER
The Respondent, Kennametal, Inc., Lyndonville, Vermont,
shall
1. Cease and desist from
(a) Threatening employees at the Lyndonville, Vermont fa-
cility with unspecified reprisals because of the protected union
activities of employees and/or of the United Steelworkers, Lo-
cal 5518, affiliated with United Steelworkers of America,
AFL–CIO, CLC.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days after service by the Region, post at its fa-
cility in Lyndonville, Vermont, copies of the attached notice
marked “Appendix.”16 Copies of the notice, on forms provided
by the Regional Director for Region 1, after being signed by the
Respondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. In addition to physical posting of paper
notices, the notices shall be distributed electronically, such as
by email, posting on an intranet or an internet site, and/or other
electronic means, if the Respondent customarily communicates
with its employees by such means. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Respondent
has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time
since April 4, 2011.

15 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
16 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.”
KENNAMETAL, INC. 933
(b) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.