Kennametal, Inc.

National Labor Relations Board - Administrative Judge Opinions

Feb 16, 2012

01-CA-046689 (N.L.R.B. Feb. 16, 2012)

JD–10–12
Lyndonville, VT
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
KENNAMETAL, INC.
and Case 01-CA-046689
UNITED STEELWORKERS, LOCAL 5518,
affiliated with UNITED STEELWORKERS
OF AMERICA, AFL-CIO, CLC
JoAnne P. Howlett, Esq.,
for the General Counsel.
Charles P. Roberts, III. Esq.,
(Constangy, Brooks & Smith, LLP)
of Winston-Salem, North Carolina,
for the Respondent.
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 of Region 1 of the
National Labor 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 the Union’s grievance and unfair labor practice
charge filings, and violated Section 8(a)(3) and (4) by laying off seven employees in February
2011, and eliminating the day-shift position of another because employees assisted the Union,
engaged in concerted activities, and participated in the Board’s processes. The Respondent filed
a timely answer in which it denied committing any of the violations alleged.
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On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel, the Union and the Respondent, I make
the following findings of fact and conclusions of law.1
FINDINGS OF FACT10
I. JURISDICTION
The Respondent, a corporation, manufactures metalworks, component parts, and tools at
its facility located in Lyndonville, Vermont, where it annually derives gross revenues in excess 15
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.
20
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts
The Respondent is a multinational corporation that employs approximately 13,000 25
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 am to 3 pm; the evening shift (or second shift) is from 3 pm to 11 pm; and the
night shift (or third shift), is from 11 pm to 7 am. The Respondent manufactures steel taps – a 30
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 Garfield, a Lyndonville employee, has been 35
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 manager 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
location. During the relevant time period, Ken Koski, who works at the Respondent’s corporate 40
headquarters in Latrobe Pennsylvania, was the division director to whom Brighenti reported. In
his capacity as division director, Koski had authority over eight of the Respondent’s facilities,
including the Lyndonville and Greenfield locations. Employees are represented by unions at four
of the eight facilities in the division overseen by Koski.2

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 Respondent’s exhibits 22, 23, and 24, into evidence.
2 Besides the Lyndonville and Greenfield facilities, Koski oversaw the Respondent’s
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On February 18, 2011, the Respondent laid off seven 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 10
eliminated Garfield’s day-shift inspector position. As a result, Garfield was one of between three
and five individuals 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 another shift) or, if
no such openings exist, permit them to bid to fill vacancies resulting from the layoff and the 15
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 Respondent informed him that he would be reassigned to the night shift. Nevertheless, the
Respondent chose Garfield for a temporary day-shift assignment calibrating equipment. Garfield
continued in that day shift assignment for some weeks, and in early March 2011 he bid on a 20
night-shift position in the cut-off department. He was selected for that position based on
seniority. 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 25
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 Union and the Respondent. These30
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 unfair 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 implementation of its “Management Based Safety Program” 35
(MBS). MBS is a safety training program. The parties dispute whether MBS is connected to a
policy regarding discipline for safety violations.

operations in: Asheboro, North Carolina; Huntley, Illinois; Irwin, Pennsylvania; Rockford,
Illinois; Traverse City, Michigan; and Victoria, British Columbia, Canada. The Steelworkers
union represents employees at the locations in Lyndonville, Irwin, and Victoria. An electrical
workers union represents employees as the Respondent’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 determination regarding its
merits. Garfield’s day-shift position was eliminated again at the time of the February 2011
layoffs, and the complaint in this case concerns only that occurrence.
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The General Counsel contends that it was the prior ULP hearing regarding the 5
Respondent’s implementation of MBS that motivated the Respondent, on February 18, 2011, to
announce the lay off seven employees and the elimination of Garfield’s day shift position. The
record shows that the Respondent implemented MBS without bargaining in February 2010 – a
year before the layoff. The Union attempted to bargain over this implementation, but the
Respondent maintained that it was not required to bargain and it refused to do so. Soon after 10
implementation of MBS, the Union filed a grievance challenging 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 regarding 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 15
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 20
12, 2011, finding, inter alia, that the Respondent 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
appropriately to Union information requests. As of February 1, 2012, the case was pending
before the Board.25
During 2010 negotiations for a successor to the expiring collective bargaining agreement,
the Respondent’s lead negotiator was John Jamison – an outside consultant who was not a
management official or employee of the company. The Respondent’s bargaining committee also
included Eric Huttenlocher (a human resources manager who provided “support” at the 30
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 employees –
Garfield, Dave Brousseau (treasurer of the local union), 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 35
outstanding 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 corporate top down initiative that’s being spread across all of
Kennametal both North American and our overseas locations,” and which the Respondent would 40
not waver on. He also stated that Lyndonville was only one 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

4 The parties had also engaged in unsuccessful early negotiations in 2009.
5 This account is based on the largely consistent accounts of witnesses for both the General
Counsel and the Respondent. The most significant difference in the accounts is that the General
Counsel’s witnesses testified that Jamison said the Lyndonville facility was only one percent of
Kennametal, whereas the Respondent’s witnesses deny that any reference to “one percent” was
made. I credit the Union’s witnesses on this point. I base this credibility determination largely
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did not discuss MBS further during the 2010 negotiations and soon reached agreement on a 5
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 manager. Fletcher arrived at the Lyndonville on February 28 to
begin training with Brighenti. He assumed the position of plant manager on April 4, 2011. 10
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 important to end the “infighting
between management and the Union” and begin working “as a team,” and that there was a “dark 15
cloud” over Lyndonville. Fletcher admitted that he made these remarks, but claimed that the
“dark cloud” comment referred not to the union activity, but to the facility’s poor performance.
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 service levels or
“anything like that,” but did talk “about the NLRB and stuff.” Brousseau, who attended the 20
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 performance, 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 25
issue. On the other hand, when pressed, Fletcher conceded that he did not actually remember
with any specificity what he said during that meeting. Transcript at Page (Tr.) 493.
C. The February 2011 Layoff
30
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.35
The Respondent evaluates the performance of the Lyndonville 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]40
variance to plan.” If the cost is lower than what the Respondent’s plan calls for it is referred to as

on the contemporaneous notes taken at the bargaining session by Garfield and Pray. Both of
these sets of notes report the “one percent” remark . Moreover, Jamison’s reference to the one
percent figure is consistent with the gist of the argument he was making, which I understand to
be that since MBS was a corporate-wide initiative it was not something that the Lyndonville
employees’ bargaining representative could expect to stop. In addition, the evidence showed that
the Lyndonville workforce was about one percent of the Respondent’s total workforce, lending
plausibility to the claim that Jamison pointed that out.
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a “favorable [or positive] variance to plan.” Unfavorable variance performance generally results5
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.
10
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 variance to plan figures remained unfavorable but less dramatically so.
15
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 20
96,765, before rebounding in June 2011.6
The Respondent has reduced the size of the Lyndonville workforce 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 25
were only 73 employees at the Lyndonville facility.
Officials of the Respondent expressed concern about business and performance at the
Lyndonville facility in email communications leading up to the February 2011 layoff. In an
email sent on January 31, 2011, Brighenti informed Koski that the Lyndonville facility was “not 30
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 35
incoming orders were as low as they appeared to be. Ultimately, Brighenti settled on a plan to
reduce the Lyndonville workforce by about nine employees. He testified that, as a rule of thumb,
for each Lyndonville employee he laid off the company 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 40
reduction of the remaining employees’ schedules to 32 hours per week for the month of March.

6 I take these figures from Respondent’s Exhibit 18, which consists of records kept by the
Respondent in the ordinary course of business. Somewhat different figures appear for some
months in Respondent’s Exhibit 1, a summary document prepared by the Respondent for this
litigation. During a post-hearing 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 Respondent’s Exhibit 18. I note also that while the summary exhibit
contains figures for January 2011 orders – a key time for evaluating the workload at the time of
the February 2011 layoff – I do not credit those January figures because the underlying business
records contain no order figures at all for January 2011.
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In the email, Brighenti wrote that the value of custom solution orders for the Lyndonville facility5
“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 “reduction plan” had been implemented 10
for the Lyndonville workforce.
Some time after February 10 and prior to February 15, Brighenti had a phone conference
with Garfield and Pray during which he informed them that, due to the downturn in orders for the
Lyndonville facility, he was planning a layoff of between five and ten employees. Brighenti 15
asked for their permission 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 20
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 manufactured in the Lyndonville facility
whether there was any “’quick’ opportunity to get [custom solution] business back into” the
Lyndonville facility. Koski explained that Lyndonville was experiencing an “extremely low
specials load,” resulting in high unfavorable cost variance performance and reductions. On 25
February 23, the Respondent announced that in order to save additional labor costs the
employees would have four unpaid 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 performance there.
30
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
conceded 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 had35
always put-off taking such steps until employees began running out of work. The documentary
evidence 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 40
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 implemented 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. 45
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

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.
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facility is between 8 and 15 percent of total hours. This allows, he explained, for the Respondent 5
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 10
Lyndonville facility, that the facility had “low incoming” orders. He directed Jewell to prepare a
plan to lay off up to ten employees, and staff the facility with the remaining 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 Morisette, the evening shift supervisor, developed a plan to lay off 15
seven individuals, and delivered that plan to Brighenti on February 17, 2011. Then next day,
Jewell followed up with a slightly revised version of the plan. Prior to the layoff there 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 reduced to 40 and 26
respectively, but the number of employees on the night shift remained at 21. Brighenti testified 20
that the reason positions were eliminated on the day and evening shifts, but not the night shift,
was that the Respondent was “rebalancing” 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 25
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 employees 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 the30
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 consequence 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 seniority and were therefore more likely to be laid off, 35
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 40
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 45
do this. The agreement provides that the Respondent would continue to pay the employer’s
share of the health insurance premium during the first 3 months of the layoff, but that the laid-off

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.
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employee would pay his or her share of the premium. After three months, the laid off employee5
could choose to either pay the full premium amount, or terminate the health insurance coverage
entirely. An employee’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 10
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 provision of insurance benefits that exceeded those required by contract was the
result of an administrative oversight, not any intentional decision to cushion the blow to laid-off
employees, or forgo potential labor cost savings.15
The layoff plan also called for the elimination of Garfield’s day-shift assignment. Prior
to the layoff there were four employees working in the inspection department. Garfield and one
other inspector were assigned to the day shift and one inspector was assigned to each of the other
two shifts. The plan prepared by Jewell eliminated one of the day-shift inspector positions. 20
Because he was the inspector with the least seniority, Garfield was the inspector who became
unassigned. According to Jewell, the inspection position was chosen for elimination 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 Respondent had been
increasing its reliance on “self-inspection” – a practice under which machine operators inspect 25
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 30
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, 35
Brighenti informed 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 Garfield was not the only employee who was being transferred
between shifts. Brighenti testified, credibly in my view, that he felt it was necessary to warn40
Koski about the Garfield’s transfer, 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 footnote 4.
Shortly after the layoff was announced, John Levesque, an employee who had been 45
assigned to a day shift position in the cut-off department, successfully bid on an opening that the

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.
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layoff created on the night shift.10 When Levesque left his day shift job subsequent to the layoff, 5
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 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 10
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 15
Respondent pays employees a five percent wage premium for hours worked on the night shift.
After Garfield’s inspector position was eliminated, the Respondent sometimes found it
necessary to temporarily assign non-inspectors to perform inspection work on the day shift. This
would occur when the remaining full-time inspector on that shift was unavailable. The record 20
does not show that the amount of time the non-inspectors were used to perform inspection work
was significant or hampered the non-inspectors’ ability to complete their regular assignments.
After moving to the night shift position in the cut-off department, Garfield remained on the night
shift for 5½ months. Then the Respondent opened a day shift position that Garfield applied for
and obtained.25
On May 25, the Respondent recalled two of the laid-off employees – Fenoff and
Williams – in order to fill vacancies created when two other employees left the company.
D. Prior Layoffs30
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 35
orders were low. For example, from March to June 2008 the facility’s variance to plan figures
became increasingly unfavorable 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 unfavorable
starting in September 2008 and continuing until about October 2009. The Respondent reacted by 40
laying off two employees in October 2008, eleven employees in November 2008, five employees
in January 2009, eleven employees in February, two employees in March, twelve employees in
April, and two employees in May. Throughout much of 2010, the facility’s variance to plan
performance was either favorable, or only moderately unfavorable, and during that year the
Respondent did not carry out any layoffs. Towards the end of 2010, the Lyndonville facility 45
began having unfavorable variance to plan performance, and this trend worsened during the first

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.
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months of 2011. In February 2011, the Respondent carried out the layoff of seven employees 5
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 Jewell and Morisette. The written plans have very similar
formats. Both plans “rebalance” the three shifts, but the 2008/2009 plan did so much more 10
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 15
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 five percent of total hours – leading up to layoffs
during those years. However, during the period preceding the layoff in February 2011, 20
employees were working significant amounts of overtime – 8.81 to 12.37 percent of total hours.
At the same time, the evidence does not show that, during 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.
25
E. Complaint Allegations
The complaint alleges that the Respondent violated Section 8(a)(1) in late April and early
May 2011 when Fletcher threatened employees with unspecified reprisals for grievance and
unfair labor practices charge filings. The complaint also alleges that the Respondent violated 30
Section 8(a) (3) and (1) of the Act on about February 18, 2011, by laying off employees Roberta
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 concerted protected activities. The complaint alleges that the Respondent 35
also violated Section 8(a)(4) and (1) of the Act by laying of 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.
40
III. Analysis and Discussion
A. Section 8(a)(1)
The General Counsel alleges that Fletcher’s statement that there was a “dark cloud” over 45
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 activity because the statements were made during a discussion of the facility’s 50
poor performance. However, the evidence showed that, at least during the meeting attended by
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12
Brousseau and Pray, Fletcher made the “dark cloud” comment in the context of his complaints5
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 employees 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 10
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 No. 60, slip op. at 5 (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 15
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 attended by Brousseau and Pray 20
constituted a threat of unspecified reprisals in violation of Section 8(a)(1). Under all the
circumstances here, I find that employees would reasonably understand 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 section 8(a)(1) based on 25
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 30
statements that employee was a “chronic complainer” who had a “black cloud around him” is a
“veiled reference” to protected activity). The Respondent’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.35
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
40

11 The complaint does not allege a violation of Section 8(a)(1) based on Jamison’s September
16, 2010, statement to the Union bargaining committee that MBS was “not an issue [for the
Union] to take a stand on.” At trial, the 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 Section 10(b) of the Act. Tr. 217. The Board has held that statements made
outside the Section 10(b) charge-filing period may nevertheless be used to establish animus. 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).
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5
B. Section 8(a)(3), (4) and (1)
1. February 2011 Layoff
The General Counsel argues that the February 2011 layoff of seven employees violated 10
Section 8(a)(3) because the Respondent was motivated by employees’ union and concerted
activities and also violated Section 8(a)(4) because the Respondent was motivated, in particular,
by employees’ participation in the prior unfair labor practice charge and hearing. Under the
Board’s Wright Line decision, in cases alleging violations of Section 8(a)(3) and/or (4), the
General Counsel bears the initial burden of showing that the Respondent's decision to take 15
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. (1982),
approved in NLRB v. Transportation 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 Section 8(a)(4) as well as Section 8(a)(3)). The General Counsel may meet this burden by 20
showing that: (1) the employee engaged in union or other protected activity, (2) the employer
knew of such activities, and (3) the employer harbored animosity towards the Union 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, 1274-75
(2007); Senior Citizens Coordinating Council, 330 NLRB 1100, 1105 (2000); Regal Recycling, 25
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 No. 143, slip op. at
4 (2011). If the 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 Utility, supra; Intermet Stevensville, supra; Senior Citizens, supra.30
The General Counsel has failed to satisfy the first element 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
General Counsel has also failed to satisfy the second element of the prima facie showing since 35
the record does not show that the Respondent knew, or believed, that any of the laid-off
employees had engaged in such activities. The 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 discriminatory. See, e.g., Reliable Disposal, Inc., 348 NLRB 1205, 1206 (2006) (prima
facie case not established with respect to laid-off employees where the employer was not shown 40
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 discharge).45
If the allegation that the layoff was discriminatory has any life, it resides in the 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 evidence that the layoff was a tactic to blame the Union’s activities for the loss 50
of work, and to camouflage the Respondent’s alleged discrimination against Garfield. See Brief
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of General Counsel at Page 34, citing McGaw of Puerto Rico, Inc., 322 NLRB 438, 451 (1966), 5
enfd. 135 F.3d 1 (1st Cir. 1997), Weldun International, 321 NLRB 733, 734 and 748 (1996),
enforced 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 General Counsel. The record does not show that the Respondent made any 10
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 management 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 15
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.20
In addition, much about the way the Respondent conducted the layoff is inconsistent with
the 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 25
case supported, inter alia, by evidence that employer did not seek volunteers for the layoff). In
addition, when two employees left the Respondent’s workforce 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
workforce, not laying off people to cause an injury that employees would blame on the Union.1230
Lastly, I note that in the three cases the 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 International, supra; Electro-Voice,Inc., supra. An organizing campaign is a highly 35
charged circumstance and one that an employer might be expected to see as engaging the
workforce as a whole, regardless of a particular employee’s position regarding representation.
All employees in the unit might soon have the opportunity to sign a union authorization card or
vote in a representation election. Under such circumstances, it is plausible that management
would implement a layoff either in hopes that the display of economic power will chill 40
employees from supporting 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

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.
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15
true where, as in McGaw and Electro-Voice, many of the employees included in the layoff are 5
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 10
regarding a new safety program, and in a context where not a single one of the laid-off
employees was a union partisan.
The General Counsel has also failed to provide a basis for believing that the layoff was a
tactic to camouflage unlawful discrimination against Garfield. On its face, this contention is 15
rather farfetched and on closer inspection it fares no better. The 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 20
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 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 25
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 believe it could garner so great 30
an advantage by transferring Garfield to the night shift that it would be willing to engage in
unnecessary layoffs, shortened weeks, and plant-wide 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 concerns, the evidence does not show
that Garfield would be unable to continue engaging in those activities simply by remaining at the 35
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.
40
Lastly, I note that after the Respondent implemented the layoff and eliminated Garfield’s
day-shift assignment, it selected Garfield to remain on the day shift for a period of some weeks
in order to perform calibration work. If, as the 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 45
inconceivable that the Respondent would then select Garfield for even a temporary assignment
on the day shift.
Assuming that the 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 the50
Respondent harbored animus towards the Union or union activity. The attempt to show animus
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16
is made against the background of a longstanding bargaining relationship at the Lyndonville 5
facility. The Union was certified as the representative of employees at the facility over 50 years
ago in 1957. Regular negotiations for the most collective bargaining agreement began in
September 2010, and the Union and the Respondent worked together well enough to ratify an
agreement only a month or so later on October 1, 2010. Of the eight facilities in the same
corporate division as the Lyndonville facility, half are unionized. 10
The 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 resulted in the ratified agreement. During the
third day of negotiations, the parties discussed the possibility of resolving a number of 15
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 implementing globally and corporate wide; Lyndonville was only one percent of
the company; the company would not change its position regarding MBS; and MBS was “not an 20
issue [for the Union] to take a stand on.” The General Counsel contends 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 25
did not state, or imply, that the Respondent planned to do anything other than continue refusing
to bargain over MBS. He did not allude to any type of adverse consequences or state that
continued resistance to MBS would bring the facility into disfavor with the Respondent. To the
extent that what Jamison said can be understood as a threat, it is as a threat of futility – i.e., that
MBS was a corporate-wide juggernaut and that a union representing a very small portion of the30
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 implementation 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 35
antiunion animus. See Denver Post Corp., 328 NLRB 118, fn. 2 (1999) (unilateral change is
violation of Section 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
animus where animus was not part of the showing regarding the unlawful change).
40
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 45
the February 2011 layoff.
The second statement that the General Counsel relies on as evidence of animus, is
Fletcher’s April/May 2011 remarks about “infighting between management and the Union” and
the resulting “dark cloud” over the Lyndonville facility. As is discussed above, I find that this 50
statement did constitute a threat of unspecified reprisals in violation of Section 8(a)(1). If such a
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statement had been made before the layoff decision, by someone who had a hand in that5
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 creation 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 Markets, 339 NLRB 10
81, 88 fn. 10 (2003) (statements by supervisor do not show animus where supervisor had no part
in the challenged decision).
According to the General Counsel, unlawful motive is also shown by the timing of the
layoff, which was implemented about a week after the close of the unfair labor practices hearing 15
at which MBS was an issue. The General Counsel hitches its case largely to what it
characterizes as this “striking” timing. As the General Counsel states, it is possible to show
unlawful motivation based on the timing of an adverse action.13 The problem with the General
Counsel’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 20
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 investigated 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 25
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 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 30
General Counsel’s convenience. The record does not show that in the course of the dispute
regarding MBS, the closing of the hearing stood out 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 Union’s or employees’ actions. The Board has declined
to draw an inference of discrimination when the General Counsel picks a self-serving date in an 35
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 General Counsel contends that, because the evidence does not show that Brighenti 40
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 number 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

13 The Board has made clear that timing is an important factor in assessing 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. Appx. 236 (4th Cir. 2001); Bethlehem Temple Learning
Center, 330 NLRB 1177, 1178 (2000); American Wire Products, 313 NLRB 989, 994 (1994).
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variance performance at the Lyndonville facility. The record shows that employee layoffs were 5
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 February 10,
Brighenti had settled on the layoff plan, there is also no documentary evidence showing that he
had not. The testimony on that point was vague and, in my view, does not establish that the
decision was made after February 10. Finally, even assuming the General Counsel had 10
established that the layoff decision was not made or contemplated until after February 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 15
facie case that the layoff was unlawfully motivated. Thus under Wright Line, the burden does
not shift to the Respondent to show that it would have made the same decision absent the union
activity. Even if I had concluded that the General Counsel succeeded in making a very weak
prima facie case, I would find that the Respondent introduced sufficient evidence that the layoff
was motivated by business conditions to rebut that prima facie case. As is discussed in greater 20
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
officials 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 25
2011.
The 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 30
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 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 persuasive if the evidence showed that when the layoff was
implemented the Respondent had to increase overtime in order to meet demand. Cf. Stamping 35
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 contrary, 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 40
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 overtime 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 conditions, but whether the layoff was discriminatorily motivated. Newcor
Bay, 351 NLRB at 1040; Gem Urethane Corp., 284 NLRB 1349 (1987). The General Counsel’s 45
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
something other than business concerns must have motivated it.
For the reasons discussed above, the allegations that the Respondent violated Section 50
8(a)(3), (4) and (1) by discriminatorily instituting a layoff because of employee’s union and
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19
concerted protected activities and/or because of employees’ participation in the unfair labor 5
practices process are without merit. The complaint allegations relating to the layoff should be
dismissed.
2. Elimination of Garfield’s Day Shift Position
10
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 failing 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 15
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 discussed above, neither the statements of Jamison and Fletcher,14 nor 20
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 25
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
temporary assignment.
30
Even assuming that the General Counsel had succeeded 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. Regarding the related decision to eliminate Garfield’s 35
day shift position, Jewell testified that this was done as part of the Respondent’s effort to
improve performance by moving employees from indirect labor positions to direct labor
positions. That explanation 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 40
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 inspectors by

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.
JD–10–12

20
allowing employees to do self-inspections using a buddy system. In addition, based on Jewell’s 5
testimony and the record as a whole, I credit Jewell’s statement that the reason he 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 10
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 flute15
department became vacant, moving it to the night shift. As part of the 2011 staffing plan, five of
the 45 positions on the day shift were eliminated, while the number of positions on the night shift
remained constant at 21.
The General Counsel points out that the 2010 layoff staffing plan called for Levesque to 20
continue on the day shift in the cut-off department, but when he voluntarily left that position, 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 25
preponderance of the evidence, and therefore that defense “does not fail simply because not all of
the evidence supports it, or even because some evidence tends to negate 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 vacancy was posted he had not
even expected Garfield to bid on the position.30
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 position
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 35
be dismissed.
CONCLUSIONS OF LAW40
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 45
employees with unspecified reprisals because of the Union’s activities.
JD–10–12

21
REMEDY5
Having found that the Respondent has engaged in certain unfair 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.
10
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended Order.15
ORDER15
The Respondent, Kennametal, Inc., Lyndonville, Vermont, shall
1. Cease and desist from
20
(a) Threatening employees at the Lyndonville, Vermont, facility with unspecified
reprisals because of the protected union activities of employees and/or of the United
Steelworkers, Local 5518, affiliated with United Steelworkers of America, AFL-CIO, CLC.
(b) In any like or related manner interfering with, restraining, or coercing employees in 25
the exercise of the 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 after service by the Region, post at its facility in Lyndonville, 30
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 conspicuous places including all places where notices to employees are customarily
posted. In addition to physical posting of paper notices, the notices shall be distributed 35
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 altered,
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 40
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 recommended Order shall, as provided in Sec. 102.48 of the Rules,
be adopted 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 National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
Board.”
JD–10–12

22
5
(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 insofar as it alleges 10
violations of the Act not specifically found.
Dated, Washington, D.C. February 16, 2012.
15
____________________
PAUL BOGAS20
Administrative Law Judge
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 violated 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 benefit 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 guaranteed you by Section 7 of the Act.
UNITED STEELWORKERS, LOCAL 5518,
Affiliated with UNITED STEELWORKERS
OF AMERICA, AFL-CIO, CLC
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
10 Causeway Street, 6th Floor, Boston, MA 02222–1072
(617) 565-6700, Hours of Operation: 8:30 a.m. to 5 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (617) 565-6701.