L & M Radiator, Inc.

National Labor Relations Board - Board Decisions

Oct 30, 1981

259 N.L.R.B. 141 (N.L.R.B. 1981)

L & M RADIATOR, INC. 141
L & M Radiator, Inc. and Ruby Carter and Jackie forth in the said recommended Order,4 except that
Johnson. Cases 18-CA-6621-1 and 18-CA- the attached notice is substituted for that of the
6621-2 Administrative Law Judge.
October 30, 1981 MEMBER JENKINS, concurring in part:
DECISION AND ORDER I would not rely on Wright Line, a Division of
Wright Line, Inc., 251 NLRB 1083 (1980). The Ad-
BY MEMBERS FANNING, JENKINS, AND ministrative Law Judge correctly found that Re-
ZIMMERMAN spondent's alleged lawful reasons for the discharges
On March 31, 1981, Administrative Law Judge were "false" and "pretext." Thus, there was no
Richard L. Denison issued the attached Decision in genuine lawful motive in existence here; only the
this proceeding. Thereafter, Respondent filed ex- unlawful one was genuine. Wright Line was direct-
ceptions and a supporting brief, ed only at resolving the causation issue when a
Pursuant to the provisions of Section 3(b) of the genuine lawful cause or purpose exists along with a
National Labor Relations Act, as amended, the Na- genuine unlawful cause. To use Wright Line where
tional Labor Relations Board has delegated its au- only the unlawful cause is genuine is to engage in a
thority in this proceeding to a three-member panel. sham analysis which can have only one outcome;
The Board has considered the record and the at- and such sham application eventually stultifies the
tached Decision in light of the exceptions and brief analysis and its effectiveness in treating the real
and has decided to affirm the rulings, findings,' and problem to which it was directed.
conclusions2 of the Administrative Law Judge and I Contrary to our concurring colleague, we do not agree that reference
to adopt his recommended Order.3 to Wright Line, a Division of Wright Line. Inc., 251 NLRB 1083 (1980), in
the present situation results in a "sham analysis." We adhere to our hold-
ORDER ing in Castle Instant Maintenance/Maid. Inc., 256 NLRB 130, fn. 1 (1981).
There we stated that we saw no need to comment on an administrative
Pursuant to Section 10(c) of the National Labor law judge's resort to a Wright Line-type analysis if the correct result was
Relations Act, as amended, the National Labor Re- reached. Our statement in Castle Instant Maintenance is equally applicableRelations Act, as amended, the National Labor Re- to the present situation.
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and APPENDIX
hereby orders that the Respondent, L & M Radia-
tor, Inc., Hibbing, Minnesota, its officers, agents, NOTICE To EMPLOYEES
successors, and assigns, shall take the action set POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to An Agency of the United States Government
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con- After a hearing at which all sides had an pprt-
vinces us that the resolutions are incorrect. Standard Dry Wall Products, After a hearing at which all sides had an opportu-
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have nity to present evidence and state their positions,
carefully examined the record and find no basis for reversing his findings. the National Labor Relations Board found that we
In accordance with his dissent in Olympic Medical Corporation, 250
NLRB 146 (1980), Member Jenkins would award interest on the backpay have violated the National Labor Relations Act, as
due based on the formula set forth therein, amended, and has ordered us to post this notice.
I Respondent has also excepted to the Administrative law Judge's
remedy and Order directing that the employees in question be offered im- WE WILL NOT lay off, punish, or otherwise
mediate and full reinstatement with backpay. computed in accordance
with traditional Board formulas. Any contentions that Respondent may
raise concerning the interim earnings of the affected employees or wheth- Carter, Sandra Roberts, or any other employ-
er reinstatement to their former jobs has indeed been offered to them are ee, because they have engaged in protected
properly matters for the compliance stage of these proceedings.
In concluding that Respondent discharged employee Sandra Roberts concerted activities for their mutual aid or
unlawfully, we find it unnecessary to rely on the fact that her attendance protection.
record was placed in evidence. WE WILL NOT threaten our employees that
I Respondent has requested oral argument. This request is hereby WE WILL NOT threaten our employees that
denied as the record, the exceptions, and the briefs adequately present the they will not be recalled to employment from
issues and the positions of the parties. layoff because they engaged in protected con-
We deny Respondent's motion to remand this proceeding to the Ad- t e o n-
ministrative Law Judge and to reopen the record to receive allegedly certed activities with other employees for their
suppressed evidence. The additional evidence was neither newly discov- mutual aid or protection.
ered nor unavailable at the time of the hearing. Additionally, we find that WE WILL NOT in any like or related manner
the proffered evidence, even if accepted, would not affect the result
reached herein. Nor does the fact that Respondent, who was not repre- interfere with, restrain, or coerce employees in
sented by an attorney at the hearing, engaged the services of an attorney the exercise of their rights to self-organization,
subsequent to the issuance of the Administrative Law Judge's Decision to form, join, or assist labor organizations, to
merit granting Respondent's request. See James Innaco, d/b/a Skyline to form, oln, or assist labor organizations, to
Transport, 228 NLRB 352 (1977). bargain collectively through representatives of
259 NLRB No. 20
142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their own choosing, and to engage in other month period ending December 31, Respondent, in the
protected concerted activities for the purpose course and conduct of its business operations, sold and
of collective bargaining or other mutual aid or shipped from its Hibbing, Minnesota, facility products,
protection, or to refrain from any and all such goods, and materials valued in excess of $50,000 directly
activities, except to the extent that such right to points outside the State of Minnesota. During the
may be affected by an agreement requiring same period of time Respondent purchased and received
at its Hibbing, Minnesota, facility products, goods, and
membership in a labor organization as a condi- materials valued in excess of $50,000 directly from points
tion of employment, as authorized in Section outside the State of Minnesota. The answer admits, and I
8(a)(3) of the Act, as amended. find, that Respondent is now, and has been at all times
WE WILL offer Jackie Johnson, Ruby material herein, an employer engaged in commerce
Carter, and Sandra Roberts immediate and full within the meaning of Section 2(2), (6), and (7) of the
reinstatement to their former positions or, if Act.
such positions no longer exist, to substantially
equivalent positions, without prejudice to their II. THE UNFAIR LABOR PRACTICES
seniority or other rights and privileges, and A. Background
make them whole for any loss of earnings, plus
interest, they may have suffered as a result of At its Hibbing, Minnesota, plant Respondent manufac-
interest.s they' may have suffered as a resultof tures radiators for earth moving equipment, primarily for
our discrimination against them. the mining industry, and also performs repair services for
that industry in the area of the Mesabi Iron Range, utiliz-
L & M RADIATOR, INC. ing an hourly paid work force of approximately 50 to 60
DECISION shop employees.
Respondent's work force is not represented by any
STATEMENT OF THE CASE union. Newly hired employees are provided with a copy
of Respondent's publication entitled "A Handbook For
RICHARD L. DENISON, Administrative Law Judge: Our Employees," signed by Company President Alex
This case was heard at Hibbing, Minnesota, on Novem- Chisholm, which sets forth Respondent's policies, work
ber 20 and 21, 1980, arising from charges in Cases 18- rules, and benefits. Page 23 of the handbook is entitled
CA-6621-1 and 18-CA-6621-2 filed on March 27, 1980, "Suggestion Box" and states:
and later amended, respectively, by Ruby Carter and
Jackie Johnson, individuals. The complaint issued May L & M Radiator, Inc. has a Suggestion Box for
28, 1980, as amended, alleges that Respondent violated suggestions by employees.
Section 8(a)(1) of the Act by laying off Jackie Johnson Each suggestion will be answered and the answer
on October 23, 1979, and employees Ruby Carter and posted.
Sandra Roberts on October 24, 1979, and thereafter If you have a gripe, don't complain to your
failed and refused to recall these employees, because fellow worker. Come where you can get action!
they engaged in protected concerted activities by pro- The doors of the supervisor's office are always
testing employees' working conditions.' It is also alleged open, along with management.
that Respondent further violated Section 8(a)(l) of the
Act on or about January 31, 1980, when Respondent's Page 24 of the handbook is entitled "Employee Prob-
president told two of the laid-off employees that they lems." This section sets forth a two-step procedure,
would not be recalled to work because they engaged in which the employee is encouraged to utilize in order to
protected concerted activities. Respondent's answer get "a cause of dissatisfaction . . . off your chest." Brief-
denies the allegations of unfair labor practices alleged in ly, the employee is invited to orally discuss the problem
the complaint. with his immediate supervisor. Upon receiving an answer
Upon the entire record in the case, including my ob- 3 days later, if the employee is still dissatisfied, he may
servation of the witnesses and consideration of the briefs, take the matter up with his supervisor's superior, and
I make the following: obtain a decision within 3 days.
Page 25 of the handbook contains a section entitled
FINDINGS OF FACT "Grievance Committee," which states:
1. JURISDICTION L & M Radiator, Inc. has a Grievance Commit-
The complaint alleges, and the amended answer admits tee, selected by the employees, which constitutes a
that, at all times material herein, Respondent is a Minne- Union.
sota corporation with an office and place of business in The meetings are held on the first Thursday of
Hibbing, Minnesota, where it is engaged in the manufac- each month between the hours of 3:00 and 4:00
ture and nonretail sale and distribution of radiators and P.M. in the employees' lunchroom.
related products. Only Respondent's Hibbing, Minnesota, These meetings give you, the employee, the op-
facility is involved in this proceeding. During the 12- portunity to voice grievances or make suggestions
regarding working conditions. A committee, elected
IHereafter, all dates are in 1979 unless otherwise specified. by the employees, will submit these problems to
L & M RADIATOR, INC. 143
management within a few days of the Grievance Odegaard, while John Martin defended Turin, stating
Meeting. that he thought Turin was a good foreman. Then Chis-
holm asked if they thought all of the foremen should be
Jacqueline Johnson was hired by Respondent on May fired, and, after a period of silence, Johnson said that the
6, 1975. For the first 1-1/2 years of her employment she purpose of the meeting was not to have anyone fired, but
worked in the tubemaking area as a tube machine opera- to make Chisholm aware of what was happening in the
tor. Thereafter, she moved to the platemaking area shop, in order to resolve their problems and get along
where she worked on header sheets until permanently better with the foremen. Johnson, Roberts, and Carter
laid off on October 23. During slow periods at the Com- were the only employees who raised specific complaints.
pany, she also performed work in the assembly area. At Then the subject was changed to other problems of the
the time of her termination Johnson had worked in the shop engineering, and questions about the equipment,
plate department longer than any other employee except after which the meeting ended.
Sandra Roberts. Roberts was hired on May 3, 1974, and
also worked on the tube machine for 9 months before C. Jacqueline Johnson
moving to the plate department where she remained until
her permanent layoff on October 24. Ruby Carter On Monday, March 12, Johnson reported to work
became employed by the Company on May 8, 1975, and about 4 p.m. following a medical checkup at an outside
worked on the tube machine during the entire period of clinic. Sometime previously Johnson had been away
her employment with Respondent, except briefly from from work for 7 months after having a hysterectomy, re-
December 1975 to June 1976, when she worked in the turning only when released by the doctor. On this partic-
office. Thus, Carter was the Company's most experi- ular day the medical appointment lasted an hour longer
enced tube machine operator. than expected, and Johnson was I hour later than her es-
timate. Upon her arrival she was informed by employee
B. The Events Surrounding the March 8 Meeting Gary Fairchild that Alex Chisholm wanted to see her
Undisputed and credited testimony by the three above- about her attendance. Remembering the March 8 meet-
named employees reveals that on an unspecified date ing, Johnson became afraid and nervous, obtained per-
about the first of March, Ruby Carter placed a sugges- mission to take the remainder of the day off as a vacation
tion in the Company's suggestion box, recommending day, and went home. However, later that evening,
that management hold a special meeting with the em- having composed herself, she telephoned Chisholm at his
ployees to resolve difficulties which had arisen between home. Chisholm stated that he had paged both Ruby
the employees and Foremen Tom Turin and Fred Ode- Carter and Johnson, and found neither of them there. He
gaard. Pursuant to this request, Company President Alex said he had pulled Johnson's attendance record, which
Chisholm met with both shifts in the plant lunchroom at he stated was terrible. Johnson answered that she would
3 p.m. on March 8. Immediately prior to this meeting come in the next morning and discuss this matter with
Johnson, Carter, and Roberts met briefly with Produc- him, and Chisholm agreed. Next, Johnson called Hock-
tion Manager James Hocking in Johnson's work area, ing, told him what had happened, and solicited his sup-
and told Hocking about the problems with the foremen port. After promising to defend her, Hocking stated he
which they intended to raise during the lunchroom meet- was sorry, and had not expected the meeting to go that
ing. Hocking encouraged the three workers not to be way.
afraid to speak out, assuring them that Chisholm would The following morning Chisholm and Johnson met
listen to them as he had in the past.' alone in Chisholm's office. Chisholm had Johnson's at-
The meeting in the lunchroom began with Johnson, tendance record brought in, and Johnson asked how it
who was a member of the official employee grievance had been scored. Chisholm stated that it had been
committee, asking Chisholm what had happened to the brought on the surface by the March 8 meeting, follow-
Company's open door policy. When Chisholm asked ing which one of the foremen told Chisholm that Carter
what she meant, Johnson answered that apparently there and Johnson would not know what was going on about
had been some communication breakdown, and that something they should do, because they had never done
some of the employees felt they could no longer go over anything. Johnson then defended her attendance record,
a foreman's head. Then Carter related a specific example, insisting that the absences had been excused. She said she
describing how Foreman Tom Turin became angry and had been out 7 straight months for surgery, under the
grabbed her arm after Carter had contacted Hocking care of a doctor, and that two other times she had been
about her malfunctioning machine when her complaints in the hospital, once for an on-the-job injury, and an-
to Turin had been ignored. Then Sandra Roberts de- other time for bronchitis following a physical by the
scribed how, in her opinion, Fred Odegaard had lied to Company's doctor. On other occasions, Johnson stated,
her about her scheduled workdays, and an incident in she had always obtained permission from her foreman to
which Turin lost his temper, shouted at her, and swore leave the plant. At this point Chisholm exploded, stating
at her husband when he protested Turin's conduct. that he was not running a "goddamned nursing home,"
Employee Gary Fairchild then spoke up in confirma- and if he were he would fire everybody and hire all part-
tion of the three women's accusations of verbal abuse by time help, which would be cheaper because he would
not have to pay the benefits. Johnson tried to explain
sHocking corroborated Johnson's account of the premeeting discus- that apathy was developing in the shop because the em-
sion. ployees did not know to whom they could talk. She said
144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that if enough apathy developed, the people "weren't "Well, what it comes down to, then, is a personal ven-
going to bust their-for them .... " Johnson also point- detta." Chisholm responded, "If you wish." Johnson
ed out that some of the time she had missed, she had then asked if the layoff were going to be permanent or
made up by either staying later or working on Saturdays. temporary, and Chisholm stated that she could consider
Then Chisholm asked if Johnson, Roberts, and Carter it permanent, but that the Company had a policy not to
were the only ones that had any "b-" to speak about hire anyone for 90 days. Johnson asked for a layoff slip,
their grievances, and Johnson answered that they were and Chisholm promised to provide her with one. Then
the only ones with "b-" in the Company. Then the dis- she left.
cussion turned to some of the Company's equipment. Although Johnson had subsequent contacts with the
Johnson asked if it were going to be possible to get an Company, she never received the layoff slip. On January
NC punch for the plate area. Chisholm said that the 31, 1980, Johnson went to the plant to seek reemploy-
Company could not afford it at that time. Johnson insist- ment because the 90-day period mentioned by Chisholm
ed that it was needed, and the discussion ended with an in her exit interview had just passed. She was accompa-
angry Chisholm stating it was his "goddamned compa- nied by Ruby Carter, who had also been laid off, as de-
ny" and he would run it the way he wanted. He said scribed elsewhere in this Decision. They met with Chis-
that Johnson's attendance was being monitored, and she holm alone in his office. After reminding him that 90
would be terminated if there were any more bad attend- days had passed, Johnson asked if they were going to be
ance. Shortly thereafter that same day, Johnson received rehired. Chisholm said the Company had no intention of
a written warning stating that her attendance was "very rehiring them. Carter asked why, and Chisholm an-
poor," and "that in the future you will be very closely swered that they were not happy working there and
monitored, and if you continue to miss work you will be were always complaining. Carter commented that most
discTherea fter, b etween March 13 and her layoff on cto- of her complaints had to do with safety issues, citing an
Thereafter, between March 13 and her layoff on Octo- incident involving spray painting about 2 days before her
ber 23, Johnson missed only 3 days of work. Each was layoff. Chisholm retorted, "You didn't see any bodies
for medical reasons, and each was excused. On one occa- lying at that point, did you?" Then Johnson pressed
sion during the summer, while working at a drill press in Ig at that pin for t he real reason fo r their layoffs,
the shop, Chisholm approached Johnson and compli- Chisholm once again for the real reason for their layoffs,the shop, Chisholm approached Johnson and compli- and Chisholm stated that they had viciously attacked themented her on her attendance.
On October 23 Fred Odegaard called Johnson to his foreman. He also said Carter had attacked him, "Johnson
office and told her she was going to be laid off. He said and Carter were the two biggest bitchers in the Compa-
work was slow, and the Company had seven more em- ny," and he would get rid of anybody who was a pain in
ployees than the year before. Therefore, he said, four the "a-." Then Carter said that she thought Chisholm
people were going to be laid off. The other employees would want to be aware of the problems in the shop, but
he named were Ruby Carter, Sandra Roberts, and Bob Chisholm concluded the interview by reiterating that
Olsen. Johnson asked why they were not going by se- they were not happy there and should go to the mines
niority, and Odegaard responded Respondent was doing where maybe they would be treated better.
it by departments. She asked how the decision was Carter corroborated Johnson's version of this conver-
made, and Odegaard stated he did not know since the sation, recalling specifically that Chisholm became angry
front office did not tell him. He said the layoff was going and threw his pencil on the desk when Carter attempted
to be temporary until things picked up, but he did not to explain that there were things in the plant he should
know what the duration of the layoff would be. Johnson know about, in response to Chisholm's statement that the
asked why she was chosen, and why Respondent was two women were not happy there. She also specifically
laying off the older ones. Odegaard simply answered that remembered Chisholm stating that "they were the two
Respondent was going by departments, not the overall biggest bitchers in the Company," and that he had to get
shop. Johnson's attendance or production was not men- rid of people who were a pain in the "a-." Chisholm
tioned during the interview. did not deny making these remarks, which I find violat-
Later in the day, about 5 p.m., Johnson decided to ed Section 8(a)(1) of the Act as alleged in paragraph 4 of
confront Chisholm about her layoff. She went to Chis- the complaint.
holm's office, where she spoke to him alone. She said
that she wanted to know how he arrived at the decisions D. Ruby Carter and Sandra Roberts
to lay off the selected employees. Chisholm stated that Prior to the March 8 meeting Carter had never re-
he, Dick Braun, Jim Hocking, and Fred Odegaard had ceived a written warning. She had received one verbal
made the decisions, and "felt these were the people that warning from Foreman Fred Odegaard in 1977. Like
the Company could do without the best." Johnson asked Johnson, Carter received a written warning on March
if her attendance had been bad, and Chisholm responded 13, following an interview in Chisholm's office. During
that it had been good since the March 8 meeting. She their brief discussion Carter noted she had been sick and
then asked if her production or work had failed. Chis- under the care of a doctor, but would try to improve.
holm said no, it had been good. Then Johnson said, Chisholm stated he was sympathetic about her family
and health problems, but her attendance would be moni-I Johnson had received one prior written warning, a "pink slip," given tored very carefully thereafter, and if it continued to
to a group of employees for horseplay when they "threw the foreman in
the tank." There is no contention that this incident was in any way con- falter, she would have to be terminated. The written
sidered with respect to Johnson's subsequent termination. warning described her attendance record as "horren-
L & M RADIATOR, INC. 145
dous," and stated she would "be monitored extremely parently Johnson's and Carter's attendance records had
closely in the future and will be let go if you continue to been bad throughout their employment at the Company,
miss work, regardless of the excuse." but that over the last 5 to 7 years Production Manager
Thereafter, Carter's attendance improved. In July, Hocking had not put anything in their files in writing re-
Chisholm approached Carter at her job in the platemak- fleeting this. Chisholm also conceded that Johnson's and
ing department, and congratulated her on that improve- Carter's attendance records improved after their written
ment. Nothing else of significance transpired until a few warnings were issued on March 13, and that he "could
days before Carter was laid off. On that occasion Carter have" commended Johnson about her improvement. Fi-
stopped working and went to Chisholm to protest spray nally, Chisholm conceded that it was Johnson's and
paint fumes, which were making Carter and other em- Carter's complaints about the foremen and his discussion
ployees sick. Carter put her arm around Chisholm's waist with the foremen about those complaints that prompted
and asked if there were something he could do. Chis- him to examine their attendance records.
holm sharply retorted, "If you don't like it, find yourself In Wright Line, a Division of Wright Line, Inc., 251
another job," and walked away. Two days later, on Oc- NLRB 1083 (1980), the Board stated:
tober 24, Carter was laid off. At that time she was called
to Jim Hocking's office by Fred Odegaard. Sandra Rob- [W]e shall henceforth employ the following causa-
erts also attended the same exit interview and was laid tion test in all cases alleging violation of Section
off at the same time. Roberts had received no prior 8(a)(3) or violations of Section 8(a)(I) turning on
warnings of any kind. Carter and Roberts asked why employer motivation. First, we shall require that the
they had been selected for layoff. Hocking responded General Counsel make a prima facie showing suffi-
that the decision had come from the "front office," and cient to support the inference that protected con-
that he, Odegaard, and Turin had nothing to do with the duct was a "motivating factor" in the employer's
choices. He said there was a lack of work, Respondent decision. Once this is established, the burden will
had to get rid of four people, and he could not tell them shift to the employer to demonstrate that the same
why or when they would be called back.' action would have taken place even in the absence
E. Respondent's Defense, Discussion, and Concluding of the protected conduct.
Findings Counsel for the General Counsel's prima facie case has,
Respondent contends that the October layoff originat- in my view, been clearly established. Indeed, Respondent
ed with Chisholm's sudden decision that the Company not only failed to contradict the General Counsel's evi-
had too many employees. Chisholm testified that he per- dence, but, moreover, corroborated it in many instances
sonally decided upon the selection of Johnson and Carter through the testimony of Respondent's president, Alex
based on a review of their "horrendous attendance re- Chisholm. Thus, it is established that Johnson, Roberts,
cords." Although Chisholm claimed his examination of and Carter, who had never before been warned about
the two employees' records was part of an overall either poor attendance or low production, provoked
review of a number of employees' files, of which John- Company President Chisholm by voicing their griev-
son and Carter were the worst offenders, Chisholm was ances against their foremen in a meeting called for that
unable to remember the names of any other employees purpose pursuant to Respondent's established suggestion
reviewed or warned. Chisholm also testified that Roberts system. It is conceded that immediately thereafter this
was not selected for layoff on the basis of her attendance activity prompted Chisholm to review Johnson's and
record, but because of her production, although he ad- Carter's personnel files resulting in the issuance of writ-
mitted that she had never been warned about her alleged ten warnings for attendance. Thereafter their attendance
deficiencies, and that he did not know what the problem improved, but nonetheless they were selected for layoff.
was concerning her production. Chisholm stated that ap- In a postdischarge conversation Chisholm told them that
they were the two worst "bitchers" in the plant. Rob-
4Nothing in Hocking's testimony disputed the employees' account of erts, the third employee to complain at the March 8
their exit interview. Hocking testified that the foremen normally adminis- meeting, received no warnings at all before her layoff for
tered the Employer's policies concerning absenteeism and discipline, and insufficient production, a condition which Chisholm was
that Chisholm's participation in this area of plant administration was not
customary. He testified he first learned there was going to be a layoff on unable to describe in detail, and for which she never pro-
the day the initial layoff occurred, when Odegaard called him to Dick vided any statistical support. Under all these circum-
Braun's office where Chisholm announced that Respondent was going to stances there can be little question but that the General
lay off Jacqueline Johnson, Sandra and Dennis Roberts, and Ruby Counsel has established a prima facie case of discrimina-
Carter. Chisholm instructed Odegaard and Hocking to select a fifth em-
ployee for layoff, and Respondent picked Bob Olsen. Later, Hocking and tion against employees for engaging in protected con-
Odegaard persuaded Chisholm not to include Dennis Roberts. At this certed activities by protesting about their working condi-
point in his testimony Hocking's memory failed quite suddenly, and he tions to their employer. Under the test enunciated by the
could remember nothing further, in response to counsel for the General Board in Wright Line, the burden shifts to Respondent to
Counsel's questions, about Chisholm's reasons for selecting the four laid-
off employees. From carefully listening to his testimony and observing prove that Johnson and Carter would have been laid off
his demeanor, I can only conclude that for some reason Hocking was in any event because of their absentee records, and that
very uncomfortable at being called as a witness for the General Counsel Roberts would have been released because of her pro-
and was afraid of displeasing his former Employer. In my view, howev- duction. I find that Respondent has failed to meet its
er, this factor is an insufficient basis on which to discredit his earlier testi-
mony supporting that of the alleged discriminatees, and, therefore, since burden. Aside from Alex Chisholm's testimony, when
contradictory testimony is absent, he is credited. called as a witness by counsel for the General Counsel
146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pursuant to Rule 611(c) of the Federal Rules, Respond- THE REMEDY
ent's entire defense consisted of documentary evidence in
the form of Johnson's, Carter's, and Roberts' attendance Having found that Respondent has engaged in and is
refords, the names and classifications of employees from engaging in certain unfair labor practices, I find it neces-
records, the names and classifications of employees from
January 1978 to January 1980 showing employees laid sary to order that Respondent cease and desist therefrom
off anuary 1978 to Januayees hired, and financiag employees laid and take certain affirmative action designed to effectuate
off and new employees hired, and financial and sales data
during this period. Not only does this material fail to Having discriminatorily laid off Jackie Johnson, Ruby
carry the day for Respondent, in the face of the strong Carter, and Sandra Roberts, I find it necessary to orderCarter, and Sandra Roberts, I find it necessary to order
uncontradicted evidence of discrimination presented byondent offer them immediate and full reinstate-
the General Counsel, but also certain aspects of this ma- mentment with backpay computed on a quarterly basis, plus
terial tend to support rather than refute the General interest as prescribed in F W. Woolworth Company, 90
interest as prescribed in F. W. Woolwort h Company, 90Counsel's case. Thus, for example, Sandra Roberts' at- NLRB 289 (1950), and Florida Steel Corporation, 231
tendance record is included as an exhibit, despite the fact NLRB 651(1977).
that Chisholm testified that attendance had nothing to do I shall also order Respondent to post an appropriate
with Roberts' selection for layoff. These documents also
reveal that over the period outlined the only layoffs curred.
which occurred were those of Johnson, Carter, Roberts, Upon the foregoing findings of fact, conclusions of
and Olsen in October. Not one scintilla of evidence was law, and the entire rgoing findings of fa ct, onclusions of
law, and the entire record, and pursuant to Section 10(c)
offered by Respondent to show that Johnson, Carter, of the Act, I hereby issue the following recommended:
and Roberts, respectively, would have been laid off for
poor attendance or poor production irrespective of their ORDER 6
protected activities. Furthermore, Respondent did not
even succeed in proving that, absent the events sur- The Respondent, L & M Radiator, Inc., Hibbing, Min-
rounding the March 8 meeting, there would even have nesota, its officers, agents, successors, and assigns, shall:
been a layoff. Undisputed testimony by Carter, Johnson, 1. Cease and desist from:
Roberts, and other employee witnesses clearly demon- (a) Laying off or otherwise discriminating against
strated that in times past, when slow periods had oc- Jackie Johnson, Ruby Carter, Sandra Roberts, or any
curred, Respondent normally kept its employees working other employee for the purpose of discouraging employ-
at whatever odd jobs could be found around the plant. ees from engaging in protected concerted activities for
Some of the other long service employees who testified their mutual aid or protection.
could not remember when there had been a previous (b) Threatening employees that they will not be re-
layoff in the plant. Finally, employees Ronald Hendrick- called to employment from layoff because they engaged
son and Rick Norenberg remembered Chisholm telling in protected concerted activities with other employees
them that Ruby Carter had attacked him. for their mutual aid or protection.
Since there is a total absence of evidence that Roberts' (c) In any like or related manner interfering with, re-
selection for layoff was motivated by deficient produc- straining, or coercing employees in the exercise of their
tion, I find this reason, advanced by Respondent, to be rights to self-organization, to form, join, or assist labor
false. Since no other reason has been advanced or proven organizations, to bargain collectively through representa-
by Respondent with respect to Roberts, the General tives of their own choosing, and to engage in other pro-
Counsel's evidence stands unrefuted. With respect to tected concerted activities for the purposes of collective
Johnson and Carter, Respondent has failed to come for- bargaining or other mutual aid or protection, or to re-
ward with evidence to prove, under the circumstances frain from any and all such activities, except to the
presented, that Johnson and Carter would have been dis- extent that such right may be affected by an agreement
charged for excessive absenteeism. Instead, the evidence requiring membership in a labor organization as a condi-
considered as a whole clearly shows that Company tion of employment, as authorized in Section 8(a)(3) of
President Alex Chisholm seized upon Johnson's and the Act, as amended.
Carter's absentee records as a pretext for eliminating em- 2. Take the following affirmative action designed to ef-
ployee activists from Respondent's plant. I find and con- fectuate the policies of the Act:
elude that Respondent violated Section 8(a)(1) of the Act (a) Offer Jackie Johnson, Ruby Carter, and Sandra
when it laid off Jacqueline Johnson, Sandra Roberts, and Roberts immediate and full reinstatement to their former
Ruby Carter. positions or, if such positions no longer exist, to a sub-
stantially equivalent position, without prejudice to their
CONCLUSIONS OF LAW seniority or other rights and privileges, and make them
whole for any loss of earnings, in the manner set forth in
i. Respondent is an employer engaged in commerce the section of this Decision entitled "The Remedy."
within the meaning of Section 2(2), (6), and (7) of the
Act. s See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
2. By laying off Jackie Johnson on October 23, and ' In the event no exceptions are filed as provided by Sec. 102.46 of the
Ruby Carter and Sandra Roberts on October 24, and by Rules and Regulations of the National Labor Relations Board, the find-
telling employees that they would not be recalled be- ings. conclusions, and recommended Order herein shall, as provided in
Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
cause they engaged in protected concerted activities, Re- become its findings, conclusions, and Order, and all objections thereto
spondent violated Section 8(aX)(1) of the Act. shall be deemed waived for all purposes.
L & M RADIATOR, INC. 147
(b) Preserve and, upon request, make available to the notice, on forms provided by the Regional Director for
Board or its agents, for examination and copying, all Region 18, after being signed by an authorized repre-
payroll records and reports, social security payment re- sentative of Respondent, shall be posted by Respondent
cords, timecards, personnel records and reports, and all immediately upon receipt thereof, and be maintained by
other records necessary to analyze the amount of back- it for 60 consecutive days thereafter, in conspicuous
pay due under the terms of this Order. places, including all places where notices to employees
(c) Post at its facility at Hibbing, Minnesota, copies of are customarily posted. Reasonable steps shall be taken
the attached notice marked "Appendix."7 Copies of the by Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
In the event that this Order is enforced by a Judgment of a United (d) Notify the Regional Director for Region 18, in
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu- wrting, withi 20 days from the date of this Order, what
ant to a Judgment of the United States Court of Appeals Enforcing an steps Respondent has taken to comply herewith.
Order of the National Labor Relations Board."