Leather Agent, Inc.

National Labor Relations Board - Board Decisions

Feb 16, 2000

330 N.L.R.B. 646 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 646
Leather Agent, Inc. and Glove Cities District of the
Amalgamated Northeast Regional Joint Board,
U.N.I.T.E., AFL–CIO. Case 3–CA–20451
February 16, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS HURTGEN
AND BRAME
On October 23, 1997, Administrative Law Judge Joel
P. Biblowitz, issued the attached decision. The Respon-
dent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and record in
light of the exceptions and brief and has decided to af-
firm the judge’s rulings, findings,1 and conclusions only
to the extent consistent with this Decision and Order.
The Respondent operates a tannery. Its work is sea-
sonal, generally running from November to June or July.
For the 1994–1995 and 1995–1996 seasons, the Respon-
dent was principally involved in processing deerskins for
Hershey International.
The Respondent hired Larry Burdick in November
1994. After initial service as a floor worker, he per-
formed fleshing work. Fleshing is a specialty skill in the
tanning industry that involves using certain machines to
remove the animal flesh from the skins. At the conclu-
sion of the 1994–1995 tanning season, the Respondent
retained Burdick to perform general maintenance and
cleanup work. For the 1995–96 tanning season, Burdick
served as the Respondent’s primary flesher.
In the spring of 1996, a union organizing drive, led by
employee Keith Williams, began among the Respon-
dent’s employees. Williams was Burdick’s cousin. Bur-
dick and his wife Carol were among the first card sign-
ers. They served on the Union’s organizing committee.
There is no direct evidence, however, that the Respon-
dent was aware of the Burdicks’ involvement in these
union activities.
On April 18, 1996,2 the Union filed a representation
petition. The May 24 election resulted in an 8 to 8 tally.
The Union filed objections. A hearing took place on July
12 and 15. Burdick was among 10 employees who testi-
fied for the Union.
Plant Manager Robert Hutchins kept personnel re-
cords, including notes of discipline, for all employees.
The records, in log form, were prepared by Hutchins’
wife at his direction. For Burdick, Hutchins’ log referred
to incidents of late arrivals or early departures in 1994
and 1995. In the 3 months after the April 18 filing of the
election petition, however, the Respondent issued Bur-
dick three verbal warnings for not taking his morning
break at the proper time, a verbal warning for punching
his wife’s timecard, and two verbal warnings for abusive
operation of his fleshing machine.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 All dates are in 1996 unless otherwise noted.
On July 31, at the conclusion of the season, the Re-
spondent laid off Burdick. The Respondent sent Burdick
a form letter essentially stating that due to business un-
certainties

we do not know and thus cannot advise you if or when
we may have further work for which you may be quali-
fied, either this season, next season or any time in the
future. Accordingly, you should not rely upon the fact
that there will be employment available for you in the
future.
We thank you for your efforts on behalf on the
company during this season.

On October 15, a Board hearing officer recommended
sustaining two objections to the May 24 election and
holding a second election. On December 2, Carol Bur-
dick stopped by the plant and asked Hutchins when she
would start working for the 1996–1997 season. Hutchins
replied, “Probably the following Tuesday.” Carol then
asked “What about Larry?” Hutchins answered, “I don’t
know about Larry yet. He gave me a lot of grief, I’m
still thinking about it. But I’m not sure whether I’m go-
ing to call him back or not.” Carol told Larry about that
conversation.
The next day, December 3, Larry Burdick called Hut-
chins. According to Burdick’s credited testimony, he
asked whether he was being called back to work. Hut-
chins replied, “No, because you gave me a lot of grief.”
Hutchins said he had a flesher and asked where Bur-
dick’s “savior” was now.3 Hutchins added that the Un-
ion did not run the shop, he did. Hutchins concluded by
saying that he was unsure what he might do concerning
Burdick, but if another job became available, Burdick
should take it. Hutchins asked Harry Miller, who also
testified for the Union at the Board hearing on objec-
tions, to replace Burdick as the primary flesher. (Miller
declined the job offer.) At the unfair labor practice hear-
ing, Hutchins testified about problems with Burdick,
including the facts that (1) he abused the tanning ma-
chinery; (2) he left too much flesh on the animal skins, a
production error that required the Respondent to give an
$8000 credit to its principal customer; and (3) he did not
follow the plant rules for breaktimes.
3 Burdick interpreted the “savior” remark as a reference to Williams,
who also did not return to work for the Respondent.
330 NLRB No. 100
LEATHER AGENT, INC. 647
Applying a Wright Line analysis,4 the judge found that
the General Counsel met his initial evidentiary burden of
proving antiunion motivation for the refusal to recall
Burdick and that the Respondent had failed to show that
it would not have recalled him even in the absence of his
union activities. Consequently, the judge found that the
failure to recall Burdick violated Section 8(a)(3). He
also found that Hutchins’ statements to Burdick on De-
cember 3 violated Section 8(a)(1).
Contrary to the judge, we find that the General Coun-
sel failed to establish that Burdick’s union activities were
a motivating factor in the Respondent’s decision not to
recall him. Further, even assuming, arguendo, that the
General Counsel had met his initial Wright Line burden,
we find that the Respondent established that it would
have taken the same action irrespective of Burdick’s un-
ion activities.
We particularly rely on the limited nature of Burdick’s
union activities known to the Respondent, the dearth of
evidence that the Respondent bore any animus towards
these activities, and the compelling evidence of problems
with Burdick’s work performance. As found by the
judge, the Respondent’s only knowledge of Burdick’s
ties to the Union stemmed from the fact that the Union
called Burdick as a witness in the July 1996 representa-
tion hearing on the Union’s objections to the election.
Not only is this union activity extremely limited, but
Burdick was only 1 of 10 employees to testify for the
Union at that hearing. Significantly, the Respondent
rehired several of these employees, including Burdick’s
wife, in late 1996. The Respondent also offered to rehire
union witness Miller to the fleshing position that Burdick
previously had held. In these circumstances, we find
little support for the argument that the Respondent dis-
criminated against Burdick because of his union activi-
ties.
Despite this significant weakness in the General Coun-
sel’s case, the judge nonetheless inferred that the Re-
spondent must have been unlawfully motivated against
Burdick because he was subject to a substantial increase
in disciplinary action between the April 1996 filing of
the representation election petition and the July 31 date
of his layoff. We find no support for this inference. The
vast preponderance of Burdick’s discipline predated the
July representation hearing—the earliest point at which
the Respondent learned of Burdick’s union activity. Fur-
thermore, there is ample record support for the proposi-
tion that the discipline was lawfully imposed. In this
regard, the judge himself found that this onslaught of
discipline could signify one of two things: (1) that Bur-
dick’s performance degenerated in mid-1996; or (2) that
the Respondent’s attitude toward Burdick changed.
Without adequate evidentiary support, the judge con-
cluded that the latter was “more likely.” We disagree.
As discussed below, the record clearly establishes that
Burdick committed the several offenses in 1996 for
which he was legitimately disciplined.

4 Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982); approved in NLRB v.
Transportation Management Corp., 462 U.S. 393 (1983); also see
Manno Electric, 321 NLRB 278, 280 fn. 12 (1996).
For example, in April and May, the Respondent issued
Burdick several warnings for taking breaks during un-
scheduled times. The record establishes, and Burdick
concedes, that during this period he began taking breaks
at 10 a.m. instead of complying with the scheduled 9:30
to 9:45 a.m. breaktime. Despite the Respondent’s re-
peated admonitions that he adhere to the scheduled break
period, Burdick admittedly persisted in taking late
breaks. As a consequence, Burdick was verbally disci-
plined. There is no evidence that this discipline was dis-
parately imposed on Burdick. Indeed, there is no evi-
dence that any other employee flouted the break rules, or
that Burdick had done so prior to the period for which he
was disciplined.
Next, Burdick was verbally warned in May for punch-
ing another employee’s timecard, contrary to the Re-
spondent’s rules. Again, Burdick concedes that he
punched his wife’s timecard in May. Further, Burdick
admits that in 1995, well before the union organizing
campaign, he was similarly disciplined for another in-
fraction of this rule. Thus, we find nothing in the 1996
timecard discipline that raises the slightest specter of
antiunion motivation.
Most significantly, beginning in March—well before
the Union filed its election petition—the Respondent
began informing Burdick that the quality of his work was
unsatisfactory. The Respondent repeatedly told Burdick
that he was leaving too much flesh on the deerskins that
he was tanning. Indeed, as a direct consequence of Bur-
dick’s failure to adequately clean the deerskins, the Re-
spondent was required to credit $8000 to its principal
customer in 1996.5
During the same period, the Respondent also repeat-
edly told Burdick that he was abusing the fleshing
equipment by rough treatment. As a result of Burdick’s
conduct, the Respondent issued him warnings on June 12
and July 29 for abusing his machinery. Indeed, Burdick
admitted that: he received warnings for allegedly abusing
his equipment; these warnings normally were issued on
days when the tanning machinery that he was operating
broke down; he was hard on the machinery;6 and the Re-
spondent informed him that he would be discharged if he
persisted in abusing the equipment.
5 Burdick testified that during the 1994–1995 work season, he was
once told that he was a good worker. Assuming this to be true, we do
not find it significant because Burdick was cleaning sheepskin at that
time, rather than the more difficult deerskin that he was handling in
1995–1996.
6 Burdick conceded that he was hard on the machines, stating, “I’m a
pounder. . . . They [the machines] don’t hold up. Ain’t my fault.”

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 648
There is no evidence that Burdick had committed the
aforementioned offenses prior to 1996 (except for a
timecard violation), that he was disparately disciplined
for his 1996 conduct, or that the discipline was dispro-
portionate to the respective offenses. In these circum-
stances, we reject, as unsupported supposition, the
judge’s “inescapable conclusion” that Burdick’s 1996
discipline resulted from his union activities.
Notwithstanding the above discipline, which we find
warrants no inference of union animus or unlawful moti-
vation, and the fact that Burdick’s July layoff was neither
alleged nor found to be unlawful, the judge found that
the failure to recall Burdick was unlawful. In support of
this finding, there remains only the judge’s interpretation
of remarks by Plant Manager Hutchins to Burdick in
December.
As previously stated, Carol Burdick learned that, al-
though she would soon be recalled to her position with
the Respondent (notwithstanding a record of union activ-
ity virtually identical to her husband’s), Hutchins was
unsure about Larry Burdick’s prospects for recall. When
Larry telephoned Hutchins on December 3, the plant
manager said that Burdick was not being called back
because he had given Hutchins a lot of grief and because
Hutchins had another flesher. Hutchins concluded the
discussion by asking “where [Burdick’s] savior was . . .
that the Union doesn’t run the shop, he does.”
The judge inferred that Hutchins’ reference to “grief”
in his discussion with Burdick could only have pertained
to Burdick’s union activities and to Burdick’s breaktime
discussions with union adherent Williams. We disagree.
First, we reject the judge’s conclusion that “grief” neces-
sarily refers to Burdick’s union activities. There is no
apparent distinction between these activities and the un-
ion activities of Carol Burdick, Harry Miller, and others
whom the Respondent recalled or attempted to recall.
Given the discipline Burdick accrued in 1996 for persis-
tently refusing to comply with scheduled breaktimes,
abusing equipment, and improperly tanning, it is at least
equally as probable that “grief” referred to Burdick’s
work problems. Second, there is no testimony that
breaktime discussions with Williams were even men-
tioned in Burdick’s phone call to Hutchins. In these cir-
cumstances, we find that the judge’s inference is not
supported, and we dismiss the allegation that Hutchins’
statement violated Section 8(a)(1).
We recognize that Hutchins asked Burdick where his
savior was and stated that the Union does not “run the
shop.” However, this fact does not establish a violation
of Section 8(a)(1) or (3) in the circumstances of this case.
At most, it establishes Hutchins’ view that the Union
could not alter the decision not to rehire Burdick; but that
does not make the decision itself unlawful. Even if this
reference to the Union were sufficient to meet the Gen-
eral Counsel’s initial Wright Line burden, it is clear that
Burdick’s work problems were such that the Respondent
would not have rehired him in any event.
Therefore, contrary to the judge, we find that the re-
cord does not establish that the Respondent failed to re-
call employee Larry Burdick in December 1996, because
of Burdick’s union activities. Accordingly, we shall
dismiss complaint in its entirety.
ORDER
The complaint is dismissed.

Alfred M. Norek, Esq., for the General Counsel.
Jeffrey P. Englander, Esq. (Morrison, Cohen, Singer, & Wein-
stein), for the Respondent.
William Pozefsky, Esq. (Pozefsky, Bramley & Murphy), for the
Charging Party.
DECISION
STATEMENT OF THE CASE
JOEL P. BIBLOWITZ, Administrative Law Judge.This case was
heard by me in Albany, New York, on September 15, 1997.
The consolidated complaint, which issued on July 11, 1997,
and was based on an unfair labor practice charge filed by Glove
Cities District of the Amalgamated Northeast Regional Joint
Board, U.N.I.T.E., AFL–CIO, CLC (the Union), on December
23, 1996,1 and amended on January 15 and April 4, alleges that
on about December 3, Leather Agent, Inc. (the Respondent)
informed an employee that he would not be recalled to work
because he had supported the Union, and that since about De-
cember 1, Respondent has failed to recall its employee Larry
Burdick for work, in violation of Section 8(a)(1) and (3) of the
Act.
FINDINGS OF FACT
I. JURISDICTION
Respondent admits, and I find, that it has been engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
II. LABOR ORGANIZATION STATUS
Respondent admits, and I find, that the Union has been a la-
bor organization within the meaning of Section 2(5) of the Act.
III. THE FACTS
It is alleged that on about December 3, the Respondent in-
formed Burdick that he would not be recalled to work because
of his union activities, and that Respondent failed to recall him
to employment at that time because of his union activities. Re-
spondent denies knowledge of his union activities, except that
he, and a number of other employees, testified at a Board repre-
sentation hearing on challenges and objections on July 12 and
15, and defends that he was not recalled because of his poor
work quality and attitude, as well as other reasons.
Respondent is engaged in the business of tanning leather
hides and skins, principally deerskins, and principally on a
contract basis. Its business is seasonal, usually from about No-
vember to June, the deer season, and, apparently, most of its
employees work only during this period. Burdick was hired by
the Respondent in November 1994 as a flesher; this involves

1 Unless indicated otherwise, all dates referred to relate to the year
1996.
LEATHER AGENT, INC. 649
removing the flesh from the deerskin by machine. There are a
limited number of individuals who are experienced fleshers,
and Burdick had about 20 years’ experience in the field prior to
his employment with the Respondent. He was not laid off at the
end of the 1994–1995 season; rather, Respondent, by Robert
Hutchins, its plant manager, assigned him to maintenance and
floor work between June and November 1995, when the deer
and fleshing season resumed. He was laid off, for the first time
by the Respondent, on July 31. As a flesher he was paid on a
piece rate basis; translated to an hourly basis, he earned be-
tween $14 and $15 an hour while employed by the Respondent.
Robert Compani, the union organizer, testified that the Un-
ion was contacted by some of the Respondent’s employees,
including Keith Williams, Burdick’s cousin, about organizing
them. He went to the homes of a number of employees, includ-
ing the Burdick’s, spoke about the Union and obtained signed
authorization cards. In addition, Burdick, his wife, and fellow
employee Carol Burdick and Williams were among the mem-
bers of the Union’s organizing committee, although he never
informed the Respondent of the members of this committee.
Burdick was told of the union campaign by Williams. Compani
came to his house on April 13, and he signed a card for the
Union at that time. In addition, he went to union meetings and
spoke to some other employees about the Union. On his em-
ployment application with the Respondent, completed on Octo-
ber 26, 1994, he listed his three most recent employers; the
most recent of which, Allied Splits, where he had been em-
ployed from about 1986 to 1994, when it closed down, was
represented by the Union. Burdick was 1 of 10 employees who
were called to testify by the Union at the representation hearing
on July 12 and 15; Williams and Carol Burdick were among
these union witnesses. In addition, another employee of Re-
spondent, Gene Young, was subpoenaed by the Union to testify
at the hearing, asked for and received permission from the Re-
spondent to leave work, but was never called to testify. Hut-
chins testified that in November he called Harry Miller, a for-
mer employee who had testified for the Union at the representa-
tion hearing to be the Respondent’s flesher in place of Burdick.
Young, Raymond Palmeter, and Carol Burdick were all re-
called to employment by the Respondent for the 1996–1997
season even though they too had testified, or appeared on be-
half of the Union at the representation hearing. Hutchins testi-
fied that nobody ever told him that Burdick was a member of
the Union’s organizing committee and other than his testimony
at the Board’s representation hearing on July 12, he had no
information as to whether Burdick was a union supporter, and
Burdick’s alleged union activities and support played no part in
his decision not to recall him for the 1996–1997 season. He
also testified that he did not know that Williams started the
Union’s organizing campaign.
On being laid off on July 31, Burdick received the following
letter from the Respondent, by Hutchins:

Because our work on behalf of Hershey’s Interna-
tional, Inc. will be completed for all intents and purposes
by the end of this week, we have no further work for you
as of the close of business today. Since we have no way of
knowing when or if we will receive further work from
Hershey’s International, Inc., or from any other source and
because of the difficulties brought on by Leather Agent’s
now being in reorganization under Federal Bankruptcy
Laws, we do not know and thus cannot advise you if or
when we may have further work for which you may be
qualified, either this season, next season, or at any time in
the future. Accordingly, you should not rely upon the fact
that there will be employment available for you in the fu-
ture.
We thank you for your efforts on behalf of the com-
pany during this season.

Carol Burdick began working for the Respondent in about
January 1995; because the Respondent had a Government con-
tract, she worked continuously, apparently, until about July,
when she was laid off. On about December 2, she went to the
plant and spoke to Hutchins. She asked him when she was go-
ing to start, and Hutchins said probably the following Tuesday.
She then asked him about her husband; Hutchins said: “I don’t
know about Larry yet. He gave me a lot of grief, and I’m still
thinking about it. But I’m not sure yet whether I’m going to call
him back or not.” When she told her husband about this con-
versation, he called Hutchins on the following day and asked
him if he was going to be called back. He testified that Hut-
chins said no, because he gave him a lot of grief. He also said
that he had a flesher, he asked who his savior was, and said that
the Union doesn’t run the shop, he does. Hutchins told him that
he wasn’t sure what he was going to do, but if he got another
job, to take it. Hutchins testified that when Burdick called him,
he asked him if he was going to hire him back for fleshing.
Hutchins told him that due to the problems that he had with
him, with the equipment and his attitude, as will be discussed
more fully below, and with everything in his file, he would not
hire him back as his primary flesher because he could not de-
pend on him. Burdick responded that the Union said that he had
to take him back. Hutchins responded: “The Union doesn’t run
this place, I do.” He testified that in this conversation he never
asked Burdick who was his savior: “That word’s not in my
vocabulary.”
Hutchins testified that the reason he did not recall Burdick in
December was due to his bad attitude and “workmanship.” As
far as Burdick’s attitude, he was a “chronic complainer” and
had been so throughout his employment with the Respondent:

[Y]ou couldn’t satisfy him. If he needed a pair of gloves, you
give him a pair of gloves; well, they weren’t right, this was
wrong, that was wrong. He needed another, a new apron or a
pair of boots. It doesn’t matter what you gave him, he would
have a complaint about it. I didn’t have that problem with any
other employee.

On many occasions he spoke to Burdick about his attitude.
Another problem was that Burdick was abusive to the tanning
machines that he worked on. He testified that Respondent’s
tanning machines were old, but that is common in the industry,
and in order for the machines to last, they must be treated well.
If a piece rate employee such as Burdick lost production time
because he reported a machine that was not operating properly,
he would not lose income because Hutchins would pay him his
past average rate during the period that the machine was down.
On a number of occasions he has seen Burdick being very hard
on the machines, principally the pedal that is used to operate
the machine. “You can step on a pedal and make the machine
wind it out, and you can stomp on a pedal to try to break some-
thing. There’s a difference.” He determined that Burdick was
attempting to accomplish the latter, and spoke to him about it
on many occasions. Burdick’s work record contains an entry
dated June 12 stating: “Given a verbal warning for being abu-
sive to machinery (equipment),” and one dated July 29 stating:

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 650
“I’ll break this f--ing machine. Was given another warning for
being abusive to equipment & Bob2 also told him that if I heard
him say this- I would have discharged him immediately.” Hut-
chins spoke to Burdick about this situation and told him that
there were only 2 days left for them to complete the skins, and
please, don’t wreck the last machine. He could not remember
Burdick’s response. During the 1996–1997 season, in Burdick’s
absence, the Respondent did not have the same level of tanning
machinery breakdown as they did the prior year.
On about two or three occasions, beginning in about March,
Hutchins told Burdick that he had a problem with the quality of
the work that he was producing. The problem was that Burdick
was leaving too much flesh on the skins that he was working
on. This could be corrected by Respondent’s maintenance de-
partment, but Burdick would not stop work to tell them, and he
continued working in order to get the largest number of skins
produced, even though it was done in an unsatisfactory manner.
He told Burdick, that if there is a problem stop and have the
machine adjusted, since there was no sense in doing the job
wrong. Because of this problem, in August the Respondent had
to give an $8000 credit to its principal customer. Burdick testi-
fied that on one occasion Hutchins told him that the work he
was producing was not as good as it should have been. Burdick
told him that it wasn’t his fault, that “the machine was raising
hell,” and Hutchins told him that if he had a problem with the
machine, he should stop and have it fixed. Burdick also testi-
fied that in about June two of the three fleshing machines were
broken and out of service and Hutchins told him that he be-
lieved that Burdick was abusing the machines “and he would
fire me.” He does not remember Hutchins giving him another
verbal warning for allegedly saying: “I’ll break this fucking
machine.”
Hutchins testified that another problem that he had with Bur-
dick was that he wouldn’t follow plant rules on breaktime.
Most of the employees, including Burdick, were supposed to
take their morning break from 9:30 to 9:45, and Burdick did so
until late April. From April 24 until May 8 he was given three
verbal warnings for refusing to take his break at the proper
time. At about that time, he began taking his break at 10 a.m.
the same time that Williams, who arrived at work at 4 a.m. took
his lunch break. On these occasions and others, Hutchins spoke
to Burdick about these variances from the rules, and Burdick
basically told him that he would do as he pleased. There is also
an entry dated May 16 that Burdick was given a verbal warning
for punching another employee’s timecard. Hutchins testified
that Burdick and his wife arrived at work at the same time in
the morning and she began working before he was scheduled to
begin. He punched in both timecards when he was ready to
report to work. Hutchins testified: “The benefit to . . . her
would be getting a head start on the day’s work. If I had to pay
average rate, which happens quite often, that raises her average
rate for the day, because it shows less hours on her card than
she actually worked.”
Burdick testified that prior to the filing of the Union’s peti-
tion Hutchins told him that he was a real good worker, one of
the best in the county; Hutchins denies making such a state-
ment. Burdick also testified that during the 1994–1995 season
he received only one warning, for leaving work early. His work
record lists his first warning as April 24. In addition, Hutchins

2 These entries are entered by Linda Hutchins, the secretary, and
Hutchin’s wife, at the direction of Hutchins.
was always telling him that he was taking his break at the
wrong time and he received four or five verbal warnings from
Hutchins about improper breaktimes. He was aware that Hut-
chins wanted him to take his breaks at 9:30 a.m., but believes
that he received these warnings because Hutchins did not want
him to take his break later, with Williams. Prior to April 18,
when the petition was filed, Hutchins never warned him about
taking a break at the wrong time. He testified further that the
only occasion that he received a warning for a timecard infrac-
tion was when somebody else punched in his and his wife’s
time card. They arrived for work an hour late, didn’t notice that
their card was punched in, and they punched in again. He does
not remember being reprimanded by Hutchins for punching in
his wife’s time card.
Hutchins testified that in November, when he had decided
not to recall Burdick, he called Harry Miller, who had assisted
Burdick in doing some fleshing beginning in about early 1996.
He asked Miller if he would be interested in being the primary
flesher for the Respondent for the 1996–1997 season. He said
that he would think about it, but a few days later, Miller called
him back and said that he had obtained employment with an-
other tannery and therefore was not interested in the job. Miller
testified for the Union at the representation hearing on July 12,
between Williams and Carol Burdick. Hutchins then offered the
job to Lee Bruce, who spent about 50 percent of his time doing
fleshing with Burdick the prior season, and he accepted the job
and was hired.
Burdick’s last job before obtaining employment with the Re-
spondent was at Allied Splits, a unionized company that closed
down in 1994, where he earned $8.60 an hour. An additional
defense of Respondent herein is that Burdick was not recalled
for the 1996–1997 season because Hutchins thought that he was
going to return to Allied. Hutchins testified that during the
1995–1996 season, at least once a week, “somebody” told him
that Burdick said that as soon as Allied reopened he would go
back there and had been promised a job, although Hutchins
knows that Allied does not perform fleshing work. The under-
standing in the industry was that Allied would reopen during
the 1996–1997 season and did reopen in June or July 1997. He
testified that there are only four or five tanners in the county
and tanning is a very competitive industry; if Burdick left in the
middle of the season to go to Allied, he would have been hard
to replace. He never asked Burdick about his alleged intentions:
“I figured it would be pointless. I mean, had I asked him. . . . I
am sure he would not have admitted it.” When I asked Hutchins
how much of a factor this fear represented in his decision not to
recall Burdick, he said that percentage-wise, it was probably 15
to 20 percent. Burdick testified that he does not remember tell-
ing anyone at the Respondent that he would leave the Respon-
dent to work for Allied when they reopened: “I don’t think I
ever turned down a $15 job down to a $9. I Ain’t stupid.”
Received in evidence were letters from counsel for the Re-
spondent dated February 27 and March 18, 1997, stating Re-
spondent’s position on the charges here. The February 27 letter,
which refers to five employees, including Williams and Carol
Burdick in addition to Burdick, makes no mention of the Allied
situation, or Burdick leaving too much flesh on the skins as a
reason for not recalling him in December.
IV. ANALYSIS
The controlling principal is set forth in Wright Line, 251
NLRB 1083 (1980), which states that initially the General
LEATHER AGENT, INC. 651
Counsel must establish a prima facie case sufficient to support
the inference that the individual’s protected conduct was a “mo-
tivating factor” in the employer’s decision to terminate, or in
this case not to recall, him. If the General Counsel has satisfied
this requirement, the burden then shifts to the employer to es-
tablish that the employee would have been discharged “even in
the absence of the protected conduct.”
The principal strengths of the General Counsel’s case here
are the timing of Respondent’s warnings to Burdick and the
weak nature of some of the reasons given by Respondent for its
failure to recall him. The weaknesses of the General Counsel’s
case are the limited union activity that Burdick engaged in, the
lack of direct evidence that the Respondent was aware of the
activity, and the fact that a number of other employees, includ-
ing Carol Burdick, testified at the representation hearing for the
Union and continued to work for, or like Miller, were offered
reemployment by, the Respondent. The petition was filed on
April 18. There are numerous innocuous notations in Burdick’s
work record prior to that, but none involve warnings; rather,
most of these notations involve leaving work early, or asking to
leave early, not coming to work, or asking for certain days off.
The only “serious” offense prior to April 18 was in October
1995, when he asked to stay late to complete some work, and
Hutchins walked by and saw another employee performing his
work. This pattern changed very abruptly on April 24, probably
within a day or two of when Respondent received the petition,
when Burdick received his first verbal warning for taking his
break at an improper time. Within 2 weeks he had received two
additional verbal warnings for the same offense. He received
one verbal warning each month in May, June, and July for,
allegedly for punching another employee’s timecard in for
work, for being abusive to the machinery, and for his alleged
threat to break a machine. The suddenness of this change can
be attributed to only two possibilities: that on the filing of the
petition, Burdick abruptly changed his attitude, or that the Re-
spondent totally changed its attitude, at least, toward, Burdick. I
find the latter more likely. Within about 2 weeks of its receipt
of the petition, Hutchins gave Burdick three verbal warnings
for improper breaktimes. Not only were these the first warnings
that he had received, but the Respondent never explained the
seriousness of these alleged infractions. While Burdick was not
the most responsive or direct witness, I credit his testimony that
he took his breaks during this period to talk to Williams, his
cousin, and one of the leaders of the union movement. Consid-
ering the nature of Burdick’s job, the only harm to the Respon-
dent that I can perceive in this brief delay in his breaktime, is
that it gave Burdick and Williams an opportunity to discuss the
Union. Although counsel for the General Counsel never di-
rectly established Respondent’s knowledge of Burdick’s Union
activities, at least, prior to April 24, when its treatment of him
changed, or July 15, when he testified at the representation
hearing, “’knowledge’ need not be established directly, how-
ever, but may rest on circumstantial evidence from which a
reasonable inference of knowledge may be drawn.” Montgom-
ery Ward & Co., 316 NLRB 1248, 1253 (1995). That finding
can certainly be made here. Prior to April 24, Burdick had,
basically, a clean record with only minor notations and no
warning. The abruptness of the change in Respondent’s treat-
ment of him beginning on April 24 leads to the inescapable
conclusion that it resulted from Respondent’s receipt of the
petition a day or two earlier.
Further enforcing this finding is the timing of the failure to
recall Burdick. Respondent would normally recall its employ-
ees in November or early December. Four to 6 weeks earlier, a
hearing officer’s report on challenged ballots and objections
issued on October 15, sustaining two of the Union’s objections
based on conduct by Hutchins, thereby setting aside the elec-
tion conducted on May 24 ordered that a rerun election be con-
ducted, and sustained the challenges to the ballots of Miller and
Linda Hutchins. No exceptions were filed to this report and the
Board, by Decision, Order and Direction of Second Election
dated December 4, adopted the hearing officer’s recommenda-
tions. Respondent therefore knew prior to December 3 that,
based on the representation hearing and the hearing officer’s
report, there would be a rerun election.
Counsel for the General Counsel, in his brief, stresses the
“proffered vacillating and inconsistent justifications offered by
Respondent” as further proof of this violation. I do not neces-
sarily agree. The basis of this argument is that counsel for the
Respondent’s position letter did not include its fear of losing
Burdick to Allied, and the $8000 credit it gave its customer
allegedly because of Burdick’s work as a factor in its failure to
recall him. However, this was a seven-page letter answering the
allegations about four other employees, as well as Burdick.
With so many issues and facts to present, Respondent should
not be faulted for not including everything. I should note, how-
ever, that I found the “Allied” defense incredible because of the
unanswered questions it presented: why would Burdick give up
a $15-an-hour job for one paying $9, especially since Allied
does not do fleshing? And if Hutchins really heard people tell-
ing him every week that Burdick said that he was going to re-
turn to Allied as soon as it reopened, why didn’t he ask Burdick
whether that was true? I therefore reject this defense.
It is alleged that the refusal to recall occurred during a tele-
phone conversation between Burdick and Hutchins on about
December 3. This call was precipitated by a conversation about
a day earlier in which Hutchins told Carol Burdick that, while
he would take her back for the next season, he wasn’t sure
about Burdick, because: “He gave me a lot of grief.” When
Burdick called Hutchins, Hutchins (according to his testimony)
said that he would not recall him because he gave him a lot of
grief, asked who his savior was, and said that the Union didn’t
run the shop, he did. According to Hutchins testimony, he did
tell Burdick that he gave him a lot of grief, meaning attitude,
work performance and damaging the machines, and said that
the Union didn’t run the shop in response to Burdick’s state-
ment that the Union told him that Respondent had to take him
back; he never said anything about a savior. Although this is a
difficult credibility determination, I would credit Burdick’s
version as more logical. Due to my findings discussed above, I
find that the only “grief” that Hutchins could have been refer-
ring to related to Burdick’s union activities and his breaktime
discussions with Williams. In that regard, as Williams was one
of the leaders in the union movement, I credit Burdick’s testi-
mony that Hutchins referred to a savior, meaning Williams, and
on his own said that he, not the Union, ran the shop. I therefore
find that even though a number of other employees who testi-
fied for the Union continued to work for the Respondent, the
General Counsel has sustained his initial burden under Wright
Line, and that the Respondent has not established that it would
not have recalled Burdick even absent the union activities, and
that Respondent has therefore violated Section 8(a)(1)(3) of the
Act. I also find that Hutchins’ statements to Burdick in their

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 652
telephone conversation on December 3 violated Section 8(a)(1)
of the Act.
CONCLUSIONS OF LAW
1. The Respondent has been engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. The Union has been a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent violated the Act by telling an employee that
he would not be recalled because he supported the Union.
4. Respondent violated Section 8(a)(1) and (3) of the Act by
failing to recall Larry Burdick to employment on about Decem-
ber 3, 1996.
THE REMEDY
Having found that Respondent engaged in certain unfair la-
bor practices, I shall recommend that it be ordered to cease and
desist therefrom and to take certain affirmative action designed
to effectuate the policies of the Act. As I have found that Re-
spondent unlawfully refused to recall Burdick on about De-
cember 3, I shall recommend that it be ordered to offer him
immediate reinstatement or recall to his former position during
the period of its season, from about November to June or, if
that position no longer exists, to a substantially equivalent posi-
tion without prejudice to any of his rights and privileges. I shall
also recommend that Respondent be ordered to make him
whole for any loss that he suffered as a result of the failure to
recall him. Backpay shall be computed in accordance with F.
W. Woolworth Co., 90 NLRB 289 (1950), and New Horizons
for the Retarded, 283 NLRB 1173 (1987).
[Recommended Order omitted from publication.]