Link Manufacturing Co.

National Labor Relations Board - Board Decisions

Sep 2, 1986

281 N.L.R.B. 294 (N.L.R.B. 1986)

294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Link Manufacturing Company and International
Union, United Automobile, Aerospace, and Ag-
ricultural Implement Workers of America,
UAW. Cases 7-CA-23912, 7-CA-23960, and
7-RC-17388
2 September 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND STEPHENS
On 6 March 1986 Administrative Law Judge
Robert A. Giannasi issued the attached decision.
The Respondent filed exceptions, a supporting
brief, and an answering brief. The General Counsel
filed cross-exceptions and a supporting brief that
also answered the Respondent's exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions, cross-exceptions,
and briefs and has decided to affirm the judge's rul-
ings, findings,' and conclusions except as modified
herein, and to adopt the recommended Order as
modified.
We agree with the General Counsel that the
judge erred in failing to find that the Respondent
had violated Section 8(a)(1) of the Act by unlaw-
fully creating an impression of surveillance. The
judge found that on 12 September 1984 employee
James Guthrie was called into the office of the Re-
spondent's owner and president, George Linklater,
who asked him how a union meeting had gone the
previous day. The judge further found that Link-
later told Guthrie that he knew that some 36 em-
ployees had signed union cards. Under the circum-
stances, we find that the Respondent violated the
Act by unlawfully creating the impression that its
employees' union activities were under surveil-
lance.
We also agree with the General Counsel that the
remedy and Order should be amended to provide
for interest on the backpay owed to Guthrie be-
cause of his unlawful suspension . Finally, we agree
that the remedy and Order should direct explicitly
that all references to Guthrie's suspension be re-
moved from his personnel records, and that he be
notified in writing that this has been done and that
i The Respondent has excepted to some of the ,fudge's credibility find-
ings The Board 's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951).
We have carefully examined the record and find no basis for reversing
the findings
evidence of his unlawful suspension will not be
used against him in any future personnel action.2
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent , Link Manufacturing Company, Oak
Park, Michigan , its officers , agents, successors, and
assigns, shall take the action set forth in the Order
as modified.
1. Insert the following as paragraph 1(b) and re-
letter the subsequent paragraphs.
"(b) Creating the impression among employees
that their union activities are under its surveil-
lance."
2. Substitute the following for paragraph 2(a).
"(a) Make employee James Guthrie whole for
any loss of pay or benefits he may have suffered
because of the Respondent's unlawful action
against him , as prescribed in F W. Woolworth Co.,
90 NLRB 289 (1950), plus interest as computed in
Florida Steel Corp., 231 NLRB 651 (1977)."
3. Substitute the following for paragraph 2(c).
"(c) Remove from its records and files any nota-
tions dealing with the layoffs and suspension of the
employees found to have been discriminated
against herein and notify them in writing that this
has been done and that evidence of such unlawful
conduct will not be used in future personnel ac-
tions."
4. Substitute the attached notice for that of the
administrative law judge.
2 The General Counsel requests that the remedy include a visitatonal
clause authorizing the Board , for compliance purposes, to obtain discov-
ery from the Respondent under the Federal Rules of Civil Procedure
under the supervision of the United States court of appeals enforcing this
Order Under the circumstances of this case, we find it unnecessary to
include such a clause Accordingly, we deny the General Counsel's re-
quest
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 the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
281 NLRB No. 28
LINK MFG. CO.
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT coercively interrogate employees
about their union activities and those of other em-
ployees.
WE WILL NOT give you the impression we are
watching your union activity.
WE WILL NOT threaten employees with reprisals,
including discharge, and loss of benefits if they
select a union.
WE WILL NOT promise employees benefits if they
reject a union.
WE WILL NOT attempt to convince employees
not to participate in a Board election.
WE WILL NOT convert temporary layoffs of em-
ployees into permanent layoffs, suspend, or other-
wise terminate or discriminate against employees in
order to prevent employees from voting in a Board
election, because they vote in an election, or to dis-
courage union activities.
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL make employee James Guthrie whole
for any loss of earnings and other benefits plus in-
terest resulting from his suspension.
WE WILL place employees Culbertson, Chwas-
tek, Jones, Petrey, and Elswick on a preferential
recall list as of 13 August 1984 and treat them as
temporarily laid-off employees subject to recall
from that day forward when and if their former
positions or any other work for which they might
be qualified becomes available. In the event that
these employees would have been recalled, absent
their unlawful terminations, WE WILL make them
whole for any loss of earnings or benefits plus in-
terest which they may have suffered as a result of
our unlawful action.
WE WILL remove from our records and files any
notations dealing with the layoffs and suspension of
the employees found to have been discriminated
against and notify them in writing that this has
been done and that evidence of such unlawful con-
duct will not be used in future personnel actions.
DECISION
295
STATEMENT OF THE CASE
ROBERT A. GIANNASI, Administrative Law Judge.
This case was tried on several different dates in April,
May, and September 1985 in Detroit, Michigan. The
complaint alleges that Link Manufacturing Company
(the Respondent) violated Section 8(a)(1) of the Act by
making coercive statements and engaging in coercive
conduct prior to, and in connection with , a Board elec-
tion which took place on 27 September 1984. The com-
plaint also alleges that the Respondent violated Section
8(a)(3) and (1) of the Act by discriminatorily converting
the temporary layoffs of six named employees 1 to perma-
nent layoffs so that they would be ineligible to vote in
the election and by discriminatorily disciplining and sus-
pending employee James Guthrie* because of his union
activities.
Consolidated with the complaint case (Cases 7-CA-
23912 and 7-CA-23960) is the representation case (Case
7-RC-17388), which presents the issue of whether the 27
September election was valid . No objections were filed
to the election but several challenges were made to the
eligibility of voters. After the resolution of certain chal-
lenges, the Regional Director issued a revised tally of
ballots which showed that 26 votes were cast against and
25 votes for Charging Party Union, but that two chal-
lenged ballots, those of employees Mike Culbertson and
Chris Chwastek, two of the employees whose layoffs had
allegedly been unlawfully converted from temporary to
permanent, remained . Resolution of the challenges de-
pends on the outcome of the complaint allegation involv-
ing Culbertson and Chwastek.2
The General Counsel and the Respondent filed briefs
which I received on 17 December 1985 and which I
have read and considered.
Based on the entire record , including the testimony of
the witnesses and my observation of their demeanor, I
make the following
FINDINGS OF FACT
1. JURISDICTIONAL MATTERS
The Respondent, a Michigan corporation, which main-
tains a facility in Oak Park, Michigan, admits that it is an
employer engaged in interstate commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
Charging Party Union (the Union) is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
LINK MANUFACTURING COMPANY
Deborah Syx, Esq., for the General Counsel.
James B. Perry, Esq. (Abbott, Nicholson, Quilter, Esshaki
& Youngblood), of Detroit, Michigan, for the Respond-
ent.
Tony Martini, of Warren, Michigan, for the Charging
Party.
1 The employees are Michael Culbertson , Chris Chwastek, Donald
Jones, Chris Venticinque, Millard Petrey, and George Elswick.
2 It does not appear that the other four laid-off employees voted in the
election . Jones testified that he did not vote because he was told it
"would be a waste of time " This, of course, was inaccurate because, had
he voted , his vote, like the others , would have been treated as a chal-
lenged ballot.
296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE UNFAIR LABOR PRACTICES
A. Background
The Respondent is engaged in the production of shafts
for automobile engines and other motors . Its facility in
Oak Park consists of two adjoining buildings and a third
free-standing building separated from the other two by a
parking lot. The facility is composed of six separate de-
partments , including the grinding department which is
housed in the free standing building and employs about
half of the Respondent's approximately 50 employees.
The grinding department contains about 32 grinding ma-
chines. There are 25 in-feed or plunge grinders; 7 are
through-feed machines . Not every machine is manned by
an operator and in-feed or plunge grinders ' work is more
sophisticated than through-feed work.
The Respondent is wholly owned by George Linklater
Jr. who also serves as its president. Stanley Sikora is the
plant manager and Joe Venticinque is the Respondent's
engineer and a supervisor within the meaning of the Act.
Martha Collier serves as the Respondent's secretary and
bookkeeper.
In late July 1984 employee Mike Culbertson contacted
an official of the Union and obtained blank authorization
cards which he then distributed to fellow employees
during lunch and other breaks at the plant . In some cases
he distributed cards and talked to employees on work-
time. On 10 August 1984 the Union filed an election peti-
tion with the Board. The Respondent received a copy of
that petition about 10 o'clock on the morning of
Monday, 13 August 1984.
On Friday, 3 August, the Respondent laid off employ-
ees Elswick and Petrey, two plunge or in-feed opera-
tors.a Elswick and Petrey were among five in-feed oper-
ators hired in July. Although Elswick was the least
senior in-feed operator, two others had less seniority
than Petrey. Linklater admitted that these layoffs were
intended to be temporary.4
On Tuesday, 7 August, the Respondent laid off Cul-
bertson and two other employees who had signed cards
distributed by him, Don Jones and Chris Chwastek.
They were the least senior of the five through-feed oper-
ators then employed, although there were some less
senior in-feed operators in the grinding department who
a Neither Sikora, Petrey, nor Elswick testified in this proceeding and
Linklater could not remember when Petrey and Elswick were laid off
However, the Respondent 's position statement states as follows "[Link-
later] selected George Elswick and Millard Petrey to be laid off and di-
rected Sikora to advise them of the layoff , before Sikora went on vaca-
tion Sikora told Elswick and Petrey that they would no longer be
needed on Friday, August 3, 1984 " (G C Exh 14 at 12 )
4 The above was Linklater's initial testimony Linklater later testified
that these layoffs were intended to be permanent This demonstration of
inconsistency was typical of Linklater's testimony and is an example of
why I found him to be an unreliable witness. However, I acccept his ini-
tial testimony that the layoffs were temporary because it is compatible
with other evidence in this case It also was given at a time when candor
was most likely because it was in response to a question by counsel for
the General Counsel before Linklater had an opportunity to reflect and
change his testimony to give a more self-serving answer in response to a
question from his own counsel . My assessment of his demeanor while he
was testifying leads me to conclude that Linklater's admission during his
initial testimony carried the ring of truth I therefore reject Linklater's
belated attempt to show that the layoffs were permanent
were retained. They were notified of their layoffs by Ed
Uroda who was acting in Plant Manager Sikora 's stead
for the week of 6 August while Sikora was on vacation.
Uroda told each of the employees , in separate conversa-
tions, that their layoffs would be temporary. According
to Chwastek, Uroda said he would be "temporarily" laid
off, "he didn't [know] for how long; it might be a week;
it might be longer." According to Culbertson, Uroda re-
sponded to his question concerning the length of the
layoff by stating that it would "only be for a week to
two weeks." Uroda also said , "We are low on through-
feed work and there is some coming in from the heat
treaters and it should only take a week or two, we will
give you a call." Jones ' testimony is not quite as clear on
the temporary nature of the layoff, but it is nonetheless
supportive of that view of Uroda's remarks, especially as
all three employees were laid off under the same circum-
stances. According to Jones, Uroda told him that "possi-
bly when things pick up" he would be recalled. These
witnesses were each candid and believable and their tes-
timony was not disturbed on cross-examination . I there-
fore credit their testimony. 5
S In its brief the Respondent alleges that in the representation proceed-
ing, which was held on 23 October 1984, Culbertson testified differently
about what Uroda had told him Although the transcript of the represen-
tation case is a part of the record in this consolidated case, I asked the
parties at the beginning of the trial to specify , during the trial, which part
of the representation case transcript they would be relying on Despite
this request, counsel for the Respondent never specified , during the hear-
ing, that he would be relying on Culbertson 's representation case testimo-
ny and never confronted Culbertson with his prior testimony Thus, Cul-
bertson was never asked to explain whether there was a conflict between
his present testimony and his testimony in the prior hearing . Nor was
counsel for the General Counsel given an opportunity to address the al-
leged inconsistency Counsel for the Respondent simply asked whether
Culbertson had testified in the representation proceeding and Culbertson
replied that he had
In considering the Respondent 's allegation , I have reviewed the tran-
script in the representation case. Having read and considered Culbert-
son's testimony in the representation case , I find no conflict or any other
reason to discredit his testimony before me, particularly in view of the
fact that I was favorably impressed with his demeanor as a witness. Cul-
bertson 's testimony before me that Uroda told him the layoff would last a
few weeks was reaffirmed on cross-examination . He stated that Uroda
"made it clear to me that [the layoff] was a temporary situation " In the
representation case, Culbertson was asked by the union counsel who had
informed him that he was laid off. Culbertson answered , "Ed Uroda. As
a matter of fact his wording was Mike , I'm sorry but at twelve thirty I'm
going to have to lay you off I said for what , and he said because we
have no work " A followup question by the hearing officer yielded no
significant elaboration and counsel for the Respondent did not ask any
questions on the point Culbertson simply related how he was informed
of the layoff, he did not purport to give the entire conversation between
him and Uroda There was thus no conflict between Culbertson 's rather
curt summary response in the representation case and his more complete
and detailed testimony before me Indeed , the entire focus of the question
about the layoff in the representation case and a central purpose for the
entire hearing was to determine whether Uroda was a supervisor and
thus ineligible to vote in the election The hearing officer specifically
stated several times during the representation hearing that he was aware
that unfair labor practice charges had been filed concerning the layoffs of
Culbertson and Chwastek, but that he was not going to take evidence on
that issue In these circumstances , nothing in Culbertson's testimony in
the representation hearing can be viewed as inconsistent with his testimo-
ny before me For these reasons and because his testimony before me was
reaffirmed on cross-examination , was the product of a witness with an
impressive demeanor, and was compatible with that of two other employ-
ees laid off at the same time, I cannot discredit Culbertson's testimony
before me
LINK MFG. CO.
Contrary to the testimony of Culbertson , Jones, and
Chwastek , Ed Uroda testified that he did not tell the
men that their layoffs would be temporary. Neither did
he testify that he told them the layoffs would be perma-
nent . He testified simply that Linklater did not tell him
the length of the layoffs , but told him only "to lay them
off, because of a shortage of work."e
I do not credit Uroda's testimony insofar as it conflicts
with that of the laid -off employees . Not only was their
testimony essentially corroborative on this point, but it
was consistent with Linklater's admission that the layoffs
of Petrey and Elswick several days before were tempo-
rary . Because all five employees were sent the same
layoff letter on the same day , it is reasonable to infer that
all five were laid off under the same conditions. More-
over, Uroda's testimony conflicts with Linklater's on
two important points . Unlike Linklater , Uroda says noth-
ing about his own advice to Linklater that there was a
work shortage which led to Linklater 's decision to lay
off employees . This is significant because if, as I believe,
and as Linklater testified , the decision was spawned by a
report from Uroda that work was down , it more likely
was the result of a temporary situation than a predeter-
mined judgment . My view is reinforced because Sikora,
the plant manager , was not present when the through-
feed operators were laid off. He would undoubtedly
have participated in a decision which called for perma-
nent layoffs . Indeed, according to Uroda, Linklater said
nothing about the length of the layoffs . Secondly, Uroda
did not corroborate Linklater 's testimony that he was out
of the office on the last 2 days of the week . This is a cru-
cial point because it would have been very unusual that
Uroda alone was in charge of the grinding department
for 2 days ; he would undoubtedly have remembered and
firmly corroborated his boss on this point if that were so.
Instead , Uroda testified that he "guessed" that Linklater
was at the facility all week, although he was "not that
sure." In light of these conflicts and in the face of the
mutually consistent and credible testimony of the three
employee witnesses, I cannot accept the testimony of
Uroda or that of Linklater , who did not impress me gen-
erally as a reliable witness, which might conflict with my
finding that the three through-feed operators were laid
off only temporarily.
My finding is also supported by other evidence. An
employee list dated 6 August contains the names of
Petrey and Elswick, thereby confirming that their lay-
offs-at that point-were intended to be temporary. In
addition, documentary evidence shows that , in past
years, most laid-off employees were actually recalled.
Indeed, Linklater admitted that it was unusual to have
permanent layoffs . Moreover, documentary evidence
shows that, after the election, the Respondent not only
6 Linklater did not initiate the layoffs . According to Linklater, Uroda
and another employee, approached him and told him "there was not
enough through-feed work to last through the day ." Linklater then told
Uroda to lay off three of the five through-feed operators . Although
Uroda was not a supervisor within the meaning of the Act , he was,
during the week in question , acting plant manager and was specifically
authorized to lay off employees . Because he had conferred with Linklater
immediately before implementing the layoffs , his remarks to the laid-off
employees are not only authoritative but carry a special persuasive force.
297
hired new plunge grinders but also increased significant-
ly the number of temporary employees it utilized . Sever-
al employee witnesses credibly testified that many of
these temporary employees also did through -feed work.
After some reluctance , Linklater himself testified that
temporaries were utilized for through-feed work. The
record also shows that , in October, the Respondent
began running a second shift . And documentary evi-
dence shows that , in September and October , there was
a dramatic increase from the prior 2 months in work per-
formed for a company called Condomatic , for which,
Linklater testified , the Respondent performs "through
feed grinding only." Thus, the evidence is really over-
whelming that the layoffs of employees Petrey , Elswick,
Culbertson, Jones , and Chwastek were originally intend-
ed to be temporary and, under normal circumstances,
would have remained temporary.
However, in letters postmarked "pm," 13 August 1984
and dated 7 August , Linklater told the five temporarily
laid-off employees named above that their layoffs were
permanent, citing the loss of work from certain named
companies as the reason . The letters read as follows:
Linklater Manufacturing Company has been experi-
encing a continuing cutback in orders . This has
been due to our company 's inability to successfully
compete for work from Roper , Robbins and Myers
and other customers . Additionally , Ford recently
informed us that they would begin performing two
of our best jobs in house by the end of this month.
Unfortunately , these cutbacks in orders have forced
us to reduce our work force . We regret to inform
you that you will be laid off August 7, 1984, and
that we expect this layoff to be permanent . Please
be sure to remove any of your personal belongings,
including tools, from our premises as we cannot be
responsible for them . Your final paycheck will be
mailed to you on August 15, 1984.
B. The 8(a)(1) Violations Against Employees
Culbertson, Kish, and DiPerna
Sometime in June 1984 before Culbertson initiated
union organizing activities, he had a conversation with
Plant Manager Stan Sikora. According to Culbertson's
uncontradicted testimony, which I credit, he was sched-
uled to work overtime and asked Sikora if he could be
released early because he needed to go to his bank.
Sikora stated that the Respondent needed people to work
overtime and get production out. He also stated that the
Respondent would start cracking down on people who
did not want to work overtime. Culbertson then re-
marked that this was why he thought the employees
should have a union "around here." Sikora responded,
"if the old man [referring to George Linklater, the Re-
spondent's owner and president] hears you saying things
like that" it would be the "quickest way for you to lose
your job." Culbertson repeated the conversation to a
"few" other employees.
Sikora's remarks were clearly unlawful. They threat-
ened retaliation for even talking about forming a union.
The Respondent's assertion that the remarks were not
298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
taken seriously is not supported by the record . Culbert-
son answered a leading question to that effect by stating,
"not really," and then mentioning that he did take seri-
ously the Respondent 's attitude on overtime . Moreover,
Culbertson thought seriously enough about the remarks
to repeat them to other employees . In any event, the law
proscribes threats of retaliation because of their tendency
to coerce without regard to the subjective views of par-
ticular employees given in response to questions at a
formal hearing months after the events . See Hendrix Mfg
Co. v. NLRB , 321 F .2d 100, 105 (5th Cir . 1963).
Uncontradicted testimony also establishes that Sikora
approached employee Robin Kish at his work station
sometime in August 1984 . Sikora asked Kish how he
"felt about the union." Even though Kish had signed an
authorization card , he responded that he "didn't see that
it would do me any good ." Sikora responded that the
employees should be sure of what they were doing be-
cause supporting a union was a "big step ." Sikora stated
that he, Sikora, "didn't like" the idea of a union and he
also stated that Linklater would not "tolerate" a union
"being in his shop." He also stated that selection of a
union "would be a mistake because we wouldn 't benefit
from it."
Considering all the surrounding circumstances, I find
that Sikora 's interrogation was unlawful . Sikora did not
state any lawful purpose for the questioning and gave no
assurances against reprisal . Indeed , he intimated the op-
posite because he said that President Linklater would not
"tolerate" a union . He also said that forming a union
would be a "mistake." These additional remarks clearly
indicated the Respondent 's displeasure towards one who
would answer that he thought favorably of the Union.
So far as the record shows, Kish was not known to be an
open union supporter. Indeed , Kish responded ambigu-
ously to the question even though he had just recently
signed a union authorization card . Finally , Sikora, not
Kish, initiated the conversation about the Union. Thus,
the question by a high official of the Respondent was co-
ercive in that the employee might well believe that, if he
answered that he favored the Union , the information
could be used for future discrimination.
According to further uncontradicted testimony , Sikora
also approached employee Jeff DiPerna at his work sta-
tion sometime in mid -August. Sikora asked if DiPerna
had signed a "UAW card." DiPerna gave a noncommit-
tal response and simply told Sikora that he had previous-
ly belonged to the Union but had lost his job and had a
"bad experience ." DiPerna had in fact signed a union
card about 2 weeks before.
This interrogation was likewise unlawful. There was
no lawful purpose for the question and no assurances
against reprisal given by Sikora . DiPerna gave a non-
committal response even though he had in fact signed a
card . There was no evidence that this was a friendly ex-
change and the plant manager , the second highest man-
agement official with the Respondent, initiated the con-
versation about the Union . Thus, here again , in all the
circumstances, Sikora's questioning was coercive and
violative of the Act.
Sometime in August or September , prior to the Board
election, Linklater made some threats to employee Jeff
DiPerna. DiPerna testified that he requested that Link-
later sign a document for him in connection with a home
loan application . Linklater told DiPerna that he would
sign the document but that he did not like "this Union
idea." Linklater said that there were longtime employees
who "could lose their jobs because of the Union."
I credit DiPerna's testimony . He impressed me as an
honest and candid witness whose testimony survived
cross-examination . He was testifying under subpoena and
was considered by Linklater to be on leave of absence
when he testified . Linklater, on the other hand, did not
specifically deny the above conversation took place al-
though he did generally deny threatening employees.
More importantly , as is discussed more fully elsewhere in
this decision , Linklater did not impress me as a reliable
or credible witness.
Based on my credibility determination , I find that
Linklater's remarks to DiPerna amounted to a threat of
retaliation against employees for supporting the Union.
Linklater's suggestion that employees would lose their
jobs because the Union was not based on any economic
considerations or matters outside of the Respondent's
control . Indeed , his expression that he did like the idea
of a union made it clear that it was his own attitude
toward the Union which would cause the employees to
lose their jobs . And, as owner and president of the Re-
spondent, he had the power to implement his sugges-
tions . Linklater's remarks were thus coercive and viola-
tive of the Act. See NLRB v. Gissel Packing Co., 395
U.S. 575, 619 (1969).
C. The Discriminatory Layoff Changes
The General Counsel contends that the five layoffs of
3 and 7 August were changed from temporary to perma-
nent because of the advent of union activities . The Gen-
eral Counsel contends that the change was made after re-
ceipt of the Union's election petition and that the Re-
spondent seized on this opportunity to make sure that
Culbertson, who was known to favor a union, and four
other potential union voters would not vote for a union
in the upcoming election. More specifically, the General
Counsel contends that the 13 August layoff letters were
written and mailed after receipt of the election petition.
The evidence establishes that the election petition was
received at 10 a.m. on 13 August and that the layoff let-
ters were postmarked "pm" 13 August.
The Respondent contends, based on the testimony of
Linklater and his secretary, Martha Collier, that the 13
August layoff letters were signed before the election pe-
tition was received on the morning of 13 August and
were given to the postman as he left the Respondent's fa-
cility. I reject this contention because I do not credit the
testimony of Linklater and Collier. First of all, I found
Linklater an unreliable witness who was ambiguous, con-
tradictory, and evasive in parts of his testimony. I also
believe that Collier, who admitted to having discussed
this matter with Linklater before testifying , was guided
by an interest in supporting the testimony of her boss.
Secondly , their testimony conflicted on a very significant
point . Linklater testified that he dictated the letters on 8
or 9 August; Collier testified that they were submitted to
LINK MFG. CO.
her in handwritten form . Nor is their overall testimony
plausible . The two plunge grinders had been laid off on 3
August. Why would Linklater wait 10 days to send let-
ters to them confirming the layoffs , date the letters 7
August and state that "You will be laid off August 7."
The same question must be asked about the other layoffs
which had been implemented on 7 August . Moreover, if
the letters were dictated or drafted on 8 or 9 August,
why would the letters say the employees "will be laid
off?" In addition, while it is unnecessary to go into de-
tails concerning the whereabouts of Linklater on Thurs-
day and Friday, 9 and 10 August, his testimony that he
was gone from the office from noon Thursday to
Monday morning and thus could not sign the layoff let-
ters that week does not ring true . His plant manager was
on vacation that week and Linklater testified that usually
either he or Sikora-the only two supervisors in the
grinding department-was always present at the facility.
It does not seen likely that he would leave the plant in
the hands of an employee , Uroda, for such a long period
of time. Indeed, Uroda could not even corroborate Link-
later on this point . For all these reasons, I reject the tes-
timony of Linklater and Collier and find not only that
their testimony is untruthful but that the truth is the op-
posite of their story-the layoff letters were written and
mailed after receipt of the election petition. See NLRB v.
Walton Mffg. Co., 369 U.S. 404, 408 (1962).'
Because the evidence clearly and unequivocally shows
that the five employees laid off on 3 and 7 August were
temporarily laid off, the fact that their layoff letters sent
on 13 August changed those layoffs to permanent raises
the question why this was done . The most obvious
reason is the receipt of the election petition that same
day. Linklater and Sikora were admittedly "quite sur-
prised" at receipt of the petition . Sikora knew of Cul-
bertson's view that it would be a good idea to have a
union in the plant and he threatened Culbertson that for-
mation of a union would result in discharge . This expres-
sion of antiunion animus was not isolated . It was exhibit-
ed many times thereafter by both Sikora and Linklater
who impressed me as being particularly concerned about
the possibility of a union in his facility . Indeed Sikora
said that Linklater would not "tolerate " a union. The
evidence of animus both before and after receipt of the
petition convinces me that such animus existed when the
4 The General Counsel makes an argument in her brief that the layoff
letters were postmarked 1 p.m. and that this means they were not given
to the mailman on the morning of 13 August when he delivered the
notice that an election petition was filed because he would not have
reached the post office until after 2 p .m. She refers to two of the enve-
lopes enclosing the letters received in evidence . However , those enve-
lopes indicate only that they were postmarked "pm," not that they were
marked with any particular time. There was no testimony concerning the
Postal Service's policy in time stamping envelopes and I have been ad-
ministratively advised that the Postal Service does not stamp envelopes
as to the hour but refers only to "pm " or "am." Thus, the stampmark
which indicates that the layoff letters were mailed after noon "pm" on 13
August is consistent both with the contention of the General Counsel
that the letters were mailed after receipt of the election petition and of
the Respondent that the letters were given to the mailman at the same
time he delivered the letters notifying the Respondent of the election pe-
tition. Accordingly , while I have no doubt that the letters were mailed
after receipt of the petition , I do not rely on the General Counsel's spe-
cific argument relating to an alleged 1 p.m. time stamp on the envelopes.
299
petition was received and that it motivated the Respond-
ent's precipitous change of the layoffs from temporary to
permanent . The timing of the change reinforces the find-
ing I make that the change was discriminatorily motivat-
ed.8
The Respondent may, of course , escape the natural in-
ference of discrimination established by the above evi-
dence . But it has the burden of showing that the change
of the temporary layoffs to permanent would have taken
place even in the absence of the union activity. As the
Board has stated , a respondent "cannot carry this burden
merely by showing that it also had a legitimate reason
for the action, but must 'persuade' that the action would
have taken place even absent the protected conduct 'by a
preponderance of the evidence."' Centre Property Man-
agement, 277 NLRB 1376 (1985). The Respondent has
not carried its burden persuasively. It presented much
evidence-based primarily on the oral testimony of Link-
later-that its work was down . I cannot accept this testi-
mony because of Linklater's unreliability as a witness.9
More precisely, none of Linklater' s testimony focuses
on the important issue here : What happened between 7
and 13 August to turn temporary layoffs into permanent
layoffs? The date 7 August was a Tuesday. Sikora was
on vacation that week and Linklater, according to his
own testimony , was not at the plant after Thursday noon
and was occupied through Sunday with a golf tourna-
ment . Indeed , because Linklater testified he dictated the
letters on 8 or 9 August , whatever precipitated the
9 Although several of the laid-off employees had signed cards and en-
gaged in union activities , it is unnecessary to the finding of discrimination
that the Respondent specifically knew of the union activities of each of
the discrimmatees . It is sufficient that it knew of or suspected Culbert-
son's involvement and knew of the filing of the election petition and re-
acted to purge itself of possible prounion supporters . The Respondent's
reaction was thus in the nature of a "power display " in response to the
advent of the Union and was unlawful without regard to specific knowl-
edge of the prounion activities of particular employees . See Majestic
Molded Products v. NLRB , 330 F .2d 603, 606 (2d Cir. 1964); NLRB Y.
Rich 's Precision Foundry, 667 F . 2d 613, 628 (7th Cir. 1981). See also ARA
Leisure Services v. NLRB, 782 F.2d 456 (1986) ("It is reasonable to con-
clude that [the employer] simply seized the moment to wipe out a pocket
of suspected union support without waiting for actual confirmation that
each employee discharged actually supported the Union.")
9 Linklater testified that he knew in mid -July that he was losing work
from Robbins, Meyers, and Roper and that certain work from Ford, his
major customer, was being delayed . He supposedly learned of this in con-
versations with purchasing agents . Yet he hired several employees in
July, including one on 31 July , and none of the documentary evidence
submitted supports his testimony . Purchase order forms submitted by the
Respondent simply confirm that orders were placed for work to be per-
formed through a certain date. There was no documentary evidence indi-
cating a loss of business or establishing the dates or reasons for the loss.
Indeed there was documentary evidence showing that work for Robbins,
Meyers, and Ford continued and that the Ford work increased substan-
tially later in the year. The work for Condomatic-which involved
through-feed grinding-actually increased dramatically after the August
layoffs . Furthermore, the record also shows that , after the layoffs, the
Respondent hired more plunge grinders and utilized more temporary em-
ployees to perform through-feed work . Ironically, in an attempt to secure
a better deal from Ford, Linklater , in a November letter to Ford officials,
told them that he needed more money because he was going to have to
pay more to his employees due to "added costs of a union contract
which is now being negotiated with the UAW." This not only was not
true, as Linklater admitted at the hearing, but Linklater had worked
mightily to prevent this eventuality from occurring. In these circum-
stances, I cannot accept Linklater 's explanation for his conduct relating
to the layoffs.
300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
change would have had to take place on 7 or 8 August.
Nothing in the record even remotely suggests that some
business or economic event caused the Respondent to
make the change in the layoffs after 7 August. The Re-
spondent 's evidence is simply not susceptible to any in-
terpretation which would explain a change in position in
the nature of the layoffs. The one event that did occur,
of course , between the announcement of temporary lay-
offs and their change by letter into permanent layoffs
was the receipt of the election petition . In these circum-
stances, I find that the Respondent has failed to show
that the layoffs would have been changed from tempo-
rary to permanent in the absence of union activities.
The complaint also alleges that Chris Venticinque's
layoff, like the other five, was changed from temporary
to permanent for discriminatory reasons . The evidence
shows that Venticinque, a toolmaker who signed an au-
thorization card given to him by Culbertson on 3
August , was laid off on 15 August. He was sent a layoff
letter on 16 August stating that his layoff was permanent.
According to the uncontradicted testimony of employee
James Guthrie, Joe Venticinque, the Respondent's engi-
neer and a supervisor within the meaning of the Act,
told Guthrie that Chris, his son, had gotten into an argu-
ment with a fellow employee about the Union and was
laid off the same day . This was the only record evidence
concerning Chris Venticinque's layoff because neither
Chris nor Joe Venticinque testified in this proceeding.
The General Counsel asserts that Venticinque's layoff
was "in effect 'converted"' to permanent at the outset
because his layoff would have been temporary "in the
absence of the organizing campaign ." I disagree. In the
absence of any evidence concerning the nature of Venti-
cinque's layoff, I cannot make such a finding. Indeed
what little evidence I have on this point suggests that
Venticinque was terminated for getting into a fight.
There is no evidence that he was treated differently than
other nonunion employees who may have been involved
in fights . The General Counsel never alleged that the
layoff itself-the termination-was unlawfully motivated.
The only notification to Venticinque that appears in the
record shows that he was permanently laid off. Unlike
the other five layoffs considered above, there was no sig-
nificant intervening cause-receipt of the election peti-
tion-between Venticinque 's layoff and the confirmation
letter . In these circumstances , I find that the General
Counsel has not proved by a preponderance of the evi-
dence that Venticinque's original layoff was temporary
and that it thereafter was converted to permanent for
discriminatory reasons.
D. The 8(a)(1) and (3) Violations Committed Against
Employee Guthrie
Employee James Guthrie was a veteran employee who
had worked for the Respondent since 1976 . He was a
machine repairman . He had had a poor attendance and
tardiness record throughout his employment , but it had
been tolerated without disciplinary action or written
warnings until the advent of the union campaign in
August 1984.10
On 24 August Linklater gave Guthrie a written warn-
ing for absenteeism , tardiness, and leaving work early.
This was the first written warning issued to Guthrie for
absenteeism or tardiness . Linklater told Guthrie that he
would have to take some action if Guthrie did not
"straighten up."" t
In early September , Linklater loaned $150 to Guthrie
in cash. Linklater had a policy of lending employees
money and he does not deny that he did lend money to
Guthrie on this occasion . He had loaned Guthrie money
in the past which Guthrie had always repaid . Shortly
after the September loan, however , Linklater told Guth-
rie that he could forget about repaying the loan if he did
not show up to vote in the election on 27 September.' a
On 11 September Guthrie attended a union meeting at
Culbertson's house . The next day he was called into
Linklater's office. Linklater asked him how the meeting
went. He also said that he knew that some 36 employees
had signed union cards and asked Guthrie the identity of
the union organizers . He also asked why Guthrie wanted
a union . Guthrie gave an ambiguous reply. Linklater also
told Guthrie that he would make it impossible for Guth-
rie to draw unemployment benefits although he did not
directly threaten a layoff . The meeting lasted over one-
half hour.' 3
Also on 12 September, apparently in a separate con-
versation with Linklater, Guthrie complained about
being "harassed" by Plant Manager Sikora and another
employee about his allegedly being a union organizer.
Linklater promised to talk to Sikora and the other em-
ployee about this matter . Linklater conceded that this
conversation took place. I do not credit Linklater's fur-
ther testimony that this was the only conversation he
had with Guthrie about the Union.
Guthrie also credibly testified that, on three or four
separate occasions during the election campaign, Link-
later called Guthrie into his office and asked him which
10 Guthrie conceded that he had participated in one meeting in which
management officials , Linklater and Sikora, had told him to improve his
attendance record . The date and details of this meeting are unclear.
Guthrie also conceded that Sikora may have mentioned his attendance
record to him "a couple " of times.
i i The General Counsel alleges that, during this conversation, Link-
later told Guthrie that Guthrie's tardiness and warning could be "over-
looked" if there were no union at the facility Although Guthrie did testi-
fy to this effect, his testimony was ambiguous , in response to a leading
question and not placed in context. Moreover, Guthrie stated that "[a]t
that point I had straightened out." This was unlikely because he had just
received the warning . Although something of the sort probably was said
to Guthrie , Guthrie's testimony on this particular point is insufficiently
precise for me to make the finding suggested by the General Counsel.
12 Guthrie's testimony on this point was straightforward and candid. I
credit his testimony over Linklater's denial that he conditioned the repay-
ment of the loan on Guthrie 's not voting in the election As I have indi-
cated previously in this decision, I found Linklater to be an unreliable
witness
1a On this point Guthrie , who had vision and reading problems, had
his recollection refreshed by having his pretrial affidavit read to him.
Guthrie credibly affirmed that his affidavit was true in this respect. His
testimony on this point survived vigorous cross -examination. I am con-
vinced that he was an honest witness whose testimony on this point, even
though it consisted primarily of adopting his written and sworn pretrial
affidavit, was far more reliable than Linklater's denial
LINK MFG. CO.
employees had signed union authorization cards. Guthrie
refused to give Linklater the names of the card signers.
Linklater also told Guthrie that if the Union succeeded
in gaining recognition, he would stop loaning money to
employees. I do not credit Linklater' s denials that he en-
gaged in these conversations.
In conversations with Guthrie during the 2 days prior
to the election, Linklater told Guthrie that he should not
vote in the election and that he wanted Guthrie not to
come to work the day of the election and to go fishing.
Guthrie reported to work on 27 September, the day of
the election.14 Throughout the morning Linklater fol-
lowed Guthrie around and asked him to leave. Guthrie
stated that he could not afford to take the day off, but
Linklater responded that he should not worry about it.
Despite Linklater's efforts, Guthrie voted in the elec-
tion.1 s
On Saturday, 29 September, a number of employees
were scheduled to work. Several, including Guthrie, did
not report for work. On Monday, 1 October, Linklater
issued Guthrie a 1-week suspension for missing work on
Saturday. Linklater called Guthrie a "gutless son-of-a-
bitch" for voting the previous Friday. He also stated that
he was going to make it impossible for Guthrie to work
for the Respondent. Here again, I credit Guthrie's testi-
mony and reject Linklater's denial that he called Guthrie
a "gutless son-of-a-bitch" based on my assessment of the
reliability and demeanor of both men as witnesses before
me.
Based on my credibility determinations, I find that
Linklater, on several occasions, interrogated Guthrie
concerning his and other employees' union activities. In
all cases the questioning took place in Linklater's office,
the locus of ultimate authority in the plant. There was no
lawful purpose given for the questioning and no assur-
ances against reprisals . Indeed, Linklater threatened re-
prisals-cutting off the informal loan program and fight-
ing unemployment benefits in the event of layoff. In all
the circumstances, such interrogations were violative of
the Act.
Linklater also threatened reprisals, as I have indicated.
He threatened that if the Union won recognition, he
would stop his informal policy of making loans to em-
ployees. He also threatened that he would fight unem-
ployment benefits for Guthrie. At this point other em-
ployees had been laid off and, even though no direct
threat of layoff was made to Guthrie, Linklater's com-
ments implied a layoff. In context, Linklater implied that,
if Guthrie did not cooperate and support Linklater in the
election, the Respondent would contest unemployment
benefits in the event of Guthrie's layoff. These state-
ments are unlawful threats of reprisal based on union
considerations.
Linklater also promised benefits. Thus, he told Guthrie
that Guthrie's $150 loan would not have to be repaid if
14 The election was to be held from 11 a.m. to noon at the Respond-
ent's plant.
'5 Guthrie's credible and straightforward testimony in this respect is
corroborated by employee DiPerna who testified that Linklater was fol-
lowing Guthrie on election day and stated that something about Guthrie
made him nervous . I therefore reject Linklater's denial that he followed
Guthrie or attempted to get Guthrie not to vote in the election.
301
he refused to vote in the election. This was an unlawful
promise of benefit based on union considerations.
The evidence also shows that, on several occasions,
Linklater attempted to get Guthrie not to vote in the
Board election. The inference is clear that he used his
authority as an employer to coerce Guthrie on these oc-
casions not to vote. In the context of the other unfair
labor practices committed by Linklater, this conduct also
constitutes a violation of Section 8(a)(1) of the Act.
The General Counsel also alleges that both the 24
August warning and the 1 October suspension were vio-
lative of the Act because they were based on discrimina-
tory considerations. Although the 24 August warning
was issued after the receipt of the election petition and
the unlawful conversion of the grinding department lay-
offs, I cannot conclude that the warning was issued for
discriminatory reasons . The record reveals no reason
why Linklater would focus on Guthrie on 24 August as
a union leader or adherent. It was not until mid- Septem-
ber that Linklater began focusing on Guthrie as a foil for
his antiunion efforts. He even gave Guthrie a loan in
early September after the warning letter was issued. It is
conceded that Guthrie's attendance record was poor. Al-
though the Respondent tolerated Guthrie's poor record
for many years and it was not Linklater's policy to issue
warning letters to employees, in the absence of specific
knowledge of Guthrie's union activities or a reason for
the Respondent to focus its antiunion animus on him, I
cannot find a violation here. I am well aware of the Re-
spondent's blunt and antiunion conversion of temporary
layoffs to permanent just a few days before Guthrie's
warning. But that action was a general reaction to the
advent of union activities and not focused on any par-
ticular individual, except perhaps Culbertson, who was
known to have suggested a union. Thus, on that occa-
sion, the Respondent made a power move to blunt the
union drive at its inception by cutting off employees
from the eligibility list. But that action does not explain
why it would focus on Guthrie 2 weeks later by keeping
him on the rolls and simply issuing him a warning letter.
Thus, although the question is a close one, I do not be-
lieve that the General Counsel has shown persuasively,
by a preponderance of the evidence, that the 24 August
warning was issued for discriminatory reasons.
The 1 October suspension is a different matter. By that
time Linklater was well aware of, or at least suspected,
that Guthrie was a leading union adherent. Indeed, he
had questioned Guthrie about his union activities and
those of other employees, had threatened him with re-
prisals and promised him benefits. He had tried to pre-
vent him from voting in the Board election and, when
Guthrie voted anyway, he called Guthrie a "gutless son-
of-a-bitch." Ironically, it took plenty of guts for Guthrie
to defy Linklater and exercise his right to vote. That
statement by Linklater was made at the time he suspend-
ed Guthrie allegedly for missing work on Saturday. In
these circumstances, the evidence is overwhelming that
the Respondent suspended Guthrie on 1 October for his
known or suspected union activity.
The Respondent contends that Guthrie would have
been suspended for missing work on Saturday even in
302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the absence of union considerations . I reject that conten-
tion. Several other employees missed work that Saturday
but there is no evidence that they were punished or dis-
ciplined in any way. Moreover, the credible evidence
shows that Linklater attempted to get Guthrie not to
work on Friday-a normal workday. Guthrie actually
missed work on Saturday which was not a normal work-
day, although it is true that he was advised late Friday
afternoon that he would be expected to work on Satur-
day. It is unrealistic to believe that Linklater, if he meant
to discipline an employee for missing work on a Satur-
day, in the absence of union considerations , would have
referred to the employee, as he did, as a "gutless son-of-
a-bitch" and threatened to make it impossible for him to
work for the Respondent. In explaining Guthrie's suspen-
sion , Linklater also testified that Guthrie's "attitude was
changing considerably." When viewed in the context of
Linklater 's concern over Guthrie's union activities, these
comments belie a discriminatory motive. This evidence is
far more significant than the fact that Guthrie had a poor
attendance record. The Respondent had tolerated Guth-
rie's poor attendance record for years. It was only after
the onset of the Union and after Guthrie's defiance of
Linklater by voting in the Board election that his attend-
ance record became intolerable . In these circumstances,
the Respondent has failed to rebut the inference of dis-
crimination . See Centre Property Management, supra. 16
E. Resolution of the Election Issues
The votes of two employees, Culbertson and Chwas-
tek, are outcome determinative. They are entitled to vote
if they are deemed on temporary layoff with a reasona-
ble expectation of recall. See Atlas Metal Spinning Co.,
266 NLRB 180 (1963).
The evidence herein clearly shows that Culbertson and
Chwastek were temporarily laid off on 7 August. Their
16 After I had elicited facts which occurred subsequent to the comple-
tion of Guthrie's suspension in order to obtain a full picture of his em-
ployment history, counsel for the General Counsel moved to amend the
complaint to add to the Guthrie allegations that he was unlawfully laid
off following the end of his suspension . I denied the amendment at the
hearing and I reaffirm that denial here The motion was made at the
second session of the hearing after a 6-week extension of time had been
granted because some of the General Counsel's witnesses had not an-
swered their subpoenas . The original complaint allegations involving
Guthrie only challenged the legality of the suspension In fact the com-
plaint seeks backpay for Guthrie only "from the date of his suspension to
the date of his layoff " No new or previously unavailable evidence was
cited as a reason for the amendment which I suspect was made on the
spur of the moment without consultation with the Regional Director or
consideration of the extent of the pretrial investigation . Moreover, there
was no assertion that any of the Respondent 's layoffs during 1984 were
unlawful in and of themselves The complaint issue relating to the August
1984 layoffs was that they were made permanent for unlawful reasons It
appears that Guthrie's layoff was temporary because he was recalled
about a month later . Thus, there could be no contention that his layoff
was made permanent . Further, the amendment was made deep into the
General Counsel's case at a time when the Respondent would have had
to completely change the focus of its defense. An amendment at such a
late stage of the proceeding would have unduly prolonged the hearing
and injected issues inconsistent with the General Counsel's theory of the
layoff phase of the case. Accordingly, I must conclude that the motion to
amend was not timely made and, if granted, would have prejudiced the
Respondent . In any event , it would have raised issues that were not suffi-
ciently related to the remaining complaint allegations to be tried together
with them in the instant case.
layoffs were changed to permanent several days later for
discriminatory and unlawful reasons . In the absence of
such unlawful action, Culbertson and Chwastek would
have been considered by the Board to be temporarily
laid off and eligible to vote. I therefore conclude that
Culbertson and Chwastek were eligible to vote in the 27
September 1984 election and their ballots should be
opened and counted. The Regional Director should
thereafter prepare a new revised tally of ballots and cer-
tify the results of the election.
CONCLUSIONS OF LAW
1. By coercively interrogating employees about their
union activities and those of other employees, threaten-
ing reprisals, including discharge, and loss of benefits if
the employees selected a union , promising benefits if em-
ployees rejected a union, and attempting to convince em-
ployees not to participate in a Labor Board election, the
Respondent has violated Section 8(a)(1) of the Act.
2. By converting the temporary layoffs of employees
Michael Culbertson, Chris Chwastek, Donald Jones, Mil-
lard Petrey, and George Elswick to permanent layoffs to
prevent their being eligible to vote in a Board election
and generally to discourage union activities , the Re-
spondent has violated Section 8(a)(3) and (1) of the Act.
3. By suspending employee James Guthrie for 1 week
because of his union activities, the Respondent violated
Section 8(aX3) and (1) of the Act.
4. The above violations of the Act are unfair labor
practices which interfere with interstate commerce
within the meaning of Section 2(6) and (7) of the Act.
5. The Respondent has not otherwise violated the Act.
6. Employees Michael Culbertson and Chris Chwastek
were on temporary layoff at the time of the election and,
absent the Respondent's discriminatory treatment of
them, eligible to vote in the election because they would
have had a reasonable expectancy, absent discrimination,
of being recalled.
7. The challenges to the votes of Culbertson and
Chwastek are overruled. Their votes are to be counted
and the Regional Director for Region 7 is directed to
prepare a revised tally of ballots and certify the results of
the election of 27 September 1984.
THE REMEDY
I shall recommend that the Respondent be ordered to
cease and desist from engaging in the conduct found un-
lawful herein and to post an appropriate notice. I shall
also recommend that the Respondent make whole em-
ployee James Guthrie for the loss of pay and benefits he
suffered because of the unlawful suspension by the Re-
spondent under applicable Board law relating to back-
pay. I shall also recommend that the layoff letters to em-
ployees Culbertson, Chwastek, Jones, Petrey, and Els-
wick be rescinded and that the Respondent return those
employees to the status quo ante and treat them as tem-
porarily laid-off employees as of 13 August 1984, subject
to recall when their former positions or work for which
they are qualified thereafter becomes available. If it is de-
termined that they would have been recalled after 13
August 1984 under such circumstances they will be enti-
LINK MFG. CO.
tied to backpay, together with interest , in accordance
with applicable Board law relating to backpay.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed17
ORDER
The Respondent , Link Manufacturing Company, Oak
Park, Michigan , its officers, agents, successors , and as-
signs, shall
1. Cease and desist from
(a) Coercively interrogating employees about their
union activities and those of other employees.
(b) Threatening employees with reprisals , including
discharge, and loss of benefits if they select a union.
(c) Promising employees benefits if they reject a union.
(d) Attempting to convince employees not to partici-
pate in a Labor Board election.
(e) Converting temporary layoffs of employees into
permanent layoffs, suspending or otherwise terminating,
or discriminating against employees in order to prevent
employees from voting in a Board election , because they
voted in an election , or to discourage union activities.
(f) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.19
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Make employee James Guthrie whole for any loss
of pay or benefits he may have suffered because of the
Respondent 's unlawful action against him.
(b) Place employees Culbertson , Chwastek, Jones,
Petrey, and Elswick on a preferential recall list as of 13
August 1984 and treat them as temporarily laid-off em-
ployees subject to recall from that day forward when
and if their former positions or any other work for
17 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 pur-
poses.
18 I find, based on the unfair labor practices found herein and Llnk-
later's demonstrated antiunion animus , particularly his attempt to prevent
an employee from voting in a Board election , that the Respondent has
evinced a proclivity to violate the Act.
303
which they might be qualified becomes available. In the
event that these employees would have been recalled,
absent their unlawful terminations, the Respondent is to
make them whole for any loss of earnings or benefits
which they may have suffered as a result of the Re-
spondent's unlawful action in the manner set forth in the
remedy section of this decision.
(c) Remove from its records and files any notations
dealing with the layoffs of the employees found to have
been discriminated against herein and notify them in
writing that this has been done and notify them that evi-
dence of such unlawful conduct will not be used in
future personnel actions.
(d) Post at its facility in Oak Park, Michigan, copies of
the attached notice marked "Appendix."19 Copies of the
notice, on forms provided by the Regional Director for
Region 7, after being signed by the Respondent's author-
ized representative, shall be posted by it immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that said notices
are not altered, defaced, or covered by any other materi-
al.
(e) Preserve and, on request , make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(f) Notify the Regional Director for Region 7, in writ-
ing, within 20 days from the date of this Decision, what
steps the Respondent has taken to comply herewith.
IT IS ALSO OREDERED that the Regional Director for
Region 7 open and count the ballots of employees Cul-
bertson and Chwastek and thereafter issue a final tally of
ballots and certify the results of the election of 27 Sep-
tember 1984.
IT IS FURTHER ORDERED that those allegations of the
complaint not found herein to be sustained are dismissed.
19 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 Nation-
al 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."