Merrill Iron & Steel, Inc.

National Labor Relations Board - Board Decisions

Aug 27, 2001

335 N.L.R.B. 171 (N.L.R.B. 2001)

MERRILL IRON & STEEL 171
Merrill Iron and Steel, Inc. and United Paperworkers
International Union, AFL–CIO. Case 18–CA–
15009
August 27, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
TRUESDALE AND WALSH
On December 1, 1999, Administrative Law Judge Wil-
liam J. Pannier III issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and the
General Counsel filed limited cross-exceptions. The
Respondent filed a reply brief to the cross-exceptions.
The National Labor Relations Board has delegated 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 rulings, findings1
and conclusions, as explained below, and to adopt the
recommended Order as modified.2
We adopt the judge’s finding that the Respondent vio-
lated Section 8(a)(1) of the Act when Paul Wisniewski,
the fabrication superintendent, threatened employee Jim
Lang on May 4, 1998.3 We also agree with the judge
that the Respondent violated Section 8(a)(3) and (1) of
the Act in its selection of four union activists—Clifford
Cleveland, Ronald Dotseth, Jeff Radish, and Michael
White—for permanent layoff on September 22, 1998, in
order to retaliate against them for their union support and
activism and to discourage other employees from doing
so in the future. While we agree with the judge’s ulti-
mate conclusions as to these 8(a)(3) violations, we do not
adopt his entire rationale as stated below.

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 We shall modify the judge’s recommended Order in accordance
with our recent decision in Ferguson Electric Co., 335 NLRB 142
(2001).
3 The Respondent excepts, inter alia, to the judge’s findings that this
allegation was not barred by Sec. 10(b) of the Act, which provides for a
6-month limitations period for the filing of unfair labor practice
charges. We find no merit in this exception and agree with the judge
that the Respondent waived any timeliness defense. While the General
Counsel had alleged in the complaint that Wisniewski’s statement
occurred “in about August,” the Respondent clearly had the opportunity
and obligation to make the 10(b) argument at the hearing, once General
Counsel witness Jim Lang testified that his conversation occurred on
May 4, 1998, 1 day beyond the 6-month limitations period for the No-
vember 5, 1998 charge. See Taft Broadcasting Co., 264 NLRB 185,
190–191 (1982), petition dismissed mem. 712 F.2d 1418 (11th Cir.
1983) (where issue of timeliness of charge not raised at hearing and
employer was aware of underlying facts at hearing, employer’s failure
to raise 10(b) defense at hearing is waiver). Accord: NLRB v. Western
Temporary Services, 821 F.2d 1258, 1264 (7th Cir. 1987) (affirmative
defense based on lack of prior notice must be made within reasonable
period after party becomes aware of default).
1. Facts
The Respondent fabricates agricultural storage equip-
ment and custom steel frames and beams for commercial
buildings at its two plants in Merrill and Schofield, Wis-
consin. As more fully discussed by the judge, in late
April 1998,4 employees at the Schofield plant contacted
the United Paperworkers International Union, AFL–
CIO–CLC and began to hold meetings seeking to per-
suade employees to sign union authorization cards. On
July 29, the Union filed a representation petition seeking
to represent the Respondent’s Merrill and Schofield em-
ployees.5 The campaign culminated in the Union’s de-
feat at the election held on September 3,6 and the Board
issued the certification of results on September 10.
From the start of the Union’s organizing campaign,
four welders/fabricators at the Respondent’s Schofield’s
facility—Clifford Cleveland, Ronald Dotseth, Jeff Rad-
ish, and Michael White—were particularly active union
supporters.7 These four employees solicited union au-
thorization cards, discussed the benefits of unionizing
with their coworkers, distributed handbills and/or dis-
played union stickers, and wore union hats at work. Su-
perintendent Wisniewski admitted that the Respondent
had knowledge of these four employees’ union support.8
Indeed, Wisniewski testified that he discussed the union
activity of “every individual on a specific one on one
basis” with other management officials of the Respon-
dent, including Plant Superintendent Tim Gruling and
Human Resources Director Lance Rick.9
Early in the Union’s campaign, on May 4, employee
Jim Lang discussed a welding issue with Dotseth while
the two were working. After the conversation concluded
and Dotseth left, Wisniewski approached Lang and asked
him what was going on. After Lang described his con-
versation with Dotseth, Wisniewski instructed Lang not
4 All dates hereafter refer to 1998, unless otherwise stated.
5 The Union had originally filed a petition for representation on May
29, but requested a withdrawal of this petition and later filed the July
petition.
6 The tally of ballots showed 33 for and 96 votes against union rep-
resentation, with 5 nondeterminative challenge ballots.
7 The judge found that there was no evidence that any Merrill facility
employee was active on behalf of the Union.
8 The judge mistakenly noted that Wisniewski was unaware of
Ronald Dotseth’s union sympathies. In his testimony at the hearing,
Wisniewski clearly acknowledged that he saw Dotseth with prounion
stickers on his hat and lunchbox before his layoff.
9 Neither Gruling nor Rick, the son-in-law of the company president,
testified at the hearing.
335 NLRB No. 11
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 172
to ask Dotseth questions because Dotseth was “one of the
union organizers and that [Wisniewski] figured he was
going to be the union president if the [U]nion went
through.” According to Lang’s credited testimony,
Wisniewski added, “that’s not going to happen” and that
“[Dotseth] would be gone before the vote came.” 10
Less than 2 weeks after the election, during the second
week of September, Kenneth Hinner—the brother of the
company president, Roger E. Hinner Jr.—approached
employee Kurt Tress and began speaking with him.11
Kenneth Hinner, who worked as a groundskeeper and
operated a machine on the plant floor, did not hold a su-
pervisory or managerial position at the company. How-
ever, as a member of the Respondent’s board of direc-
tors, he attended board meetings and was entitled to vote
on matters considered by the board. In his conversation
with Tress, Hinner stated, “well, Kurt, we’re going to
take care of problems.” When Tress inquired what prob-
lems Hinner was referring to, Hinner replied that the Re-
spondent was “going to have a layoff that Friday” and
that they were going to “get rid of some of the fuckin’
union sympathizers.”12 When Tress later reported Hin-
ner’s statements to Plant Superintendent Tim Gruling,
Gruling replied that he would “take care of it.” Later that
day, Human Resources Director Lance Rick approached
Tress and told him “not to worry about the situation” and
that “Kenny Hinner, although he was on the board of
directors, did not set policy.” Neither Gruling nor Rick,
however, specifically told Tress that the Respondent had
no animosity towards union supporters or that Kenneth
Hinner had not heard antiunion comments made by the
Respondent’s officials.

10 In adopting the judge’s credibility findings regarding
Wisniewski’s threat to Lang, we do not rely on the judge’s finding that
“Wisniewski never did deny with particularity” making this threat, and
instead made only a “blanket denial.” Rather, we rely on the judge’s
general credibility and demeanor-based assessment of Lang, as well as
the fact that he testified adversely to his own interests as a current em-
ployee. See Shop-Rite Supermarket, Inc., 231 NLRB 500, 505 fn. 77
(1977).
11 The judge mistakenly referred to “Tress” as “Truss.” Addition-
ally, the judge erroneously stated that Tress was “no longer working for
the Respondent by the time of the hearing,” when his testimony clearly
establishes that he was employed by the Respondent at the time of the
hearing.
12 In discrediting Kenneth Hinner’s testimony concerning his re-
marks to Tress, the judge relied, in part, on Hinner’s professed lack of
recollection about the conversation. The record, however, shows that
Hinner denied making the statement at issue, when questioned about it
on direct examination at trial. Thus, in crediting Tress’ account of the
conversation with Hinner, we rely only on the judge’s more general
credibility and demeanor-based assessment of Tress, as well as the fact
that he was testifying adversely to his own interests as a current em-
ployee of the Respondent. See Shop-Rite Supermarket, Inc., supra.
It is undisputed that, by late September, the Respon-
dent was in dire financial condition, having incurred
losses in excess of $2.2 million dollars for the year.
President Hinner reacted by directing his management
teams to cut the maintenance staff by 50 percent and the
production staff by 20–30 percent.13 On Friday, Septem-
ber 18, the Respondent ordered Gary Rajek and Dan
Hauch, the maintenance department supervisors, to com-
plete an “employee assessment” of all its maintenance
employees, ranking each of its employees in relation to
each other employee. Rather than relying on the em-
ployee evaluations that had been completed in July only
2 months prior to the layoff,14 the Respondent devised a
new assessment form which rated employees on a scale
from 1 (distinguished) to 5 (unsatisfactory) on the basis
of nine criteria.15 Later that day, the Respondent perma-
nently laid off the four lowest ranked maintenance em-
ployees (out of a total of 11).16
On the following Tuesday, September 21, the Respon-
dent ordered employee assessment forms to be com-
pleted for all 97 production employees, who worked in
production areas called “bays” at the Schofield facility.
However, the Respondent decided to confine the pool of
production employees for layoff to bays 1 and 2.17
Rather than using department supervisors to evaluate
employees in bays 1 and 2, as the Respondent had done
for the annual July evaluations of the production em-
ployees, nonsupervisory leadmen Alan Vandre and Del-
mar Gumz initially completed the assessment forms for
bays 1 and 2 employees. Vandre spent an hour and 15
13 The judge implicitly discredited Wisniewski’s testimony—i.e., the
Respondent instructed him to lay off only 8 to 10 maintenance and
production employees—which was at odds with President Hinner’s
directive. The judge found that there was no credible evidence to sup-
port the conclusion that the Respondent modified Hinner’s directive to
reflect any new developments or changed circumstances.
14 In the July evaluations, three of the four discriminatees (Cleve-
land, Radish, and White) had received an overall “positive” rating and
all four discriminatees received pay increases in July.
15 The nine criteria included: quality of workmanship, productivity,
skill level, attitude, complying with orders and direction, versatility,
supervision required, attendance and tardiness, and works well with
others. The judge found that the only material difference between the
criteria on the July evaluations and the September assessment is that the
assessment contained a category for “Attendance & Tardiness” not
found on the evaluation. However, as noted by the judge, employee
absences and tardiness were considered and noted on the July evalua-
tions when the evaluators felt that adverse comments about them were
warranted.
16 The General Counsel did not allege that the maintenance employ-
ees’ layoffs were unlawful.
17 The judge discredited the Respondent’s unsubstantiated claim, as
reflected by Wisniewski’s testimony, that the business then available to
the Respondent in 1998 and the nature of the work ordinarily per-
formed in the Schofield bays warranted restricting the September lay-
offs to employees then working in bays 1 and 2.
MERRILL IRON & STEEL 173
minutes completing eight forms for bay 2 employees,
while Gumz spent about 20 minutes to complete nine
assessment forms for bay 1 employees. Neither Gumz
nor Vandre reviewed any of the company’s records, but
each instead relied on memory and impression of the
employees’ work performance. Gumz assigned Dotseth
the lowest ranking of the nine bay 2 employees. Vandre
assigned Radish, White, and Cleveland the three lowest
rankings of the eight bay 1 employees (with employee
Tim Wiroll tied with Cleveland for the second to lowest
ranking).
Wisniewski and Gruling then reviewed the assessment
forms for employees in bays 1 and 2. These supervisors
raised the assessment of Wiroll so that the effect was to
lower the rankings of Cleveland, Radish, and White in
bay 1, while leaving Dotseth with the lowest overall
ranking in bay 2. Like Vandre and Gumz, neither
Wisniewski nor Gruling consulted any company atten-
dance or other personnel records when reviewing and
making these assessments. Based upon these revised
assessments, the Respondent chose Cleveland, Dotseth,
Radish, and White for the permanent layoff. No other
production employee was laid off at that time.
2. Analysis
In this case, the General Counsel did not challenge the
lawfulness of the Respondent’s business decision that
layoffs were warranted in the fall of 1998. Instead, the
General Counsel argues that the Respondent unlawfully
selected union activists Cleveland, Dotseth, Radish, and
White for the layoff. As shown below, we find that the
General Counsel’s argument has merit.
In a typical 8(a)(3) discrimination case, the evidence
must support a reasonable inference that protected con-
certed activity was a motivating factor in the employer’s
decision.18 As the Board explained in Regal Recycling,
Inc., 329 NLRB 355, 356 (1999) (footnotes omitted):

Under the test set out in Wright Line, in order to estab-
lish that the Respondent unlawfully discharged the . . .
employees based on their union activity, the General
Counsel must show by a preponderance of the evidence
that the protected activity was a motivating factor in the
Respondent’s decision to discharge. Thus, the General
Counsel must show that the employees engaged in un-
ion activity, that the Respondent had knowledge of that
activity, and that the Respondent demonstrated anti-
union animus. Once the General Counsel has made the
required showing, the burden shifts to the Respondent

18 Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982).
to demonstrate that it would have taken the same action
even in the absence of the protected union activity.

Specifically, the General Counsel must establish union ac-
tivity, knowledge, animus or hostility, and adverse action.
Accord: Farmer Bros. Co., 303 NLRB 638, 649 (1991),
enfd. mem. 988 F.2d 120 (9th Cir. 1993). Since employer
motivation is a factual question, which rarely will be proved
by direct evidence, unlawful motivation may be inferred
from the total circumstances proved. NLRB v. Dorothy
Shamrock Coal Co., 833 F.2d 1263, 1267 (7th Cir. 1987).
In this case, the General Counsel met his initial burden
of proof under the Wright Line test. Wisniewski’s threat
to Lang that the Respondent would terminate known un-
ion activist Dotseth is direct evidence of its hostility to-
wards union sympathizers. This threat violated Section
8(a)(1) and is strong evidence of the Respondent’s ani-
mus, particularly as to Dotseth. See Greystone Bakery,
Inc., 327 NLRB 433 fn.1 (1999); Lemon Drop Inn, 269
NLRB 1007 (1984), enfd. 752 F.2d 323 (8th Cir. 1985).
Also, Kenneth Hinner’s prediction that the company
would “take care of problems” by “get[ting] rid of some
of the fuckin’ union sympathizers” in the week prior to
the layoffs is further persuasive evidence of the Respon-
dent’s animus. Although Hinner was neither a manager
nor a supervisor of the Respondent, his statements are
attributable to the Respondent. In House Calls, Inc., 304
NLRB 311 (1991), the Board stated:

Under Board law, the test for agency is whether, under
all the circumstances, an employee would reasonably
believe that the alleged agent was speaking for man-
agement and reflecting company policy. Lovilia Coal
Co., 275 NLRB 1358, 1372 (1985). Further, elected or
appointed officials of an organization are presumed to
be agents of that organization clothed with apparent au-
thority. Nemacolin Country Club, 291 NLRB 456, 458
(1988), enfd. 879 F.2d 858 (3d Cir. 1989).

As a voting member of the Respondent’s board of directors,
Hinner was clearly an agent and in a position to be privy to
the Respondent’s policy-making decisions.19 Given Hin-
ner’s position on the board of directors, Tress could rea-
19 See, e.g., Nemacolin Country Club, 291 NLRB 456, 458 (1988),
enfd. 879 F.2d 858 (3d Cir. 1989) (“Employees naturally would per-
ceive [board members of the country club’s board of governors] as
privy to the development and implementation of club policy and, ac-
cordingly, their stated views would be taken as in harmony with those
of management.”); Escambia River Electric, 265 NLRB 973, 981
(1982), enfd. 733 F.2d 830 (11th Cir. 1984) (“The National Labor
Relations Board has concluded with judicial approval that a member of
a corporate board of directors was an agent of the corporation, in light
of the control exercised by the board and the limited number of direc-
tors,” citing Fort Vancouver Plywood Co., 235 NLRB 635, 637 fn. 1
(1978), enfd. as modified 604 F.2d 596 (9th Cir. 1979)).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 174
sonably believe that Hinner’s statements reflected the Re-
spondent’s views and intentions regarding union support-
ers.20 Buttressing that conclusion is the Respondent’s fail-
ure specifically to deny or repudiate Hinner’s statement
after Tress reported those statements to management. See
Postal Service, 240 NLRB 1198, 1203 (1979), enfd. in rele-
vant part 618 F.2d 1249 (8th Cir. 1980).
Further evidence supporting an unlawful motivation is
the Respondent’s uncontested knowledge of all four dis-
criminatees’ union activism, in conjunction with its
avowed disapproval of that conduct (as reflected in
Wisniewski’s and Kenneth Hinner’s statements). Indeed,
Wisniewski testified that he discussed the union activity
of “every individual on a specific one on one basis” with
other management officials. Such detailed awareness of
the employees’ union sympathies is particularly relevant
in light of the fact that these were the management offi-
cials who participated in the decisions to select the spe-
cific production employees for the September layoff.
With the General Counsel having met his initial bur-
den of proof under Wright Line, the burden shifted to the
Respondent to demonstrate that it would have selected
Cleveland, Dotseth, Radish, and White for layoff even in
the absence of their protected union activity. We find
that the Respondent failed to meet its Wright Line bur-
den.
While there is no dispute that the Respondent’s under-
lying decision to institute a layoff in September was mo-
tivated by business necessity, that defense does not
shield the Respondent from a finding that its selection of
these four union supporters for layoff was discriminato-
rily motivated. The Board has found violations of Sec-
tion 8(a)(3) and (1) where the employees’ union activity
was the motivating factor in the selection for layoff even
though the employer had valid economic reasons for its
decision to implement a layoff.21 Thus, an examination

20 In its brief, the Respondent suggests that Hinner’s statements
should not be taken seriously because of the effect of a past work acci-
dent. However, the judge observed Hinner and did not find him to be
lacking in competence as a witness due to any mental incapacity. Fur-
thermore, Hinner’s position as a voting member on the board of direc-
tors undercuts the Respondent’s asserted claim that Hinner’s comments
should not be taken seriously.
21 See Hinkle Metal Supply, 305 NLRB 522, 523 (1991) (“although
the [r]espondent had valid economic reasons for effecting a layoff, its
motivating factor for the selection, layoff, and discharge of employees
Hall, Waldrop, Wise, Hines, Stephens, and Simmons was their union
activities.”); JAMCO, 294 NLRB 896 (1989), enfd. 927 F.2d 614 (11th
Cir. 1991); cert. denied 501 U.S. 1253 (1991) (the employer’s decision
to implement a layoff was not unlawful, but its selection of certain
employees for layoff was discriminatorily motivated in violation of
Sec. 8(a)(3) and (1) of the Act); and Sumco Mfg. Co., 251 NLRB 427
(1980), enfd. 678 F.2d 46 (6th Cir. 1982) (while the layoff of employ-
ees was prompted by a large inventory and a slowdown in orders, the
of the circumstances surrounding the singling out of the
four discriminatees for layoff is appropriate here.
As the judge properly found, the Respondent failed to
explain the inconsistency between the company presi-
dent’s directive to lay off 20–30 percent of the produc-
tion staff and the fact that only 4 of the 97 production
employees (less than 5 percent) were ultimately selected
for layoff. Despite this discrepancy in the number of
layoffs implemented, the Respondent claimed that, from
an operations standpoint, it had a business need to con-
fine the layoff to those production employees working
only in bays 1 and 2 in September, since the expertise of
employees in bays 3 and 4 would soon be required to fill
upcoming orders. The judge, however, correctly rejected
this claim because the record shows that all the produc-
tion employees were similarly skilled and frequently
moved from bay to bay.
The Respondent’s defense is further undercut by its
decision to adopt a new employee assessment form to
evaluate the employees for layoff rather than using its
July employee evaluations. The Respondent’s key wit-
ness, Wisniewski, admitted that the Respondent used the
“same criteria” to evaluate employees for the September
layoff as it had used for the July evaluations, but he
could not explain why it was necessary to construct a
new form less than 3 months later. Similarly, the Re-
spondent’s witnesses did not explain why the company,
for the first time, decided to use leadmen Gumz and
Vandre—neither of whom was a supervisor—to assess
employees in bays 1 and 2 when only department super-
visors had completed evaluations of employees in the
past. The judge reasonably inferred that this departure
from past practice was a thinly-veiled effort to distance
the ultimate decision makers, Wisniewski and Gruling,
from the positive July evaluations (and pay raises)
awarded to the four discriminatees. This effort failed,
however, in light of the fact that Gruling and Wisniewski
retained the ultimate right to change the employee as-
sessments, and they, in effect, lowered the rankings of
Cleveland, Radish, and White.
Furthermore, the haphazard manner in which these as-
sessments were completed underscores their unreliabil-
ity. Indeed, as pointed out by the judge, both leadmen
admitted to spending very little time (20 minutes; 1 hour,
15 minutes) on the assessments. And, as the judge fur-
ther noted, neither Gumz nor Vandre consulted any sup-
plemental employee records in completing those assess-
ments. Had they done so, Gumz and Vandre would have
noticed that their assessments, in many instances, were

selection of certain employees for layoff was discriminatorily moti-
vated in violation of Sec. 8(a)(3) and (1) of the Act).
MERRILL IRON & STEEL 175
completely unsupported by the employer’s own records.
For example, as the judge noted, Radish and White, who
both received the lowest rating for attendance, each had
only two absences (and two tardies for White). On the
other hand, the Respondent gave higher ratings for atten-
dance to four other employees who had been absent and
tardy more times (between 4 and 10 times) than either
Radish or White. Likewise, as discussed fully by the
judge, the leadmen failed to adequately explain or justify
the low ratings given to the discriminatees in other areas.
Finally, Superintendents Gruling and Wisniewski per-
petuated the problem by failing to consult company at-
tendance and performance records to correct the lead-
men’s inconsistencies.
All of the above factors—the number of actual layoffs
implemented, the lack of justification for restricting the
layoffs to bays 1 and 2, and the unreliable September
employee assessments—reveal that the Respondent util-
ized its dire financial condition in September 1998 as a
means to rid itself of four known union supporters. 22
Thus, we agree with the judge’s conclusion that the Re-
spondent failed to establish that the layoffs of Cleveland,
Dotseth, Radish, and White would have occurred in the
absence of their protected union activity. Accordingly,
we find that the General Counsel has proved by a pre-
ponderance of the evidence that the Respondent violated
Section 8(a)(3) and (1) of the Act in its selection of em-
ployees Cleveland, Dotseth, Radish, and White for the
September 22 layoff.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Merrill
Iron and Steel, Inc., Schofield, Wisconsin, their officers,
agents, successors, and assigns shall take the action set
forth in the Order as modified.
Substitute the following for paragraph 2(c).
“(c) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for

22 The Respondent attempts, in part, to rebut the evidence that its se-
lection of the four union activists was discriminatorily motivated by
attacking that portion of the judge’s decision that appears to take issue
with the underlying layoff decision itself. For example, the judge
appears to question the legitimacy of the Respondent’s decision to
undertake the layoffs, noting: (1) the abrupt timing of the layoff at the
beginning of the pay period, (2) the fact that new rework orders and
anticipated contracts were coming in, (3) the fact that many production
employees performed overtime after the layoffs took effect, (4) the fact
that the production employees were busy on the days prior to the layoff,
and (5) the hiring of new production employees in the months after the
layoffs. We do not rely on such evidence in reaching our decision
because, as noted above, the General Counsel did not allege that the
layoff decision itself was unlawful.
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.”

Florence I. Brammer, appearing for the General Counsel.
Marty R. Howard, and with him on brief, Bruce F. Mills (Kru-
kowski & Costello, S.C.), of Milwaukee, Wisconsin, appear-
ing for the Respondent.
DECISION
STATEMENT OF THE CASE
WILLIAM J. PANNIER III, Administrative Law Judge. I
heard this case in Wausau, Wisconsin, from June 8 to 10, 1999.
On December 30, 1998,1 the Regional Director for Region 18
of the National Labor Relations Board (the Board) issued a
complaint and notice of hearing, based upon an unfair labor
practice charge filed on September 29 and amended on No-
vember 5, alleging violations of Section 8(a)(1) and (3) of the
National Labor Relations Act (the Act). All parties have been
afforded full opportunity to appear, to introduce evidence, to
examine and cross-examine witnesses, and to file briefs. Based
upon the entire record, upon the briefs which have been filed,
and upon my observation of the demeanor, I make the follow-
ing findings of fact and conclusions of law.
I. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
The principal allegation in this case is that four production
employees—welder/fabricator Ronald G. Dotseth, welder/ fab-
riccator I Jeff Radish, and welder/fabricators II Michael L.
White Sr., and Clifford Cleveland Sr.—were permanently laid
off on September 22 for the unlawful motives of retaliating
against them for past activities on behalf of and in support of a
union and, also, to discourage such conduct by employees. In
support of those alleged unlawful motivations, but also as an
independent alleged violation of the Act, in addition it is al-
leged that a fabrication superintendent unlawfully threatened
employees by telling them that he intended to get rid of union
organizers before any union came about.
The employer—Merrill Iron and Steel, Inc. (Respondent)—
denies those allegations: denies that the unlawful threat had
been made and denies having been motivated by any statuto-
rily-proscribed motive when making the decision to select the
four above-named employees for permanent layoff. Rather,
Respondent contends that it had legitimate economic reasons
which necessitated a reduction in its employee complement
and, consistent with that overall objective, had selected Dot-
seth, White, Cleveland, and Radish for layoff based upon no
reason other than their job performances relative to the job
performances of other production employees.
1 Unless otherwise stated, all dates occurred during 1998.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 176
As must be evident from what has been said above, the ulti-
mate determination which must be made in connection with the
four layoffs is Respondent’s actual motivation for them. See,
e.g., Schaeff Inc., 321 NLRB 202, 210 (1996), enfd. 113 F.3d
264 (D.C. Cir. 1997), and cases cited therein. More specifi-
cally, at issue is the actual motivation of the official(s) who
made the decision(s) to take the action(s) alleged to have been
unlawful. Advanced Installations, Inc., 257 NLRB 845, 854
(1981), enfd. mem. 698 F.2d 1231 (9th Cir. 1982). “The state
of mind of the company officials who made the decision . . .
reflects the company’s motive for” the allegedly discriminatory
act(s). Abilene Sheet Metal, Inc. v. NLRB, 619 F.2d 332, 336
(5th Cir. 1980).
Absent admission of unlawful motivation, motivation deter-
mination is made under what has come to be called the Wright
Line methodology for analysis. See discussion and cases cited
in Carleton College, 328 NLRB 217, 219 (1999). As described
in subsection C below, and as discussed in section II, infra, the
General Counsel has shown that the four alleged discriminatees
were union activists and that Respondent knew as much. The
fabrication superintendent’s unlawful threat is some evidence
of animus and, beyond that, other circumstances support a con-
clusion of animus which, of course, can be inferred. Alldata
Corp., 327 NLRB 127 fn. 2 (1998). See also, Concepts & De-
signs, 318 NLRB 948, 954 (1995), enfd. 101 F.3d 1243 (8th
Cir. 1996), and case cited therein.
Not only does the totality of the evidence support at least an
inference of animus but, as well, it discloses several objective
factors tending to establish unlawful motivation, such as the
fact that all four production employees laid off had been union
activists and supporters, the facts that the layoffs occurred at a
time shortly after completion of representation proceedings
and, in addition, abruptly near the beginning of a pay period,
and the fact that never before in its history had Respondent
permanently laid off an employee due to lack of work. See
discussion and cases cited in Handicabs, Inc., 318 NLRB 890,
897 (1995), enfd. 95 F.3d 681 (8th Cir. 1996), cert. denied 521
U.S. 1118 (1997).
In an effort to satisfy its burden of going forward with a
showing of legitimate business-related reasons for those per-
manent layoffs, in turn, as described in subsections D and E
below, Respondent presented evidence of a deteriorating finan-
cial situation by September. The existence, in fact, of that ad-
verse situation cannot be seriously challenged. Yet, a respon-
dent does not satisfy that burden merely by presenting evidence
that legitimate reasons existed for taking action(s) alleged to
have been unlawfully motivated. “The mere presence of le-
gitimate business reasons for [an alleged discriminatory action]
does not preclude the finding of discrimination.” J.P. Stevens
& Co.. v. NLRB, 638 F.2d 676 (4th Cir. 1980). See also,
Handicabs, Inc., supra, 318 NLRB at 894, and cases cited
therein.
That is so because “the policy and protection provided by the
. . . Act does not allow the employers to substitute ‘good’ rea-
son for ‘real’ reasons,” Hugh H. Wilson Corp. v. NLRB, 414
F.2d 1345, 1352 (7th Cir. 1991). “Rather, the Respondent must
affirmatively show that such action would have been taken in
any event.” Becker Group, Inc., 329 NLRB 103 105 (1999),
citing Hicks Oil & Hickgas, Inc., 293 NLRB 84, 85 (1989),
enfd. 942 F.2d 1140 (7th Cir. 1991). In other words, consistent
with what has been said four paragraphs above, a respondent
must show that the legitimate reasons advanced as a defense
were, in fact, the actual reasons for having taken action(s) al-
leged to have been discriminatorily motivated.
That means that defenses of legitimate motivation must be
evaluated more than casually, to ascertain whether they truly
were the actual reason(s) for such allegedly unlawful actions.
“While it is a truism that management makes management de-
cisions, not the Board . . . it remains the Board’s role, subject to
our deferential review, to determine whether management’s
proffered reasons were its actual ones.” Uniroyal Technology
Corp. v. NLRB, 151 F.3d 666, 670 (7th Cir. 1998).
The foregoing principles have particular pertinence to the
situation presented by the evidence in this case. In an effort to
satisfy its burden of going forward, as described in subsections
D and E below, and as discussed in section II, above, Respon-
dent presented witnesses whose testimonies were sometimes
internally contradictory, other times inconsistent with each
other’s accounts or with objective considerations, many times
lacking in corroboration in significant respects, and often leav-
ing unexplained gaps in the overall sequence of events which is
important were reliance to be accorded to Respondent’s overall
defense for selecting the four alleged discriminatees for perma-
nent layoff on September 22. In addition to objectively dimin-
ishing the reliability of that defense, those factors serve to rein-
force the impression formed, while they were testifying, that
Respondent’s witnesses were attempting to tailor their accounts
to construct and shore up a defense of legitimacy, rather than to
candidly describe what had occurred and reasons for actions
taken by Respondent. Therefore, I do not credit the testimony
of Respondent’s witnesses.
In light of the showing of unlawful motivation by the Gen-
eral Counsel and the absence of credible evidence of legitimate
motive for selecting those four production employees for per-
manent layoff, a preponderance of the credible evidence,
viewed in its totality, establishes that the actual reasons for their
layoffs had been to retaliate against them for their union sup-
port and activism and, also, to discourage other employees from
doing so in the future. Therefore, their permanent layoffs vio-
lated Section 8(a)(3) and (1) of the Act. Furthermore, I con-
clude that Respondent’s fabrication superintendent did make
the unlawful threat, with the result that Respondent violated
Section 8(a)(1) of the Act.
B. Respondent’s Operations
Founded in 1960 or 1962 by Roger W. Hinner, Respondent
is a Wisconsin corporation. For approximately two decades it
operated only out of a facility in Merrill, Wisconsin, fabricating
overhead grain storage bins and grain handling equipment for
mills, seed processing plants, corn drying plants, and similar
commercial grain industry operators. As time passed, Roger
W. Hinner’s children—Bob, Pat, Rick, Kenneth and, most par-
ticularly, Roger E. Hinner Jr.—became employed by Respon-
dent, as did his daughter Karen’s husband, Gary Rajek.
During the early 1980s Roger E. Hinner Jr. persuaded other
family members to branch out the business into custom steel
MERRILL IRON & STEEL 177
fabrication of internal steel beams, columns, trusses, and other
components for heavy and commercial steel frame buildings.
In connection with that aspect of Respondent’s business, bids
are let for the work by building owners or construction contrac-
tors. Prospective bidders must pass prequalification to prove
that they have worked on jobs of the required magnitude. Once
prequalification is satisfied, the customer’s documents and
specifications are utilized to prepare a bid which enumerates
the cost of materials, detailing and fabrication labor. That last
item may be based on the labor cost of similar past jobs or,
alternatively, on the estimated labor cost for each specific
item—beams, columns, trusses—involved.
A successful bidder’s detailers will prepare the design draw-
ings for the project, based upon plans and specifications sup-
plied by the owner or contractor and its architect engineer. The
design drawings are submitted for the owner’s or contractor’s
approval. Once approved, fabrication can commence. Roger
E. Hinner Jr. estimated that it typically takes 90 days from be-
coming successful bidder to actually commencing fabrication.
In addition—most importantly, given what occurred during
the spring and summer of 1998—an advance bill of materials is
prepared. That list includes the steel for the job which, in Re-
spondent’s case, is purchased from a mill and cut to specified
dimensions, for fabrication, by Respondent’s employees. Dur-
ing its custom steel fabrication history Respondent had fi-
nanced those steel purchases, as well as purchases of other
materials, from its own, as Roger E. Hinner Jr. put it, “line of
credit with a current lender here in town.” Then, Respondent
monthly bills customers, as sequences of jobs are completed.
For some years Respondent prospered in custom steel fabri-
cation. By the mid-1980s that aspect was the source of 75 to 80
percent of its overall business operations, with the remainder
being agriculture-related operations. Thought began to be
given to doubling the size of the Merrill facility to accommo-
date further increase in custom steel fabrication. However,
Roger E. Hinner Jr. discovered that J. I. Case was trying to sell
its over 400,000-square-foot facility in nearby Schofield, Wis-
consin. Rather than incurring the greater anticipated cost of
expanding the Merrill facility, the Hinner family agreed that
Respondent would purchase the Schofield one and, then, relo-
cate all of Respondent’s operations there, selling or leasing the
then-vacated Merrill facility.
The Schofield facility purchase was accomplished by Re-
spondent on December 31, 1994. Because that it was five times
the size of the Merrill facility, Roger E. Hinner Jr. arranged to
cover some of Respondent’s resultant fourfold increase in
overhead costs by leasing two-thirds of the Schofield facility
vacant space to Warehousing of Wisconsin. Into the remaining
vacant space there, Respondent moved its custom steel fabrica-
tion operations. It commenced production at Schofield during
mid-April 1995.
To perform that by-then expanded Schofield custom steel
fabrication, Roger E. Hinner Jr. testified that hiring of employ-
ees “was an ongoing process from the time we bought the plant
right up until October of last year [1998]—September of last
year.” He further testified that he began spending half of his
work time at Schofield until the office staff was moved there
during the spring of 1996. Once that took place, Hinner began
working full time at Schofield. At some point thereafter, he
became general manager of custom steel fabrication, a position
which he apparently occupied thereafter until spring of 1998
when he became Respondent’s president. Respondent admits
that at all material times while serving as its president, Roger E.
Hinner Jr. had been a statutory supervisor and agent of Respon-
dent.
Custom steel fabrication operations at the Schofield facility
are conducted in what are called “bays.” As will be seen in
subsection E below, the allegedly unlawful September 22 per-
manent layoffs were all made only among employees working
in Bays 1 and 2. That very fact is one component of the Gen-
eral Counsel’s argument concerning Respondent’s motivation.
Conversely, Respondent argues that, given the business then
available and the nature of the work ordinarily performed in its
Schofield bays, it had been logical to select for permanent lay-
off only among Bays 1 and 2 employees. Accordingly, some
understanding of the bays and of the work performed in them is
necessary.
Unfortunately, no one supplied a picture or diagram of the
Schofield facility operating areas. Thus, any understanding of
the positioning of bays and other areas there is left to testimony
by various witnesses which, in the final analysis, must be
patched together to try understanding where in that facility the
various bays are located. As to that testimony, no one disputed
the testimony of welder/fabricator Kim Sloan that work on
beams is performed in all of the bays. Most of the testimony
focused on Bays 1 through 4, but it seems that there are higher
numbered ones. For, alleged discriminatee Cleveland testified
that he had worked for approximately a month during 1998 “in
bay five putting tees together for trusses.” And alleged dis-
criminatee Radish testified that he thought there was a Bay 7
where fabrication department employees “take and put—do the
layout on the plates, punch holes in them and stuff like that,”
though he allowed that, “It’s a special bay number but there
was a couple bays that kind of switched back and forth up there
so I think it might have been bay four but I’m not sure.”
The only other descriptive testimony about Bay 4 was pro-
vided by Fabrication Superintendent Edwin Paul Wisniewski,
an admitted statutory supervisor and agent of Respondent. He
testified that fabricated material is blasted and painted at the
back end of the Schofield facility, after which it is “put on
trucks and sent out.” He placed Bay 4 at the opposite end of
that facility: at “the front end” or “the beginning of the plant.”
That bay, testified Wisniewski, is “where the trusses were fab-
ricated . . . but it was in line with the wheelibrator which has a
direct access from the front to the back,” so that for material
welded and fabricated in Bay 4 “it was a straight shot through
and down to the other [back] end” of the Schofield facility—the
end where the blasting and painting is performed.
As in other bays, there are cranes in Bay 4. Apparently those
are larger than cranes in some other bays. For, in connection
with the Havens truss job described in subsection D below,
Wisniewski testified, without contradiction, that “the cranes
that were in Bay 4 . . . were not small enough to” move the
welded and fabricated trusses for that job so that they could be
painted.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 178
By contrast, testified Wisniewski, Bay 3’s “cranes were big
enough to” move “some heavy trusses” for the Havens job to
the back area where they would be painted. Alleged discrimi-
natee Cleveland described Bay 3 cranes as being “three ton
cranes,” which he characterized as not being “very big ones.”
No one contested Wisniewski’s testimony that “the people that
are in Bay 3 at the time [of the September 22 permanent lay-
offs] did a lot of the more difficult work. A lot of the more
intricate work that was done on trusses and a lot of our bigger
components whether they be plate girders and so on and so
forth is primarily done in Bay 3.”
Wisniewski characterized Bay 2 as “the center bay” at “the
middle production end of the front of the plant,” and Bay 1 as
“[t]he bay furthest to the west” in the Schofield facility’s pro-
duction area. Because of that location, he further testified, it
had not been as feasible to move fabricated material from Bay 1
“way over to the wheelibrator and then getting them painted,”
as is the fact with steel welded and fabricated in other bays.
Yet, Wisniewski never disputed Sloan’s testimony that Bay 2 is
separated from Bay 3 “by a chain of rollers” and, moreover,
that Bays 1 and 2 are separated from each other only by “weld-
ing machines” located between those two bays. She further
testified that beams can be moved from Bay 1 to Bay 2 on “a
small set of rollers that cranes can push across between the bays
so that bay two can do the work too” being performed in Bay 1.
Unclear is whether it had been to those sets of rollers, between
Bays 1 and 2, to which Wisniewski was referring when he testi-
fied about “a conveyor that had gone through [Bay 2] that car-
ries a lot of material down from the saws and down to the fab
area to be fab’d and welded and taken down to the shipping
area.”
What is quite clear, according to all witnesses who testified
about it, is that columns and larger beams are handled in Bay 1
because it had larger cranes and a bigger drill. For example,
alleged discriminatee Dotseth testified, “Bay one did mostly the
large structural beams because there was a drill line prior to the
beams coming off the drill itself so it was very large structural
beams,” while Bay 2 employees worked on “trusses to the
smaller structural steel. Mostly because they had cranes in that
particular bay [which] were only three ton cranes and bay one
had the larger cranes to handle the stuff.” Similarly, Sloan
testified that “there is a bigger drill in bay one so it can handle
bigger material” than other bays, though as pointed out in the
immediately preceding paragraph, she also testified that work
could be exchanged between Bay 1 and Bay 2, using one the
bays’ cranes to move that material across the roller, from Bay 1
to Bay 2. She acknowledged, however, that work on larger
columns and beams is usually performed in Bay 1.
One important point should be highlighted in connection
with the foregoing description. Locations in the Schofield fa-
cility, and differences in the types of work performed in bays,
does not mean that Respondent’s welder/fabricators are con-
fined to the bay to which they are nominally assigned. To the
contrary, although Wisniewski testified that “more difficult”
and “more intricate” projects are performed in Bay 3, and while
he further testified that welder/fabricators in Bay 3 were “a
close knit group of guys and gals,” he acknowledged that
welder/fabricators from other bays do “go over there” and work
in Bay 3, though only “[v]ery seldom” did they do so. Even so,
he conceded that, “All welders that are in the plant are capable
of going from one bay to another, correct.”
In fact, no official or other witness for Respondent disputed
testimony that both Sloan and Radish had spent time working
in Bay 3. All witnesses either expressly agreed, or appeared to
agree, that welder/fabricators move freely among bays at the
Schofield facility. For example, Bay 1 lead person Alan Van-
dre agreed that movements of welder/fabricators between Bays
1 and 2 occurred on almost a daily basis: “It depends upon if I
got more stuff or Bay 2 has got more stuff. Then we got to
shift people around.” In sum, while Wisniewski testified that
“more difficult” and “more intricate” work is performed in Bay
3, where the welder/fabricators are “a close knit group,” at no
point did Wisniewski or any other witness claim that that Bay 3
group had not been augmented, at least occasionally, by
welder/fabricators from other bays and, further, Wisniewski
admitted that all of them were capable of working in any of the
Schofield bays.
Relocation of custom steel fabrication operations to
Schofield permitted Respondent to begin bidding on larger
projects. And through 1997 those operations appear to have
prospered. During that calendar year it admittedly derived
gross revenues in excess of $1 million and, during that same
calendar year, it admittedly sold goods valued in excess of
$50,000 which were shipped from the Schofield facility directly
to points outside of the State of Wisconsin. Based upon those
admitted facts, Respondent admits that at all material times it
has been engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act. Nonetheless, its business horizon
was not an unclouded one.
C. The Organizing Campaign
On May 29 United Paperworkers International Union, AFL–
CIO–CLC (the Union), an admitted labor organization within
the meaning of Section 2(5) of the Act, filed a representation
petition, in what became Case 18–RC–16299, seeking an elec-
tion among Respondent’s employees. For reasons never ex-
plained, possibly because of a deficient showing of interest, the
Union requested withdrawal of the petition on June 9. But, on
July 29 the Union filed the petition in Case 18–RC–16338,
again seeking an election among Respondent’s Merrill and
Schofield employees. This time an election was conducted, on
September 3. A majority of 129 valid ballots were cast against
representation by the Union: 33 votes for representation by it;
96 against representation by it, with 5 nondeterminative chal-
lenged ballots. No objections were apparently filed to conduct
of that election. Its results were certified on September 10.
With respect to employees who were active on behalf of the
Union, there is no evidence that any Merrill facility employees
had been among them. At Schofield, Radish appears to have
been the most active employee. In fact, he may have been the
employee who first made contact with the Union. For, he testi-
fied that he had spoken with Union agent Vernon Bowers ap-
proximately “once a week” and had attended that Union’s first
meeting with Respondent’s employees during April, approxi-
mately a month before the first above-mentioned petition had
been filed. At work, he testified, Radish had solicited signa-
MERRILL IRON & STEEL 179
tures on authorization cards from other employees, had helped
handbill outside of the Schofield facility, had worn Union but-
tons and a Union hat, and had displayed Union stickers on his
toolboxes. During the September 3 representation election,
Radish served as observer for the Union. Wisniewski admitted
that he had known that Radish was a union supporter.
White testified that he had attended his first meeting with the
Union during May and had solicited employees’ signatures on
authorization cards before and after work, as well as during
“lunch hour.” One person whose signature he had solicited on
a card had been Fabrication Superintendent Wisniewski who
testified that, “some time” when the first petition had been
filed, he had been offered an authorization card by White who
asked if he (Wisniewski) wanted to sign it. Thus, as with Rad-
ish, there can be no doubt of Respondent’s knowledge about
White’s support for the Union.
Cleveland testified that he had passed out authorization cards
which he had been keeping in his toolbox and which “[a] lot of
the employees” came during “break or else noon hour” and
asked Cleveland to furnish to them. Cleveland testified that he
also had affixed one of the Union’s insignia on his welding
helmet, but “it lasted fifteen minutes and it melted right off.”
Cleveland characterized his union activities as having been
relatively low-profile. Despite that, Wisniewski admitted that
he had known that Cleveland, as well as White, supported the
Union. Yet, Wisniewski never did explain how he had become
aware of Cleveland’s relatively low-profile support for the
Union. Nonetheless, Wisniewski’s testimony did supply indi-
rect evidence concerning how he likely had learned about
Cleveland’s Union support.
Wisniewski admitted that, during discussions among man-
agement officials, “we had talked about” the ongoing union
campaign and, more specifically, “about all of the individuals”
who were supporting the Union: “We talked—yes, we talked
about every individual on a specific one on one basis.” Those
admissions are particularly important also with regard to Dot-
seth’s union support.
Radish testified that he had worked with “a few” other em-
ployees while campaigning on behalf of the Union. For exam-
ple, he identified Tom Gumz and Jeff Howland, both of whom
had “left before the vote ever came.” Others whom he identi-
fied were Kim Sloan, Jeff Lang, and alleged discriminatee Dot-
seth. Dotseth testified that he had solicited employees’ signa-
tures on authorization cards, had passed out union literature to
“some of the employees,” had displayed union stickers on his
welding helmet and lunch box and, based upon his prior union
experience, had answered other employees’ questions about
unionization during the approximately 2-month period before
the September 3 representation election.
Neither Wisniewski, nor any other witness who testified for
Respondent, acknowledged specifically having known about
Dotseth’s support for the Union and his activities on behalf of
it. Yet, given the above-mentioned conversations among man-
agement officials, which Wisniewski acknowledged had oc-
curred, it seems unlikely that such activity by Dotseth would
have escaped notice by Respondent. In fact, Wisniewski never
did deny having known that Dotseth had been one of those
supporters of the Union.
Nor did any of Respondent’s other witnesses deny having
known about Dotseth’s support for the Union. Asked about
whom the officials had been who had discussed the Union’s
supporters, “on a specific one on one basis,” Wisniewski denied
that President Roger E. Hinner Jr. had been one of them. But,
he admitted that one “one occasion,” during pendency of “the
first petition,” he and Roger E. Hinner Jr. had conversed about
“the fact that the people out the plant were putting up a petition
drive to unionize” Respondent. Roger E. Hinner Jr. denied
having either known which employees were supporting the
Union and, further, denied having discussed with any of his
managers or supervisors whom those employees might be.
Wisniewski did identify, as management officials with
whom he had discussed employee-supporters of the Union, “on
a specific one on one basis,” then-Human Resources Director
Lance Rick and then-Plant Superintendent Tim Gruling. Nei-
ther former official was called as a witness, though it appeared
that both were available to Respondent as witnesses. Roger E.
Hinner Jr. testified that, as of the time of the hearing, Gruling
was employed by Respondent at its Merrill facility and that
Lance Rick, the son-in-law of Roger E. Hinner Jr., was working
for a company in Plover, Wisconsin. Inasmuch as Respondent
knew where they were working, seemingly it could have called
them as witnesses. Respondent presented neither evidence nor
representation that Gruling or Lance Rick were not available to
testify.
Beyond inference of Respondent’s knowledge about Dot-
seth’s support for the Union, certain comments were attributed
to Wisniewski during which he directly connected Dotseth to
the Union and its campaign which led to filing of the initial
representation petition. Laid-off maintenance employee Jim
Lang testified that, on May 4, he had been discussing a welding
problem with Dotseth when Wisniewski came over and asked
what was going on. Dotseth walked away and Lang testified
that he had explained to Wisniewski that he had been “ask[ing]
Ron how he would weld this weldment.” In response, testified
Lang, Wisniewski said, “I don’t ask Ron questions. He
[Wisniewski] was the foreman. I should ask him or the lead-
man,” and then added, “I should not be congregating much with
Ron because he was one of the union organizers and that he
figured he was going to be the union president if the [U]nion
went through,” but that Wisniewski “intended that’s not going
to happen. That Ron would be gone before the vote came.”
Lang was cross-examined relatively rigorously concerning
his testimony about that conversation. During that examina-
tion, Lang pretty much confirmed the elements of his above-
quoted description of Wisniewski’s remarks: “that I should not
congregate with Ron too much. He said ‘That guy is part of the
[U]nion’ and he said ‘He thinks he is going to be union presi-
dent’ and he says ‘I will see that that don’t happen.’ He says
‘Ron will be gone before the vote comes.’” There is no essen-
tial contradiction or disparity between Lang’s descriptions dur-
ing direct and cross-examinations about what Wisniewski had
said. But, some disparity arose when Lang’s testimony is com-
pared with his account of Wisniewski’s remarks given in a
prehearing written statement.
Lang conceded that his written statement contained no men-
tion of Wisniewski having said that Lang “should not be con-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 180
gregating much with Ron.” Aside from that, however, the writ-
ten statement does state, consistent with Lang’s testimony, that
Wisniewski had said “that if I have any questions I’m to ask
him or the lead person in the area, not Ron, and that Ron was a
union organizer that he intended to get rid of before any union
comes about.” And it is that portion of Wisniewski’s remarks
that is crucial, since the complaint makes no allegation about
not congregating with Dotseth, but alleges only that Respon-
dent violated Section 8(a)(1) of the Act by Wisniewski having
said “that he intended to get rid of union organizers before any
union came about.”
The only disparity between that allegation and Lang’s testi-
mony, both during direct and cross-examinations, is whether
Wisniewski had said that he intended to get rid of Dotseth “be-
fore any union came about” or, instead, “before the vote came”
or “comes.” In context, such a variance is not so significant as
to inherently undermine Lang’s credibility, nor to invalidate the
Complaint’s allegation. Furthermore, given that the Com-
plaint’s allegation does not include any mention of ceasing to
congregate with Dotseth, the issue of whether or not
Wisniewski had made that added statement to Lang is a collat-
eral matter–one pertaining to “a matter not in issue herein,”
Philo Lumber Co., 236 NLRB 647 fn. 1 (1978), and cases cited
therein, and, therefore, one upon which reliance cannot be
placed in evaluating Lang’s credibility about Wisniewski’s
actually alleged unlawful statements as described during direct
and cross-examinations, and in the prehearing written state-
ment.
In fact, Wisniewski never did deny with particularity having
told Lang that he (Wisniewski) intended to get rid of union
organizer and would-be union president Dotseth before any
union or vote came about. Instead, Wisniewski denied only
having participated in a conversation with Lang during which
he (Wisniewski) “threatened to get rid of people pushing the
[U]nion,” and denied only having “threaten[ed] anybody that
[Wisniewski] was going to fire the people that were leading the
[U]nion charge[.]” Those are only general, or what have been
called “blanket,” denials. As a matter of law, such denials are
not sufficient to refute specific and detailed testimony, such as
that provided by Lang concerning Wisniewski’s threat to get rid
of Dotseth because the latter was a union organizer and would-
be president of the Union, should it succeed in becoming the
representative of Respondent’s employees. See, Williamson
Memorial Hospital, 284 NLRB 37, 39 (1987); Beaird-Poulan
Div. Emerson Elec. Co. v. NLRB, 649 F.2d 589, 592 (8th Cir.
1981); Mastercraft Casket Co. v. NLRB, 881 F.2d 542 (8th Cir.
1989). At no point did Wisniewski deny with specificity hav-
ing made that threat to Dotseth.
One disparity does exist between the complaint and Lang’s
testimony with regard to the date of Wisniewski’s above-
described threat. The complaint alleges that Wisniewski had
made that threat during August; Lang testified, repeatedly, that
it had occurred on May 4. To overcome that disparity, the ar-
gument is advanced that by comparing Lang’s testimony with
his written statement, it can only be concluded that he eventu-
ally did place the date of Wisniewski’s threat as having been
made during August. However, that is not an accurate argu-
ment.
A careful reading of Lang’s testimony reveals that he had
prepared the written statement “maybe three days after the”
remarks by Wisniewski and, then, had written the date “8/14 of
‘98” on it to reflect “the day I gave this document to Ron” Dot-
seth. “Yes,” Lang answered, he had “drafted [the written
statement] earlier and gave it to Ron Dotseth on the 14th of
August[.]” That is, the written statement was prepared by
Lang, “maybe three days after” Wisniewski’s threat and was
retained by Lang until August 14 when he gave it to Dotseth, at
which point he placed the August 14 date on the written state-
ment. Apparently mistaking that date for the one on which
Wisniewski had made his threat to Lang, the General Counsel
used “August” – the month during which Lang gave the written
statement to Dotseth—in the complaint and feels compelled,
despite Lang’s testimony that Wisniewski had actually made
his threat on May 4, to defend the Complaint’s month.
Of itself, disparity in date is not necessarily a material con-
sideration. After all, the threat was litigated fully, as discussed
above. See, e.g., McKenzie Engineering Co. v. NLRB, 182 F.3d
622 (8th Cir. 1999). But, a latent problem emerges as a result
of that disparity. The unfair labor practice charge in this matter
was filed on September 29. No mention was made in that
charge of any threat or other unlawful statement by any of Re-
spondent’s officials; its allegation was confined to the asserted
“discriminatory discharge[s]” of the four alleged discrimina-
tees. Allegations of Section 8(a)(1) of the Act were not added
until the amended charge was filed on November 5. Of course,
May 4 is one day outside of the 6-month limitations period
prescribed by the proviso to Section 10(b) of the Act. Essen-
tially, the situation here is the same as that underlying the
Board’s recent decision in Ross Stores, Inc., 329 NLRB 573
(1999). However, it is not necessary to follow here the analyti-
cal approach followed in that case.
Timeliness defenses under Section 10(b)’s proviso are af-
firmative defenses which are regarded as waived when not
timely advanced. See, e.g., Prestige Ford, 320 NLRB 1172 fn.
2 (1996). Obviously, Respondent was in no position to raise
such a defense in its answer; the complaint alleged an “August”
date. After Lang’s testimony had been elicited, however, it
could have moved to dismiss what by then was an evident time-
barred allegation. Beyond that, Respondent could have moved
in its posthearing brief to dismiss the allegation, by then dis-
closed to have been time-barred. Respondent did not do so.
Accordingly, any timeliness defense is deemed waived.
Turning to the substance of Wisniewski’s threat, Lang ap-
peared to be testifying honestly about having been told of an
intention to get rid of Dotseth because the latter was a union
organizer who planned to become the Union’s president. I
credit that testimony by Lang. Obviously, a threat to “get rid
of” an employee because of union support and activities, past or
prospective, is a threat which naturally interferes with, restrains
and coerces an employee to whom such a threat is directed. If
Respondent could “get rid of” Dotseth for such activities, that
threat conveys an inherent threat that Lang, also, could be got-
ten rid of for his own union support and activities. In short, a
threat to “get rid of” a leading union proponent chills the exer-
cise of statutory rights by the employee, Lang, to whom that
threat was made. Given Wisniewski’s position as fabrication
MERRILL IRON & STEEL 181
superintendent, an employee, such as Lang, would logically
conclude that Wisniewski possessed authority to carry out his
threat against Dotseth. The coercive impact of that unlawful
threat—and the animus which it displays—is not somehow
diminished by the fact that it was not carried out prior to the
September 3 representation election. Therefore, by virtue of
that threat, Respondent violated Section 8(a)(1) of the Act.
D. Respondent’s Economic Problems During 1998
Following relocation of custom steel fabrication operations
from Merrill to Schofield, Respondent encountered the first of
what would become several setbacks. Founder Roger W. Hin-
ner and two of his sons, Pat and Bob, “became very comfort-
able with staying in Merrill and had no desire to move to
Schofield,” as Roger E. Hinner Jr. put it tactfully, “which
caused a lot of problems.” Their attitude left Respondent with
agriculture-related operations situated at the Merrill facility.
Consequently, it was not able to generate any revenues from the
planned lease or sale of that facility. Instead, the Merrill facil-
ity remained as an expense item for Respondent.
At Schofield, excess space was left as a result of the decision
to leave agriculture-related operations at Merrill. To some
extent the cost of that unused Schofield space was ameliorated
by additional tenants located by Roger E. Hinner Jr. After
Warehousing of Wisconsin’s lease expired, and it moved out
after 12 to 18 months tenancy in the Schofield facility, he was
able to lease space in that facility to Ryerson Steel, Becker
Communications and, eventually, Superior Joist. Their ten-
ancy, however, did not overcome additional problems which
arose during 1998.
As stated in subsection B above, relocation of custom steel
fabrication to Schofield permitted Respondent to bid on larger
projects and it did so. During September of 1997 it was se-
lected successful bidder for fabrication of steel on a 1,200,000
square-foot hospital being erected by a firm referred to as
Bronson. Under the 90-day timetable described in that subsec-
tion, fabrication should have commenced on that job during
December of 1997. According to Roger E. Hinner Jr., however,
problems with engineering requirements led to a 3-week delay
in detailing work and, in fact, he testified that Respondent
eventually had “to bring in a larger engineering firm to help us
design the connections.” As a result, detailing cost $250,000
more than anticipated by Respondent’s bid and, moreover,
fabrication never did commence until early January 1998.
Once that fabrication did commence there were additional
problems which arose. Both shop fabrication errors and pro-
duction time overruns resulted in additional losses. Meanwhile,
on January 10 Respondent had been selected as successful bid-
der on a similarly large General Motors job. The intention had
been to commence work on the General Motors job as the
Bronson job was winding down. But, delays in the latter left
Respondent unable to commence the General Motors job until
sometime during May, approximately 4 months after having
received notice of its selection as successful bidder.
In the end, the General Motors job was profitable, but only
on a “three or four percent margin,” Roger E. Hinner Jr. testi-
fied, whereas a “10 percent” profit margin had been anticipated.
In contrast, not only did Respondent lose all of its anticipated
profit on the Bronson job, but it lost approximately $1 million
on that job, he testified.
By August those losses had surfaced in Respondent’s newly-
started monthly accounting balance sheets. Its fiscal year is
February 1 through January 31. The fiscal year ending January
31, 1998, had been a profitable one. So, too, were Respon-
dent’s operations profitable during the following February and
March. At the end of the latter month, Respondent had earned
$134,333.86 during those first 2 months of fiscal 1999. There-
after, its profitability turned around.
Respondent lost $100,536.05 during April, $140,732.17 dur-
ing May, $54,470.95 during June, and $839,509.82 during July.
Although he testified that he kept apprised weekly on how Re-
spondent’s operations were doing financially, Roger E. Hinner
Jr. testified that it “took typically 30 days” from preparation of
the monthly accounting balance sheet until the time when he
saw it. So, as of September 22, when the alleged unlawfully
motivated permanent layoffs occurred, he likely would not have
known with certainty that Respondent’s loss for August had
been $1,148,959.44, though he would have known that loss was
continuing and, in addition, that it would be for a substantial
amount. In any event, the $1,135,248.99 total loss from April
through July is hardly insignificant.
That was a conclusion also reached by Respondent’s lender.
As mentioned in subsection B above, Respondent has been
financing its purchases of steel and other materials for jobs
through a “line of credit with a current lender here in town,”
testified Roger E. Hinner Jr. Then, Respondent recovered those
costs, as well as its costs of labor, by billing customers
monthly, to reflect completion of various sequences of jobs.
Confronted with Respondent’s 1998 losses, however, its lender
pursued three courses. First, it increased the rate of interest
which it charged Respondent for loans extended through the
line of credit. Second, it cut Respondent’s line of credit in half,
from $6,500,000 to $3,250,000. That left Respondent without
“ability to go out and buy steel and cash flow the business nor
pay off vendors,” testified Hinner, for the very large custom
steel fabrication projects which it had relocated operations to
Schofield to be able to perform. Thirdly, the lender tried to
persuade Respondent to bifurcate those operations from the
still-profitable agriculture-related ones, a course which was
eventually followed during October.
President Roger E. Hinner Jr. testified, that confronting the
situation described above, “I wondered whether or not we were
going to be open by the end—or make it to the end of the year.”
Thus, Respondent began pursuing steps to minimize its losses.
Following early July wage increases resulting from annual
evaluations Respondent imposed a wage freeze. Beyond that,
after bonuses were awarded to Gruling and two foremen—
second-shift Shop Foreman Roger D. Ballerstein and Quality
Control Foreman Kyle R. Rahikainen—during the Spring, Re-
spondent discontinued awarding bonuses, save for Gruling once
he completed the required number of hours for a previously
promised bonus.
Of greatest significance, given the unlawful motivation alle-
gation, was an asserted decision to reduce the Schofield em-
ployee-complement. Roger E. Hinner Jr. testified that he had
“seen a hole coming up in our production right after the Gen-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 182
eral Motors job,” and “throughout the month of September,”
because “we didn’t have adequate work lined up after the Gen-
eral Motors job.” As to that job, it is undisputed that Respon-
dent had completed it “[w]ithin one week” of its targeted Sep-
tember 15 completion. In consequence, Hinner testified that he
decided to slow production “somewheres between 20 and 25
percent” and “to reduce all of the employment by 20—30 per-
cent,” with the maintenance staff to be “cut off . . . in half” and
other Schofield departments and areas to be cut “across the
board,” on the basis of “productivity and performance—general
attitude,” and with no “rehires.” According to Hinner, he “gave
directive to my brother, Rick, and Lance [Rick] and Tim Grul-
ing” to implement those directions, after which he (Roger E.
Hinner Jr.) did not become further involved in implementing
those directions.
Roger E. Hinner Jr. denied specifically that those directives
had anything to do with the Union’s campaign and, further,
denied that he had directed that union activity was to be consid-
ered in selecting any employee for layoff. Concededly, this
would be the first occasion when Respondent had permanently
laid off employees for lack of work. But, Respondent contends
that extraordinary steps had been warranted by the situation
which confronted Respondent by mid-September. Indeed, that
conclusion cannot legitimately be contested. Still, there are
certain aspects which give rise to doubt about the legitimacy of
Respondent’s motivation in connection with the reduction in
force which it claims to have pursued in an effort to try to sal-
vage its situation.
Roger E. Hinner Jr. testified that at the time of the September
3 election there had been 108 eligible production and mainte-
nance employees working at the Schofield facility. Yet, Re-
spondent concedes that during September only a total of eight
employees had been permanently laid off—four maintenance
and four production employees. The inconsistency between his
above-mentioned purported permanent layoff directive and the
total number of employees actually laid off was pointed out to
Roger E. Hinner Jr. While he acknowledged that there was
disparity between his purported direction and its implementa-
tion, however, Hinner testified only that Respondent ultimately
did achieve its targeted reduction of cutting in half the number
of maintenance employees and of reducing other staff by “20–
30 percent.”
So far as the record discloses, Hinner meant that those tar-
gets were met over time by attrition. In fact, the evidence does
show that Respondent’s total Schofield employee-complement
did decline significantly during the remainder of 1998 and dur-
ing the first part of 1999, prior to the hearing. Even so, Re-
spondent’s willingness to wait for reduction to occur over time,
as a result of attrition, raises the natural question of why it had
seen fit to abruptly lay off but eight employees during Septem-
ber and, then, sit back and wait for attrition to accomplish fur-
ther reduction. That seeming inconsistency—between pur-
ported directive for substantial immediate reductions and sub-
sequent willingness to, for the most part, wait for attrition to
accomplish reduction in the Schofield employee-complement—
was never explained by Respondent.
That situation becomes even more puzzling when the eight
September permanent layoffs are more closely examined. As
set forth above, Roger E. Hinner Jr. testified that he had de-
cided, and directed, that maintenance staff be “cut off … in
half.” Prior to the September permanent layoffs, Respondent
employed at Schofield three mechanics and eight regular main-
tenance employees—a total of 11 maintenance employees.
But, only four of them were laid off permanently on Friday,
September 18. Further, if only the eight regular maintenance
employees are considered, isolated from the three mechanics,
the results become even more seemingly inconsistent with
President Hinner’s purported direction. Only two of eight regu-
lar maintenance employees—Todd Buelow and Gary Gamble –
were permanently laid off on that date, along with mechanics
Todd Nienow and Rodney Wallace. No explanation was ad-
vanced by Respondent for the disparity between Roger E. Hin-
ner’s purported “cut off . . . in half” direction, regarding main-
tenance employees, and the less than “half” of them who actu-
ally were permanently laid off on September 18. Nor, for that
matter, did Respondent explain why it had chosen only four of
approximately 97 production employees for immediate perma-
nent layoff.
True, there is no allegation that the four maintenance em-
ployees’ permanent layoffs had been unlawfully motivated.
Still, as set forth above, Respondent’s defense portrays those
layoffs as having been an integral component of an overall
directive by Roger E. Hinner Jr. to reduce the Schofield facility
employee-complement. So. some consideration of those main-
tenance layoffs is necessary to evaluate the four production
employee-layoffs which, of course, are alleged to have been
unlawfully motivated.
Aside from their numbers, the most striking thing about
comparison of the maintenance employees’ and production
employees’ permanent layoffs is that those layoffs did not take
place simultaneously, as might be expected if they had been no
more than related components of a single overall reduction in
staff. The four maintenance employees were laid off on Friday,
September 18. Based upon Respondent’s “YTD Detail P/R
Registers,” those layoffs were made on the day before the pay
period for that week ended on Saturday. So far as the evidence
discloses, Saturdays are not regularly scheduled workdays, but
rather work occurs on Saturdays only when required by produc-
tion considerations, and is compensated on an overtime basis.
In contrast, the four alleged discriminatee-production em-
ployees were not permanently laid off on September 18 nor, for
that matter, at the end of a regular workweek and near the end
of a pay period. Rather, they were permanently laid off on a
Tuesday, September 22, near the beginning of a pay period.
Respondent never explained why, if all eight September per-
manent layoffs were part of a single decision to effect an over-
all reduction in Schofield employee-complement—as claimed
by Roger E. Hinner Jr.—layoffs of maintenance employees had
been separated from those of the production employees. In
fact, procedures preceding selection of employees to be laid off
gives rise to a further difficulty for Respondent’s asserted de-
fense.
As discussed further in subsection E below, the September
layoffs were preceded by individual evaluations of each
Schofield employee, recorded on “Employee Assessment”
forms. Each employee was numerically-rated in nine areas and,
MERRILL IRON & STEEL 183
then, ranked relative to other employees in the groups being
rated by a particular supervisor or other assessor, such as lead-
men.
The significant point at this stage is that employee assess-
ments for maintenance employees were dated September 18
and, accordingly, were apparently prepared on the same day as
the four maintenance employees had been laid off. By contrast,
assessment forms for production employees, at least for those
in Bays 1 and 2 from whom the four production layoffs came,
were not even distributed for completion until the afternoon of
Monday, September 21. Now, even speculating that some
business-related reason might have existed for not laying off
the four alleged discriminatee-production employees until
Tuesday, September 22, no explanation is even suggested by
the evidence for delaying assessment of production employees
until the week after assessments had been conducted for main-
tenance employees.
Absent such an explanation, delayed preparation of those
forms for production employees raises some suspicion that it
had not occurred to Respondent to assess and layoff production
employees until after maintenance employees already had been
assessed and four of them laid off. That is, having assessed and
laid off maintenance employees, Respondent decided to take
advantage of those legitimately-motivated layoffs by extending
the procedure utilized for selecting maintenance employees to
production employees, as well, with Roger E. Hinner Jr. then
trying to disguise that decision by portraying both sets of lay-
offs as the result of a single directive, albeit a directive which is
inconsistent with the actual separation of production from
maintenance layoffs.
On the other hand, the evidence is susceptible of a differing
inference: that Respondent initially did intend to take advantage
of its decision to lay off maintenance employee on Friday, Sep-
tember 18 and layoff on that date, as well, the four alleged dis-
criminatee-production employees, because of their activism on
behalf of and support for the Union. But, then, it had to post-
pone the four production layoffs in light of remarks to an em-
ployee by one of the Hinners—remarks which revealed Re-
spondent’s actual motivation.
That employee is Kurt Truss. He had been employed by Re-
spondent for several years before departing from its employ-
ment prior to the hearing in this matter. Truss testified that,
during the years that he had worked for Respondent, he had
conversed “[e]very day” with Kenneth Hinner—one of founder
Roger W. Hinner’s sons and a brother of Roger E. Hinner Jr.—
about various subjects. During “about the second week of Sep-
tember,” testified Truss, one such conversation had been in
progress when Kenneth Hinner suddenly remarked that Re-
spondent was “going to take care of problems” by having a
layoff “on Friday” that would “get rid of some of the f____g
union sympathizers.” Truss testified that he had admonished
Kenneth Hinner for making such a statement—“You can’t say
things like this, especially to me in a union situation”—and,
later that day, had reported to then- Plant Superintendent Grul-
ing what Kenneth Hinner had said. Even later that same day,
according to Truss, he was approached by then-Human Re-
sources Director Lance Rick who told Truss “not to worry
about the situation and that Kenny Hinner although he was on
the board of directors did not set policy.”
Kenneth Hinner was called as a witness for Respondent. Ini-
tially, he denied with specificity having made the above-quoted
remarks attributed to him by Truss. But when next asked
whether he had “made any statement along those lines to Mr.
Truss,” Kenneth Hinner appeared to become more guarded. He
answered only, “Not that I can recall.” Of course, a professed
lack of recollection does not constitute refutation. See, e.g.,
Indian Hills Care Center, 321 NLRB 144, 150 (1996), and case
cited therein.
As pointed out above, Truss was no longer working for Re-
spondent by the time of the hearing. However, there is no evi-
dence that the circumstances of his departure from Respon-
dent’s employment had been such that, viewed from an objec-
tive perspective, he likely could be said to be biased against
Respondent, such that he might fabricate testimony to place
Respondent in an adverse situation. Although Kenneth Hinner
denied having made the above-quoted remarks attributed to him
by Truss, neither Gruling nor Lance Rick were called to deny
that the former had received a report from Truss about such
remarks by Kenneth Hinner, nor to deny that Lance Rick had
told Truss “not to worry about” remarks made by Kenneth Hin-
ner. In consequence, it is uncontroverted that Truss had told
Gruling about the above-quoted remarks made by Kenneth
Hinner and, then, that Lance Rick had told Truss “not to worry
about” those remarks.
By now, of course, it is settled that testimony is not required
to be blindly accepted merely because it is not contradicted.
See, e.g., NLRB v. Howell Chevrolet Co., 204 F.2d 79, 86 (9th
Cir. 1953), affd. 346 U.S. 482; Woods v. United States, 724
F.2d 1444, 1452 (9th Cir. 1984). Nonetheless, where testimony
is uncontradicted, though the opportunity to do so seemingly
existed, that very absence of contradiction distinguishes such
testimony from that which is controverted. “Although the
Board may dismiss or disregard uncontroverted testimony, it
may not do so without a detailed explanation.” (Citation omit-
ted.) Missouri Portland Cement Co.v. NLRB, 965 F.2d 217,
222 (7th Cir. 1992).
Truss appeared to be an honest individual who was attempt-
ing to testify candidly about what had been said to him and
about what he had said on that September day. As an objective
matter, there would have been no reason for him to make the
above-described undisputed report to Gruling unless Kenneth
Hinner actually had made the remarks attributed to him. In like
vein, there would have been no reason for Lance Rick to assure
Truss that the latter need not worry about remarks by Kenneth
Hinner, unless Gruling had reported to Rick what Truss had
reported to Gruling. In view of the totality of the foregoing
considerations, and his seeming candor when testifying, I credit
the account by Truss of what Kenneth Hinner had said.
The parties dispute whether or not Kenneth Hinner—a mem-
ber of the family who owns and operates Respondent, and dur-
ing September, at least, a member of Respondent’s board of
directors and, as well, someone who could co-sign Respon-
dent’s checks—had been an agent of Respondent within the
meaning of Section 2(13) of the Act. But, resolution of such
status is not significant in the circumstances presented by his
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 184
remarks to Truss. True, Kenneth Hinner lacked supervisory
authority and was not involved in making personnel decisions.
He sat on Respondent’s board of directors largely as a figure-
head. Yet, the crucial point about his remarks to Truss is that a
family member so uninvolved in operational and personnel
decisions knew enough to make remarks about—indeed, to
predict—what eventually occurred: Respondent did perma-
nently lay off—“get rid of”— four of the Union’s supporters.
True, Respondent did not take that action on a Friday; it
permanently laid off Radish, Cleveland, White, and Dotseth on
a Tuesday. Yet, that does not detract from Kenneth Hinner’s
prediction of what was going to happen to “some . . . union
sympathizers.” After all, Truss reported to Gruling what Ken-
neth Hinner had said and then-Director of Human Resources
Lance Rick obviously became aware of what Truss had re-
ported to Gruling. To then effect permanent layoff of those
four production employees on a Friday would only reinforce
the accuracy of what had been said to Truss by Kenneth Hin-
ner. Yet, while that could be a logical explanation for not lay-
ing off the four production employees, it was not an explana-
tion which Respondent advanced.
That is, Respondent never contended that it had delayed those
four permanent layoffs from Friday, September 18 until Tuesday,
September 22 to avoid giving an appearance of unlawful motiva-
tion, in light of Truss’s report about Kenneth Hinner’s remarks.
Nor, for that matter, does the evidence supply a basis for infer-
ring that that had been Respondent’s purpose for not laying off
Radish, Cleveland, White, and Dotseth on September 18, along
with the four maintenance employees. Of course, I am not at
liberty to supply for Respondent a defense which it has not
raised. See, e.g., Norris/O’Bannon, 307 NLRB 1236, 1242
(1992). “The employer alone is responsible for its conduct and it
alone bears the burden of explaining the motivation for its ac-
tions.” Inland Steel Co., 257 NLRB 65, (1981).
Even had Respondent presented testimony that the alleged
discriminatee-production employees’ permanent layoffs had
been deferred from September 18 to September 22, to avoid an
appearance of impropriety in light of Kenneth Hinner’s remarks
to Truss, Respondent’s situation would not be salvaged. As
mentioned above, “Employee Assessment” forms for produc-
tion employees, at least for those in Bays 1 and 2 to which the
alleged discriminatees had nominally been assigned, were not
distributed for rating and ranking until the afternoon of Mon-
day, September 21. Yet, as of “the second week of Septem-
ber”—the workweek of September 14 through 18—according
to Truss, Kenneth Hinner was already saying that Respondent
was going to “get rid of some of the f_____g union sympathiz-
ers.” In other words, even before Respondent had ostensibly
rated and ranked Bays 1 and 2 production employees, a mem-
ber of the family who owned Respondent, who was also a
member of its board of directors, already had known that “sym-
pathizers” for the Union were going to be chosen for permanent
layoff.
Those remarks by Kenneth Hinner are important for two rea-
sons. Obviously, they evidence a predisposition on the part of
Respondent to select production employees for permanent lay-
off on the basis of their union activism. Secondly, they tend to
reveal that the entire assessment procedure, at least as applied
to production employees laid off on September 22, had been
nothing more than a facade utilized in an effort to conceal Re-
spondent’s true intention of “get[ting] rid of” production em-
ployees who had supported, and been active on behalf of, the
Union in the recently-concluded campaign.
Such a conclusion becomes even more viable in view of the
contrast between Roger E. Hinner Jr.’s above-described pur-
ported “20–30 percent” reduction direction and the instructions
given shortly afterward to Wisniewski. Respondent acknowl-
edges that as of September 3 there had been 108 production and
maintenance employees working at the Schofield facility. No
reduction in that number is shown to have occurred between
that date and September 22. Deleting from that 108 number the
above-mentioned 11 maintenance employees, that meant that as
of September 22 there had been 97 production employees
working at the Schofield facility. Yet, Fabrication Superinten-
dent Wisniewski testified that he had been instructed by then-
Human Resources Director Lance Rick that “we were to reduce
[the employee complement] by 8 to 10 people,” with “half of
that . . . to be done through the maintenance department and the
other part to be done on the floor in production.”
Clearly, the instruction given by Lance Rick to Wisniewski
was at odds with the directive which Roger E. Hinner Jr. testi-
fied that he had given to Lance Rick and, as well, to Gruling
and to Rick Hinner. Putting the best face on that disparity,
from Respondent’s point of view, a change in number of pro-
duction employees, to be selected for permanent layoff, may
have occurred between the time that Roger E. Hinner Jr. issued
his purported directive and the time when Lance Rick gave the
above-described instruction to Wisniewski. Yet, Respondent
presented no evidence whatsoever that would serve to support
such a conclusion. As pointed out in subsection C above, nei-
ther Gruling nor Lance Rick appeared as a witness. Nor did
Rick Hinner, There is no basis for concluding that any one of
the three of them had not been available to appear as a witness
for Respondent. In consequence, the record is left with the
unexplained inconsistency between a purported directive by
Respondent’s president and the supposed instruction given to
the fabrication superintendent charged with implementing that
directive.
Beyond that, while as described above, Respondent’s finan-
cial situation had become precarious by September, there is
ample basis for questioning whether it had been so dire that
permanent layoffs of any production employees would have
been so natural a corrective course as Respondent now seeks to
portray and, beyond that, whether selection of Bays 1 and 2
employees had been so logical as Respondent now argues. As
pointed out above, it is uncontroverted that the General Motors’
job had been completed by mid-September. Also undisputed is
Roger E. Hinner Jr.’s testimony that “[t]he main delivery” for
the Bronson job had been completed by August 15. Prior to
September, those had been Respondent’s main Schofield jobs
during 1998.
In addition, at the beginning of the workweek of September
20 through 24 Schofield production employees had not been
fully occupied. That is shown by several factors. According to
a summary prepared from Respondent’s timecards, 6,641.15
total shop hours had been worked during the workweek for
MERRILL IRON & STEEL 185
which paychecks issued on August 7 and 6,592.90 total shop
hours had been worked during the following week. Of course,
those had been workweeks immediately preceding “[t]he main
delivery,” as Roger E. Hinner Jr. put it, for the Bronson job.
In contrast, only 3,240.03 total shop hours were worked dur-
ing the workweek for which paychecks were issued on Septem-
ber 18 and only 3,488.40 total shop hours were worked during
the workweek for which paychecks were issued on September
25. No question that there had been a dramatic decline in total
shop hours worked between those August and September
workweeks, to a level in September of approximately half of
the total hours worked during those August workweeks. It
should not escape notice, nevertheless, that but four of 97 pro-
duction employees had been selected for permanent layoff on
September 22, despite those dramatic differences in total shop
hours.
There was no significant increase in total shop hours worked
during the remainder of 1998 and during early 1999. In fact,
there was a further decline, undoubtedly reflecting the ongoing
allowance by Respondent of reduction in staff through attrition.
According to the summary, total shop hours during weeks after
the one paid on September 25 varied from a low of 1,414.60 to
a high of 4,277.55. Yet, no additional permanent layoffs of
production employees were effected during any of those work-
weeks after September 21 through 25, in contrast to what oc-
curred on September 22.
To be sure, beside what has been said in the preceding three
paragraphs, records of welder/fabricators nominally assigned to
Bays 1 and 2 reveal some diminished amount of work available
for them immediately prior to that date. Some of those em-
ployees did work a full 40 hours during the pay period ending
September 19: Cleveland, White, Kim Sloan, Raymond E. Har-
ris, Daniel J. Klosinski, and Steve Trudell. Michael J. Ar-
rowood and William C. Neitzel each worked 39 hours during
that pay period. But, the YTD Detail P/R Register records for
the pay period ending September 19, only some of which were
offered into evidence, show that Tony W. Woodruff had
worked 34.50 hours and that Radish, Tim Wiroll and Jonathan
P. Arrowood each had worked only 32 hours during the pay
period ending September 19.
Even more striking are the reduced work hours which Bays 1
and 2 employees had worked during the immediately preceding
pay period, the one ending September 12 which, it should not
be overlooked, had included a holiday. To the extent that YTD
Detail P/R Register records were offered and received for that
pay period, only Raymond E. Harris, Jonathan Arrowood, Dot-
seth and Tony W. Woodruff had worked a full 32 hours, with
Dotseth and Woodruff each also having worked 2.50 overtime
hours. In contrast, during that pay period ending September 12,
White, Kim Sloan, Tim R. Wiroll. and Michael J. Arrowood
each worked but 24 hours, with Cleveland and Steve C. Trudell
having worked only 16 hours each.
Evidence of reduction in available work immediately prior to
September 22 is not confined to records. Testimony by the
General Counsel’s employee-witnesses also discloses that
hours being worked had declined by then. Thus, while White
testified that he had been told by Gruling on September 21 that,
“There is plenty of work”—a statement which may be ex-
plained by the description of Respondent’s post-September 18
work set forth below—he conceded that he had been told that
over the telephone on Monday, September 21 when he was at
home as a result of there not being enough work to necessitate
that he report for work on that Monday: “I don’t think we
worked—I don’t think we worked Monday.”
Dotseth agreed that it was fair to say that things had become
pretty slow at Schofield prior to his permanent layoff on Sep-
tember 22. Sloan agreed that she had not been working over-
time prior to the permanent layoffs on that date and, in addition,
testified that Respondent “didn’t have a lot” of big column and
beam work, though “it wasn’t completely out” of that work.
Radish testified that he had been sent home at 8 a.m. on
Monday, September 21, after having “worked two hours” that
day. He further testified that, at that time, he had been told “to
call in about 3 o’clock in the afternoon to find out if we had
work for the rest of the week or if we were supposed to come in
to work.” At the same time as he had been sent home that day,
testified Radish, Kim Sloan also had been sent home and,
moreover, Cleveland had been “sent home later in the day I
believe.”
Radish pointed out that employees had been sent home in the
past when “no blueprints” had been received by Respondent.
He further testified that blueprints were “supposed to be here
by 2 o’clock” and, in the past, it had been after they had not
been received by that time that employees were sent home:
“We’d say sure, we’ll go home at, you know, 3:30—2:30.”
Yet, on September 21 Radish and Sloan had been sent home at
8 a.m., not after 2 p.m. And there is no evidence that Respon-
dent had been awaiting delivery of blueprints on that Monday.
Accordingly, it cannot be said that failure to receive blueprints
had played any role in the fact that at least some production
employees had been sent home that day.
Even though Cleveland may not have been sent home until
later on Monday, September 21, that did not mean that he had
been occupied with production work while he had worked at
the Schofield facility that day. For, he testified that he had
been working for the paint department, repairing sawhorses on
which beams and other parts are placed to paint them. “There
wasn’t very much there at all. They were low on work. There
was some but not much,” acknowledged Cleveland. Yet, slow-
ing of production work during particular periods was not an
unprecedented situation.
Cleveland testified that, during the time that he had worked
for Respondent from July 5, 1995, to September 22, 1998, there
had been times when work had been “slow” and, “There were
times we swept floor for two weeks straight.” No witness for
Respondent disputed that testimony by Cleveland. Indeed,
Wisniewski acknowledged that during the period prior to the
September permanent layoffs, that had been precisely what
many Schofield employees had been doing: “There was a lot of
people out there that were sweeping floors to keep people there
for their 40 hour week.”
Yet, Respondent’s witnesses conceded that during such
times in the past, there had been neither permanent nor tempo-
rary layoffs for lack of work. Thus, Wisniewski testified that,
during the years that he had been working for Respondent, “At
no time in the little over 4 years have we ever had a layoff at
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 186
[Respondent]’s Schofield plant.” Similarly, called as Respon-
dent’s witness, Bay 2 leadperson Delmar Gumz testified that
during his 3–1/2 years at Respondent, there had been neither
permanent nor temporary layoffs of employees due to lack of
work. And the evidence shows that as of September 22 Re-
spondent was not without prospective need for production em-
ployees to work following that date.
As pointed out above, White testified that Gruling had said
during the afternoon of September 21 that, “There is plenty of
work,” and, in fact, all four alleged discriminatee-production
employees testified that they had been fully occupied during the
workday of September 22, at least until given notice of their
layoffs. That might seem peculiar given Roger E. Hinner Jr.’s
testimony that the General Motors job had been concluded
about then and, moreover, that “[t]he main delivery” of the
Bronson job had been completed during the week of August 15.
However, that delivery did not truly complete Respondent’s
work on that job for Bronson.
During cross-examination, Hinner qualified his testimony
about the Bronson job, acknowledging that it had been but
“[t]he main delivery” which had been completed by the week
of August 15, and that there still had been what he character-
ized as “a little bit of clean up work after that” to be performed.
At another point, he defined that “clean up work” as being
principally “change order work.” In both instances Hinner
appeared to be attempting to minimize the significance of that
work, whether characterized as “clean up” or “change order.”
Yet, in the end, he conceded that there had been “[a] million
dollars worth” of it which had been performed by Respondent
and, further, that, “It’s not complete yet today.” As no point
did Roger E. Hinner Jr., nor any other witness for Respondent,
claim that “clean up” or “change order work” had not been
anticipated at the time that “[t]he main delivery” for the Bron-
son job had been made. That is, at no point did Respondent’s
witnesses claim that such work was of a type that could not
have been fairly anticipated, given the nature of the job being
performed for Bronson.
Respondent never adduced evidence of the exact sources of
that “million dollars worth” of “clean up” or “change order
work.” Some of it may have been generated from stair-
fabrication which, consistent with practice, had been subcon-
tracted for performance by an unrelated party. Another part of
it was absorbed by what was referred to as brick relief work.
Hinner testified that only “a small amount of it” was performed
in the Schofield facility; the “major part” of it was done at the
Merrill facility and “another part of it” was subcontracted to
Norague Fabricating. Yet, Respondent never contended, much
less provided evidence, that brick relief work for the Bronson
job could not have been performed at the Schofield facility.
Nor was there evidence of past instances of brick relief work
being performed at the Merrill facility or by a subcontractor,
such as Norague Fabricating.
Beyond any production work which could fairly have been
anticipated having to be done for Bronson as of September 22,
there was an additional job which Respondent acquired about
that same time: a General Motors’ job which it obtained under
subcontract from Havens Steel. “I believe it was during the
week of September 20th when it was sold,” testified Roger E.
Hinner Jr., though he added hastily, “I can’t recall exactly when
it was.” Yet, his “week of September 20th” turns out to be
probably an accurate statement, given that he earlier testified
that “we would have had a small amount [of the Havens job]
starting in October—possibly a little in September with setting
up jigs,” which, he acknowledged, is a part of the fabrication
process. Obviously, Respondent would not have been “setting
up jigs” during September had it not acquired the Havens sub-
contract by then.
It should not be inferred that acquisition of the Havens sub-
contract was somehow inconsistent with Respondent’s overall
financial difficulties during 1998. Havens had been performing
that job for General Motors, but had encountered difficulty
performing it under the projected schedule. The job was simi-
lar to the one which Respondent had completed for General
Motors. Officials of the latter had suggested that Respondent
take over part of the fabrication being performed by Havens.
All of the detailing had been completed by Havens and it also
had purchased the steel—angles, beams, channels, plates—
needed for the job. As a result, aside from its payments for
labor, Respondent needed only to draw on a minimum, if any,
of its by-then diminished line of credit.
Even so, the work to be performed was not insignificant; the
job was not some sort of small project. Roger E. Hinner Jr.
acknowledged that it required fabrication of “approximately a
thousand tons of trusses” and estimated that it took Respondent
“[a]pproximately three months” to complete it, though some of
that time was absorbed by “an error made in the fit up of the
diagonal bracing within the trusses,” which led to “somewheres
around 600 man hours of rework to repair them.” Nevertheless,
even excluding that unanticipated “rework,” as of September 22
it appears that Respondent could have fairly anticipated that
some of Roger E. Hinner Jr.’s “hole coming up in production
right after the General Motors job” had been completed would
be filled by the later-acquired subcontract from Havens. So far
as the evidence shows, however, Hinner never took that work
acquired after August into account in determining that produc-
tion employees should be permanently laid off. Certainly, Rick
Hinner, Gruling, nor Lance Rick ever appeared and testified
that it had been acquisition of the Havens job which had led to
the instruction to Wisniewski to select only four production
employees for layoff. To so conclude would be speculation
and, further, would supply a defense for Respondent which it
has never advanced.
It seem likely that it was the newly acquired work for Ha-
vens to which Gruling had been referring when, it is uncontro-
verted, he had told White “[t]here is plenty of work,” during
their above-mentioned afternoon telephone conversation on
Monday, September 21. Such an inference is not precluded
simply because White had been nominally assigned to Bay 1 as
of September 21. After all, as mentioned in subsection B
above, welder/fabricators had been moving between Schofield
bays on almost a daily basis as of that time. Even if, as
Wisniewski claimed, such movement into Bay 3 had been rela-
tively infrequent, there is no basis in the record for concluding
that it had never occurred, given Wisniewski’s concession that,
“All welders that are in the plant are capable of going from one
MERRILL IRON & STEEL 187
bay to another,” as well as the other evidence about such
movement referred to in that subsection.
Indeed, even without regard to what was occurring in Bay 3
on and after September 22, the evidence reveals that there was
ample work left to be performed in Bay 2, to which Dotseth
was nominally assigned, and in Bay 1, to which the other three
alleged discriminatees were nominally assigned as of that date.
YTD Detail P/R Registers reveal that during the pay period
ending September 26, when the alleged unlawful permanent
layoffs had occurred, overtime in Bay 1 had amounted to a total
of 16.50 hours for Raymond E. Harris, Gordon L. Roesler, and
Tim R. Wiroll, three of the five welder/fabrications who re-
mained assigned to Bay 1 following the September 22 layoffs
of Radish, Cleveland, and White. Considering that at least
some Bay 1 employees had not worked on Monday, September
20, as described above, seemingly all of that overtime had been
worked during the remainder of that week, after the September
22 layoffs. At least, no alternative explanation had been ad-
vanced for when during that workweek those overtime hours
had been worked.
During the following pay period, ending October 3, Eli T.
Bierman worked only 35.00 hours. However, the other four Bay
1 employees—Harris, Roesler, Wiroll, and William C. Neitzel—
each worked 40 regular hours and three of them worked overtime
hours, as well: Roesler 9 overtime hours, Harris 8.75 overtime
hours, and Neitzel 3 overtime hours. Not only did all five of
those Bay 1 employees work a full 40 regular hours during the
pay period ending October 10, but Harris, Roesler, Wiroll, and
Neitzel each worked 10 overtime hours during it, with Bierman
working 9.80 overtime hours—a total of 49.80 overtime hours
during the pay period ending October 10.
Wiroll worked 40 regular hours plus 5 overtime hours during
the pay period ending October 17, but 36 regular hours during
the pay period ending October 24 and only 27 regular hours
during the pay period ending October 31. Work during the
latter part of October also dropped off for Eli T. Bierman who
work 40 regular hours and one overtime hour during the pay
period ending October 24 and 27 regular hours during the one
ending October 31. Yet, their reduced work hours during those
2 pay periods do not appear to have been the result of a decline
in work for Bay 1 production employees after the pay period
ending October 17.
Raymond E. Harris worked 40 regular hours and 10 overtime
hours during the pay period ending October 17; worked 40
regular hours and 9.50 overtime hours during the pay period
ending October 24; and, worked 40 regular hours and 10.65
overtime hours during the pay period ending October 31. Wil-
liam C. Neitzel worked 40 regular hours and 9.80 overtime
hours during the pay period ending October 17; worked 40
regular hours and 9 overtime hours during the pay period end-
ing October 24; and, worked 40 regular hours and 3 overtime
hours during the pay period ending October 31. Gordon L.
Roesler worked 40 regular hours and 10 overtime hours in each
of the pay periods ending October 17 and October 24, though
he worked only 27 regular hours and no overtime during the
pay period ending October 31. Still, his YTD Detail P/R Regis-
ter attributes 8 hours to holiday and another 8 hours to vacation
time for that latter pay period. As a result, it is not altogether
certain that, had he wanted to, Roesler would not have worked
a full 40 hours that pay period and, perhaps, some overtime as
well, as had been worked by Bay 1 welder/fabricators Harris
and Neitzel.
Overtime was also a feature of Bay 2 production work after
September 22, based upon the limited number of YTD Detail
P/R Registers which were produced. For example, during the
pay period ending September 26 Kim Sloan and Jonathan P.
Arrowood each worked only 34 regular hours, seemingly re-
flecting the above-described lack of work on Monday, Septem-
ber 21. Nevertheless, during that same pay period Bay 2
welder/fabricators Michael J. Arrowood, Steve C. Trudell, and
Peter A. Vandre each worked a full 40 regular hours. In addi-
tion, not only were a full 40 regular hours worked during that
pay period by three other Bay 2 welder fabricators, but each of
them also worked overtime hours: 9.50 hours by Daniel J.
Klosinski, 9 hours by Jay A. Schmidt, and 1.50 hours by Tony
W. Woodruff. Moreover, overtime continued to be a feature of
Bay 2 work during succeeding pay periods.
Only 26 regular hours were worked by Jay A. Schmidt and
only 32 regular hours were worked by Michael J. Arrowood
during the pay period ending October 3. Yet, every other Bay 2
production employees worked a full 40 regular hours during
that pay period and, as well, significant overtime hours were
worked during it: 11 hours for Woodruff, 9 hours each for
Jonathan P. Arrowood and Peter A. Vandre, 8 hours for Klosin-
ski, 7 hours for Trudell, and .50 for Kim Sloan. Then, while
Trudell worked only 35 regular hours during the pay period
ending October 10, all other Bay 2 production employees
worked a full 40 regular hours plus some overtime: 10 hours
each by Sloan, Jonathan P. Arrowood, and Peter A. Vandre;
and, 7 hours by Woodruff, 4 hours by Schmidt, and 2 hours
each by Klosinski and Michael J. Arrowood—a total of 45
overtime hours during that 1-week pay period.
During the pay period ending October 17, Trudell worked
33.25 regular hours before his employment with Respondent
ended and Schmidt worked 27 regular hours before his em-
ployment with Respondent also concluded. All other Bay 2
welder/fabricators worked a full 40 hours each during that pay
period, with Woodruff, Sloan and Vandre each also working 10
overtime hours, while Klosinski and Michael J. Arrowood each
worked one overtime hour. During the pay period ending Oc-
tober 24, Michael Arrowood worked only 36 regular hours, but
all other Bay 2 employees each worked a full 40 regular hours
and Woodruff and Peter Vandre each also worked 10 overtime
hours, and Klosinski worked 9-, Sloan 6- and Jonathan Ar-
rowood worked 5-overtime hours.
Not all Bay 2 production employees worked a full 40 regular
hours during the pay period ending October 31. Woodruff
worked 36.25 hours. Jonathan Arrowood worked 35.60 hours.
Michael J. Arrowood worked 35.25 hours. However, other Bay
2 employees worked a full 40 regular hours during that pay
period and, in addition, overtime hours. Thus, Peter A. Vandre
worked a total of 50 hours, and Klosinski and Sloan each
worked a total of 45 hours during the pay period ending Octo-
ber 31.
To be sure, the foregoing enumeration of post-September 22
regular and overtime hours, standing alone, does not refute an
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 188
asserted legitimate defense of necessity to reduce an employee-
complement in a context of adverse business-situation. Yet, it
does tend to show that production work for employees nomi-
nally assigned to Bays 1 and 2 had not simply evaporated dur-
ing late September and during October. In fact, that enumera-
tion seems to demonstrate that left for production employees in
those two bays was more work than those employees were
capable of performing during the regular workweek. Unex-
plained by Respondent was for what job(s) those employees
were performing their regular and overtime work during those
pay periods. Yet, if the Havens subcontracted work was being
performed only by Bay 3 production employees, and if the
Bronson “clean up” and/or “change order work” had been no
more than minimal, then it is difficult to infer what work was
requiring that so many Bays 1 and 2 welder/fabricators perform
a full 40 hours of regular work and, as well, substantial
amounts of overtime work.
In that connection one other fact cannot be overlooked. De-
spite its adverse financial situation and the September 22 per-
manent layoffs which it assertedly bred, nevertheless Respon-
dent did not altogether cease hiring after September 22. It hired
for “Fabrication,” according to its internal newsletter, Steel
Post, John T. Lloyd on October 21. And during the following
month it hired Freeman J. Bushar, Jr., also for “Fabrication,”
according to the Steel Post. Of course, their hirings may have
resulted from some unanticipated problem which Respondent
had encountered as the Bronson and Havens jobs progressed or,
perhaps, because of a need to replace welder/fabricators who
had departed employment with Respondent after September 22,
such as Trudell and Schmidt. But, no one can reach such a
conclusion based upon the evidence presented. Respondent
advanced with particularity no reason(s) for its decisions to hire
fabricators Lloyd and Bushar. Thus, the record is left with a
defense that Respondent had permanently laid off four
welder/fabricators on September 22 to reduce its employee
complement in the face of adverse financial circumstances, but
within 2 months had hired two employees who apparently per-
formed the same types of work as the four permanently laid off
employees and, during those 2 months, significant amounts of
regular and overtime work had been performed by employees
in bays from which the four alleged discriminatee-production
employees had been laid off.
Of course, hiring a couple fabricators, and even performance
of not an insignificant amount of post-September 22 overtime
by Bays 1 and 2 employees, would not necessarily suffice to
obliterate the legitimacy of Respondent’s defense. Yet, those
facts do not stand alone. As set forth above, there is an unex-
plained inconsistency between Respondent’s president’s pur-
ported directive about the magnitude of personnel to be reduced
and the ensuing instruction to the fabrication superintendent
regarding the number of maintenance and production employ-
ees to be selected for permanent layoff. Moreover, the assess-
ments and layoffs of maintenance employees were effected in a
pay period earlier than assessments and layoffs of production
employees, somewhat diminishing a defense that all eight lay-
offs were but components of an overall reduction in force direc-
tive. Further, by September 22 Respondent had acquired what
seems to be a substantial amount of additional work—1,000
tons of heavy trusses—as a result of the Havens subcontract.
Apparently it had been that work to which Plant Superintendent
Gruling had been referring when, following somewhat of a
drought in Schofield facility production work, he undisputedly
asserted, “There is plenty of work.” Certainly, that turned out
to be the fact in Bays 1 and 2. And a number of other factors
tend to further undermine the reliability of Respondent’s de-
fense, as discussed in the succeeding subsection.
E. Selections of Radish, Cleveland, White, and Dotseth
for Permanent Layoff
At the outset, of all the areas in the Schofield facility, selec-
tion of production employees for permanent layoff on Septem-
ber 22 was confined to Bays 1 and 2. In the final analysis Re-
spondent never did fully explain why it had so narrowly con-
fined the pool of production employees from whom those lay-
off selections had been made. Wisniewski advanced a partial
explanation. But it was an incomplete one.
As described in subsection B above, Wisniewski testified
that cranes in Bay 3 “were big enough to” move the Havens’s
job heavy trusses to the back area for painting and, further, that
welder/fabricators in Bay 3 were “a close knit group of guys
and gals” who performed “a lot of the more difficult work.”
Thus, it seems facially logical that Respondent would have
excluded all Bay 3 welder/fabricators from consideration for
September permanent layoff. Yet, there were remaining areas
of the Schofield facility, other than Bays 1 and 2, from which
layoff selections could have been made. For example, as de-
scribed in the above-mentioned subsection, employees were
performing production work in Bay 4 and there likely were
other bays to which welder/fabricators were nominally assigned
at the Schofield facility. There is no evidence that any of those
production employees were going to be especially needed for
the Havens job. Yet, Respondent never explained why those
employees had not also been considered in selecting production
employees for permanent layoff.
Reliance on Respondent’s defense becomes even less feasi-
ble when the permanent layoff procedure which it followed is
examined. As mentioned in the preceding subsection, in mid-
September “Employee Assessment” forms were passed out.
Yet, all Schofield production employees, or certainly those in
Bays 1 and 2, had been rated less than 3 months earlier, during
July, when Respondent had conducted its annual evaluations of
employees. It could be argued that there is a difference be-
tween job performance factors rated in July and those rated in
September. In fact, different forms were used for rating in
September from those which had been used during July. Yet,
the difference appears to be no more than one of form, rather
than substance.
The “Employee Evaluation” forms used in July rated each
employee in three general categories. First is “Job Knowledge
and Skill” and, within that general category were the subcatego-
ries of “Understands requirements and has the knowledge and
skill to perform specific job(s)”; “Ability to perform jobs(s)
assigned and follow instructions”; and, “Demonstrates quality
workmanship in job(s) assigned.” In each subcategory a space
was provided after each of four ratings—“Excellent,” “Good,”
“Meets Standards,” and “Unsatisfactory—so that a check or “x”
MERRILL IRON & STEEL 189
could be placed in the rating regarded by the evaluator as ap-
propriate for performance in that subcategory.
The second general category on the July evaluation forms is
“Personal Efficiency” under which is the single category of
“Efficient in planning and use of time,” with the same four
choices and accompanying spaces for check or “x” in rating
performance. The final general category is “Interpersonal
Skills,” again with but a single subcategory—“Is tactful and
sensitive to the needs and feelings of others”—and the same
menu of four choices for rating performance in that area. Un-
der each of those several subcategories, in addition, are two
lines following the work “Comments,” so that an evaluating
official could write anything special that he/she believed to be
necessary.
Near the bottom of the July forms is a “Summary of Evalua-
tion” section. It presents evaluators with a choice between the
alternatives of “Positive” and “Negative,” below which are
choices of “Yes” or “No” for “Continued Employment” of the
employee being evaluated. Below that is a “Salary Recom-
mendation” section presenting choices of “Same,” “Increase”
and “Decrease,” after which are spaces for a recommended rate
increase and date for making such a recommendation “effec-
tive.”
Wholly facially different forms—“Employee Assessment”
forms—were utilized in mid-September. Respondent never
bothered to explain why it had chosen to prepare forms for
September which differ from the “Employee Evaluation” forms
used less than 3 months earlier. For that matter, Respondent
never bothered to explain why it had believed it necessary to
conduct another all-employee assessment in September when it
had already evaluated all employees during July. Given some
of the comparatively different ratings given to alleged discrimi-
natees, a strong suspicion arises that new forms were utilized in
September, and another rating conducted during that month,
because Respondent believed that the July evaluations of those
four employees would not support a defense of legitimacy for
selecting them for permanent layoff.
The September forms list nine job performance categories:
“Quality of workmanship”; “Exhibits a high ratio of output to
input (Productivity)”; “Skill level”; “Attitude”; “Complying
with orders and direction”; “Versatility”; “Supervision re-
quired”; “Attendance & Tardiness”; and, “Works well with
others.” The possibility of concluding, from the facial differ-
ence between the two forms, that Respondent had been seeking
different information in September, from that which was pro-
vided by the July evaluations, founders on the rock of an im-
portant void in the record: Respondent never presented any
evidence that some forms of different information were being
sought in September than had been obtained from the July
evaluations. That is, at no point did any of Respondent’s testi-
fying officials ever claim with particularity, or even generality,
that different or more refined information had been sought in
September.
The only testimony about preparation of the September
“Employee Assessment” forms was provided by Wisniewski.
He testified that he “did play a part” in designing the process
utilized to select employees for permanent layoff during Sep-
tember. He also testified that “Lance Rick, Tim Gruling and
myself” had designed those forms. But, Wisniewski never
explained what the September-designed forms were intended to
accomplish for Respondent that had not been achieved by the
“Employee Evaluation” forms utilized in July and, for that
matter, during 1997. Obviously, such an explanation was not
forthcoming from either Lance Rick or Gruling.
In fact, initially Wisniewski claimed that the assessment ar-
eas of performance “is actually a part of our evaluation form
when its comes for reviews.” And Wisniewski conceded ini-
tially that “[t]he same criteria” were involved on both forms
and that the assessment forms were “pretty much the format
that we use to evaluate our personnel out in the plant.” Such
testimony hardly supplied an explanation of why Respondent
had gone to the trouble in September of designing and distribut-
ing entirely new forms.
At some point during cross-examination it appeared to dawn
on Wisniewski that identical comparison of the two forms
might not be helpful to Respondent’s defense: that possibly it
might be inferred that the assessment forms had been prepared
for no reason other than to improve Respondent’s defense to an
unfair labor practice allegation, given that the July evaluations
of the four alleged discriminatees were not so adverse as to
naturally support a defense of legitimacy for their selection for
layoff. Thereafter, Wisniewski testified that “we did add a
couple of things.” When pressed further about that testimony,
however, he relented somewhat, testifying “the only thing that
was added was that last criteria that works well with others as
far as my recollection.” Yet, Wisniewski never explained how
“Works well with others” on the assessment form differed in
any respect from “Is tactful and sensitive to the needs and feel-
ings of others,” which appears on the evaluation form. Nor did
any other witness for Respondent advance such an explanation.
In the final analysis, the only seeming difference between the
forms is that the “Employee Assessment” form contained a
category for “Attendance & Tardiness” that is not included on
the “Employee Evaluation” though, as will be seen, absences
and tardiness were recorded on evaluations when the evaluators
felt that adverse comment about them was warranted.
Another difference between the two forms is the ratings
which can be assigned for each category or subcategory. As set
forth above, the evaluation form provides for ratings of “Excel-
lent,” “Good,” “Meets Standards” and “Unsatisfactory.” In
contrast, the September assessment form provides for five rat-
ings choices: “1. Distinguished—Consistently exceptional”; “2.
Commendable—Exceeds acceptable job requirements”; “3.
Competent—Meets acceptable job requirements”; “4. Needs
Improvement—Needs immediate improvement”; and, “5. Un-
satisfactory—Termination of employment.” These five seem-
ingly more refined ratings could tend to support a defense that
Respondent had been trying in September to more precisely
assess its employees’ performance, given that it anticipated
taking a step—permanent layoff of personnel for lack of
work—that it had never before taken. After all, if nothing else,
the “Needs improvement—Needs immediate improvement”
rating of the assessment forms supplies an intermediate rating
step between the evaluation form’s “Meets Standards” and
“Unsatisfactory” ratings. But, Respondent did not advance
such an explanation. Nor, as pointed out above, did it advance
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 190
any explanation for the newly designed September form. Ac-
cordingly, no explanation can be supplied for Respondent.
Respondent made another change in connection with its Sep-
tember ratings, at least so far as Bays 1 and 2 production em-
ployees were involved. The September ratings for maintenance
employees appear to have been made by the same officials as
had evaluated those employees during the Summer. However,
Bays 1 and 2 employees were not assessed in September by the
same person as had evaluated them in July. Instead of being
assessed by Gruling, who had evaluated them in July, Bay 1
employees were assessed during September by their leadman,
Alan Vandre, and Bay 2 employees were assessed by Bay 2
leadman Delmar Gumz. No evidence shows that either Vandre
or Gumz had been a statutory supervisor. Moreover, no evi-
dence has been presented that concern for the opinions of either
leadman had been displayed when past evaluations had been
conducted. So far as the record discloses September had been
the very first time when any leadman had been involved in
rating any of the Schofield production employees. Yet, Re-
spondent never explained why it had abruptly made that
change.
As an objective matter, that rating-official change had some
benefit were Respondent actually seeking to construct a facially
legitimate reason to advance for, in reality, unlawfully-
motivated layoff selections. As discussed in further detail be-
low, with one exception the alleged discriminatees had received
relatively favorable ratings from Gruling when he had prepared
his July evaluations. There is no evidence that performance of
any one of those alleged discriminatees had deteriorated in any
significant regard between early July and September 22. Ac-
cordingly, if, as Kenneth Hinner stated to Truss, Respondent
wanted to “get rid of some of the f_____g union sympathizers,”
then-Plant Superintendent Gruling would have been placed in
an awkward position, were he to have rated unfavorably the
same employees whom he had rated relatively favorably less
than 3 months earlier. As an objective matter, inconsistencies
between July and September ratings could be too stark for the
same evaluator/assessor to simply explain away.
It can hardly be said that either Vandre or Gumz devoted
very much effort to rating welder/fabricators in their bays.
During the afternoon of Monday, September 21 each was given
assessment forms to complete for the welder/fabricators in his
bay. Each was told to rate those employees, by circling one of
the above-described rating numbers in each of the nine above-
listed categories on the “Employee Assessment” forms and, in
addition, to rank production employees in his bay, from 1 to 8
by Vandre for Bay 1 employees and from 1 to 9 by Gumz for
Bay 2 employees, in descending order so that the number 1
would be assigned to the Bay’s highest-ranking employee.
“About 20 minutes,” estimated Gumz at the time it had taken
him to complete all nine assessments for Bay 2 welder/fab-
ricators. To complete his eight assessment forms for Bay 1
employees, it took Vandre somewhat longer: “An hour—an
hour and 15 minutes,” he estimated. Despite the apparent fact
that neither leadman had ever before rated, much less ranked,
employees, when preparing their assessments both conceded
that they had relied upon no personnel, attendance nor quality
control records—hough, admittedly, Respondent maintains
such records. Instead, as Vandre acknowledged, the ratings and
rankings were prepared solely from memory and impressions.
Neither leadman explained why he had not referred to any re-
cords whatsoever in preparing his assessments. Nor, given the
importance which Respondent intended to attach to the assess-
ments’ results, did Wisniewski or any other official of Respon-
dent explain why the leadmen had not been instructed to refer
to records when preparing those assessments.
Perhaps to no one’s great surprise, Dotseth received the low-
est ranking from Gumz among the nine Bay 2 employees, and
Vandre assigned the lowest rankings in Bay 1 to Radish and
White, with Cleveland and Tim Wiroll tied for the position
immediately above Radish and White. After the completed
assessment forms were submitted by Vandre and Gumz, they
were reviewed—obviously, during the morning of September
22—by Gruling and Wisniewski, according to the latter. There
is no evidence that the two supervisors’ review of the lead-
men’s assessments involved any re-rating of any Bay 1 or Bay
2 employees in any of the nine categories though, as discussed
below, many of those ratings by Vandre and Gumz were at
odds with the ratings which Gruling had given Bays 1 and 2
employees during the July annual evaluation. But, revision was
made of some of the rankings. Still, Dotseth was left ranked
last in Bay 2; Radish and White were left ranking last in Bay 1.
However, for no reason disclosed by the record, Wiroll was
elevated to rank number 3 in Bay 1, leaving Cleveland ranked
by himself immediately above Radish and White. Thus, the
four alleged discriminatees were relegated to the last-ranked
positions in their bays.
For the most part, nothing of analytical significance was said
when Dotseth, Radish, Cleveland, and White were given notice
on September 22 of their permanent layoffs. Yet, one aspect
accompanying those layoffs should not be overlooked. An
“EMPLOYMENT TERMINATION REPORT” was prepared
for each one. On each report was stated that the alleged dis-
criminatee was not “recommend[ed] re-hire,” and written as the
reason for that was simply “performance.” However, those
termination reports are not signed by Human Resources Direc-
tor Lance Rick, as might be expected given the significance of
those permanent layoffs as the very first ones for lack of work
in Respondent’s history.
Instead, each of the four termination reports is signed by
“Sandy Draeger,” of whom the record shows only that she was
employed at the time in human resources for Respondent.
Draeger was never called as a witness, though there is neither
evidence nor representation that she was not available to testify.
As a result, the record is left with no explanation for the above-
quoted entries on the termination reports which, after all, ap-
pear to portray the permanent layoffs as resulting from unsatis-
factory work performance, rather than from layoffs resulting
from reduction in force due to economic considerations. That
is, no explanation can be gleaned from the record concerning
the reason for those “performance” entries by, apparently,
Draeger on the termination reports.
For three of the alleged discriminatees her “performance” en-
tries do not correspond with Gruling’s evaluations prepared less
than 3 months earlier. To be sure, one of the alleged discrimi-
natees—Dotseth—was assigned an overall “Negative” rating in
MERRILL IRON & STEEL 191
July and, moreover, Gruling placed no check in either the
“Yes” or “No” alternatives presented after the “Continued Em-
ployment” section of Dotseth’s July evaluation (GC Exh. 26).
In addition, while Gruling placed checks in the blanks after
“Meets Standards” for each of the above-described subcatego-
ries of the three general categories on Dotseth’s July “Em-
ployee Evaluation,” those checks are placed near the end of
each blank, almost on top of the “U” of the following “Unsatis-
factory” rating. In some situations, placement of those checks
might be inferred to have represented marginal ratings for Dot-
seth in each subcategory. But were that the situation here,
surely Gruling could have appeared and so-testified. He did not
do so, though no legitimate reason has been advanced for his
nonappearance, and I am reluctant to draw an inference from
check mark-placement which could be designed, but which also
could represent no more than check marks written in haste.
Two additional points should be noted with regard to Dot-
seth’s July evaluation. First, despite what was checked or not
checked on it, Gruling did recommend on the form that Dotseth
be awarded a 50-cent per hour wage increase, effective July 1.
Second, by the time that Gruling prepared Dotseth’s July
evaluation, Wisniewski had made plain, to Truss, that Respon-
dent knew that Dotseth was “one of the union organizers” and
“would be gone before the vote came,” as described in subsec-
tion B above. True, Dotseth was not “gone” as of early July.
But, there is no evidence even indicating that Wisniewski had
become less hostile, between May and July, toward Dotseth
because of the latter’s union activities. So, there is some basis
for questioning the legitimacy, even, of Gruling’s July evalua-
tion of Dotseth.
Even were it to be concluded that Dotseth’s “performance”
had truly dissatisfied Gruling, it is not possible to conclude that
he had been similarly dissatisfied with the performances of
Radish, Cleveland, and White. On their July “Employee
Evaluation” forms he checked “Meets Standards” in all sub-
categories. He checked “Positive” as the “Summary of Evalua-
tion” for all three. For “Continued Employment,” Gruling
checked “Yes” for all of them. In consequence, left unex-
plained is why the “performance” of any one of those three
alleged discriminatees over the course of the succeeding 2–1/2
months had become so unsatisfactory as to warrant no consid-
eration for rehire. To be sure, Respondent asserts that it wanted
all four laid off alleged discriminatees to understand that rehire
was not a possibility, given Respondent’s financial situation.
Yet, that hardly explains the “performance” entries. Beyond
that, as described in subsection D above, Respondent did hire
fabricators during October and November.
Additional inconsistency in Respondent’s defense is revealed
by closer comparison of Gruling’s July evaluations of the four
alleged discriminatees with Vandre’s and Gumz’s ratings of
them. For example, Vandre assigned the lowest possible rat-
ing—“5. Unsatisfactory—Termination of employment”—to
Radish for “Complying with orders and direction” and for “At-
tendance & Tardiness,” and the next lowest rating—“4. Needs
Improvement—Needs immediate improvement”—to Radish for
“Exhibits a high ratio of output to input (Productivity)”; “Atti-
tude”; “Versatility”; and, “Supervision required.” When Van-
dre was questioned about his ratings, he denied generally that
they had been influenced by union considerations. Yet, he gave
no more detailed explanation for his ratings other than the gen-
eral one that he had rated Bay 1 welder/fabricators “just the
way I see that at that time when I made these out,” based on,
“Production and quality.”
Now, Radish had been a relatively long-term employee of
Respondent, having worked continuously for it since June 29,
1992. Those years were not without some blemish on his em-
ployment record. On his 1997 evaluation Gruling had written,
in “Comments” sections, “We would like you to increase your
productivity,” and, “Need improvement on attendance [&]
starting on time, like a commitment from you for more hours.”
Clearly, those written “Comments” demonstrate that Gruling
was not hesitant to reduce his criticisms to writing when annu-
ally evaluating Respondent’s production employees. Yet, no
such remarks appear in any of the “Comments” sections of
Gruling’s July evaluation of Radish. So far as the evidence
shows, therefore, Radish had satisfied by mid-1998 whatever
performance concerns that Gruling had harbored during the
first half of 1997.
In fact, Respondent’s “absentee reports” for Radish disclose
that, prior to September 22, he had been absent only twice dur-
ing 1998: on January 5 due to “weather,” and on May 11 due to
illness. Still, it should not be overlooked that examination of
Respondent’s attendance records for Radish raises some ques-
tion about their reliability.
Absentee reports are filled out each day that an employee is
absent or tardy. Also maintained for each employee is an ab-
sentee calendar on which all days for all months are printed.
Thus, attendance and tardiness entries can be recorded on the
appropriate day of the appropriate month and, at a single
glance, an employee’s entire attendance and tardiness record
for the year is revealed.
Radish’s 1998 absentee calendar shows a “Discipline” ab-
sence on Friday, September 4. Radish denied that he had been
absent on that date and, further, denied that he had suffered any
disciplinary absence during 1998. His personally-maintained
calendar showed that he had worked on September 4. Respon-
dent introduced no absentee report reflecting that Radish had
been kept from work on September 4 for disciplinary, or any
other, reason. In sum, it is difficult to infer exactly how Rad-
ish’s “Attendance & Tardiness” had been so poor that Vandre
could have rated Radish’s record as warranting “Termination of
employment.”
In addition to the inherent inexplicability of Vandre’s “At-
tendance & Tardiness” rating for Radish, in view of the latter’s
actual 1998 attendance record, that rating comes into even
greater question in light of ratings in that category given by
Vandre to some other Bay 1 welder/fabricators. Vandre gave a
“3. Competent—Meets acceptable job requirements” rating to
Tim R. Wiroll, even though during 1998, prior to September
22, Wiroll had been absent, for various reasons, at least 10
times and tardy 7 times, according to his 1998 absentee calen-
dar. Vandre gave a “2. Commendable—exceeds acceptable job
requirements” rating for “Attendance & Tardiness” to William
C. Neitzel who, like Radish, had two absences during 1998,
prior to September 22. And Vandre gave that same “2. etc.”
Rating to Eli T. Bierman even though, during 1998 prior to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 192
September 21, Bierman had been absent four times and tardy
twice. Most inexplicable is the “1. Distinguished—Consistently
exceptional” rating which Vandre assigned for “Attendance &
Tardiness” of Raymond Harris. Harris had been absent from
work, for various reasons, on nine dates during 1998, prior to
September 22. Indeed, that same “1. etc. ” rating was awarded
by Vandre to Gordon L. Roesler, even though Roesler had been
absent eight times and tardy once during 1998, prior to Sep-
tember 22.
Not to be lost sight of is the fact that while the rankings of
bay employees had been a relative process—for example, as
between two even identically-rated employees, one had to be
picked for ranking above the other—rating of employees, by
contrast, was an absolute process, at least so far as the record
shows. Thus, it would seem that the same criteria would apply
when rating employees’ “Attendance & Tardiness”—a more
frequently absent and/or tardy employee should naturally re-
ceive a lower rating than a less frequently absent and/or tardy
employee. As shown by the recitations in the immediately
preceding two paragraphs, however, that is not what Vandre
had done. And Vandre never explained with any particularity
why he had not rated Bay 1 “Attendance & Tardiness” more
accurately. True, he claimed that he had not looked at any
records, but rather had relied on his subjective impressions
about employees in that Bay. Even so, surely an employee’s
nine absences during the preceding 8-1/2 months would natu-
rally leave a more adverse impression of that employee’s “At-
tendance & Tardiness” than would be the fact for an employee
absent only twice during that period.
Also not to be overlooked is the fact that while Vandre had
not looked at attendance records when preparing the assess-
ments, surely Wisniewski and Gruling had the opportunity to
do so, in the course of reviewing the completed assessments
turned in by the leadmen. Yet, so far as the record shows, nei-
ther one did so. And that seems peculiar, at least, in the case of
Gruling. After all, he obviously had been taking attendance
into account when preparing his annual evaluations, even
though there is no specific category or subcategory for atten-
dance on the “Employee Evaluation” form. As pointed out
above, Gruling has commented specifically about Radish’s
attendance on the latter 1997 evaluation. Seemingly, in the
course of reviewing Radish’s assessment ratings, Gruling
would have noted the quite adverse “Attendance & Tardiness”
rating assigned to Radish by Vandre.
Interestingly, Vandre rated Cleveland as “3. Competent, etc.”
for “Attendance & Tardiness,” even though Cleveland had been
absent at least seven times during 1998, prior to September 22.
In contrast to Radish, Vandre did not rate Cleveland as “5. Un-
satisfactory etc.” in any of the nine categories. But, Vandre did
rate Cleveland as “4. Needs Improvement etc.” in two catego-
ries: “Attitude” and “Supervision required.” Yet, in his July
annual evaluation of Cleveland, Gruling made no mention of
any problems with Cleveland’s attitude, nor any problems
which might require that Cleveland be more intensively super-
vised. To the contrary, in July Gruling rated Cleveland as
“Meets Standards” in the seemingly comparable areas of being
“tactful and sensitive to the needs and feelings of others” and of
“Demonstrat[ing] quality workmanship in job(s) assigned.”
Beyond that, Cleveland’s September ratings by Vandre were
relatively affirmative. He receive “3. Competent etc.” ratings
for “Quality of workmanship,” for “Exhibits a high ratio of
output to input (Productivity),” for “Versatility,” and, as
pointed out above, for “Attendance & Tardiness.” He received
“2. Commendable etc.” ratings for “Skill Level,, “Complying
with orders and directions” and “Works well with others.” Yet,
to a degree at least, there is a seeming inherent inconsistency
between the ratings in this paragraph and, at least, the “Super-
vision required” rating mentioned in the immediately preceding
paragraph. After all, if an employees performs commendably
with regard to “Complying with orders and directions,” and
competently with regard to “Qualify of workmanship,” for
example, there seems little reason to rate such an employee as
“Need[ing] immediate improvement” in the area of “Supervi-
sion required.” Perhaps that seeming inconsistency can be
explained. But, Vandre did not do so. Neither did either
Wisniewski nor Gruling.
Vandre advanced only minimal explanation for his ratings of
Cleveland. He did testify that Wiroll and Cleveland “did a
good job in welding and they were all right.” But, then, Vandre
claimed that Cleveland had “[a] little bit” of a drop off in “pro-
duction and quality” at the time of his September 21 rating. If
so, then Vandre never explained why he had rated Cleveland as
“Competent” for “Quality of workmanship” and “Exhibits a
high ratio of output to input (Productivity)” on the assessment
for him.
Vandre made no particular mention of possible incidents un-
derlying his above-mentioned “Needs Improvement” rating for
Cleveland’s “Attitude.” But, Wisniewski did so, though it can-
not be said that Vandre had the incidents related by Wisniewski
in mind when Vandre rated Cleveland’s attitude. Cleveland
had received a written warning for “get[ting] into a shoving
match” with a supervisor. But that had happened on March 1,
1996, 3–1/2 years before Cleveland was selected for permanent
layoff. So far as the evidence discloses, no mention was made
of that warning in Cleveland’s annual evaluation for 1996, nor
in his annual evaluations for the succeeding years.
Respondent elicited evidence of later confrontations involv-
ing Cleveland, only one of which was even partially disputed
by Cleveland. Although Wisniewski was vague on the point,
arguably all of them seem to have occurred after Cleveland
received, on July 13, his most-recent evaluation, dated July 1.
One incident involved Cleveland’s assertion about hearing that
he had been called “a useless pile of s__t” by Wisniewski. That
led Cleveland to accuse Wisniewski of being a liar and, in turn,
Wisniewski to begin swearing at Cleveland. Wisniewski de-
nied specifically having called Cleveland “a useless pile of
s__t.”
Instead, apparently referring to the incident described by
Cleveland, as set forth in the immediately preceding paragraph,
Wisniewski testified about an incident when he had asked Van-
dre why Cleveland was in Bay 3 and, after Vandre had spoke to
Cleveland, the latter came over swearing at Wisniewski. Yet,
Wisniewski testified that, after everyone had cooled down,
Cleveland “apologized three times” for having sworn at
Wisniewski and, accordingly, the latter “let it go,” rather than
write up Cleveland. Neither Wisniewski nor Vandre testified
MERRILL IRON & STEEL 193
that the latter had overheard Cleveland swearing at Wisniewski,
nor Cleveland call Wisniewski a liar, depending upon whose
version is the more accurate.
In addition, testified Wisniewski, during “summer time,”
Cleveland had opened a plant door, supposed to be kept closed,
to clear out smoke in the facility. Wisniewski testified that he
had pointed out the open door to Gruling, but of course there is
no corroboration for such a report to the latter. More signifi-
cantly, Wisniewski testified that he had asked Vandre who had
opened the door and the latter had replied, “Cliff did.” Yet,
although Vandre appeared as a witness for Respondent, he did
not corroborate Wisniewski’s description of that exchange be-
tween them about the open door.
Finally, Wisniewski testified that, while taking a weld test,
Cleveland had disregarded express orders to clean slag off
welds, instead of trying to weld over the slag. According to
Wisniewski, Quality Assurance Manager Ron Shampo had
been administering those weld tests when Cleveland had tried
to weld over slag, instead of first cleaning it off: “Ron Shampo
had caught him doing it and confronted him with it.” There is
no evidence, nor was there a representation, that Shampo was
not available to Respondent as a witness, to corroborate
Wisniewski’s account of the asserted weld test incident. Yet,
Shampo never appeared to corroborate that account. Again,
there is no evidence that, had such an incident occurred, Vandre
had been aware of it by the time that he prepared the September
assessment for Cleveland, nor that he had relied upon it in as-
sessing Cleveland’s attitude.
As an objective matter, Respondent’s defense encountered
heavy seas in connection with Vandre’s ratings for White. “5.
Unsatisfactory etc.” ratings were given for “Versatility” and for
“Attendance & Tardiness.” As with Radish, however, the latter
category poses a problem for that rating. According to his 1998
absentee calendar, White had been absent twice and tardy
twice, prior to September 22, during that year. Obviously, that
is a better record than the above-described 1998 attendance
records of more-highly rated Wiroll, Bierman, and Roesler, and
a record comparable to the more-highly rated Neitzel. Vandre
never explained the disparity. Wisniewski never explained why,
when reviewing the completed assessments, he or Grueling had
not discovered that ratings-disparity.
Once again, with regard to White there was a contradiction
between his 1998 absentee calendar and absentee reports for
him. The calendar shows White as having been absent on April
15 and on May 15. There is an absentee report for April 15.
But, none was produced for White on May 15. Instead, an
absentee report dated August 28 was produced. However, no
August 28 absence entry appears on White’s 1998 Absentee
calendar. That disparity went unexplained.
One might argue that the foregoing paragraph’s disparity is
more nitpicking, than legitimate, consideration. Except, of
course, that those absentee calendars and absentee reports are
integrally related to Respondent’s overall defense. Even had
Vandre and Gumz not reviewed them before rating the “Ab-
sence & Tardiness” records of welder/fabricators whom were
rated by those two leadmen, those records are the only objec-
tive measures of claimed subjective impressions of those two
leadmen upon which they assert that they based their ratings.
Surely, if the reality does not correspond to subjective impres-
sion, then there is some basis for questioning the reliability of
assertions about those subjective impressions. Moreover, those
attendance records were available to Wisniewski and Gruling.
Despite the fact that they were the purported finalizing officials
for ranking Bays 1 and 2 production employees, neither one
apparently took the time to compare the leadmen’s ratings with
the records which Respondent concededly maintains. Those
considerations simply cannot be disregarded under any charac-
terization.
If White’s “Attendance & Tardiness” during 1998 truly had
warranted “Termination of employment,” as Vandre’s rating
effectively states, then left unexplained is why Gruling had not
said so in July. The two absences recorded on White’s 1998
absentee calendar had occurred before that July annual evalua-
tion. Gruling had shown, in connection with Radish’s earlier
evaluation, that he (Gruling) was not reluctant to note adverse
attendance on evaluation forms. No reason is suggested by the
evidence for why Gruling would not have made a like comment
on White’s July evaluation, had Gruling truly believed that
White’s attendance was so bad that termination was warranted.
Yet, there is no attendance criticism on White’s “Employee
Evaluation” for 1998. Furthermore, Vandre admitted that he
had never recommended that White be terminated.
In July Gruling evaluated White as “Meet[ing] Standards” in
the subcategories of “Ability to perform job(s) assigned and
follow instructions,” “Demonstrates quality workmanship in
job(s) assigned,” and “Is tactful and sensitive to the needs and
feelings of others.” Respondent presented no evidence of any
decline in White’s performance thereafter. Yet, Vandre rated
White “4. Needs Improvement etc.” for “Attitude,” for “Com-
plying with orders and direction,” and for “Supervision re-
quired,” as well for “Exhibits a high ratio of output to input
(Productivity).” In the course of reviewing those ratings, there
is no evidence that Gruling made even an effort to ascertain the
reasons for those seeming disparities between Vandre’s Sep-
tember ratings in those areas and his (Gruling’s) own ratings in
similar areas less than 3 months earlier, even though in July
Gruling had given a “Positive” overall rating to White and had
recommended him for continued employment with Respondent.
As pointed out above, Dotseth apparently had not been re-
garded by Gruling in July as a model employee. Gumz’s as-
sessment of Dotseth is seemingly consistent with that evalua-
tion. Thus, the highest ratings received by Dotseth were “3.
Competent etc.” for only two categories: Versatility” and “At-
tendance & Tardiness.” In contrast, Gumz rated Dotseth as “5.
Unsatisfactory etc.” in two categories—“Quality of workman-
ship” and “Attitude”—and as “4. Needs Improvement etc.” in
the other five categories. Yet, as poor as Gruling might have
viewed Dotseth’s performance by, at least, July, there is no
evidence that Gruling ever had recommended that Dotseth be
terminated for poor performance. To the contrary, he recom-
mended a wage increase in July for Dotseth, as set forth above.
In fact, since having started working for Respondent on De-
cember 1, 1997, Dotseth had received a total of $1.50 an hour
in pay increases. Moreover, Gumz’s obvious effort to buttress
Respondent’s defense for Dotseth’s layoff gives rise to prob-
lems for relying upon Gumz’ testimony.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 194
At one point Gumz asserted that Dotseth “was the less pro-
ductive out of all the ones that I have. I felt he was the low-
est—how can I word it? I just felt he was the less [sic] produc-
tive, I guess that’s—out of all the people.” Yet, for “Exhibits a
high ratio of output to input (Productivity),” Gumz gave the
same rating to Kim Sloan as he gave to Dotseth: “4. Needs
Improvement, etc.” If Dotseth truly had been the least produc-
tive Bay 2 production employee, Gumz never explained why he
had not given a lower rating in that category to Dotseth than he
gave to Sloan. Moreover, it should not escape notice that, in
contrast to his above-described 1997 evaluation comment about
Radish’s need “to increase your productivity,” Gruling had
made no like comment on Dotseth’s July evaluation. Small
discrepancy, perhaps. Except that it does not stand alone.
Asked about his “5. Unsatisfactory—Termination of em-
ployment” rating for Dotseth’s “Attitude,” Gumz testified that
it had was based upon Dotseth having been purportedly “late—
tardy.” It then was pointed out to Gumz that he had given a “3.
Competent etc.” rating to Dotseth for “Attendance & Tardi-
ness,” a rating hardly consistent with that “Attitude” explana-
tion. A by-then seemingly flustered Gumz tried to recover by
testifying, “Oh, okay. I guess that’s where I was—I was [sic]
kind of figured that was an attitude problem if you are possibly
not being on the job or something. That’s the way I looked at
it.” Yet, that was not truly a satisfactory explanation.
At best, Respondent’s records disclose that Dotseth had been
tardy for work twice during 1998, prior to September 22. In
contrast, Gumz had rated Bay 2 employee Jay A. Schmidt as
“2. Commendable etc.” for “Attendance & Tardiness” and “3.
Competent etc.” for “Attitude,” even though Schmidt had been
tardy during 1998 on June 10, 17 and 25, and on July 1, 8, 21
and 29, according to his 1998 Absentee calendar. Gumz never
explained those discrepancies between his ratings for Dotseth
and Schmidt.
He did make an effort to explain having accorded Michael J.
Arrowood a “2. Commendable etc.” rating for “Attitude” when
the latter had been tardy on May 8 and 20, on June 8, and on
September 16—twice as often as Dotseth—and for having
given a “3. Competent etc.” rating to Jonathan P. Arrowood
who, like Dotseth, had twice been tardy during 1998, prior to
September 22: on July 8 and on July 13. “They apparently had
doctor’s excuses and stuff that I was aware of. That’s—it was
brought to my attention. They had excuses at the time,”
claimed Gumz. Yet, although included among personnel re-
cords for Jonathan Arrowood are medical center excuses for
absences on July 2 and 31, no similar excuses are included for
his July 8 and 13 tardinesses. And no medical excuses whatso-
ever are among the personnel records introduced for Michael
Arrowood, even though he had nine absences during 1998,
before September 22, in addition to his four tardinesses. None-
theless, for “Attendance & Tardiness” Gumz awarded Michael
J. Arrowood a rating of “2. Commendable—Exceeds accept-
able job requirements.”
Gumz got into further difficulty when he tried to explain
other aspects of his ratings for Dotseth. Asked to explain his
reason for rating Dotseth “5. Unsatisfactory etc.” for “Quality
of workmanship,” Gumz first answered that Dotseth “just
seemed to spend a lot of time taking too long to do stuff”—an
explanation seemingly more pertinent to productivity than to
quality of work. In fact, that was pointed out to Gumz. He
responded, “Well, quality, if it isn’t up there and he has got to
do something over on it’s just not working out,” but then testi-
fied, “well, if he put on clips—I felt when he done [sic] some-
thing—how would I say that—it only should take maybe 15
minutes. It took him half an hour or longer to do something,”
and, “It just seemed to be on a slower scale.” Of course, those
answers still pertain to productivity, not work quality. And,
interestingly, for “Exhibits a high ratio of output to input (Pro-
ductivity),” Gumz gave Dotseth a “4. Needs Improvement etc.”
rating, not a “5. Unsatisfactory etc.” rating, as might be ex-
pected had Gumz been testifying truthfully about his “Quality
of workmanship” rating for Dotseth. Gumz’s last word about
the latter was, ‘Well, that and the quality I guess too. If—how
would I say it? I just—that’s just the way I rated him I guess.”
It should not be overlooked that, as mentioned above, Re-
spondent possesses “records of” job errors and quality control
documents, as Wisniewski conceded: “We do keep records of
rework. We have to keep it for our standards that we keep out
there.” Yet, not only did Gumz not look at such records when
rating Dotseth, but no such records of “rework” by Dotseth
were produced during the hearing.
Finally, after having rated employees in his bay, Vandre and
Gumz ranked them, as mentioned above. Based upon the rat-
ings assigned to each, the leadmen’s rankings are not illogical.
But, as pointed out above, Vandre turned in a ranking that
placed Wiroll and Cleveland at the same rank, number 4. In
fact, both had been rated “4. etc.” in two categories, “2. etc.” in
three categories, and in four categories both had received rat-
ings of “3. etc.” Of course, the particular categories in which
those ratings were received varied between Wiroll and Cleve-
land. Still, neither Wisniewski nor, of course, Gruling testified
that particular categories had been accorded greater weight than
others, in their process of partially re-ranking some of the Bay
1 and Bay 2 production employees. Nor did either superinten-
dent explain why they had decided to elevate Wiroll to the
number 3 rank in Bay 1, even though that left him ranked
higher than other Bay 1 employees who had received better
overall ratings than had Wiroll, such as Bierman and Neitzel.
What was accomplished by elevating Wiroll’s rank to number 3
in Bay 1 is that it left some space between his ranking and that
of the similarly-rated Cleveland who ended up ranked number 6
in Bay 1. That, then, left Cleveland, Radish and White as the
lowest-ranking Bay 1 welder/fabricators and, of course, left
Dotseth as the lowest-ranking Bay 2 welder/fabricator.
II. DISCUSSION
Following the methodology set forth in section I.A, above,
the General Counsel has presented evidence showing that ani-
mosity toward their activities on behalf of the Union had moti-
vated selection of Radish, Cleveland, White, and Dotseth for
permanent layoff on September 22. As described in section I.C,
above, the evidence shows that all four of those employees had
been active on behalf of the Union and, moreover, that Respon-
dent had knowledge of their support for the Union. Thus,
Wisniewski admitted that he had known that Radish, White,
and Cleveland were supporting the Union. Neither Wisniewski
MERRILL IRON & STEEL 195
nor any other witness for Respondent denied having known
also about Dotseth’s support for the Union. To the contrary,
Wisniewski had told Lang during May that Dotseth “was one of
the union organizers.”
It is accurate that there is not extensive direct evidence of ani-
mus. Still, as pointed out in section I.A, above, direct evidence
of it is not essential to conclude that a respondent harbored hostil-
ity toward a union and its employee-supporters. Animus can be
inferred. “Even without direct evidence, the Board may infer
animus from all the circumstances.” (Citation omitted.) Elec-
tronic Data Systems Corp., 305 NLRB 219, (1991).
One fact which does provide direct evidence of animus is
unlawful statements by an employer’s supervisors and agents—
statements which violated Section 8(a)(1) of the Act because
they naturally tend to interfere with, restrain, or coerce employ-
ees in the exercise of rights protected by Section 7 of the Act.
See, e.g., Greyston Bakery, Inc., 327 NLRB 433 fn.1 (1999);
Lemon Drop Inn, 269 NLRB 1007, 1007 (1984), and cases
cited therein. As concluded in section I.C, supra, Respondent
did violate the Act when Wisniewski unlawfully threatened that
Dotseth “would be gone” because he “was one of the union
organizers and . . . figured he was going to be the union presi-
dent if the [U]nion went through.”
True, that threat had been made on May 4 and Dotseth was
not permanently laid off until September 22, almost 5 months
later. Nonetheless, Wisniewski’s comment is not so remote in
time from Dotseth’s layoff that, as a matter of law, the threat
cannot be taken into account in evaluating motivation on Sep-
tember 22. See, e.g., Webb’s Industrial Plant Service, 260
NLRB 933, 938 (1982). Cf. Meritor Automotive, Inc., 328
NLRB 813 fn. 4 (1999). Moreover, although it seems that
Gruling had been the official who actually had distributed as-
sessment forms to Bays 1 and 2 leadmen for completion,
Wisniewski had been involved, along with Gruling, in review-
ing the completed assessment forms and, so far as the record
shows, in making the final selection of welder/fabricators to be
laid off on September 22. There is no evidence that by that
date Wisniewski had felt any less hostile toward Dotseth, be-
cause of the latter’s support for the Union—and, for that matter,
toward the Union’s supporters, in general—than he
(Wisniewski) had felt on May 4. Thus, the fact that
Wisniewski had not carried out his threat before the representa-
tion election does not, of itself, somehow erase the possibility
that he had implemented it after that election.
Aside from Wisniewski’s May 4 threat, many of the objec-
tive factors which tend to show unlawful motivation are also
ones which support an inference of animus: the only production
employees permanently laid off on September 22 were ones
who had been activists for the Union, those layoffs were ef-
fected less than 3 weeks after the September 3 representation
election and less than 2 weeks after certification of that elec-
tion’s results, the layoffs occurred abruptly near the beginning
of a pay period, all four alleged discriminatees were listed as
not eligible for rehire because of “performance” even though
their layoffs assertedly were for no reason other than reduction
in force, work from Havens had been newly acquired and em-
ployees left in the alleged discriminatees’ bays were obliged to
work not insignificant amounts of overtime after September 22,
over the following 2 months Respondent hired two fabricators,
and, as described in section I, subsections D and E, supra, Re-
spondent presented a defense characterized at various points by
internal contradictions, by inconsistencies between accounts by
its witnesses and between their accounts and objective consid-
erations, by lack of corroboration for significant aspects of that
defense, and by failure to provide testimony and documentary
evidence, seemingly within its ability to do so, pertaining to
important aspects of a reliable defense in the circumstances.
Not to be overlooked, in addition, is Kenneth Hinner’s Sep-
tember prediction to Truss: that Respondent would be
“get[ting] rid of some of the f_____g union sympathizers.”
Unfortunately Kenneth Hinner is in no position to exercise
supervisory authority nor to make personnel decisions for Re-
spondent. Yet, as a member of the family which owns Respon-
dent and as a member in September of its board of directors,
Hinner was in a position to be privy to decisions which his
brothers and father were making. So far as the record discloses,
at no time prior to September had Kenneth Hinner made the
type of remark which he made during that month to Truss. And
there is no basis for inferring that Kenneth Hinner had simply
made up the prediction which he articulated to Truss. After all,
shortly after he predicted that “some . . . union sympathizers”
were going to gone, four of them were permanently laid off.
The totality of the foregoing factors provide ample support
for a conclusion that Respondent had harbored animus toward
employees who had been supporting the Union. They provide,
as well, evidence sufficient to infer that Respondent’s motiva-
tion for permanently laying off Radish, Cleveland, White, and
Dotseth had been an unlawful one.
True, those layoffs occurred after the Union had already lost
the representation election and, under Section 9(c)(3) of the
Act, another election could not be directed in that same unit for
a year. Accordingly, it might seem that Respondent would
have no immediate concern about confronting another election
and, in turn, no motive to layoff union activists. Nevertheless,
of themselves, those considerations do not leave Respondent
impregnable against a conclusion of unlawful motivation.
Retaliation for past union activity, even when continuation of
it seems not to be imminent, is a long-recognized motivation
which, of course, is unlawful under the Act. See, e.g., NLRB v.
Carbonex Coal Co., 679 F.2d 200 (10th Cir. 1982); Atlas Rail-
road Construction Co., 262 NLRB 1206 (1982). In fact, “tim-
ing of [an] incident, which came immediately after the elec-
tion” was held by the Board to support a conclusion of dis-
crimination in Huttig Sash & Door Co., 263 NLRB 1256, 1257
(1982).
While occurring less commonly than retaliation situations,
there also have been situations where the unlawful motivation
conclusion was based upon a respondent’s intention to fore-
close the possibility of future organizing activity, even though
the representation election process had already been completed.
See, e.g., MDI Commercial Services, 325 NLRB 53, 75 (1997),
enfd. in pertinent part 175 F.3d 621 (8th Cir. 1999), and cases
cited therein. In fact, in that case the Circuit Court endorsed
specifically a conclusion of unlawful motivation based upon an
effort “to discourage future organizing activity.” (175 F.3d at
625.) Obviously, permanently laying off “some . . . union
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 196
sympathizers” would accomplish such an objective, by
“get[ting] rid of” employees who had demonstrated a desire to
become represented by a union.
Those September 22 permanent layoffs served the added
purpose of discouraging employees who remained from engag-
ing in such activities in the future. Permanent layoff of even
some of the Union’s activists would naturally “send a message
to the [remaining] employees,” NLRB v. McClain of Georgia,
Inc., 138 F.3d 1418, 1423 (11th Cir. 1998), about what they
might suffer should they participate in the same types of statu-
torily-protected activities as had Radish, Cleveland, White, and
Dotseth. Inherently, such a message would enable Respondent
to “so extinguish seeds” during 1998 that it “would have no
need to uproot [the] sprouts” of renewed union activities in
succeeding years.” Ethan Allan, Inc. v. NLRB, 513 F.2d 706,
708 (1st Cir. 1975). After all, not everyone confines his think-
ing to the immediate future; many people do plan for what may
happen a year or more in the future.
In that regard, Respondent had been put on notice that suc-
cessive representation petitions could be filed. As set forth at
the beginning of section I.C, above, the petition in Case 18–
RC–16299 had been filed on May 29 but withdrawn on June 9,
only to be followed by the July 29 filing of the petition in Case
18–RC–16338. Accordingly, Respondent’s awareness of the
fact that successive representation petitions can be filed is not
simply some sort of abstract inference about state of mind. The
filing of two successive petitions provided Respondent with a
graphic showing that such petitions could be filed in the future,
albeit not in the immediate one.
In sum, I conclude that the General Counsel has satisfied the
burden of showing that antiunion animus had motivated the
permanent production layoffs on September 22. As pointed out
in section I.A, above, the burden then shifted Respondent to
credibly show legitimate reason(s) for those layoffs—to show
that it would have laid off Radish, Cleveland, White, and Dot-
seth even had there been no union activities by any of them.
This Respondent failed to do.
No doubt Respondent has provided evidence of a “good”
reason for reducing its force of Schofield production employ-
ees. It had suffered significant losses by September. Its line of
credit had been halved, impairing its ability to attract the very
type of business it had relocated custom steel fabrication opera-
tions to Schofield to be able to attract. Interest had been raised
on what remained of that line of credit. Faced with such a
situation, cost-savings would be a logical course for an em-
ployer to pursue and, within that overall course, reduction in
force would be a logical component to save costs. However, as
pointed out in section I.A, above, “mere presence of legitimate
business reasons,” J.P. Stevens & Co.. v. NLRB, supra, does not
suffice to satisfy the burden imposed under the Wright Line
methodology; it is “’real’ reasons,” not simply “’good’ reason,”
which must be shown. Hugh H. Wilson Corp. v. NLRB, supra.
Accordingly, it must be to the explanation of Respondent’s
witnesses and other evidence, for having chosen to effect the
first layoffs of employees in its history for lack of work, that
analysis must be directed.
As shown by the descriptions in subsections D. and E. of
section I., above, when more than superficial attention is paid to
the accounts of those witnesses, Respondent’s defense virtually
implodes. President Roger E. Hinner Jr. claimed that he had
directed that maintenance staff be cut in half and that “all of the
[other] employment [be reduced] by 20–30 percent.” But, in
the end, only four of approximately 97 production employees
suffered permanent layoff thereafter. Indeed, when given in-
structions, supposedly implementing that directive by Respon-
dent’s president, Wisniewski admitted that he had been told to
select only four or five production employees for permanent
layoff. Those inconsistencies—between directive, on the one
hand, and instruction to Wisniewski and actual number of pro-
duction employees permanently laid off, on the other—are left
unexplained.
To be sure, substantial reduction in the number of production
employees eventually resulted through attrition. Yet, if Re-
spondent had been willing to wait for attrition to accomplish
reduction in force of its production employees, then unex-
plained is its September haste to permanently layoff only a
relatively few of them—only four of approximately 97 produc-
tion employees and, at that, all four of whom had been active
on behalf of the Union.
Beyond that, the production employees’ layoffs were por-
trayed by Respondent as having been one aspect of an overall
layoff of all employees of the Schofield facility. Yet, imple-
mentation of those layoffs shows something other than a single,
overall layoff. Layoffs of maintenance employees were ef-
fected near the end of one pay period; layoffs of the four pro-
duction employees were not effected until near the beginning of
the next pay period. Of course there could have been legitimate
reasons for separating maintenance layoffs from the production
ones. But, none was advanced by Respondent and, as pointed
out already, it would be improper to supply an explanation not
advanced by Respondent’s witnesses.
In that connection, one additional point should not be over-
looked. Even had there been a legitimate reason for separating
maintenance from production layoffs, such as administrative
convenience, that would not explain the separation of assess-
ments-preparation for the two groups of employees. In other
words, even were it to be speculated that Respondent had a
legitimate reason for separating the actual layoff of mainte-
nance employees from that of production employees, such a
reason would seemingly not explain why assessments of main-
tenance employees had been made during the pay period ending
September 19, while “Employee Assessment” forms for Bays 1
and 2 production employees were not even distributed for com-
pletion until the afternoon of the first day of the following pay
period. Even had there been no intention to effect permanent
layoffs of production employees until the pay period after those
for maintenance employees, surely that would not have pre-
vented simultaneous distribution of “Employee Assessment”
forms to all assessors.
As suggested in section I.D, above, it may be that Respon-
dent deferred planned September 18 layoffs of production em-
ployees after hearing about Kenneth Hinner’s statements to
Truss—statements which, of course, were reported to Gruling
and, in turn, to Human Resources Director Lance Rick. In such
a situation, an employer might postpone scheduled Friday lay-
offs in an effort to avoid the appearance of committing an un-
MERRILL IRON & STEEL 197
fair labor practice, at least to the extent of changing the pre-
dicted layoff day. Again, however, that is one explanation
which none of Respondent’s witnesses advanced. To so con-
clude would be nothing more than sheer speculation and, con-
comitantly, improper analysis.
Even had such an explanation been advanced, it would not
extricate Respondent from the seeming inconsistency arising
from assessment of the maintenance layoffs earlier than pro-
duction employees. Moreover, Bays 1 and 2 employees were
not assessed until Monday, September 21. Yet, Kenneth Hin-
ner had known by “about the second week of September” how
their assessments were going to turn out. He predicted to Truss
that Respondent would be “get[ting] rid of some . . . union sym-
pathizers.” That turned out to be the fact: the lowest Bays 1
and 2 rankings were assigned to Radish, Cleveland, White, and
Dotseth; those “union sympathizers” then were permanently
laid off, purportedly based upon those low rankings.

While Roger E. Hinner Jr. claimed that he had directed a 20
to 30 percent reduction in “all of the employment,” other than
maintenance, the fact was that Gruling and Wisniewski did not
look to all Schofield production employees when selecting
which ones would be permanently laid off. They looked only
to Bays 1 and 2—where, of course, the four union activists
were nominally assigned. Gruling, of course, advanced no
explanation for this pool of employees narrower than the one
which Respondent’s president had assertedly directed be con-
sidered. Wisniewski offered the explanation that Bay 3 em-
ployees were needed to perform the heavy truss work required
by the Havens subcontract. Whatever else may be thought of
the objective validity of that explanation, it hardly serves to
explain why employees nominally assigned to other bays and
areas of the Schofield facility were not considered, based upon
their completed assessments, when choosing the production
employees to be permanently laid off. So far as the record
shows, layoff-choice was confined only to production employ-
ees nominally assigned to Bays 1 and 2, and to no other em-
ployees not then nominally assigned to Bay 3.
Exclusion of Bay 3 production employees, for consideration
in selecting production employees for layoff on September 22,
is significant in another respect. If they truly had been ex-
cluded from consideration because they were needed for the
Havens work, then Respondent obviously knew by September
22 that it had been chosen to perform that heavy truss work.
Thus, although the General Motors job had been completed by
mid-September, Respondent knew by September 22 that an-
other job would be replacing it—that the “hole coming up in
our production right after the General Motors job,” as Roger E.
Hinner Jr. put it, was definitely going to be narrowed, if not
altogether filled, by, as Hinner admitted, “a similar job” which
Havens initially had been scheduled to perform for General
Motors, but which was being subcontracted to Respondent.
In addition, Respondent concedes that there had been ongo-
ing work that continued to be performed at the Schofield facil-
ity on the Bronson job. In fact, whatever weight might other-
wise be accorded to Respondent’s summary of total shop hours
for post-September 22 work, described in section I.D, above,
the YTD Detail P/R Registers are more concrete records of
hours worked by Bays 1 and 2 production employees after that
date. And those registers reveal that during those post-
September 22 workweeks Bays 1 and 2 employees worked not
insignificant amounts of overtime, as also described in section
I.D, above.
In sum, even if one or more of the foregoing factors be
minimized or, even, explained away for Respondent, the total-
ity of remaining ones illustrates the unreliability of Respon-
dent’s defense that production employees’ layoffs had been
based on nothing more than legitimate business considerations
in light of an adverse business situation. Having weathered a
seemingly earlier September drought in work for Schofield
production employees—one which Respondent absorbed, as in
the past, by having assigned busy-work to those employees and
by sending some home for the day—Respondent knew by Sep-
tember 22 that production work was going to be available, a
fact which was effectively announced by Gruling when saying,
during the afternoon of September 21, that there was “plenty of
work.”
In view of all of the circumstances, I conclude that Respon-
dent has failed to credibly show that its business situation as of
September 22 had actually motivated it to decide to layoff pro-
duction employees on that date. Rather, while Respondent had
been experiencing an adverse business situation by September
22, its witnesses have not credibly shown that that adverse
business situation had led it to decide to change past practice by
permanently laying off production employees—that such a
decision would have been made, even absent the union activi-
ties which had taken place. Instead, I conclude that Respondent
utilized its business situation as a springboard for advancing a
defense of production-employee-layoffs which would not truly
have occurred had it not wanted to “get rid of some . . . union
sympathizers.”
That conclusion should terminate the need for further discus-
sion of the September rating, ranking and layoff selection proc-
ess, since obviously that process would not have been even
carried out for production employees had there not be a unlaw-
fully-motivated decision to “get rid of some . . . union sympa-
thizers.” Still, some points about that process should not pass
without some discussion, in light of what has been said in sec-
tion I.E, above, since they reinforce a conclusion that Respon-
dent’s motivation had been unlawfully pretextuous.
All Schofield production employees, certainly those nomi-
nally assigned to Bays 1 and 2, had been evaluated in early
July. In view of those relatively recent ratings, Respondent
never explained why, less than 3 months later, it had decided to
once more rate those same employees. Seemingly, rankings
could have been made on the basis of the July evaluations, as
augmented by the subjective impressions of leadmen and super-
intendents.
True, as pointed out in section I.E, above, the “Employee
Assessment” forms do contain the “4. Needs Improvement etc.”
rating, between the rating categories of “3. Competent etc.” and
“5. Unsatisfactory etc.” which was not available on the “Em-
ployee Evaluation” forms between the ratings of “Meets Stan-
dards” and “Unsatisfactory.” Yet, Respondent never advanced
more finely tuned ratings as having been the, nor even a, reason
for designing and utilizing completely new forms for the Sep-
tember assessments. Once again, therefore, to reach such a
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 198
conclusion, or even to infer it, would be to supply an explana-
tion which Respondent has not provided. And absent such an
actually advanced explanation, the record is left with no reason
whatsoever for Respondent’s preparation and use of the “Em-
ployee Assessment” forms.
One reason for preparation and use of those forms is suggested
by the evidence. The four discriminatees’ July evaluations had
not been so adverse—viewed on an absolute basis nor when
compared with other Bay 1 and 2 employees’ July evaluations—
that they could be said to have naturally dictated their selections
for permanent layoff on September 22, as opposed to selecting
other production employees instead. Thus, creation and use of
the “Employee Assessment” forms allowed Respondent to, in
effect, rerate Radish, Cleveland, White, and, even, Dotseth more
harshly than had been done during July and to buttress a defense
that their selection had naturally resulted from adverse ratings in
the nine categories on that September form.
Such a conclusion is reinforced by another factor: the identi-
ties of Bays 1 and 2 assessors. So far as the record discloses,
never prior to September had Respondent chosen to have lead-
men rate production employees. The ratings on past annual
evaluations had been made by Gruling, at least while he had
been employed as plant superintendent during 1998 and prior
years. Yet, had he prepared the September assessments, and
given the low ratings to the four discriminatees which are de-
scribed in section I.E., above, Respondent would have con-
fronted inconsistencies between assessments and evaluations.
Gruling would have been forced to try to explain those incon-
sistencies. That could be avoided by having someone else—
even nonsupervisory personnel, such as leadmen—prepare the
assessment ratings. Even were it to be argued that such a con-
clusion partakes of speculation to some extent, given the evi-
dence presented it is the only logical inference available for a
change from seemingly past ratings practice. Having leadmen
prepare the September ratings allowed Respondent to advance a
defense uncluttered by previous ratings made by those leadmen.
Nonetheless, Vandre and Gumz did not do a very reliable job
of rating Bays 1 and 2 production employees. As described in
section I.E, above, there were inconsistencies between some of
their ratings and those made less than 3 months earlier by Grul-
ing. There were ratings-inconsistencies between employees in
the same bay in the same categories. There were inconsisten-
cies between ratings and Respondent’s records, such as for
attendance. Respondent apparently tried to escape the latter by
claiming that Vandre and Gumz, at least, had not bothered to
look at any records when preparing their assessments. Yet, that
is not so acceptable an explanation as Respondent seeks to have
accepted.
To accept Respondent’s overall defense, there had been a de-
cision to take an unprecedented action: in the face of adverse
business conditions, to select production employees for layoff
due to a purported lack of work. Entirely new forms were pre-
pared to implement that supposed decision. Those forms were
filled out, both rating and ranking employees. Simple logic
would dictate that, against such a background, at least minimal
care would have been exercised by assessors, as well as re-
viewers, to ensure that thoughtful ratings and rankings were
made. But, the process was implemented with seemingly scant
thoughtfulness. Vandre and Gumz spent little time completing
their assessments. They looked at no records whatsoever when
preparing them. When pressed for explanations of particular
ratings, neither one was able to provide responsive and logical
ones. In consequence, after having seemingly great care had
been taken to design a rating and ranking process, its imple-
mentation was almost cavalier, leaving an impression that im-
plementation was more result-oriented, than legitimately moti-
vated.
In sum, the General Counsel has shown that animus toward
their union activities had motivated selection of Radish, Cleve-
land, White, and Dotseth for permanent layoff on September
22. Respondent has failed to credibly show that production
employees, in general, and those four production employees, in
particular, would have been permanently laid off on September
22 had there been no prior campaign by the Union and in-
volvement in it by those four discriminatees. Given those con-
clusions, and viewing the evidence in its totality, I conclude
that a preponderance of the credible evidence establishes that
Respondent had been unlawfully motivated in selecting Radish,
Cleveland, White, and Dotseth for permanent layoff on Sep-
tember 22, thereby violating Sections 8(a)(3) and (1) of the Act.
CONCLUSIONS OF LAW
Merrill Iron and Steel, Inc., has committed unfair labor prac-
tices affecting commerce by permanently laying off Jeff Rad-
ish, Michael L. White Sr., Clifford Cleveland Sr., and Ronald
G. Dotseth because of their support for and activities on behalf
of United Paperworkers International Union, AFL–CIO and to
discourage such activities in the future by employees, in viola-
tion of Section 8(a)(3) and (1) of the Act; and, by threatening
an employee that it intended to terminate another employees
because the latter was a union organizer and wanted to become
union president should employees chose to become repre-
sented, in violation of Section 8(a)(1) of the Act.
REMEDY
Having concluded that Merrill Iron and Steel, Inc., has en-
gaged in unfair labor practices, I shall recommend that it be
ordered to cease and desist therefrom and, further, to take cer-
tain affirmative actions to effectuate the policies of the Act.
With respect to the latter, it shall be ordered to, within 14 days
from the date of this Order, offer Jeff Radish, Michael L. White
Sr., Clifford Cleveland Sr., and Ronald G. Dotseth full rein-
statement to the positions which each of them held before being
discriminatorily laid off on September 22, 1998, dismissing, if
necessary, anyone who may have been hired or assigned to
perform their jobs, or, if any of their jobs no longer exists, to
substantially equivalent employment, without prejudice to sen-
iority or other rights or privileges.
Furthermore, within 14 days from the date of this Order, it
shall remove from its files any references to the unlawful per-
manent layoffs of Radish, White, Cleveland, and Dotseth on
September 22, 1998, and, within 3 days thereafter, it shall no-
tify each of those employees in writing that that has been done
and that their permanent layoffs will not be used against any of
them in any way.
MERRILL IRON & STEEL 199
In addition, it shall be ordered to make Radish, White,
Cleveland and Dotseth whole for any loss of earnings and other
benefits suffered as a result of the discrimination directed
against them, with backpay to be computed on a quarterly ba-
sis, making deductions for interim earnings, F. W. Woolworth
Co., 90 NLRB 289 (1950), and with interest to be paid on
amounts owing, as computed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).
On the foregoing findings of fact and conclusions of law and
on the entire record, I issue the following recommended2
ORDER
The Respondent, Merrill Iron and Steel, Inc., Schofield,
Wisconsin, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Permanently laying off, discharging, or otherwise dis-
criminating against Jeff Radish, Michael L. White Sr., Clifford
Cleveland Sr., or Ronald G. Dotseth, or against any other em-
ployee, because of support for or activities on behalf of United
Paperworkers International Union, AFL–CIO, or any other
labor organization, or to discourage employees from extending
such support or engaging in such activities in the future.
(b) Threatening to terminate employees because of their un-
ion activities or anticipated union activities.
(c) In any like or related manner, interfering with, restrain-
ing or coercing employees in the exercise of rights guaranteed
them by the National Labor Relations Act.
2. Take the following affirmative action to effectuate the
policies of the Act.
(a) Within 14 days from the date of this Order, offer Jeff
Radish, Michael L. White Sr., Clifford Cleveland Sr., and
Ronald G. Dotseth full reinstatement to each one’s former posi-
tion or, if one or more of those positions no longer exists, to a
substantially equivalent position, without prejudice to seniority
or any other rights or privileges.
(b) Make Radish, White, Cleveland, and Dotseth whole for
any loss or earnings and other benefits suffered as a result of
the discrimination against each of them, in the manner set forth
in the remedy section of this decision.
(c) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records, including an
electronic copy of the records if stored in electronic form, nec-
essary to analyze the amounts of backpay due under the terms
of this Order.
(d) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful permanent layoffs of
Radish, White, Cleveland, and Dotseth on September 22, 1998,
and within 3 days thereafter notify each one of them in writing
that this has been done and that those permanent layoffs will
not be used against any of them in any way.

2 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.
(e) Within 14 days after service by the Region, post at its
Schofield, Wisconsin facility copies of the attached notice
marked “Appendix.”3 Copies of the notice, on forms provided
by the Regional Director for Region 18, after being signed by
its duly authorized representative, shall be posted by Merrill
Iron and Steel, Inc., and maintained for 60 consecutive days in
conspicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by it to ensure that notices are not altered, defaced or
covered by any other material. In the event that, during the
pendency of these proceedings, Merrill Iron and Steel, Inc. has
gone out of business or closed its Schofield facility involved in
these proceedings, it shall duplicate and mail, at its own ex-
pense, a copy of the notice to all current employees and former
employees employed by it at the Schofield facility at any time
since May 5, 1998.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that it
has taken to comply.
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
To bargain collectively through representatives of their
own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected con-
certed activities.

WE WILL NOT threaten to terminate employees because of
support for or activities on behalf of United Paperworkers In-
ternational Union, AFL–CIO, or any other union, not because
we believe that employees may engage in such support or ac-
tivities.
WE WILL NOT permanently lay off, discharge, or otherwise
discriminate against Jeff Radish, Michael L. White Sr., Clifford
Cleveland Sr., Ronald G. Dotseth, or any other employee be-
cause of support for or activity on behalf of the above-named
union, or any other union, nor to discourage such support or
activities in the future.
WE WILL NOT in any like or related manner, interfere with,
restrain, or coerce you in the exercise of your rights guaranteed
by the National Labor Relations Act.
3 If this Order is enforced by a judgment of a United States Court of
Appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 200
WE WILL, within 14 days from the date of the Order, offer
Jeff Radish, Michael L. White Sr., Clifford Cleveland Sr., and
Ronald G. Dotseth full reinstatement to their former jobs or, if
one or more of those jobs no longer exist, to a substantially
equivalent position, without prejudice to seniority or any other
rights or privileges that would have been enjoyed had we not
unlawfully discriminated against them.
WE WILL make Jeff Radish, Michael L. White Sr., Clifford
Cleveland Sr., and Ronald G. Dotseth whole for any loss of
earnings and other benefits resulting from our discrimination
against them, less any interim earnings, plus interest.
WE WILL, within 14 days from the date of the Order, re-
move from our files any reference to the unlawful permanent
layoffs of Jeff Radish, Michael L. White Sr., Clifford Cleveland
Sr., and Ronald G. Dotseth, and WE WILL, within 3 days
thereafter, notify each one in writing that this has been done
and that our unlawful action will not be used against him in any
way.
MERRILL IRON AND STEEL, INC.