Mustangs Unlimited, Inc.

National Labor Relations Board - Administrative Judge Opinions

Aug 21, 2007

34-CA-011378 (N.L.R.B. Aug. 21, 2007)

JD–57–07
Manchester, CT
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
MUSTANGS UNLIMITED, INC.
and
MICHAEL ROUSH, an Individual Case 34–CA–11378
DAVID GASTON, an Individual Case 34–CA–11441
Thomas E. Quigley, Esq., for the General Counsel.
Thomas R. Gibbons, Esq. (Jackson Lewis, LLP), of
Hartford, Connecticut, for the Respondent.
DECISION
STATEMENT OF THE CASE
JOHN T. CLARK, Administrative Law Judge. This case was tried in Hartford, Connecticut,
on February 13 and 15. The charge in case 34–CA–11378 was filed by Michael Roush on
January 5, 2006, and amended on February 13, March 10, and May 22. The charge in case 34–
CA–11441 was filed by David Gaston on March 3, 2006, and amended on May 30. The
consolidated complaint issued June 29, 2006. The consolidated complaint alleges that Mustangs
Unlimited, Inc. (the Respondent) violated Section 8(a)(1) and (3) of the National Labor Relations
Act (the Act), by discharging Gaston on December 31, 2005
1
because of his protected concerted
and union activities, and Section 8(a)(1), (3), and (4) by discharging Roush because of his
protected concerted and union activities and previous filing of National Labor Relations Board
(NLRB) charges and giving testimony under the Act. The complaint also alleges that on various
dates in October and December the Respondent threatened employees with discharge for
discussing their wage rates with each other, and that since about October 7 the Respondent has
unlawfully maintained a work rule forbidding employees to discuss their wage rates with each
other in violation of Section 8(a)(1).
On the entire record, including my credibility determinations based on the demeanor of
the witnesses, as well as my credibility determinations based on the weight of the respective
evidence, established or admitted facts, inherent probabilities, and inferences drawn from the
record as a whole and, after considering the briefs filed by the General Counsel2 and the
Respondent, I make the following

1 All dates are in 2005 unless otherwise indicated.
2Counsel for the General Counsel’s unopposed motion to correct the transcript is granted, except for
the correction on p. 90, L. 7. When read in the context of the preceding and following testimony it is
evident that the witness is stating that interest in the union had “waned,” as transcribed. Additionally, the
question attributed to myself on p. 149 should be attributed to counsel for the General Counsel.
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FINDINGS OF FACT
I. JURISDICTION
The Respondent, a Connecticut corporation, with an office and place of business in
Manchester, Connecticut, herein called its facility, has been engaged in the business of selling
auto parts. During the 12-month period ending May 31, 2006, the Respondent, in conducting its
business operations described above, derived gross revenues in excess of $500,000. During the
12-month period ending May 31, 2006, the Respondent, in conducting its business operations
described above, sold and shipped from its facility goods valued in excess of $5000 directly to
points outside the State of Connecticut. The Respondent admits and I find that it is an employer
engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the
United Food and Commercial Workers Union Local 919 (the Union) has been a labor
organization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The 8(a)(1) Allegations
The following facts are not in dispute. On or about October 7 Warehouse Manager
Robert Sharp, an admitted supervisor, notified Roush that he was to received a raise. It is
undisputed that Sharp told Roush: “This is your raise and remember, as always, talking about
raises is a fireable offense.” Approximately a week later Roush and coworker Jim Scott were
discussing their raises. Sharp heard Scott complaining about his raise and told him: “Jimmy,
watch it! You can get fired for that.”
On December 5 Sharp spoke to Gaston regarding a scheduling matter. At the end of the
conversation Sharp said: “I heard through the grapevine that you were discussing pay raises . . . .
You know we could fire you for that, we could let you go for that.” Sharp advised Gaston that
no action would be taken against him because Sharp’s informants apparently had not written a
report regarding the incident. Gaston had been talking about his wages with other employees. In
an “Employee Discussion Report” Sharp notes: “[a]s a side note, Dave was informed that telling
others his hourly rate of pay or asking others what their hourly rate of pay is could be grounds
for termination of employment.”
At the hearing the Respondent amended its answer to admit the facts contained in
paragraphs 7 and 8 of the complaint “to the extent that employees were told it was a terminable
offense to discuss their wages.” In its brief the Respondent contends that the rule was never
enforced and that its limitations on wage discussions were withdrawn. The latter contention is
apparently based on Sharp’s “No” to the question posed by Respondent’s counsel “Now since
your communication with Mr. Gaston, is this something that continues?” Sharp also testified
that the reason he did not want people to talk about their wages was because “[n]ot everybody
makes the same amount of money. And when raises come out, not everybody gets them.”
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There is no question that the Respondent’s rule prohibiting employees from discussing
their wages constitutes a clear restraint on employees’ Section 7 right to engage in protected
concerted activities for mutual aid and protection concerning an undeniable significant term of
employment. Once it has been established that the Respondent’s rule adversely affects the
employees’ it is incumbent on the Respondent to demonstrate that legitimate and substantial
business justifications outweighed the employees’ Section 7 right. Waco, Inc., 273 NLRB 746,
748 (1984).
Sharp’s explanation–that employees do not receive the same wages, nor receive the same
wage increases, fails as a sufficient business justification for restricting employees in the exercise
of their Section 7 rights. Jeannette Corp., 532 F.2d 916, 919 (3d Cir. 1976), enfg. 217 NLRB
653 (1975) (“[D]issatisfaction due to low wages is the grist on which concerted activity feeds.
Discord generated by what employees view as unjustified differentials also provides the sinew
for persistent concerted action”).
Likewise the Respondent’s contention that there is no violation because no employee was
disciplined also fails. Waco, Inc., id. at 748 (In assessing the lawfulness of the [employer’s] rule,
we are not concerned with the subjective impact of the rule on particular employees. Instead, we
must determine whether the rule reasonably tended to coerce employees in the exercise of their
Section 7 rights . . . . (footnote omitted)).
To the extent that the Respondent has interpreted Sharp’s “No” as a repudiation of the
rule that contention is rejected. The Respondent did not acknowledge that the employees had a
Section 7 right to discuss their wages, or that the Respondent had infringed on that right.
Furthermore, it did not unambiguously and specifically repudiate that infringement, and it did
not assure employees against future interference by the Respondent in the exercise of their
Section 7 rights.
Accordingly, I find that there was “no repudiation of any kind,” by the Respondent and
that it violated Section 8(a)(1) of the Act when it unlawfully maintained and enforced a rule
prohibiting employees from discussing their wage rates with other employees. See generally
Rosdev Hospitality, Secaucus, LP, 349 NLRB No. 20, slip op at 1 fn. 3 (2007). I further find, as
alleged in the complaint, that the Respondent also violated Section 8(a)(1) when Warehouse
Manager Robert Sharp threatened employees Roush, Gaston, and Scott with discharge if they
talked about their wages with other employees.
B. The Layoffs
1. Background
The Respondent sells parts for classic automobiles, primarily by mail order. It employs
about 40 people in its Manchester, Connecticut facility. Chris Hoverman (spelled Hoeverman in
the transcript) is the Respondent’s president and owner. He works in the Respondent’s facility in
Lawrenceville, Georgia (GC Exh. 6). That facility is not involved in this proceeding and
Hoverman did not attend the hearing. Melissa Letendre is the managing director and the senior
official at the Manchester facility.
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The ground floor of the Manchester facility contains a showroom and cubicles for the
sales staff. The administrative offices are on the second floor. The warehouse is at the west end
of the facility and can be entered through the loading docks, the showroom, or the lunchroom.
The lunchroom is also called the break room. For reasons of simplicity and consistency
“lunchroom” will be used throughout this decision. The storage area consists of nine 160 foot
long aisles of 16 foot high steel pallet racks. The aisles are cut at 50-foot lengths to allow
crossover between the racks. The receiving area is at the end of the warehouse, near the loading
docks. The receiving area is where Warehouse Manager Robert Sharp and the assistant
warehouse manager, Eric Fredrickson, have their desks. It is also where the warehouse
employees do the packing, scanning, sorting and picking. The remainder of the warehouse is
used to store parts. The warehouse area takes up approximately 35,000 square feet of the 40,000
square foot facility.
On February 11, 2003, the Union filed a representation petition seeking to represent
approximately 31 of the Respondent’s regular part-time and full-time warehouse employees,
sales associates, and office clerical employees. The Union lost the March 14, 2003, election 29
to 8, with three challenged ballots. The Union filed objections to the election and, an unfair
labor practice charge mirroring the objections, case 34–CA–10397 (GC Exh. 3A). The Union
alleged that the Respondent unlawfully terminated employee Jordon Joy, and made various
threats and false statements regarding the Union. Pursuant to an informal settlement agreement,
containing a nonadmissions clause, all allegations were resolved (GC Exh. 3B). The parties also
agreed to set aside the results of the election and conduct a rerun election. On September 19,
2003, the Union lost the rerun election 26 to 8, and a certification of results of the election was
issued on September 30, 2003.
In October 2003 Roush initiated a group meeting with management to protest the
Respondent’s “kick-out” policy. The warehouse employees are paid only for hours worked.
After the day’s orders are filled the employees, if there are no miscellaneous duties to be
performed, must punch out and leave the building, hence the name “kick-out” policy. The
Respondent also has a policy that if an employee works less than 35 hours a week there is a
reduction in the amount of paid time off, such as vacation and holidays, and in the Respondent’s
contribution toward the employees’ health insurance premiums. Roush testified that before the
scheduled time of the meeting Sharp told him to gather his “comrades” together for the meeting.
During the meeting Roush asked the Respondent’s representatives if the warehouse employees
could have their hours increased to forty hours a week. Mae (May in the transcript) Dombek, the
human resources manager, replied that to work that many hours the Respondent would have to
lay off two warehouse employees. Roush testified that he had some success at the meeting
because the Respondent agreed to provide the warehouse employees with at least seven and a
half hours of work a day. His success was short lived because a week later the warehouse
employees were again working less than 35 hours a week. (Tr. 78–80.)
In addition to being the Union’s election observer Roush provided affidavits to a Board
agent with regard to the Joy termination (GC Exh. 3A), and a charge of unlawful surveillance by
the Respondent in case 34–CA–10473 (GC Exh. 4A). The Joy termination was resolved by the
informal settlement agreement, and the charge in case 34–CA–10473 was withdrawn (GC Exh.
4B). The Respondent stipulated that Joy and Roush were the only employees named in the
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position statement submitted to the NLRB Regional Office in May 2003. On March 25, 2004,
Roush filed an NLRB charge alleging that since October 2003 and March 2004 the Respondent
had threatened its employees with loss of hours and jobs, case 34–CA–10805 (GC Exh. 5A).
That charge was withdrawn on May 14, 2004.
2. Events in 2005
a. The incident in the lunchroom
In late April, after the Respondent failed to give the warehouse employees an anticipated
raise, Roush contacted the Union. As a result of this contact he received a packet of 60
authorization cards with preaddressed union envelopes. He and Gaston gave out approximately
35 cards but the employees did not appear to be interested. Roush decided to wait to see if a
raise would be forthcoming.
Roush testified that he and 5 to 10 other warehouse employees would have lunch together
every Friday in the employee lunchroom. They would discuss various happenings during the
week. The lunches had been going on for some period of time before August 5. As of August 5
the employees still had not received a raise, and Roush therefore decided that the timing was
right to bring the packet of union material to the lunchroom. He and Gaston spread the material
on the lunch table. Gaston left the lunchroom after about 5 minutes.
Roush testified that after Gaston left the remaining five or six employees were sitting and
stranding around the table examining and discussing the union material. Eric Fredrickson, the
assistant warehouse manager, entered the lunchroom and walked toward the vending machines.
After noticing the employees at the table he deviated and went by the table and looked at the
union material. Roush testified, without objection, that David Babcock told Fredrickson “you
can’t do this,” Fredrickson said “yes, I can” and left the lunchroom.
Fredrickson acknowledged that he remembered a group of 4 to 6 employees—some
sitting, some standing—around a table in the lunchroom during the summer of 2005. He stated
that the employees were either on break or lunch and he was going to the sales office or the
vending machine. When asked if he had walked by the table or seen materials on the table he
answered “No.”
b. The incident in the parking lot
Roush also stated that on August 16 he saw Fredrickson staring into the passenger side of
Roush’s car while it was parked in the Respondent’s lot. Roush testified that during this time
period he was leaving the union material, face up, on the passenger seat of his vehicle.
Fredrickson admitted looking in an employee’s car because he suspected that the car
contained stolen property. The owner of the car is no longer employed by the Respondent.
Fredrickson denied ever looking in the passenger side window of Roush’s vehicle.
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c. The September 13 meeting
Sharp called a mandatory meeting for the warehouse employees on September 13. Roush
testified, without refutation, that he interrupted Sharp almost immediately by asking when the
employees would get their raises and performance reviews. Sharp responded that he had
completed the performance reviews but because there was no money for raises he saw no reason
to distribute the performance reviews. The employees did not share this belief and when Sharp
asked who wanted their review, Roush asked for his.
Shortly after the meeting Roush received his 2004 performance review. He observed that
he was rated “Exceeds Requirements” for his perfect attendance. He immediately went to
Dombek to voice his displeasure for failing to receive raise even though he had “not called out”
during 2004. Roush said that in addition to twice telling him that there was no money, Dombek
also mentioned that “there’s no union, there’s no seniority,” and that the Respondent would
“have to lay two people off” to give raises. She attributed the reason for this situation to
Hoverman, the Respondent’s president. (Tr. 98). Dombek did not testify.
On September 15 Roush submitted an employee “suggestion,” that from that day
forward, until he received a raise, he would schedule a Monday off in late spring and summer (R.
Exh. 5). Roush acknowledged that Monday was the Respondent’s busiest day and that had he
carried through with his suggestion it would have been “harmful” to the Respondent.
On September 20 Roush asked Melissa Letendre, the managing director and senior
official at the Manchester facility, to request a meeting with Hoverman. In early October Roush,
Scott and other employees received pay raises. It is also at this time that Roush and Scott were
threatened with discharge if they discussed their wages with other employees. The threats were
previously found to violate Section 8(a)(1) of the Act, supra at infra, at section IIA.
d. The November 1 meeting
The meeting with Hoverman was held on November 1 in the second floor conference
room. In addition to Roush and Hoverman, Letendre was present as was Mike Malignaggi. the
Respondent’s sales manager was asked to attend by Roush who felt that he was a “neutral
manager.”
According to Roush as soon as he saw Letendre sit down he asked her what she was
doing at the meeting. Roush stated that she replied “I’m afraid you’re going to the Labor
Board.” Letendre denied that saying anything at the meeting and specifically denied saying
“Labor Board.” Her testimony was corroborated by Malignaggi. Both Letendre and Malignaggi
testified that they understood very little else that was said by Roush and that Hoverman also
appeared puzzled.
Roush stated that he told Hoverman that “our hours were horrendous” and that he wanted
a return to the agreement that provided the warehouse employees with over 35 hours a week of
work. According to Roush, Hoverman replied that he could not overrule his managers. Roush
“mentioned” that Dombek had yelled and screamed at him, that there was a safety issue with an
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orange ladder and a couple of other things. In response to a leading question one of the other
things was identified as written warnings that Roush wanted removed from his personal file.
Roush claims that Hoverman told him that the warnings were not a problem and not to worry
about them. Roush also complained to Hoverman that the recent raises “weren’t much” to which
Hoverman responded “business is slow.” The meeting lasted between five and fifteen minutes
and Roush felt that it was very friendly. During the next lunch hour Roush reported to “our
guys.”
e. The December 30 layoff
On Friday December 30, during the lunch hour, both men were notified that they were
laid off because of lack of work. In Gaston’s case Frederickson approached him and said that
Dombek wanted to see him in the second floor conference room. Frederickson escorted him to
the room where Dombek was waiting. After the men were seated Dombek told Gaston that he
was laid off. When he asked for a reason she said that “things are getting real slow now.” With
that she handed him a paper and he left.
Frederickson also told Roush during lunchtime to report to Sharp in the conference room.
When Roush entered he saw Sharp and Malignaggi, the sales manager. Sharp told Roush that he
and another employee were being laid off because of lack of work. Roush asked why he was
selected when he was the second most senior employee in the warehouse. Sharp replied that the
decision was made. Roush was escorted to his locker by Malignaggi. Roush testified, without
refutation, that while he was at his locker he heard Frederickson tell other employees that “with
those two gone, we’re going to stay until 6:00.”
On March 15, 2006, the Respondent hired two applicants who responded to a local
newspaper advertisement for full-time warehouse help “picking and packing.” Neither Roush
nor Gaston were recalled to these positions, notwithstanding Sharp’s testimony that both men are
eligible for recall. They are each capable of performing picking and packing. Gaston began his
employment with the Respondent as a picker and Frederickson testified that Roush was qualified
to pick and pack.
III. DISCUSSION
The General Counsel alleges that the layoffs violate Section 8(a)(3) and (1) of the Act
and that the layoff of Roush additionally violates Section 8(a)(4). Cases alleging violations of
the Act that turn on employer motivation, as here, are governed by Wright Line, 251 NLRB
1083, 1089 (1980), enfd. on other grounds 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S.
989 (1982). Under Wright Line, the General Counsel has the initial burden of establishing the
employees’ union or protected concerted activity was a motivating factor in the Respondent’s
taking action against them. The General Counsel meets that burden by proving the existence of
union or protected concerted activity, employer knowledge of that activity, and employer animus
towards that activity. E.g., Rood Trucking Co., 342 NLRB 895, 897 (2004). Once the General
Counsel meets the initial burden, the burden shifts to the Respondent to prove as an affirmative
defense that it would have taken the same action even if the employees had not engaged in
protected activity. Ibid.
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A. The General Counsel’s Initial Burden
The General Counsel has meet the initial burden as to both employees is established by
the undisputed factual findings supporting the violations of Section 8(a)(1) set forth above.
Thus, the Respondent maintained and enforced a rule prohibiting employees from discussing
their wages. Dissatisfaction with wages is “the grist on which concerted activity feeds,” and
unjustified differentials “provide the sinew for persistent concerted action.” 532 F.2d at 919.
The Respondent enforced its unlawful rule against Gaston when Sharp told him that he
knew that Gaston was discussing his pay raise with other employees and then threatened Gaston
with discharge if he continued to do so. Sharp documented the threat in an official company
report. On October 7 Sharp threatened Roush with discharge if he talked about his raise. A
week later, after hearing employee Scott complaining about his raise to Roush, Sharp threatened
Scott with discharge.
Roush was also engaged in protected concerted activity when he spoke at the September
13 meeting of the warehouse employees. He was the first employee to speak and he vehemently
protested the Respondent failure to provide the employees with their scheduled performance
reviews and the anticipated pay increases. E.g., Avery Leasing, 315 NLRB 576, 580 fn. 5
((1994) (finding concerted activity where an employee, in the presence of other employees,
complains to management concerning wages, hours, and other terms and conditions of
employment, even though the employee purports to speak on behalf of himself.)
I also credit Roush’s testimony that Fredrickson saw and recognized the union material
on August 5, 2005. For the following reasons I find Fredrickson’s testimony concerning this
incident not credible.
Fredrickson’s exhibited an uncanny recollection of an unspecified day during the summer
of 2005, absent any explanation as to why the day was memorable. Roush’s testimony
establishes that he and the other employees at the table, (who he refers to as “our crew”), had
been having lunch together on Fridays, in the lunchroom, for some time. It appears that this
practice continued at least until November. It is this “crew” that Roush claims that he is going to
report to at the “next lunch hour,” after meeting with the Hoverman on November 1. Roush’s
testimony establishes that there was nothing unusual about five or six employees being at the
same table in the lunchroom.
When asked if he was in the lunchroom in the summer of 2005 when there were a group
of four to six employees sitting and standing around a lunchroom table. He answered “Yes.” He
further states that the employees were on break or lunch and that he was either passing through
or going to he vending machines. He denies ever walking by a table where Roush was sitting
that had union material on it. He never explains why he has such specific recall of such a non–
event. Employees sitting and standing around a lunchroom table on their lunch break would
seem not at all out of place, even absent Roush’s testimony that the crew had lunch together
every Friday.
The Respondent that Fredrickson never saw any union cards displayed or any group of
employees around a table in a manner similar to that depicted by Roush. That statement is
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inconsistent with the testimony. Fredrickson agreed with the statement that he saw a group of
four to six employees sitting and standing around a lunchroom table. (Tr. 287.) His testimony is
consistent with that of Roush (Tr. 89) and Gaston. Although Gaston left before Fredrickson
arrived, he was present when the union material was initially displayed. Gaston credibly testified
that the reason he remembers the day is because the union material was spread out on the table.
He did not indicate that there was anything unique about the positioning of the employees around
the table. (Tr. 23.) Thus, to the extent that the Respondent may be implying that employees
sitting and standing around a lunchroom table while on lunch, is somehow unique and
memorable, that implication is rejected.
Another troubling aspect of Fredrickson’s testimony regarding this incident is his failure
to specifically refute the exchange of words attributed to him and employee Babcock. Roush
testified, without objection, that as Roush walked by the table “Babcock spoke up and he said,
you can’t do this. [Fredrickson] said with a smirk, ‘yes I can.’” (Tr. 91.) Moreover, Roush
repeated the statement on cross-examination. Although the statement was acknowledged by the
Respondent’s counsel (Tr. 139) it was never refuted by Fredrickson.
Based on the foregoing I discredit Fredrickson’s testimony regarding this incident and
find that on August 5 he became aware of Roush’s union activity. As an admitted supervisor and
agent of the Respondent his knowledge is attributable to his employer. E.g., Quality Control
Electric, 323 NLRB 238, 239 (1997).
Noting the axiom that some but not all of a witness’ testimony may be believed, I credit
Fredrickson’s denial that he looked in Roush’s car. See e.g., Farmer Bros. Co., 303 NLRB 638,
649 (1991). Fredrickson also had excellent recall of this incident and he gave a credible
explanation for his recollection. Fredrickson testified that he had only ever looked in one car in
the parking lot, and that was because he suspected that the owner was pilfering parts. Although
he was initially incorrect regarding the timing of the incident, I find that his error adds
believability to his testimony. Regarding the incident in the parking lot I credit Fredrickson’s
testimony over that of Roush who may have mistakenly thought that Fredrickson was looking in
his car.
The counsel for the General Counsel acknowledges that Gaston did not openly engage in
any union activities, and that he had left the lunchroom on August 5 before Fredrickson entered.
He urges that I should apply the Board’s small plant doctrine to infer the Respondent’s
knowledge. Wiese Plow Welding Co., 123 NLRB 616 (1959). Under that doctrine employer
knowledge of union activities may be inferred if the activities are conducted at a small plant and
in a manner or at such times that it may be presumed that the employer noticed them. Coral
Gables Convalescent Home, 234 NLRB 1198 (1978). Aside from the lunchroom display of
union material the record contains no other evidence of union activity. Although Gaston
mentioned distributing five union authorization cards, where he distributed the cards was never
established.
Absent supporting evidence that union activities were conducted in such a manner or at
times that make it likely that they were noticed, there is no basis for applying the small plant
doctrine. See, e.g., Friendly Markets, Inc., 224 NLRB 967, 969 and cited cases (1976). Based a
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thorough review of the record I also conclude that the union organizing campaign, such that it
was, began and ended in the lunchroom on August 5.
Based on the foregoing I find that the General Counsel has meet his initial burden by
“making a showing sufficient to support the inference” that protected conduct was a ‘motivating
factor’ in the Respondent’s decisions to have a layoff and to select Roush and Gaston for that
layoff. 251 NLRB at 1089.
B. The Respondent’s Defense
Finding that the General Counsel has met the initial burden under Wright Line, does not
mean that the Respondent’s actions were in fact “unlawfully motivated.” Tom Rice Buick,
Pontiac & GMC Truck, 334 NLRB 785, 786 fn. 6 (2001). It does mean that the burden shifts to
the Respondent to prove as an affirmative defense that it would have taken the same action even
if the employees had not engaged in protected activity. See Willamette Industries, 341 NLRB
560, 563; Manno Electric, 321 NLRB 278, 280 fn. 12 (1996), affd. 127 F.3d 34 (5th Cir. 1997).
The General Counsel contends that both the decision to lay off employees, and the reasons for
the selection of Roush and Gaston as the employees to be laid off, are pretextual. A finding of
pretext means that the Respondent’s reasons either did not exist or were not, in fact relied on.
See, e.g., Limestone Apparel Corp., 255 NLRB 722 (1981), enfd. 705 F.2d 799 (6th Cir. 1982).
In the alternative the General Counsel argues that if there is a lawful business justification for the
layoff, the reasons proffered for the selection of Roush and Gaston are pretextual, and the actual
motive is their union and protected concerted activities.
The record contains abundant evidence of the Respondent’s consistent efforts to achieve
labor cost savings. The “kick-out policy” reduces wages by requiring the employees to punch
out as soon as the work for the day is finished. It also reduces, or eliminates, the Respondent’s
contribution to the employees’ health care premium if they work less than 35 hours a week.
Sharp, a 20-year employee of the Respondent (Tr. 241), testified that the kick-out policy had
been in effect for as long as he could remember (Tr. 216–217). Gaston testified that one reason
the employees tried to organize the Respondent in December 2002 was because of the kick-out
policy (Tr. 74.). Roush, during direct examination, states that the “kick-out policy” began in
October 2003, immediately after the Union lost the second election. During cross-examination
he acknowledges that it started earlier but that it was “really different.” I believe he is alluding
to the fact that the warehouse employees no longer received “down projects” that allowed them
to work a full day and continue to receive full benefits. This belief is based on Roush’s
testimony (Tr. 108), and that his 2002 and 2003 performance reviews mention his ability to
“always find something to do during slow periods.” This comment is not in his 2004 evaluation.
The complaint does not allege that the “kick-out policy” is unlawful.
In October 2003 Roush and six other employees met with Letendre, Sharp, and Dombek,
the human resources manager. The meeting was an attempt by the warehouse employees to have
their hours of work increased. Roush testified that Dombek stated that two employees would
have to be laid off in order for the remaining employees to work a 40-hour week.
Roush testified that contrary to the Respondent’s written policy the employees did not
receive a performance review and, presumptively, a wage increase in the spring of 2005. Roush
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testified that on September 13, 2005, Sharp assembled the warehouse employees and told them
that he did not distribute their performance reviews because there was no money for raises. As
set forth above Sharp relented and gave Roush and other employees their reviews. Later that day
Roush approached Error! Not a valid link.“about no raises.” Roush testified that she confirmed
Sharp’s statement that there was no money for raises. Roush testified that on November 1, after
he complained to Hoverman about what he considered was a penurious increase, Hoverman said
“well, you know, business is slow.”
Sometime between early December and December 14 Sharp made a decision to initiate a
layoff. Sharp was especially sensitive to employing the optimal number of employees in the
warehouse. Twice during his tenure as the manager of the warehouse Hoverman had criticized
him for not reducing the workforce in a timely manner. It was within this context that Sharp and
Fredrickson entered Letendre’s office at the close of business on December 14. Letendre
testified that as soon as they entered they asked to close the door. To Letendre such a request
typically indicates that notes should be taken during the meeting (R. Exh. 7). Although the notes
refer to Sharp and Fredrickson as “they,” as in “They decided,” Sharp was the sole decision
maker.
The notes reflect that work was decreasing and that there were fewer make work projects
to do after finishing order processing, but before the end of the work day. A greater decrease in
work was anticipated until the sales catalog was mailed in mid-March. The notes indicate a
desire on their part to be proactive and to initiate a layoff before Hoverman ordered one and
castigated them for needing to be told how to do their job.
Sharp’s testimony comports with Letendre’s notes. He testified that spring is the busiest
season and it continues until mid to late summer when business declines, except for small spikes
during the fall show season and again between Thanksgiving and Christmas. Sharp also agreed
that the volume of orders is key in determining the seize of the workforce in the warehouse.
Sharp testified that he knew from working in the warehouse for 20 years working a decreasing
number of orders resulted in less work. His somewhat intuitive testimony, resulted in Sharp
undergoing an in-depth examination by counsel for the General Counsel. Sharp was asked to
compare the number of orders received for each month during the years 2001 to mid-April 2006
with the names of employees who were laid off during that same period. Based on that
exhaustive inquiry counsel for the General Counsel concludes that Sharp is not a credible witness
and that the Respondent has demonstrated no business justification for the layoffs.
I disagree. Aside from not crediting Sharp’s denial of Roush union activity, I found
Sharp to be a credible witness in all other aspects. I find that he sincerely attempted to answer all
questions truthfully and to the best of his knowledge. Sharp never said that he reviewed or relied
on any records, or performed any analysis, before deciding on the layoff. He credibly testified
that his decision was based on his 20 years of experience in the Respondent’s warehouse. A
significant part of his experience was having twice been “smacked” (Sharp’s extremely visual
description) by the owner and president of the company for failing to anticipate and control labor
costs. I sensed from his demeanor when testifying about those incidents that Sharp would not
think that the third time would be a charm.
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Sharp’s experience also includes supervising a workforce that had demonstrated, in
several different ways, their displeasure with the Respondent’s kick-out policy. In 2002 it was
part of the reason for the union organizing attempt, and only 2 days before the layoff it was the
subject of a lengthy, heartfelt, employee suggestion. (GC Exh. 27.) It appears that a reduction in
the use of the kick-out policy would also require a layoff. This conclusion is supported by
Roush’s testimony concerning Fredrickson’s statement, made immediately after the layoff, and
Dombek’s statement made during the October 2003 meeting that in order for there to be enough
work for the warehouse employees to work 40 hours a week, two employees would have to be
laid off. It also appears that the layoff achieved the desired purpose. Since the layoff the
warehouse workforce has remained stable and, except for unforeseen circumstances, there has
not been a significant increase in overtime. Neither Roush nor Gaston’s positions have been
filled.
Counsel for the General Counsel does not appear to question the number of employees
selected for layoff. In any case Sharp’s testimony offers a reasonable explanation as to why he
chose one Checker/Scanner and one Receiver (Tr. 213, 218–220). Counsel for the General
Counsel does argue that even if the layoff was motivated by a legitimate business justification, it
does not follow that the selection of the employees was also lawfully motivated
Sharp identified two problems with Gaston—he was slow, and he committed errors.
Gaston’s performance reviews consistently reflect that although he works at an acceptable level
he needs improvement in those areas. Sharp testified that he had observed Gaston as he worked
and he moved more slowly than the other receivers. In that regard Letendre testified that she
also had observed Gaston “walking very slowly down the aisles.” At the risk of piling on, my
observation of Gaston was that he was a large man whose movements on and off the witness
stand and around the hearing room were slow and deliberate. Gaston admits making and being
reprimanded for errors. The reprimand is not alleged as a violation in the complaint.
Gaston had also only recently told Sharp that he might need to leave early during the
busy spring season in order to attend night school classes. Sharp told him that might not be
possible. This discussion occurred on December 5 and Sharp recorded it on an “Employee
Discussion Report.” (GC Exh. 11.) Counsel for the General Counsel notes that the Employee
Discussion Report is also where Sharp wrote that he warned Gaston that discussing his pay with
other employees could result in Gaston’s termination. Counsel for the General Counsel argues
that because of the timing an inference should be drawn that Gaston’s protected activity caused
the Respondent to select him for layoff. I disagree, had that been the reason I seriously doubt
that Sharp would have written a “side note” memorializing his unlawful motivation. I find it far
more reasonable that Sharp had the potential scheduling conflict in mind when he selected
Gaston.
Roush also had a productivity problem, although his was viewed with some skepticism.
Sharp wrote in Roush’s performance review for 2003, dated March 31, 2004, that his pace
slowed toward the end of the day (GC Exh. 18B at 2). It was in October 2003 that Roush and six
other employees met with management in an attempt to increase the hours of work for the
warehouse employees. On September 16, 2004, Fredrickson reported to Sharp that while he was
in the warehouse “Mike Roush was trying to talk other warehouse employees into slowing their
work pace down.” The following day Sharp confronted Roush with a report of the incident (R.
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Exh. 2). Roush refused to sign the report but wrote on the bottom “this is a flat out lie.” Sharp
took no adverse action against Roush. One year later Roush threatened that for every week that
he did not get a raise he would absent himself from work on the busiest day of the week during
the busiest season.
Sometime before the layoff Fredrickson showed Sharp two separate statements written on
December 1, 2005, by warehouse employees Jeremiah Chopus and Christopher Leblanc. Both
employees state that they heard Roush urging other employees to work more slowly. Chopus
additionally states that Roush, on two occasions, spoke to him about not working as fast.
Chopus also observed Roush “working extremely slow.” Neither employee was employed by
the Respondent in 2004, thus Sharp was aware of three different allegations of Roush attempting
to get other employees to perform their work at a slower pace. Sharp testified that he considered
the three reports when selecting Roush as one of the employees to be laid off. Sharp also relied
on his observations to conclude that Roush was a slower worker than the other checker.
Counsel for the General Counsel argues that Sharp’s reliance on hearsay statements
without giving Roush an opportunity to explain is evidence of unlawful motive. The evidence
was not offered, or admitted, as proof that Roush urged employees to work more slowly. That
said Sharp’s partial consideration on the statements must be viewed in light of other facts that
were also known to Sharp.
The statement by Chopus, in part, does nothing more than reinforce Sharp’s observation
that Roush was a slow worker. It was well known that Roush was open, vocal, and vehement in
his opposition to the kick-out policy and had been for a considerable length of time. Roush’s
“suggestion” in September 2005 is blatant evidence of his willingness to cause damage to the
Respondent’s operations. His threat was written in such a manner that it was to be imposed even
after he got a raise. Moreover, it appears that he never renounced his stated intentions until the
hearing. Accordingly, under the circumstances of this case, I am not inclined to find Sharp’s
consideration of the statements evidence of pretext.
Another significant circumstance that must be considered is the minimal nature and
extent of both employees’ union and protected activities. The only union activity was the
onetime distribution of union packets in the lunchroom. There is no evidence that the
Respondent was aware of Gaston’s slight union involvement. Both Roush and, to a much lesser
degree Gaston, engaged in protected concerted activity. Except for the 8(a)(1) violations set
forth above, there is a no evidence that the Respondent bore any animus toward these men or
their activities. Even as to the violations found there is no allegation or evidence that the
Respondent was enforcing its unlawful rule in a disparate manner. A minimal amount of
protected activity detracts from a conclusion that the protected activity was the motive for the
action. NLRB v. Brookshire Grocery Co., 837 F.2d 1336, 1340–1341 (5th Cir.). See also, Ronin
Shipbuilding, Inc., 330 NLRB 464 (2000); and Leather Agent, Inc., 330 NLRB 646, 647 (2000).
Moreover, the Respondent is required to establish its Wright Line defense only by a
preponderance of the evidence; the defense does not fail simply because not all of the evidence
supports it, or even because some of the evidence tends to negate it. Merillat Industries, 307
NLRB 1301, 1303 (1992). Ultimately, the General Counsel has the burden of proving
discrimination. Wright Line, supra, 251 NLRB at 1088, fn. 11. Based on the weight of the
credible evidence, and being mindful of the relative burdens of proof attributable to the parties, I
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find that the Respondent has met its rebuttal burden of showing that it would have laid off Roush
and Gaston in the absence of their union and protected activities. Therefore, I will recommend
dismissal of those complaint allegations.
The allegation that the Respondent violated Section 8(a)(4) of the Act is predicated on
credibility. Roush claims that when he asked Letendre what she was doing in the meeting with
Hoverman she replied “I’m afraid you’re going to go to the Labor Board.” Letendre testified
that she was silent during the entire meeting and she expressly denied even mentioning “anything
about the Labor Board. Malignaggi, an individual whose presence at the meeting was requested
by Roush, corroborated Letendre’s testimony. Letendre and Malignaggi both appeared to be
credible witnesses. I see no reason to discredit their testimony and counsel for the General
Counsel advances none. Accordingly, based on Letendre’s credited and corroborated testimony I
shall recommend that complaint allegation also be dismissed.
Although not required for this finding I also credit Letendre’s testimony that she did not
take notes of the meeting because she was unable to understand most of what Roush said. A
reading of the transcript supports her testimony. Roush has difficulty verbally communicating.
This fact is also recognized in his performance reviews. When testifying he generally kept his
head down, mumbled, and often held his hand before his mouth. When his words were
understood they were frequently disjointed. Were it not for counsel for the General Counsel’s
diligence and effort in keeping Roush focused, the transcript would be in a far worse state.
CONCLUSIONS OF LAW
1. The Respondent, Mustangs Unlimited, Inc., has engaged in unfair labor practices
affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Respondent violated Section 8(a)(1) of the Act by maintaining and enforcing an
unlawful rule prohibiting employees from discussing wage rates.
3. The Respondent violated Section 8(a)(1) of the Act by threatening to discipline
employees for talking about wages rates based on its unlawful rule.
4. The Respondent has not violated the Act as otherwise alleged in the complaint.
REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended3

3 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted
by the Board and all objections to them shall be deemed waived for all purposes.
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ORDER
The Respondent, Mustangs Unlimited, Inc., Manchester, Connecticut, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Maintaining and enforcing an unlawful rule prohibiting employees from discussing
wage rates.
(b) Threatening employees with discipline based on that unlawful rule.
(c) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Rescind the unlawful rule and notify all employees, in writing, that this has been
done.
(b) Within 14 days from the date of the Board’s Order, remove from its employee files
any reference to the enforcement of the unlawful rule, and within 3 days thereafter notify those
employees in writing that this has been done and that the reference to the enforcement of the
unlawful rule will not be used against them in any way.
(c) Within 14 days after service by the Region, post at its facility in Manchester,
Connecticut, copies of the attached notice marked “Appendix.”4 Copies of the notice, on forms
provided by the Regional Director for Region 34, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent and maintained for 60 consecutive
days in conspicuous places including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material. In the event that, during the pendency of
these proceedings, the Respondent has gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees employed by the Respondent at any time
since October 7, 2005.
(d) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.

4 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice
reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
Board.”
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(e) IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.
Dated, Washington, D.C. August 21, 2007
____________________
John T. Clark
Administrative Law Judge
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APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has ordered us
to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT maintain and enforce an unlawful rule that prohibits you from talking about your
wages.
WE WILL NOT unlawfully threaten you with discipline based on that unlawful rule.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of
the rights guaranteed you by Section 7 of the Act.
WE WILL rescind the unlawful rule prohibiting you to from talking about your wages and WE WILL
notify you in writing that we have taken this action.
WE WILL, within 14 days from the date of the Board’s Order, remove from our employee files any
reference to the enforcement of the unlawful rule, and WE WILL, within 3 days thereafter, notify
each involved employee in writing that this has been done and that the reference to the
enforcement of the unlawful rule will not be used against them in any way.
MUSTANGS UNLIMITED, INC.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the
National Labor Relations Act. It conducts secret-ballot elections to determine whether employees want
union representation and it investigates and remedies unfair labor practices by employers and unions. To
find out more about your rights under the Act and how to file a charge or election petition, you may speak
confidentially to any agent with the Board’s Regional Office set forth below. You may also obtain
information from the Board’s website: www.nlrb.gov.
280 Trumbull Street, 21st Floor
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Hartford, Connecticut 06103-3503
Hours: 8:30 a.m. to 5 p.m.
860-240-3522.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 860-240-3528.