Paragon Pattern & Mfg. Co.

National Labor Relations Board - Board Decisions

Jun 25, 2004

342 N.L.R.B. 167 (N.L.R.B. 2004)

PARAGON PATTERN & MFG. CO.
342 NLRB No. 17
167
Paragon Pattern & Manufacturing Co., Inc. and Wil-
liam Russell. Case 7–CA–46022
June 25, 2004
DECISION AND ORDER
BY MEMBERS SCHAUMBER, WALSH, AND MEISBURG
On December 9, 2003, Administrative Law Judge
Keltner W. Locke issued the attached Bench Decision
and Certification. The General Counsel filed exceptions
and a supporting brief.1
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 and brief and has decided to
affirm the judge’s rulings, findings,2 and conclusions and
to adopt the recommended Order as modified below.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Paragon
Pattern & Mfg. Co., Inc., Grand Rapids, Michigan, its
officers, agents, successors, and assigns shall take the
action set forth in the Order as modified.
1. Substitute the following for paragraphs 2(a) and (b).
“(a) Within 14 days after service by the Region, post at
its plant in Muskegon, Michigan, copies of the attached
notice marked “Appendix B.”3 Copies of the notice, on
forms provided by the Regional Director for Region 7,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily 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 Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice

1 In light of our disposition of this matter, we find it unnecessary to
rule on the Respondent’s motion for leave to file an answering brief out
of time.
2 The General Counsel has excepted to some of the judge’s credibil-
ity findings. The Board’s established policy is not to overrule an admin-
istrative 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.
There are no exceptions to the judge’s finding that the Respondent
violated Sec. 8(a)(1) by threatening employees with reprisals or loss of
employment because they opposed contract concessions sought by the
Respondent in collective bargaining with the Union.
to all current employees and former employees employed
by the Respondent at any time since November 22, 2002.
(b) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.”
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.

A. Bradley Howell, Esq., for the General Counsel.
Robert A. Dubault, Esq. (Warner, Norcross & Judd, L.L.P.), of
Muskegon, Michigan, for the Respondent.
Mr. William Russell, for the Charging Party.

BENCH DECISION AND CERTIFICATION
STATEMENT OF THE CASE
KELTNER W. LOCKE, Administrative Law Judge. I heard this
case on November 4 and 5, 2003, in Grand Rapids, Michigan.
After the parties rested, I heard oral argument, and on Novem-
ber 7, 2003, issued a bench decision pursuant to Section
102.35(a)(10) of the Board’s Rules and Regulations, setting
forth findings of fact and conclusions of law. In accordance
with Section 102.45 of the Rules and Regulations, I certify the
accuracy of, and attach as “Appendix A,” the portion of the
transcript containing this decision.1 The conclusions of law,
remedy, order, and notice are set forth below.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act, including posting the notice to em-
ployees attached hereto as Appendix B. These actions include
posting of the notice attached as Appendix A to this Certifica-
tion of Bench Decision.
CONCLUSIONS OF LAW
1. The Respondent, Paragon Pattern & Manufacturing Co.,
Inc., Muskegon, Michigan, is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
2. At all times material to this case, the Union, Local Lodge
PM 2848, International Association of Machinists and Aero-
space Workers, AFL–CIO, has been a labor organization within
the meaning of Section 2(5) of the Act, and the exclusive bar-
gaining representative of the following appropriate unit of Re-
spondent’s employees: All journeymen pattern makers and
their apprentices employed by Respondent, excluding sole pro-
prietors, bona fide partners, and managers in a supervisory

1 The bench decision appears in uncorrected form at pages 472
through 489 of the transcript (also designated p. 5 to 22 of the transcript
for November 7, 2003). [Omitted from publication.] The final version,
after correction of oral and transcriptional errors, is attached as App. A
to this Certification.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 168
capacity, and all other employees. The Union and Respondent
are parties to a collective-bargaining agreement pertaining to
these employees, which is effective by its terms from June 1,
1999, through May 31, 2004.
3. On or about November 22, 2002, Respondent violated
Section 8(a)(1) of the Act by threatening employees with repri-
sals and loss of employment because they opposed ratification
of concessions negotiated by Respondent and the Union.
4. The unfair labor practices described in paragraph 3, above,
are unfair labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
5. Respondent did not violate the Act in any other manner al-
leged in the complaint.
On the findings of fact and conclusions of law and on the en-
tire record in this case, I issue the following recommended2.
ORDER
The Respondent, Paragon Pattern & Manufacturing. Co.,
Inc., Muskegon, Michigan, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Threatening employees with reprisals or loss of employ-
ment because they opposed concessions sought by Respondent
in collective bargaining with the Union.
(b) In any like or related manner restraining or coercing em-
ployees in the exercise of the rights guaranteed them by Section
7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Post at its plant in Muskegon, Michigan, and at all other
places where notices customarily are posted, copies of the at-
tached notice marked “Appendix B.”3 Copies of the notice, on
forms provided by the Regional Director for Region 7, after
being signed by the Respondent’s authorized representative,
shall be posted by the Respondent immediately upon receipt
and maintained for 60 consecutive days in conspicuous places
including all places where notices to employees customarily are
posted. Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or covered by
any other material.
(b) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has taken
to comply.
APPENDIX A

This decision is issued pursuant to Section 102.35(a)(10) and
Section 102.45 of the Board’s Rules and Regulations. I find
that Respondent’s statement to an employee violated Section

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.
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.”
8(a)(1) of the Act, but did not lay off employees in violation of
Sections 8(a)(3) and (1) of the Act, as alleged.
Procedural History
This case began on March 18, 2003, when the Charging
Party, William Russell, an individual, filed his initial charge in
this proceeding. This charge alleged that Respondent, Paragon
Pattern and Manufacturing Co., Inc., “controlled the outcome
of a contract vote” in violation of Section 8(a)(1) and (3) of the
National Labor Relations Act (the Act).
On May 23, 2003, the Charging Party amended the charge.
The amended charge alleged that on or about November 20,
2003, Respondent “laid off William Russell and other employ-
ees to prevent them from voting in a contract ratification vote.”
On June 27, 2003, after investigation of the charge, the Re-
gional Director for Region 7 of the National Labor Relations
Board issued a complaint and notice of hearing, which I will
call the “complaint.” In issuing this complaint, the Regional
Director acted on behalf of the General Counsel of the Board,
whom I will refer to as the “General Counsel” or as the “gov-
ernment.”
Respondent filed a timely answer to the complaint.
On November 4, 2003, hearing opened before me in Grand
Rapids, Michigan. At the beginning of the hearing, the General
Counsel amended paragraphs 9 and 10 of the complaint.
In the original complaint paragraph 9, the government al-
leged that about November 22, 2002, Respondent laid off em-
ployees James Visger, Bill Favel, Greg Van Hassell, and Wil-
liam Straley. The amendment deleted the names James Visger
and Greg Van Hassell.
The original complaint paragraph 10, alleged that about No-
vember 25, 2003, Respondent laid off employees Richard Fair-
child, James DeRuiter, and the Charging Party. The amend-
ment deleted the name James DeRuiter.
The parties presented evidence on November 4 and 5, 2003,
and gave oral argument on November 6, 2003. Today, Novem-
ber 7, 2003, I am issuing this bench decision.
Admitted Allegations
Based on the admissions in Respondent’s answer, I find that
the General Counsel has proven the allegations raised in com-
plaint paragraphs 1, 2, 3, 4, 5, 6, 7, 9, and 10. More specifi-
cally, I find that the Charging Party filed and served the charge
and amended charge as alleged.
Additionally, I find that at all material times, Respondent
was a corporation with an office and place of business in Mus-
kegon Heights, Michigan, and that it was engaged in the manu-
facture of plastic, wood, and metal patterns. Further, I find that
at all material times, Respondent has been an employer en-
gaged in commerce within the meaning of Sections 2(2), (6),
and (7) of the Act, and that it meets both the Board’s statutory
and discretionary jurisdictional standards. Also, I find that at
all material times, Respondent’s president, Lawrence Dorato,
and its plant superintendent, Jack Cunningham, have been Re-
spondent’s supervisors and agents within the meaning of Sec-
tions 2(11) and 2(13) of the Act, respectively.
Additionally, I find that at all material times, Local Lodge
PM 2848, International Association of Machinists and Aero-
space Workers, AFL–CIO, which I will call the “Union,” has
PARAGON PATTERN & MFG. CO. 169
been a labor organization within the meaning of Section 2(5) of
the Act.
Respondent has admitted, and I find, that on about Novem-
ber 22, 2002, it laid off employees Bill Favel and William
Straley, and that on about November 25, 2002, it laid off em-
ployees Richard Fairchild and William Russell. However,
Respondent denies that it did so for the unlawful reasons al-
leged in complaint paragraphs 11, 12, and 13.
Background
Respondent produces patterns for automobile makers such as
General Motors. In recent years, Respondent and other pattern
makers in the United States have faced increasing competition
from similar companies in other countries.
Moreover, some automobile manufacturers have adopted an
online “reverse auction” procedure which encourages pattern
makers to underbid one another. Both Respondent and a local
competitor have experienced severe financial problems. The
record in this case provides a textbook example of management
and union leaders working together to deal with these adverse
economic conditions and thereby prevent the closing of the
factory and the consequent loss of jobs.
The Union represents Respondent’s journeyman and appren-
tice pattern makers. In 1999, Respondent and the Union en-
tered into a 4-year collective-bargaining agreement which ex-
pires on May 31, 2004. About halfway through the contract
term, Respondent asked the Union to reopen the contract and
grant concessions.
The record indicates that the Union did grant concessions in
about January 2002, but that these initial concessions were not
sufficient to keep Respondent from operating at a loss. There-
fore, Respondent went back to the Union to request further
concessions.
On April 16, 2002, the local Union’s directing business rep-
resentative, Jon B. Winterhalter, sent Respondent’s president a
letter asking for detailed financial records. Respondent pro-
vided these records, which Winterhalter sent to a team of finan-
cial analysts working for the International Union. After the
analysts confirmed that Respondent was in serious financial
distress, and might go out of business absent relief, Winterhal-
ter sent Respondent another letter expressing the Union’s will-
ingness to discuss contract modifications.
Respondent and the Union engaged in negotiations, but the
resulting concessions would not take effect until ratified by
employee vote. On three separate occasions, employees re-
jected the proposed concessions. After the first two votes, Re-
spondent and the Union negotiated further to make the conces-
sions more palatable to the employees. The third vote took
place on November 21, 2002.
As customary, an employee meeting took place before the
third vote. Respondent’s president, Lawrence Dorato, spoke to
the employees and answered questions. Then, Dorato and other
supervisors left, leaving the employees with their union repre-
sentatives.
In each of the three elections, the Union reported the out-
come of the vote to management but did not disclose the mar-
gin. Additionally, the Union did not inform Respondent how
any particular employee voted. Indeed, the Union did not have
that information because the employees voted by secret ballot.
Immediately after the employees rejected concessions for the
third time, neither the Respondent nor the Union sought to en-
gage in more negotiating. Based on the credited testimony, I
conclude that Respondent’s owners, including President Do-
rato, believed that the company would have to close.
The record does not indicate that Respondent’s board of di-
rectors resolved to shut down the plant or close the business,
and the General Counsel argues that Respondent had not made
a firm decision to do so. The General Counsel notes, for exam-
ple, that in its correspondence, Respondent stopped short of
announcing a plant closing and simply alluded to that possibil-
ity.
However, Respondent had not completed all the work it had
contracted to perform, and Respondent’s management did not
wish to alarm customers by announcing the plant closing im-
mediately. Therefore, I do not believe that Respondent’s fail-
ure to make a clear and unequivocal statement about plant clos-
ing establishes any lack of certainty.
In this regard, I place considerable weight on the testimony
of Union Representative Jon Winterhalter. According to Win-
terhalter, Union analysts who examined Respondent’s financial
documents informed him very clearly that this was “definitely a
case” in which the company would go out of business in the
absence of concessions.
Based on his demeanor as a witness, I have confidence in
Winterhalter’s testimony, which I credit. Moreover, the Un-
ion’s willingness to reopen a collective-bargaining agreement
mid–term and negotiate concessions provides convincing evi-
dence that the Union took the opinion of its analysts very seri-
ously. Union officials obviously would require convincing
proof of financial distress before taking such a drastic step.
They clearly believed that Respondent’s business was mori-
bund, and the record provides little basis to question this con-
clusion.
Therefore, I conclude that after Respondent’s employees re-
jected the proposed concessions for the third time, Respon-
dent’s management, including President Dorato, believed that
Respondent would be closing the plant. As a first step, man-
agement decided to discontinue the third shift.
The Alleged Unfair Labor Practices
As Respondent has admitted, it laid off certain employees on
Friday, November 22, 2002—the day after the employees voted
for the third time to reject the concessions—and it laid off some
more employees on Monday, November 25, 2002. The gov-
ernment alleges that some, but not all, of these layoffs violated
Section 8(a)(1) and (3) of the Act. Complaint paragraphs 9
through 13 raise these allegations.
The government also alleges that Respondent, by its Presi-
dent Dorato, violated Section 8(a)(1) on about November 22,
2002, by threatening employees with reprisals because of their
opposition to contract concessions and threatening employees
who failed to support the contract concessions with loss of
employment. Complaint paragraph 8 raises this allegation.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 170
Complaint Paragraph 8
As already stated, after employees voted for the third time to
reject the proposed concessions, management decided to elimi-
nate the third shift. The government does not allege that Re-
spondent made this decision for any unlawful reason, and I
conclude that Respondent did so for lawful economic reasons.
On November 22, 2002, one of the third shift employees, Bill
Favel, talked with Respondent’s President Dorato about the
layoff.
According to Favel, at 7:30 a.m., when the third shift ended,
he learned about his layoff and asked Dorato if he needed to
stick around that weekend. Favel lived some distance from the
plant and, as I understand his question, he wanted to know
whether he might need to drive back to vote again on a conces-
sions package. However, at that point, neither the Respondent
nor the Union contemplated either more bargaining about con-
cessions or further votes.
Favel testified that Dorato answered his question by saying
“I had decided my fate, my future was set, myself and the guys
that didn’t want to help were out of here.”
Based on my observations of the witnesses, I conclude that
Dorato is a more credible witness than Favel and resolve con-
flicts in their testimony by crediting Dorato. However, Do-
rato’s testimony generally corroborates Favel’s on this point.
On direct examination, Dorato testified, in part, “I was upset,
probably said some things I shouldn’t have said out of context,
but the context was ‘you guys,’ meaning ‘you guys that voted
this thing down,’ that it’s, it’s too bad.”
In response to my question, Dorato did not deny telling Favel
that “you and the guys who don’t want to help are out of here.”
However, he explained what he meant by that statement: “I
said [it] in the context that you, meaning the people that didn’t
vote for it, are, we’re all out of here, meaning that we’re out of
here.”
In determining whether a supervisor’s statement to an em-
ployee constitutes an unlawful threat, the Board applies an
objective standard, focusing on what an employee reasonably
would understand the words to mean. Therefore, I must judge
Dorato’s words not by what he intended to communicate but by
the message the words reasonably would convey.
As Dorato acknowledged, when he referred to the “guys who
didn’t want to help,” he meant the employees who voted
against the proposed concessions. The words reasonably would
be understood in this way.
When Dorato said that the “guys who didn’t want to help”
would be “out of here,” an employee reasonably would under-
stand the message to be that those who voted against the con-
cessions would be laid off. Because Section 7 of the Act pro-
tects an employee’s right to vote against concessions, Dorato’s
words reasonably communicate that Respondent would retaliate
against employees for engaging in protected activity. There-
fore, I recommend that the Board find that this statement vio-
lates Section 8(a)(1) of the Act.
Complaint Paragraphs 9 and 10
Respondent has admitted that on November 22 and 25, 2002,
it laid off the employees named as discriminatees in complaint
paragraphs 9 and 10. However, it denies that it laid off these
employees for the unlawful reasons alleged later in the com-
plaint.
In evaluating these allegations, I will use the framework es-
tablished by the Board in Wright Line, 251 NLRB 1083 (1980),
enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982). Under Wright Line, the General Counsel must establish
four elements by a preponderance of the evidence. First, the
government must show the existence of activity protected by
the Act. Second, the government must prove that Respondent
was aware that the employees had engaged in such activity.
Third, the General Counsel must show that the alleged dis-
criminatees suffered an adverse employment action. Fourth,
the government must establish a link, or nexus, between the
employees’ protected activity and the adverse employment
action.
In effect, proving these four elements creates a presumption
that the adverse employment action violated the Act. To rebut
such a presumption, the respondent bears the burden of show-
ing that the same action would have taken place even in the
absence of the protected conduct. Wright Line, 251 NLRB
1083, at 1089. See also Manno Electric, Inc., 321 NLRB 278,
280 at fn. 12 (1996).
The General Counsel clearly has established that the four al-
leged discriminatees engaged in the protected activity of speak-
ing against the concessions which Respondent’s management
considered necessary to survival of the company. Therefore, I
find that the evidence satisfies the first Wright Line element.
The record also establishes that Respondent was aware that
the alleged discriminatees opposed the concessions. In some
instances, these employees voiced their opposition at meetings
attended by management, notably Respondent’s President Do-
rato.
Employee Richard Fairchild credibly testified that he spoke
against the concessions to other employees in the lunchroom.
Additionally, Fairchild testified without contradiction that one
of the owners, Pete Price, had asked him what he thought about
the proposed concessions and that Fairchild had replied that he
didn’t think the company would get the concessions. Fairchild
also told Price that the employees “didn’t have a lot of faith” in
Respondent’s president Dorato and that Fairchild didn’t see
how the employees would agree to any concessions, consider-
ing the company’s present management.
Fairchild quoted Price as replying that if Fairchild had any
more concerns about the company, that Price wanted Fairchild
to talk to Price “and him only.” Price did not testify. Based on
Fairchild’s uncontradicted testimony, I conclude that Respon-
dent was aware that he had expressed opposition to the conces-
sions in discussions with other employees.
Employee William Favel also testified that he spoke with
owner Pete Price about the concessions. However, Favel’s
testimony was not very specific. Nonetheless, I conclude that
Respondent was aware that Favel opposed the concessions.
Employee William Straley spoke out at meetings attended by
management officials. He advocated the adoption of an em-
ployee stock ownership plan, or ESOP, as an alternative to
concessions. Therefore, I find that management was aware of
Straley’s opposition to the concessions.
PARAGON PATTERN & MFG. CO. 171
Additionally, I find that the Charging Party, William Russell,
expressed his opposition to the concessions in a way conspicu-
ous enough to come to the attention of management. There-
fore, I conclude that the government has established the second
Wright Line element for all four of the alleged discriminatees.
Clearly, a layoff is an adverse employment action. There-
fore, I find that the General Counsel has established the third
Wright Line element.
Finally, the government must show a nexus between the em-
ployees’ protected activities and the adverse employment ac-
tion. In looking for such a connection, I will consider first the
8(a)(1) violation.
It is well established that a statement which violates Section
8(a)(1) also constitutes evidence of unlawful motive. However,
when considering such a statement as evidence of motive, I
must take into account not only what the statement reasonably
would communicate under an objective standard—the test for
an 8(a)(1) violation—but also what the speaker actually meant.
For example, an employer can violate Section 8(a)(1) by
conveying the message that employees’ protected activity re-
sulted in particular harm even if that is not the case. To take an
extreme hypothetical example, an employer arguably could
violate Section 8(a)(1) by claiming that some event outside its
control, such as a tornado destroying a plant, had occurred be-
cause employees had engaged in union or other protected ac-
tivities. If such a statement reasonably and plausibly would be
understood to link the protected activity with the subsequent
harm, it would violate Section 8(a)(1) even if untrue. But al-
though such a statement still would be evidence of hostility
towards employees engaged in protected activity, it would not
mandate a conclusion that an employer had unlawfully laid off
workers in retaliation for their protected activities. In other
words, the statement alone would not overcome persuasive
evidence that a force beyond the employer’s control had been
responsible for the layoffs.
The credited evidence establishes, and I find, that when Do-
rato made the violative statement, he believed that the plant was
going to close because the employees had voted down the con-
cessions. The employees who opposed the concessions would
be affected by the closing, but so would the employees who
favored them.
When he made the violative statement, Dorato was upset and
bitter. I conclude that he intended to say, in effect, “Now look
what you’ve done!” He believed that the employees who op-
posed the concessions would suffer from their action, as would
the employees who had favored them.
In my view, Dorato’s intemperate statement falls short of es-
tablishing that management selected the employees for the
initial layoff based on whether or not they had opposed the
concessions. Nonetheless, to establish the fourth element of the
Wright Line test, the government must only establish some kind
of link, not a proximate cause. I conclude that Dorato’s state-
ment is sufficient to establish such a nexus.
Therefore, the General Counsel has carried the burden of
proving the four Wright Line elements. The burden thus shifts
to Respondent to demonstrate that it would have laid off the
employees in any event.
The General Counsel notes that when Respondent laid off
the alleged discriminatees, it gave them layoff slips which did
not have a “return to work” date. Under established Union
rules, a laid off employee could not vote on the concessions
unless the employee’s layoff slip had a return-to-work date.
However, I do not agree with the General Counsel’s argu-
ment that the absence of a return–to–work date demonstrates
that Respondent was trying to prevent the laid off employees
from voting against the concessions. At the time the employees
received these layoff slips, they had already taken part in 3
votes on the concessions and neither Respondent nor the Union
contemplated any further vote.
Only later did the Union propose a compromise which led to
a fourth vote, at which a majority of the employees did agree to
the concessions, thus keeping the Respondent’s business viable,
at least for a while. However, at the time Respondent gave out
the layoff slips on November 22 and 25, 2002, management did
not know there would be another vote. To the contrary, I find
that management did not believe there would be another vote,
and that was the reason for Dorato’s despair and bitterness.
The General Counsel also elicited testimony to show that at
least some of the alleged discriminatees were excellent em-
ployees and had not been laid off often in the past. The gov-
ernment argues that these employees would not have been laid
off except for their protected activities.
However, Respondent began by laying off the entire third
shift. Moreover, as the government concedes, Respondent not
only laid off the alleged discriminatees but also laid off other
employees at the same time.
The General Counsel asserts that under established Board
precedent, the fact that a Respondent lays off individuals who
did not engage in protected activity along with those who did
does not establish that Respondent did not discriminate. That is
certainly true. In many such cases, where an employer lays off
employees who did not engage in protected activity as a
“smoke screen” to cover up its discrimination against employ-
ees who did, the government will seek reinstatement of all the
injured employees. That is not the case here.
The entire record, including the persuasive testimony of Un-
ion Representative Winterhalter, establishes that Respondent
was in financial extremis. Moreover, it is clear that when Re-
spondent laid off employees on November 22 and 25, 2002,
management believed these to be only the first of the layoffs
which would take place in closing the plant.
Respondent articulated persuasive reasons for the selection
of the employees laid off on those dates. Elimination of the
third shift was certainly a logical way to go about shutting
down the operation a shift at a time.
Moreover, Dorato credibly testified that management se-
lected two of the alleged discriminates—Russell and Fairchild
—for layoff because they had worked long enough to retire. In
Dorato’s experience, employees who became eligible to retire
often did so with little notice to the company.
Dorato, who was a credible witness, thus articulated a busi-
ness reason for selecting these employees for layoff that was
unrelated to their protected activities. Whether or not this rea-
son implicates Title VII of the Civil Rights Act of 1964 is not
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 172
before me. In any event, the reason does not transgress the
National Labor Relations Act.
Finding that Respondent selected the employees for layoff
for the reasons given by Dorato, I conclude that Respondent has
carried its burden of showing that it would have laid off the
four alleged discriminatees in any event, regardless of their
protected activity. Therefore, I recommend that the Board dis-
miss the 8(a)(3) allegations.
When the transcript of this proceeding has been prepared, I
will issue a certification which attaches as an appendix the
portion of the transcript reporting this bench decision. This
certification also will include provisions relating to the Find-
ings of Fact, Conclusions of Law, Remedy, Order, and Notice.
When that certification is served upon the parties, the time pe-
riod for filing an appeal will begin to run.
Throughout this proceeding, Counsel demonstrated a high
level of professionalism and civility which I truly appreciate.
The hearing is closed.

APPENDIX B
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 any union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.

WE WILL NOT interfere with, restrain, or coerce our employ-
ees in the exercise of these rights, guaranteed to them by Sec-
tion 7 of the National Labor Relations Act.
WE WILL NOT threaten employees with loss of employment or
other reprisals because they opposed concessions we sought in
collective bargaining with the Union.
WE WILL NOT, in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
PARAGON PATTERN & MANUFACTURING CO., INC.