Rankin & Rankin

National Labor Relations Board - Board Decisions

Mar 24, 2000

330 N.L.R.B. 1026 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1026
Rankin & Rankin, Inc. and Chauffeurs, Teamsters &
Helpers Local Union No. 150, International
Brotherhood of Teamsters, AFL–CIO. Case 20–
CA–27717
March 24, 2000
DECISION AND ORDER
BY MEMBERS FOX, LIEBMAN, AND BRAME
On April 17, 1998, Administrative Law Judge Burton
Litvack issued the attached decision. The Respondent
filed exceptions and a supporting brief, the General
Counsel filed an answering brief, and the Respondent
filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order as modified.2
The judge found, inter alia, that the Respondent vio-
lated Section 8(a)(1) of the Act by threatening employees
with loss of their jobs if they selected the Union as their
bargaining representative. We affirm this finding.
On March 13, 1997,3 in the early stages of the Union’s
organizing campaign, the Respondent held a group meet-
ing for employees and supervisors to talk about the Un-
ion. The Respondent’s president, Cheryl Rankin, al-
though present, did not speak at the meeting. The cred-
ited evidence shows that Lenond Lewis, the Respon-
dent’s chief executive officer, told employees, inter alia,
that, if the union demanded higher wages and the com-
pany disagreed, the union could call a strike and the em-
ployees could be replaced by new employees who would
be hired for less money. Lewis’ remarks were made only
2 days after President Rankin, the Respondent’s top
management official, had approached employees in the
lunchroom and coercively threatened them, including
Chris Folkman. Folkman, a leading union organizer, was
unlawfully discharged just prior to the March 13 meet-
ing.4 The judge found that Lewis’ remarks, given their
context, were unlawful. We adopt the judge’s analysis.

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.
We find without merit the Respondent’s allegations of bias on the
part of the judge. On our full consideration of the record, we find no
evidence that the judge prejudged the case, made prejudicial rulings, or
demonstrated bias in his credibility resolutions, analysis, or discussion
of the evidence.
At fn. 17 of his decision, the judge erroneously stated that employee
Chris Folkman had never drilled base plates before being asked to do so
by the Respondent on March 12, 1997. The record reveals, however,
that Folkman had drilled two or three base plates before March 12.
This error by the judge does not affect our decision. Also, the judge in
his decision at times incorrectly referred to employee Todd DeGraff as
“McGraff.”
Member Brame notes that there were no exceptions filed to the
judge’s findings that Production Manager Chris Koski’s comments to
employees in the lunchroom on March 11, 1997, and Supervisor Jeff
Lovejoy’s comment to employee Todd DeGraff on March 14, 1997,
violated Sec. 8(a)(1) of the Act.
2 We shall modify the judge’s recommended Order in accordance
with our decisions in Indian Hills Care Center, 321 NLRB 144 (1996),
and Excel Container, 325 NLRB 17 (1997).
3 All dates are in 1997, unless otherwise indicated.
Contrary to our dissenting colleague, we find that,
notwithstanding the 2-day separation, the blatant “close
the doors” threat made by the Respondent’s president,
Cheryl Rankin, is a relevant consideration in evaluating
whether a threat of reprisal was implicit in CEO Lewis’
statement about the fate of employees if a union came in
and a strike ensued. Like Rankin, Lewis was a high-
ranking management official, and he, in fact, directly
reported to her. Rankin’s presence at the March 13
meeting and her failure to speak out to clarify Lewis’
statements about the Union conveyed to employees that
the Respondent was speaking with one voice in connect-
ing job loss to the ongoing union activity. Since Ran-
kin’s earlier statement had clearly shown that the Re-
spondent was predisposed to retaliate against union ac-
tivity, and since Lewis made his remarks within hours of
unlawfully discharging union supporter Folkman, we
find ample basis for concluding that Lewis’ statement
about hiring workers for less money to replace employ-
ees who joined a union strike would, in the words of the
Board in Eagle Comtronics, 263 NLRB 515, 515–516
(1982), “be fairly understood as a threat of reprisal
against employees.”5
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Rankin
& Rankin, Inc., Roseville, California, its officers, agents,
successors, and assigns, shall take the action set forth in
the Order as modified.
1. Substitute the following for paragraph 2(a).
4 As more fully discussed in his decision, the judge found that Ran-
kin’s threat of plant closure and Folkman’s discharge violated Sec.
8(a)(1) and Sec. 8(a)(1) and (3), respectively.
5 Although, as our dissenting colleague notes, in Mack’s Supermar-
kets, 288 NLRB 1082 fn. 3 (1988), and Neo-Life Co. of America, 273
NLRB 72 (1984), the Board noted that the statements about replacing
strikers occurred in the same conversation with other statements found
to be unlawful threats, neither decision decrees a “single conversation”
rule. Rather, the issue is whether there is a context in which the striker
replacement statement would reasonably be perceived as a threat of
reprisal rather than a dispassionate, albeit incomplete, statement of the
law. For the reasons stated above, we think such a context was shown
here.
Having found that Lewis’ statement about striking employees
amounted to an unlawful threat of job loss, we find it unnecessary to
pass on whether his remarks about “people in the union [who] would
have seniority over” the Respondent’s employees were unlawful be-
cause such an additional finding would not affect the order in this case.
330 NLRB No. 148
RANKIN & RANKIN, INC. 1027
“(a) Within 14 days from the date of this Order, offer
Chris Folkman full reinstatement to his former job or, if
that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other
rights or privileges previously enjoyed, and make him
whole, with interest, for all his earnings lost as a result of
its discrimination against him in the manner set forth in
the remedy section of this decision.”
2. Substitute the following for paragraph 2(d).
“(d) Within 14 days after service by the Region, post
at its Roseville, California facility copies of the attached
notice marked “Appendix.”61 Copies of the notice, on
forms provided by the Regional Director for Region 20,
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
to all current employees and former employees employed
by the Respondent at any time since March 11, 1997.”
3. Substitute the attached notice for that of the admin-
istrative law judge.

MEMBER BRAME, dissenting in part.
I agree with my colleagues’ adoption of the judge’s
decision, but with the following one exception. I would
reverse the judge and find that the Respondent’s chief
executive officer Lenond Lewis’ comments to employees
on March 13, 1997,1 did not violate Section 8(a)(1) of the
Act.
On March 13, the Respondent held a group meeting to
discuss union organizing. Several managers and supervi-
sors attended this meeting, but Lewis was the only one to
speak on behalf of the Respondent. He told the employ-
ees that he wanted to explain “some of the benefits or
non-benefits” of being represented by a union; that if the
union demanded higher wages and the company dis-
agreed, the union could call a strike and the employees
could be replaced by new employees who would be hired
for less money; and that, if the employees chose to be
represented by a union, other union members would have
greater seniority “and they’d come in and work for us
and we’d have to wait for other jobs.” Lewis also told
the employees “that he was not opposed to anybody be-
ing pro-union or against the Union. Either way it was
fine as far as the company was concerned.” Two days
before this meeting, the Respondent’s president, Cheryl
Rankin, had made a threat to several employees in the

1 All dates are in 1997, unless otherwise indicated.
lunchroom that she would close the facility rather than
let the Union in.
In Eagle Comtronics, 263 NLRB 515, 515–516
(1982), the Board found that an employer’s incomplete
statement of the law concerning the permanent replace-
ment of employees in the event of an economic strike is
not coercive “[u]nless the statement may be fairly under-
stood as a threat of reprisal against employees or is ex-
plicitly coupled with such threats.” In that case, during
preelection meetings with employees, Manager Heinrich
told them that, in the case of an economic strike, strikers
“could be replaced with applications on file.” The Board
found that Heinrich’s statement, although not a full reci-
tation of the employees’ Laidlaw2 rights, was not coer-
cive because no threat was implied and no other unlawful
statements had been made by Heinrich at these meetings.
Accord: Reno Hilton, 320 NLRB 197, 208 (1995) (no
violation based on the employer’s statement that “if em-
ployees went out on strike, management could hire per-
manent replacements”).
Relying on Eagle Comtronics, the judge found that
Lewis’ remark about strike replacements was unlawful
because it occurred 2 days after President Rankin had
unlawfully threatened employees with plant closure;
Rankin had attended the March 13 meeting; and Lewis
frightened employees with job loss when he spoke about
union members with greater seniority filling jobs ahead
of current employees. Unlike my colleagues, I am trou-
bled by the judge’s reasoning. As the United States
Court of Appeals for the District of Columbia Circuit
recently counseled, albeit under different factual circum-
stances, “[I]n evaluating an employer’s conduct under
Sec. 8(a)(1), the Board must consider ‘whether the con-
duct in question had a reasonable tendency in the totality
of the circumstances to intimidate.’ [Citation omitted.]
In this case, the circumstances raise such a weak infer-
ence of intimidation that it is an intolerable stretch to say
that substantial evidence supports it.” McClatchy News-
paper v. NLRB, 131 F.3d 1026, 1036 (1997).
The threat of plant closure on March 11 was commu-
nicated by a different speaker during a different conver-
sation with a different audience on a different day.3 Fur-
ther, Rankin’s statement was predicated on the notion of
unilateral employer action to shut down, while Lewis’
remark presupposed continued operation and addressed
the Respondent’s lawful options in the event of union-
initiated action.
I also do not adopt the judge’s implicit finding that
Lewis’ remarks about other union members with greater
2 Laidlaw Corp., 171 NLRB 1366 (1968), enfd. 414 F.2d 99 (7th
Cir. 1969), cert. denied 397 U.S. 920 (1969).
3 Cf. Mack Supermarkets, 288 NLRB 1082, 1091–1092 (1988), and
Neo-Life Co. of America, 273 NLRB 72 (1984) (unlawful strike re-
placement statements were made during a single conversation which
also included other threats communicated by the same employer repre-
sentative).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1028
seniority who would “come in and work for us and we’d
have to wait for other jobs,” was outside the protection of
Section 8(c) of the Act. First, this statement constituted,
at most, a misrepresentation under the Board’s Midland4
standard, which the employees were capable of evaluat-
ing on their own. Second, in referring to the workings of
the Union’s seniority system, Lewis was discussing mat-
ters within the Union’s control, not the Respondent’s.
Thus, there can be no finding of a violation of Section
8(a)(1) because the action suggested by Lewis was not
within the Respondent’s power to carry out.5
In these circumstances, I would dismiss this allegation
involving Lewis’ March 13 comments.
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 vio-
lated 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
concerted activities.

WE WILL NOT issue written warning notices to our em-
ployees because they engaged in union or other protected
concerted activities.
WE WILL NOT discharge our employees because they
engaged in union or other protected concerted activities.
WE WILL NOT interrogate our employees about their un-
ion sympathies and activities.
WE WILL NOT threaten our employees with closure of
our business because they engaged in union or other pro-
tected concerted activities.
WE WILL NOT disparage our employees, who engages in
union or other protected concerted activities, in front of

4 Midland National Life Insurance, 263 NLRB 127 (1982) (Midland
found misrepresentations insufficient even to set aside an election, a
tighter standard than for finding unfair labor practice conduct. See
General Shoe, 77 NLRB 124, 127 (1948)). Further, applying the Mid-
land standard in Metropolitan Life Insurance Co., 266 NLRB 507, 508
(1983), the Board found permissible an employer’s statement that the
union could fine members as well as nonmembers.
5 Hampton Inn, 309 NLRB 942 (1992) (no violation based on em-
ployer’s statement about strike violence by union supporters); Sears
Roebuck & Co., 305 NLRB 193 (1991) (no violation based on em-
ployer’s description of the collection of union dues by the use of violent
union activity); and Hickory Creek Nursing Home, 295 NLRB 1144
(1989), enfd. 924 F.2d 1057 (6th Cir. 1990) (no violation based on the
employer’s indication of how the union might spend employees’ dues
payment).
other employees in order to discourage the latter employ-
ees from supporting a union.
WE WILL NOT threaten our employees with loss of their
jobs if they select a union as their collective-bargaining
representative.
WE WILL NOT create, amongst our employees, the im-
pression that we are engaging in surveillance of their
union or other protected concerted activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
the rights guaranteed to them by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer Chris Folkman full reinstatement to his
former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to his senior-
ity or any other rights or privileges previously enjoyed,
and make him whole, with interest, for any earnings lost
as a result of our unlawful discharge of him.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to Chris
Folkman’s unlawful written warning notices and unlawful
discharge, and WE WILL, within 3 days thereafter, notify him
in writing that this has been done and that the unlawful writ-
ten warning notices and discharge will not be used against
him in any way.

RANKIN & RANKIN, INC.

William Baudler, Esq., for the General.
Charles W. Nugent III, Esq. and Timothy J. Long, Esq. (Orrick,
Herrington & Sutcliffe), of Sacramento, California, appear-
ing on behalf of the Respondent.
Alan Daurie, appearing on behalf of the Charging Party.
DECISION
STATEMENT OF THE CASE
BURTON LITVACK, Administrative Law Judge. An original
and a first amended unfair labor practice charge, in the above-
captioned matter, were filed by Chauffeurs, Teamsters & Help-
ers Local Union No. 150, International Brotherhood of Team-
sters, AFL–CIO (the Union) on March 17 and May 1, 1997,1
respectively. Based on the unfair labor practice charges, on
June 13, the Acting Regional Director for Region 20 of the
National Labor Relations Board (the Board) issued a complaint,
alleging that Rankin & Rankin, Inc (Respondent) engaged in,
and is engaging in, acts and conduct, violative of Section
8(a)(1) and (3) of the National Labor Relations Act (the Act).
Respondent timely filed an answer, denying the commission of
any of the alleged unfair labor practices. Pursuant to a notice of
hearing, the above-captioned matter was brought to trial before
me on July 15 and 16, 1997, in Sacramento, California. At the
hearing, all parties were afforded the opportunity to examine
and to cross-examine every witness, to offer into the record any
relevant documentary evidence, to argue their legal positions
orally, and to file posthearing briefs. The latter documents
were filed by counsel for the General Counsel and counsel for
Respondent and have been carefully considered. Accordingly,
1 Unless otherwise noted, all events occurred during 1997.
RANKIN & RANKIN, INC. 1029
based on the entire record here, including the posthearing briefs
and my evaluation of the testimonial demeanor of the several
witnesses, I issue the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a State of California corporation, has an office
and a place of business located in Roseville, California (the
facility), and, at that location, is engaged in business in the steel
and sheet metal fabrication industry. During the calendar year
ending December 31, 1996, in the normal course and conduct
of its business operations, Respondent performed services,
valued in excess of $50,000, for customers located in States
other than the State of California. Based on the foregoing,
Respondent admits that it is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
Respondent admits that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
III. ISSUES
The complaint alleges, and the General Counsel sought to es-
tablish, that Respondent engaged in acts and conduct, violative
of Section 8(a)(1) and (3) of the Act, by issuing warning no-
tices to and terminating its employee, Chris Folkman, because
he engaged in activities in support of the Union. The complaint
further alleges, and the General Counsel further sought to es-
tablish, that Respondent engaged in acts and conduct, violative
of Section 8(a)(1) of the Act, by interrogating its employees
about their activities in support of the Union, by creating the
impression amongst its employees that it was engaging in sur-
veillance of their union activities, by threatening to close its
facility if its employees continued to engage in protected con-
certed activities, by disparaging employees, who were engaging
in activities in support of the Union, in front of their fellow
employees, and by threatening employees with loss of em-
ployment because they engaged in activities in support of the
Union. Respondent denies the commission of any of the al-
leged unfair labor practices and asserts that it terminated em-
ployee Folkman for valid business considerations.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
Respondent, a California corporation, is engaged in the steel
and sheet metal fabrication industry, manufacturing and install-
ing store fronts and canopies for gas stations and car washes.
The record establishes that Cheryl Rankin2 is the president and
her husband Don is the vice president of the corporation and
that the Rankins have incurred a substantial indebtedness in
financing their business venture.3 Also, Lenond Lewis is Re-
spondent’s chief executive officer (CEO); Chris Koski is the
production manager; Timothy Webster is the foreman over the
structural steel department; and Jeff Lovejoy is the foreman
over the sheet metal fabrication section. The parties stipulated
that Cheryl Rankin, Lewis, Webster, and Lovejoy are supervi-

2 Cheryl Rankin is responsible for all bookkeeping operations and
for supervising the office work.
3 Cheryl Rankin testified that, as of March 1997, she and her hus-
band were $2,500,000 to $3 million in debt. However, the record was
not clear whether such is a personal or a corporate debt.
sors within the meaning of Section 2(11) of the Act. The re-
cord further establishes that the floor of the manufacturing fa-
cility is divided into steel fabrication and sheet metal fabrica-
tion sections, with an equal number of employees working in
each, and that the sections are physically divided by vertical
supports and shelving.4
Alleged discriminatee Chris Folkman, the son of a business
agent for the Union, began working for Respondent in August
1996 as a “steel shop laborer” in the steel fabrication depart-
ment, where he worked until his termination on March 13,
1997. Although unskilled in fabrication work, Folkman was
immediately assigned the task of cutting out I-beams and col-
umns on a steel saw. After performing this work for 2 months,
he was assigned to work on the Piranha machine, utilized for
punching holes in and bending steel, on which he worked until
his termination. Two of Respondent’s other employees, Todd
DeGraff and Jason Bos, have been Folkman’s friends since
high school and, during the course of conversations in the fall
of 1996, the three employees would customarily discuss prob-
lems at work—in particular, Respondent’s lack of paid vaca-
tions and sick leave and its policy of paying overtime only after
40 hours of work in a week rather than after 8 hours of work in
a day. According to Folkman and DeGraff, commencing in
November or December 1996 and continuing through February
1997, these conversations included the subject of union repre-
sentation and the merits and benefits of such. Eventually, ac-
cording to DeGraff, they spoke about “a meeting to explain to
the other workers . . . the benefits and what [union representa-
tion had] to offer,” and, as his father was employed by the Un-
ion, Folkman suggested that labor organization as the employ-
ees’ potential bargaining representative. Taking the initiative,
the alleged discriminatee arranged for an employee meeting
with representatives of the Union at his home after work on
March 13 and, within a week of the meeting, orally informed
other employees of the meeting and its subject. Folkman testi-
fied that, after mentioning the meeting to several employees, “I
had about five or six people committed to attend.” Besides
arranging this employee meeting, Folkman also arranged for
the Union to send a letter, identifying him as a union supporter,
to Respondent.5 On March 11, Respondent received the Un-
ion’s letter, which was addressed to Cheryl Rankin. Typed on
stationery bearing the Union’s name, signed by Alan Daurie, a
business representative, and dated March 7, the letter stated:

Please be advised that Chris Folkman wishes to be
identified as a Teamster supporter and Employee Organiz-
ing Committee member. It is Chris Folkman’s intent to or-
ganize [Respondent] into the Teamsters Union. This list
does not claim to include all Teamster supporters working at
[Respondent]. This letter is to alert you that Chris Folkman
is to be given all legal rights due for his protected activities.
Violations of the [Act] and other laws may result in charges
being filed.

4 In the steel fabrication section, Respondent’s employees manufac-
ture the support columns for the canopies, and, in the sheet metal de-
partment, the ACM panels for the canopies are fabricated. Cheryl
Rankin estimated that, in March, Respondent employed approximately
20 individuals in its fabrication shops.
5 Folkman explained to Jason Bos that the letter had a dual pur-
pose—“to inform the company that he would be helping to establish a
union shop” and to “give him some grounds with job security.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1030
Rankin read the letter “just before lunch,” showed it to her
husband,6 and, carrying the letter and the 1997 W-2 forms for
herself and her husband, walked into the employee lunchroom
in order “to find out what was going on.” Among the employ-
ees seated at tables and eating lunch at the time were Folkman,
Bos, Darren Reynolds, Todd DeGraff,7 and Wyatt Ludwig.
According to Reynolds, who worked for Respondent from De-
cember 1996 until he was terminated in May 1997 for exces-
sive absences and who was able to identify the documents
which Rankin was carrying as she entered the lunchroom, Ran-
kin “walked over towards Chris, and asked him what they were
all about, why he had done this to them, and what he was trying
to do. . . . She said that [her husband] and herself had only
made it on $25,000 a year, that they couldn’t afford to give
raises. And that they’d fight the Union if [the employees] tried
to bring it in, and that they’d close the doors before . . . they’d
ever have a union there.”8 Reynolds stated that he responded to
Rankin, saying “that no one there felt like they had a lot of job
security;” that Ludwig mentioned the amount of time he had
been employed and said he “hadn’t got his scheduled raise;”
and that Folkman also responded to her questions in a calm
manner. At this point, Reynolds recalled, Rankin turned and
walked out, and Chris Koski and employee Scott Zufelt en-
tered; the witness did not hear what, if anything, Koski might
have said. Folkman testified that, on entering the lunchroom,
Cheryl Rankin approached him and placed the Union’s letter on
the table in front of him. He looked down at the letter and
turned to Rankin, and she asked, “Why?” According to Folk-
man, he explained about overtime and no paid vacations or sick
leave.9 Rankin then placed the two W-2 forms on the table, and
the forms read that each Rankin had earned $20,000 in salary
the past year. She said “that they put everything they have into
the company, that they couldn’t afford a union.” Then, Rankin
said, “[S]he wondered why people didn’t come to her first. She
said that she would shut down her company before she would
allow a union in her shop” and added “that she would fight it all
the way.”10 Continuing, Folkman testified that Rankin then
turned and left the room and that, a moment later, Koski and
Zufelt entered. The latter asked what was going on, “and Wyatt
Ludwig . . . replied . . . that Cheryl was just in the lunchroom,
threatening to shut down the company if we brought a union
in.” To this, Chris Koski11 said, “They will shut it down.” And

6 According to Rankin, her husband does not become involved in
employee relations, a matter which is left to Lewis and the immediate
supervisors.
7 While Chris Folkman did not identify him as being present, both
Cheryl Rankin and Darren Reynolds testified that DeGraff was in the
lunchroom when Rankin entered the room on March 11. DeGraff was
called as a witness by counsel for the General Counsel but was asked
no questions regarding what occurred in the lunchroom that day.
8 Reynolds stated that Rankin stood “right in front of [Folkman],
right across from myself;” that she “was not happy;” and that he was
able to ascertain this from “just her facial expression, her tone of voice.
It wasn’t a loud voice, it was just not a happy one.”
9 During cross-examination, Folkman recalled that, besides himself,
Reynolds, Ludwig, and Bos replied to Rankin’s questions.
10 Folkman described Rankin as being upset but speaking in a nor-
mal tone of voice.
11 Respondent denies that Chris Koski is a statutory supervisor. In
this regard, Len Lewis testified that, prior to becoming the chief execu-
tive officer of Respondent, he had been the production manager, a
supervisory position and that when he became the CEO of the Com-
pany in late 1996, he “moved” Koski into his former position. In this
then he said that, “I can’t believe we’ve got a bunch of [fuck-
ing] queers trying to pull this stuff.”12
Cheryl Rankin’s version of what occurred is not dissimilar to
the foregoing. She recalled that, after approaching Folkman
and placing the Union’s letter on the table in front of the em-
ployee, “I asked him why do you think we need this, what’s
wrong . . . . Chris looked at me and he said, good; it finally got
here. I said what’s this all about? What is the problem?” Folk-
man replied that the employees “have a lot of complaints. We
have a lot of things that we are not happy with” and mentioned
vacation pay, sick leave, and payment of promised raises. Bos
interrupted and emphasized that employees had not received
scheduled and promised pay raises. Rankin replied, saying that
Respondent was changing its “system” for paying raises and
that employees had received fully paid benefits on January 1.
Folkman responded that “if somebody works for you, you owe
them this.” According to Rankin, she became irritated at
Folkman’s last comment, “and I said that I would close this
place. I would give up. I can’t deal with it anymore.”13 Em-
ployee Bos, who testified on behalf of Respondent, stated that
he was present during this lunch encounter but could only recall
that various individuals spoke, that he expressed “a few con-
cerns” about raises and future benefits, and that he and Folk-
man had “mutual” concerns.
Rankin further testified that, immediately after leaving the
lunchroom, she went to Len Lewis’ office and showed him the
Union’s letter. While professing an inability to recall what she
said about the letter, Rankin did recall not disguising her oppo-
sition to the Union and instructing Lewis to schedule a meeting
with Respondent’s employees. “I wanted him to get to the
bottom of what the problem was and answer any concerns or
questions [the employees] might have” and to find “solutions”
in order to make the employees happy and for Respondent to
avoid dealing with the Union. She added that she put the Union
matter “into Lewis’ hands as he “is the person I go to help me
solve problems.”
Chris Folkman reported for work the next morning, March
12, and began working on the Piranha machine, and “I had been
there no more than an hour, when Tim Webster came up to me
and told me that he was going to have me drill base plates that
day,”14 using the magnetic drill.15 Webster added that there

regard, Cheryl Rankin announced to Respondent’s employees that
Koski would be taking Lewis’ place and she conceded that Lewis’
former position was a supervisory position; Tim Webster and Jeff
Lovejoy, both admitted statutory supervisors, report directly to Koski
for scheduling and work assignment purposes; and Koski refers to
himself as the “shop foreman.” Moreover, the record reveals that
Koski assigns work to shop employees, reassigns them from job to job
when necessary, requests that employees work overtime, approves
requests for sick leave or vacation leave, and issues discipline to em-
ployees.
12 While his memory of the lunchroom incident was limited, DeGraff
agreed that Koski termed the union supporters fucking queers and that
he was “ranting and raving” about the Union.
13 Questioned by Respondent’s counsel as to why she made such a
comment, Rankin averred that “too many things . . . were beating” on
her that month, including “I had an employee that I trusted back stab
me.”
14 According to R. Exh. 4, Folkman’s timecard for March 12, he
worked 3 hours on the Piranha machine that day.
15 Folkman testified that the drill is normally operated by employee,
Kevin O’Connor, but that O’Connor “was sweeping the floor” during
that morning.
RANKIN & RANKIN, INC. 1031
were “upcoming jobs” which would require many base plates
and that he needed 80 of them drilled16 and ready for use.17
The record reveals that this particular machine is a 50- to 60-
pound portable drill with an electromagnet attached at the bot-
tom; that base plates are inch and a quarter thick, rectangular,
75- to 80-pound pieces of steel, which form the anchors for the
columns of the canopies; that, depending on the size of the hole
and the thickness of the steel through which the bit must bore,
different size drilling bits are utilized;18 and that, for drilling
purposes, a base plate is placed on top of two steel saw horses,
the center shaft of the drill bit is aligned over a punch mark
through which the hole is to be drilled, the magnet is switched
on in order to hold the base plate in place, the drill itself is then
turned on and slight pressure is applied to the wheel, which
controls the drill bit, to ensure that the bit drills through the
steel. That morning, the undrilled base plates were stacked on a
pallet, and Folkman placed one on the steel saw horses, ob-
tained the correct size drill bit19 from a toolbox located in a
cabinet and inserted it in the drill, aligned the drill over a punch
mark in the base plate, switched on the magnet and the drill,
and started drilling the first hole. However, “I couldn’t drill
through. So, I went and got Tim . . .” to come and help. Ac-
cording to the alleged discriminatee, “it looked like [Webster]
was trying to figure out what was going on . . . what was
wrong. And then he . . . put all of his weight on the wheel that
lowers the drill bit . . . . He was up on his tip toes, as if he was
trying to force down all of his weight on to the wheel” that
turns the drill bit. Webster then told Folkman to skip drilling
through the hard spots in the base plates, and, thereafter, as he
proceeded to drill holes in the base plates that day, Folkman
utilized “just enough pressure so that the drill bit would keep
biting the steel.” After a while, as he drilled into a base plate,
“I broke a bit . . . . and it broke before I knew it was hard or
what . . . . the drill stopped for like a tenth of a second and then
it just snapped . . . . it just shattered” into three large and sev-
eral smaller pieces. Folkman walked over to Webster and
showed him the pieces of drill bit, and, without examining the
pieces of the drill bit, the latter said, “[T]here’s another bit in
the drawer, you can go get that and keep drilling.’’ The alleged
discriminatee then obtained what he characterized as another
used drill bit, one which was coated in oil and not wrapped,
from the same toolbox, inserted the drill bit into the drill and
continued drilling base plates, without incident, for the remain-
der of the day.20

16 Four holes are drilled through each base plate.
17 Folkman testified that he had limited experience in operating the
magnetic drill, having been assigned to operate it no more than 15
times over the course of his employment and for no more than an hour
at a time. He added that he received no more than 5 minutes of instruc-
tions on how to operate the machine from Steve Gibson (consisting of
how to turn the drill on and off and how to align the drill bit) and no
instructions that morning on how to do the job. Further, he had never
drilled base plates before, having previously used the machine to drill
holes in thinner I-beams.
18 Apparently, a drill bit costs over $100. According to Tim Web-
ster, all drill bits are kept in a steel case inside an unlocked cabinet, and
new ones are encased in “green plastic coating.” He added, “If it was
used, it wouldn’t have that green plastic coating.”
19 According to Folkman, it was a used drill bit.
20 Folkman estimated that he completed 12 base plates that day. He
added that neither Webster nor anyone else approached with criticism
regarding how he was using the drill.
On March 13, on reporting for work, Folkman told other
employees, including Todd DeGraff, that “there wasn’t going
to be any union meeting that night . . . because no one wanted
to support it.” Folkman began working “over on my machine,”
the Piranha; however, after no more than 10 minutes, Webster
approached and told him to continue drilling base plates with
the magnetic drill. Again, according to the alleged discrimina-
tee, the regular drill operator, Kevin O’Connor, “was cleaning
up . . . . I believe he was sweeping the floor again, and I think
he walked around the shop and picked up . . . pieces of wood
laying around and stuff.”21 As requested, Folkman commenced
drilling base plates, and after finishing “probably about five of
them,” the second drill bit broke. “This time it just broke with-
out even stopping . . . . I’m drilling, and the next thing I know it
was broken . . . . [T]here was no time—as soon as the drill
seized up, it broke . . . . It broke in the plate,” on which he was
drilling. Employee Steve Gibson observed what had occurred
and immediately walked over to where Tim Webster was work-
ing. As Folkman approached Webster, he heard Gibson say
“that it was not my fault, there’s nothing I could have done to
avoid it.” Folkman showed Webster all the broken bit pieces,
which were not stuck in the base plate; the two walked back to
where the former had been drilling the base plate; and, after
examining the base plate, Webster instructed him to remove the
broken bit pieces from the base plate and to clean up the mess.
Folkman specifically denied that Webster ever asked what had
happened, ever accused him of operating the magnetic drill
negligently, or investigated the matter in any way. Folkman
did as Webster requested, and the latter then assigned him a
new set of plans for work on the Piranha machine.
That afternoon, at approximately 1:30 p.m., Folkman noticed
that no supervisors were on the shop floor, and there is no dis-
pute that all were attending a meeting in the conference room.
Later, after Folkman’s afternoon break, at approximately 3
p.m., Len Lewis approached and said he wanted to speak to
him. Folkman followed Lewis into the conference room, and,
after both were seated, Respondent’s CEO handed Folkman
two warning notices, one dated March 11 and the other March
12, and a letter, dated March 12. The March 11 warning notice
(G.C. Exh. 8), signed by Tim Webster, reads, as follows:

Warned Chris Folkman several times to quit conversing dur-
ing company time. Chris was conducting personal business
and preventing other Employees from doing their jobs at least
(8) times today. This was Chris last chance to continue Em-
ployment with this company. I have told him if I had any
more problems he would be let go. Given this set of circum-
stances I am prompting that Chris Folkman be fired as of 3–
12–97.

The March 12 warning notice (G.C. Exh. 9), also signed by
Tim Webster, reads, as follows:

Chris Folkman has broken two Hogen drill bits in a six hour
period. Chris has been trained on the proper use to avoid
breakage. Because of this incident I can no longer have Chris
do one of the jobs he was hired for.

The letter, dated March 12 and signed by Lewis, is headed
“substandard work performance, work rule violations” and
reads, as follows:

21 Folkman denied that O’Connor operated a saw on either of the 2
days.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1032
It has been brought to my attention that you have received an-
other written warning. You have received several warnings to
date. 1. Your first written warning was December 7, 1996
when you skipped a mandatory work day. You agreed in the
employee warning report you received and signed the com-
pany statement concerning your violation of work rules was
accurate. 2. Second you received a verbal warning on Janu-
ary 21, 1997 for repeatedly talking and interrupting others
during work hours. 3. On January 29, 1997, Tim Webster sat
down with you and told you that your performance was sub-
standard and your attitude needed to improve. Tim told you
that you would be terminated if as of now job performance
and attitude did not improve. 4. On March 11, 1997, Tim
Webster again spoke with you about engaging in personal
business while on company time and preventing other em-
ployees from doing their jobs. 5. On March 12 & 13, 1997,
you again have violated one of our work rules. You have bro-
ken two Hogen Bits, each costing the company $106.00. Ap-
proximately two months ago, after you broke your first Hogen
Bit, Tim informed you that if you broke another Hogen Bit
you would be terminated. You have now broken 2 in the last
6 hours of work, this is not acceptable (And these latest inci-
dents where in addition to others that have occurred in the
past, e.g., failure to properly use punch dies on the Piranha).
6. Your behavior unfortunately seems to indicate an unwill-
ingness to comply with company rules as does your unaccept-
able work performance. We have rules and we expect them
to be followed. In light of the repeated warnings you have re-
ceived regarding your deficient work performance and your
failure to improve your performance, we have no other choice
but to release you from employment with Rankin & Rankin
Inc. effective immediately.

As to what occurred during the meeting, according to Folk-
man, “I looked at [the documents] and I began to point out
different things on all three . . . that were not true. He pro-
ceeded to [say] who’s he supposed to believe, me or a supervi-
sor? That’s why he has Tim as a supervisor, because he knows
he can trust him. He [said] . . . he’s never broken a jaw bit
before . . . . I [said] . . . that he was firing me because of my
organizing efforts,” and that what was in the documents “are
not the actual reasons you're using to terminate me.” Lewis did
not reply to this. He then told Lewis that Webster never
warned him that he needed to improve his work performance
and challenged Lewis to look at surveillance tapes to verify his
continued talking to other employees.
With regard to the March 11 warning notice, Folkman de-
nied being aware of or seeing the warning notice until it was
given to him by Lewis. Asked if Webster ever warned him
about talking to other employees that day during work time,
Folkman repled, “Not once.”22 Further, asked if Webster ever
told him any more problems and he would be fired, Folkman
said, “[N]ot once had I ever been warned that I would be fired.”
He added that Webster himself would speak to employees
while they worked. “He would just go around to different em-
ployees and kind of chit chat with them. He liked to talk about
sports a lot . . . and he make bets with people on upcoming

22 Folkman averred that, for the last 2 weeks of his employment, “I
made it a point to work extremely hard . . . . Because I was planning on
sending the Union letter to [Respondent] . . . . I didn’t want them to
have any kind of legal excuse to terminate me.”
sporting events during company time.” Folkman added that, on
a daily basis, Lewis would bet with him on sports events.
Turning to the termination letter, as to paragraph 1, Folkman
conceded receiving a written warning in December 1996 re-
garding “a mandatory day that I had missed, it was a Saturday.”
He added that the lunch, on the day before, had been a Hawai-
ian-style meal, and “I woke up . . . with the stomach flu. So I
called in and left a message on the machine . . . that I would not
be able to come in that day.” As to paragraph 2, Folkman de-
nied the asserted January 21, 1997 verbal warning for talking to
other employees. “That did not happen.” Continuing, Folkman
denied ever receiving any verbal warnings, for talking to other
employees or interrupting employees while they worked, dur-
ing his employment by Respondent.23 Concerning paragraph 3,
Folkman denied that such an incident ever occurred (“No, he
did not sit me down and talk to me about those things”) and
termed the paragraph “an absolute lie.”24 With regard to para-
graph 5 and what work rule he had violated, Folkman did not
know the rule to which the letter referred. He recalled that
Lewis “just told me that because of the warning they had put
out . . . . He said that I had broken two drill bits . . . in consecu-
tive days. He said that . . . he doesn’t know how that could
happen, and that I was warned about it . . . . [H]e never said that
it was because I was negligent or malicious.”25 As to the last
sentence of paragraph 5, Folkman steadfastly denied improp-
erly using punch dyes on the Piranha machine. (“I know that I
did not improperly use punch dyes and punches on the Pira-
nha”) and speculated that the accusation may refer to a time
“when another employee broke a punch on the Piranha.” He
added that, at the time he was moved to the Piranha machine, of
the 30 punches and dyes, “all but probably about five” were
damaged to some degree.
At the conclusion of his meeting with Lewis, the alleged dis-
criminatee left Respondent’s facility. Later, as the remaining
employees were finishing work, Jeff Lovejoy informed them
that there would be a meeting in the conference room. Present
were the employees, the supervisors, and Cheryl Rankin, and
Len Lewis conducted the meeting. According to employee
Todd DeGraff, Lewis began by asking if anyone had questions.
No one asked a question, and “he said he wanted to talk to us
about . . . union organization, that he was sure that Chris had
talked to us about unions and he wanted to kind of have their
23 Folkman did concede “there were a couple of times” that Webster
motioned to him with his hand to stop talking. Folkman recalled an-
other occasion “when [Webster] came up to Kevin O’Connor and my-
self and mentioned to us that he didn’t care if we talked, but . . . just
don’t do it when we’re really busy and not to let Don Rankin see us.”
24 Folkman stated that, in about January or February, “I heard a ru-
mor . . . that my job was in jeopardy . . . that Tim was watching me on
the surveillance camera to see if I was doing my job right.” That day,
he spoke to Lewis, who denied that Folkman’s job was in danger and
told him to speak to Webster. Folkman then spoke to Chris Koski, who
said he knew nothing. The next morning, Webster called Folkman into
his office “to talk to me about the rumors that I had heard . . . . [Web-
ster] said that there were no rumors going around. He said that he
didn’t have to look on the camera to see if I was doing my job right
. . . . He said, ‘You’re not going to get fired. You’re a good employee,
so don’t worry about it.’”
25 Specifically regarding broken of drill bits, the alleged discrimina-
tee recalled that, in January or February, after Kevin O’Connor broke a
bit on the magnetic drill, “Tim Webster came out and told everybody in
the shop that . . . Don Rankin . . . told him to warn everybody the next
person to break one would be terminated.”
RANKIN & RANKIN, INC. 1033
side known . . . . He said . . . he wanted to explain to us some of
the benefits or non-benefits of having a union there. . . . He
said that if we were to . . . try to get higher wages, that we’d all
have to be fired and let go, that they’d hire new employees for
less money. . . . He talked about seniority in the unions. If we
were to go union . . . other people in the union would have sen-
iority over us and they’d come in and work for us, and we’d
have to wait for other jobs.” During cross-examination, De-
Graff agreed that what Lewis actually said was, if the Union
demanded higher wages, the Company could disagree and, if
the Company disagreed, the Union could call a strike. When
asked if Lewis actually said employees would be replaced
rather than fired in the event of a strike, DeGraff said he could
not recall exactly what Lewis said. Darren Reynolds corrobo-
rated DeGraff that Lewis said that “if they did bring the Union
in . . . union members [who] had more seniority than we had
would take our positions and we’d be laid off.” Jason Bos also
testified about this meeting and recalled Lewis saying “that he
was not opposed to anybody being pro-union or against the
Union. Either way it was fine as far as the company was con-
cerned.” Asked if Lewis discussed what could happen in the
event of a strike, Bos recalled Lewis saying that there could be
a strike but added that “he didn’t really go into detail about it.”
Finally, asked if there was discussion about people from other
places having more seniority than him, Bos replied, “After the
meeting . . . somebody made a statement that other people from
the Union could be used in place of [our] employees because
we were part of the Union; meaning that [Respondent] would
not be the sole hiring facility.” Bos added that the speaker was
not a management official. Notwithstanding testifying exten-
sively on behalf of Respondent, Lewis neither denied nor ex-
plained any of the comments, which were attributed to him
during the March 13 employee meeting.
According to Todd McGraff, Respondent was aware of the
union meeting, which was to have occurred at Folkman’s home
after work on March 13. Thus, McGraff testified that, the next
day, near a table on which they were laying out some sheet
metal, “my supervisor, Jeff Lovejoy, just asked me . . . ‘How
did the Union meeting go last night?’”26 Also, McGraff identi-
fied a copy of Respondent’s newsletter, The Rankin Review,
which is distributed to its employees with their paychecks. He
testified that the issue was published within days of Folkman’s
termination. In an article, entitled “Message from Cheryl,”
Respondent’s corporate president, after explaining the “cons”
of union representation, wrote, in part:

First let me tell you how my last two couple of weeks have
been. It started with $3,000.00 worth of damage being done
to two cars by R.B. not tying down materials good enough
which allowed it to come loose and hit the cars. It was fol-
lowed by being served with a lawsuit over Dan Knapp’s car
accident in my vehicle which hit a family of four and they
want several millions of dollars in damages, followed by my
son being in a head on collision which was his fault, followed
by worrying over Don having headaches every day and the
doctor ordering a cat scan of his head, followed by being told
I should put my eight year old dog to sleep, followed by our
partners of our old building in Newcastle trying to rip us off

26 McGraff stated that he had never mentioned the meeting to Love-
joy, that the meeting had been publicized “just by word of mouth,” and
that he and Lovejoy were not social friends. Lovejoy was not called as
a witness, and McGraff’s testimony was uncontroverted.
by saying we walked away from our property so it’s no longer
ours and is leaning towards legal actions to get back what is
rightfully ours and has concluded with receiving the letter
about Folkman trying to unionize my plant. Don and I have
been self employed for twenty three years, we have worked at
building this business for thirteen years, we didn’t work this
hard to allow someone who’s only been with us a matter of
months to come in and start telling us how to run our busi-
ness. Even without the courtesy of coming in and talking to
us before he took this action to see if the problems could be
worked out without another party involved.27

With regard to Respondent’s defense to the allegation that
Folkman was unlawfully terminated, Tim Webster, who was
Chris Folkman’s supervisor, testified that, in January 1997,
Folkman “was interrupting other employees as far a talking all
the time and I had to disrupt him quite a few times.” Webster
added that “some of the times I talked to him and told him to
quit interrupting people; get back to your station, you have
work to do. And some of the time, I would do it from a dis-
tance.” However, rather than getting better, Folkman’s per-
formance “went downhill,” and, as a result, according to Web-
ster, he had “enough of it” and wanted to terminate Folkman.28
Thereafter, on January 29, “I sat him down and told him that I
wasn’t happy; that I wanted to terminate him because he is
talking too much and he is not doing his job, and he is not keep-
ing up. I also told him that Len told me to give him another
chance.”29 To this, Folkman’s only response was “okay and
that he understood.” Asked, by me, if he gave a written warn-
ing to Folkman on January 29, Webster answered, “I didn’t
actually write it myself, but I did give it to him and talk to him
about it.” Webster added that the warning notice was “for talk-
ing and interrupting other employees.” During cross-
examination, asked if he had given any written warnings to
Folkman prior to March 11, Webster said, “Just the one on the
29th” and identified General Counsel’s Exhibit 14, as the
document, which he gave to the alleged discriminatee on Janu-
ary 29. That document, which bears Webster’s signature and
the date (1–39–97), reads, as follows:30

Today 1–29–97 I pulled Chris Folkman in the office and had
a very long talk with him. I told Chris I still wasn’t happy
with his job performance and his attitude. I warned him if he
continues not to perform his job duties and doesn’t change his
attitude I’m going to let him go.

On identifying the document, the following questions and an-
swers ensued:

Q. That was not given to Mr. Folkman, was it?
A. No.
27 DeGraff identified R.B. as employee Randy Britt, a driver for the
shop. He added that Britt continued to work after Folkman was fired
for, at least, 2 months. Cheryl Rankin identified Britt as a maintenance
field person and stated that Britt had been terminated on March 2.
Respondent offered no records to corroborate Rankin’s testimony.
28 Webster maintained that Folkman’s talking directly impacted on
his job performance—“He was behind on some jobs back then because
he was talking all the time.”
29 Webster stated that Lewis told him this on the day before “at the
end of the day.”
30 The document itself is a plain sheet of lined paper.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1034
Q. In fact, the company has written warning forms,
does it not, when an employee is being written up for vio-
lating a rule?
A. Yes
JUDGE LITVACK: So, what was it that you gave to Folk-
man? You told me that you gave him a warning. The
Witness: Well, obviously I was mistaken. I make mistakes
just like everybody else. I’m human, too . . . this is a note
I made for myself . . . . I gave him a verbal warning, but I
didn’t give him a written warning.31

Webster testified that, notwithstanding the above warnings,
the alleged discriminatee’s job performance did not improve,
and “I just talked to [Folkman] several times” but “not for-
mally.” Finally, on March 11, with Folkman’s behavior worse
than before,32 Webster spoke to Lewis about Folkman, drafted
General Counsel’s Exhibit 8, and “I gave it to Len Lewis . . .
in his office.” Lewis said he would get back to Webster.
Asked, during cross-examination, why he did not give the
warning notice to the employee,33 Webster explained, “I could
have given it to Folkman if I wanted to. But . . . I had already
given him verbal warnings many times and I just had enough of
it. So I wanted to terminate him.”34 Respondent’s supervisor
denied knowledge of the Union’s letter, regarding Folkman, at
the time he drafted the above written warning.
Regarding the events of March 12 and 13, Webster testified
that, as Kevin O’Connor was busy completing another work
assignment and as Folkman had completed an assignment on
the Piranha machine, he assigned the alleged discriminatee to
drill holes in base plates with the magnetic drill. In this regard,
Respondent’s Exhibit 5, Webster’s employee assignment sheet
for the week of March 10 through 14, reveals that O’Connor
worked 6 hours sawing I-beams and 1 hour on the hydraulic
hand punch for project 6I139 on March 11 and 4 hours sawing
I-beams and 4 hours on the hydraulic hand punch for project
6I139 on March 12. Based on this assignment sheet, which,
Webster stated, he compiles, on a daily basis, from the employ-
ees’ timecards, Respondent’s supervisor testified that O’Connor

31 Webster testified that he prepared G.C. Exh. 14 on January 29 “af-
ter” he spoke to Folkman. Webster added that he did not give a written
warning to the employee because he does not want to hound employees
and because he believes written warnings should only be given to em-
ployees who don’t adhere to oral warnings.
During cross-examination, Webster was shown G.C. Exh. 15, a simi-
lar document to the foregoing and bearing the signature, “Tom” Web-
ster, and the date, 2–21–97. On viewing the document, the witness
averred, “It’s my writing. I did it. It looks like it says Tom Webster.”
Stating that his name is Tim and that he never forgets his name, Web-
ster admitted “I don’t know how or why he wrote “Tom.” The docu-
ment reads, as follows:
Re: Employee verbal warning
On 2–21–97 I gave Chris Folkman several verbal warnings
During the day to quit talking and interrupting others while their
trying to perform their normal job duties. I also asked Chris to
start spending more time on keeping up with his job duties instead
of interrupting others all the time.
32 Asked if there was anything different about Folkman’s behavior
on March 11 than on any other day since January 29, Webster said,
“No.”
33 As indicated by the forms themselves, Respondent’s written warn-
ing policy includes having the offending employee execute the warning
notice and affording him an opportunity to respond in writing.
34 Employee Jason Bos testified that the shop is extremely noisy,
and, in order to be heard, one must raise his voice.
did no sweeping on March 12. According to Webster, on reas-
signing Folkman, “I just told him to go over and drill base
plates . . . . I told him to be careful.” Thereafter, “I went back
and forth, seeing how he was doing.” After a while, Folkman
reported that he had broken a drill bit—“He just walked over to
me and he said that I broke a bit. What do you want me to do?”
Then, “I went and got him a new bit, and handed it to him. . . . I
told him to go back and drill base plates.” Asked where he
obtained the drill bit, Webster stated, “I kept it locked up in the
cabinet,” which is located “right by the base plates.”35 He
added that “it was a new bit . . . . [I]t had a green plastic coating
on the end of it.”36 Webster further testified that, after giving
the new drill bit to Folkman, he went to Len Lewis’ office, and
“I told him I wanted to terminate Folkman . . . . Actually . . . I
told him that Chris Folkman broke a drill bit and that Don Ran-
kin . . . gave me directions that if anyone breaks a drill bit . . .
they want to fire them . . . [Lewis] told me that he would get
back to me.”37
The next day, as O’Connor continued working on project
6I139,38 Webster again assigned Folkman to drill base plates
with the magnetic drill. At some point in the morning, he be-
came aware that Folkman had broken the replacement drill
bit—“he came up to me, smiling and giggling, and said that I
broke another bit . . . . I just told him to clean up the shop and I
will be back out.” At this point, Webster apparently drafted
General Counsel’s Exhibit 9 and, as he did the day before, went
35 Asked if this is the cabinet to which Folkman referred, Webster
replied, “If he got into a cabinet, yes. That would be the cabinet.”
36 Asked if new drill bits are kept separate from used ones, Webster
said, “What I do is I keep one bit out for the employees to use on each
size. If I have new ones, I lock them up. But, in this case, there is not a
size in there, there may be a new bit in there, but it is the only bit for
that size. It could be an oddball size that we didn’t use . . . . If I have
more than one bit of the same size, I keep the rest of them locked up.”
37 As to the Don Rankin comment, according to Webster, Kevin
O’Connor broke a drill bit and Webster informed Rankin about what
happened. “And he told me that the next one who breaks a drill bit is
terminated . . . . I went back out in the shop and I talked to Kevin
O’Connor and Chris Folkman,” telling them “that Don Rankin [said]
the next one who breaks a drill bit is fired” because bits are expensive.
Counsel for the General Counsel questions the existence of the fore-
going Don Rankin edict. In this regard, I note that Webster’s testi-
mony, as to whatever Rankin may have said, was hearsay, and Rankin
himself was never called as a corroborative witness. Further, Chris
Folkman testified that, on another occasion in February 1997, Webster
invoked Don Rankin’s name in threatening to fire someone for causing
damage to the Piranha machine. According to the alleged discrimina-
tee, he noticed a bent piece of steel, with the imprint of a punch as if
such had been done without use of a “dye” in the dye holder, and
showed it to Webster, and, after questioning other employees in order
to ascertain who caused the damage, the latter told Folkman that Don
Rankin wanted the person fired and that he would examine surveillance
tapes to find the miscreant. Two days later, Folkman testified, Webster
informed him that he had discovered the identity of the culprit, but the
person was not terminated. Webster failed to deny this testimony.
Folkman also testified that Webster once threatened to fire Kevin
O’Connor for being late too often. O’Connor continued to report late
for work but was never disciplined. Webster also failed to deny this
testimony.
38 R. Exh. 5 establishes that O’Connor spent 3 hours using the hy-
draulic hand punch and 4 hours sawing I-beams for project 6I139 on
March 13. In addition, he did clean the shop for an hour, but, Webster
explained, this was at the end of the workday.
RANKIN & RANKIN, INC. 1035
to Len Lewis’ office.39 Webster gave Lewis the warning no-
tice, “and I told him he had broke another drill bit and [Folk-
man] laughed. [Lewis] told me again that he would get back to
me.” Webster added that, in his experience, no drill bit has
ever just shattered as did the second broken drill bit and that,
despite extensive use, no drill bits have shattered since March
13.40 During cross-examination, Webster reiterated that he
inferred from Folkman’s smiling and giggling, he had broken
the second drill bit willfully. While he told this to Lewis, Web-
ster denied that such prompted the issuance of the warning
notice that day. Then, asked why did he mention Folkman’s
smiling and giggling, Webster said, “Because he walked up and
he just, ha-ha. I broke another drill bit, what do you want to
do?” Asked by me if he observed Folkman doing anything to
break the second drill bit, Webster replied, “no” but added that
Folkman did it by drilling “too hard” and by “not letting the
drill bit drill by itself, forcing the drill bit into the steel” by
pressing down on it. However, he conceded that Folkman was
doing nothing wrong while he observed him at work that morn-
ing. Also, during cross-examination, asked why he recom-
mended Folkman’s termination after he broke the second drill
bit, Webster stated, “Because a drill bit broke and I felt that he
did it on purpose.” Asked if anything, besides Folkman’s smil-
ing and giggling, caused him to believe the alleged discrimina-
tee acted deliberately, Webster mentioned “because he’s been
drilling base plates for a number of months here off and on. He
knew how to do it . . . . He also knew if you pressed too hard
. . . you will break it.” However, Webster conceded that, if, in
fact, Folkman had not had extensive experience on the mag-
netic drill, what occurred on March 12 and 13 would not have
been deliberate. Finally, during cross-examination, asked why,
on March 13, he failed to give the written warning to Folkman,
Webster averred, “I don’t know. Because I was told the next
one that breaks a bit is terminated. I don’t think I had to give a
written warning if that was my orders.” He added that Don
Rankin told him if another drill bit broke, he was to talk to a
supervisor. However, he denied talking to Don Rankin that
day—“Maybe he wasn’t there. Maybe I went to Len. I don’t
know.”
While Tim Webster assertedly recommended the discharge
of Chris Folkman, the individual, who actually was responsible
for deciding to terminate him was Lenond Lewis. The latter
testified that Webster approached him in January “and asked
me to terminate [Folkman]” but that he convinced Webster just
to speak to the alleged discriminatee and inform him of “the
problems.” Lewis added that he is convinced that Webster did,
in fact, speak to Folkman, for the latter “came in and asked me
if the job was in jeopardy. He said that he had heard some
rumors that he was going to be fired. I told him he needed to
talk to Webster. He left and I went out in the shop. They were
sitting down and talking.” Shown the March 11 written warn-
ing, General Counsel’s Exhibit 8, Lewis stated, “Tim Webster
brought it to me . . . . He just told me that [Folkman] was an
employee who has been totally insubordinate. He keeps telling
[Folkman] to stay at his station and do his job, and he is con-

39 Either on this day or the day before, he spoke to Cheryl Rankin
before speaking to Lewis. He told her “about what Don had told me.
He gave me directions that the next one who breaks a drill bit is termi-
nated. I told her and she told me that she agreed and to go talk to Len
about it.” Cheryl Rankin failed to corroborate this testimony.
40 Webster denied any knowledge of Folkman’s union activities on
March 11, 12, and 13.
stantly wandering. [Webster] said he is fed up, [the employee]
won’t listen.” Lewis assured Webster that “I would take care
of it.”41 The next day, according to Lewis, Webster “came in
and told me that Chris Folkman broke a drill bit. He reminded
me about the warning which I already was aware of. I told him
that I am busy and I would take care of it.”42 The warning,
Lewis testified, was “one he had given Chris Folkman seven
months prior about people breaking a drill bit will be fired.”43
The next day, March 13, at approximately 8:15 in the morn-
ing, Webster entered his office, saying Folkman “broke another
bit, what are we going to do. I told him that I am busy. I will
take care of it.” Then, 10 or 15 minutes later, at approximately
8:30 a.m., Webster returned to his office with another written
warning notice, General Counsel’s Exhibit 9, and requested
“that Chris Folkman be fired.” Thereafter, based “on the facts
that Tim Webster had given [him],” and without speaking to
either Don or Cheryl Rankin, Lewis reached the decision to
terminate Folkman and drafted the discharge letter, General
Counsel’s Exhibit 7. Asked, by Respondent’s counsel, whether
that document summarizes the reasons for the termination,
Lewis said, “Yes, it does.” Asked, by me whether the dis-
charge was based on the written documents, which were given
to him by Webster, or anything the latter said orally, the wit-
ness replied, “It was several performance items of Chris Folk-
man. I had no choice.” Immediately thereafter, asked the iden-
tical question, Lewis changed his answer, saying “It was defi-
nitely the documents about the broken drill bits.”44 After com-
pleting the discharge letter, Lewis called Folkman into his of-
fice “to ask him some questions. I wanted to make sure he was
there when the warning was given and that he was fully aware
of what had gone on. I asked him if he was familiar with the
warning that Tim Webster had given that Don Rankin said the
next person would be fired? He told me yes he was.” Also, “I
asked him about the other issues. He told me things that were
not consistent with what Tim told me. I can’t remember ex-
actly.” Folkman said much of what was in the letter was un-
true, specifically the he did not break the drill bit 2 months
before. “I told him that was not the reason I was letting him go.
That is what prompted the warning. The reason I was letting
him go was he had been warned.” Finally, during direct ex-
amination, Lewis stated that there were no reasons for the dis-
charge other than those set forth in General Counsel’s Exhibit 7
41 Asked, during direct examination, why he did not terminate Folk-
man on receipt of this warning notice, Lewis replied, “I was in a
circumstance I had never been in. I received a letter from Local 150
saying if I did anything to Mr. Folkman they would file charges. I had
not had any experience . . . . I wanted to make sure that I was extra
careful. This was new to me.” During cross-examination, he added
that “I called a lawyer I felt could help me in that situation.” Also,
“[W]e have certain books, legal books. I just started looking through
them to see what I could find.”
42 Asked why he did not terminate Folkman on speaking to Webster,
Lewis answered, “It was toward the end of the day. I didn’t want to
make any rash decisions. I would have made the decision on the 13th
no matter what. I just wanted to investigate what I was doing.”
43 Asked, by counsel for Respondent, “The rule you are referring to
is Don Rankin’s statement about the warning,” Lewis replied, “Yes,
sir.”
44 Lewis stated that the work rule, which Folkman violated, was “he
broke two drill bits.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1036
and that Folkman’s activities, on behalf of the Union, were not
a factor in his discharge—“if anything, it saved him a day.”45
During cross-examination, asked if the only reason why he
decided to terminate Folkman was his apparent violation of the
work rule, which had been announced by Don Rankin, Lewis
said, “Yes, it was”46 and added, “I was acting on the fact that he
had broken two bits that cost $200.”47 However, Lewis then
admitted that, prior to the instant hearing, he had stated, in writ-
ing, that a basis for terminating Folkman was violation of Re-
spondent’s written work rule regarding malicious or negligent
destruction of company property. Further, asked if excessive
talking was the reason for Folkman’s discharge, Lewis an-
swered, “No, the reason for the discharge was the drill bits.
When I looked at the drill bits I looked at his prior perform-
ance” and “the reason I fired him was for the breaking of the
drill bits.” He added that he would not have terminated Lewis
but for the broken drill bits. But, when asked why he also in-
cluded paragraphs one through four in the discharge letter,
Lewis replied, “I was just making sure that he was aware of his
record.” And, when asked to what work rules he referred in the
last paragraph of the discharge letter, Lewis mentioned, “Talk-
ing on company time, that’s against company rules.” Asked
again to state the work rules to which he referred, Respondent’s
CEO stated, “The main rule that was broken was Don Rankin
told Tim Webster . . . the next person to break a drill bit would
be fired . . . . Two, he was asked to work and he did not show
up . . . . [Three], he received a verbal warning . . . for talking
and interrupting others during work hours.” Finally, in these
regards, as impeachment, counsel for the General Counsel of-
fered an excerpt from Lewis’ pretrial declaration, dated April

45 Lewis denied ever discussing the Union’s letter, regarding Chris
Folkman, with Webster, and he testified that “the only thing I heard
about it was I was told by Cheryl Rankin that we received a letter from
the Union.” Asked if such was the extent of his discussion with her
about the letter, Lewis said, “Yes, it was.”
46 Lewis conceded that he had never heard Rankin utter such a rule
and that his only knowledge of the existence of such a rule came from
Webster.
47 There is considerable record evidence that Respondent tolerated
costly damage to machinery and other property without disciplining
those responsible. Thus, besides causing $3000 worth of damage to
company vehicles in March 1997, employee Randy Britt was once
caught smoking while helping to erect a gas station canopy and while
gasoline was being pumped beneath him and, in March 1995, had a
“fender bender,” which cost Respondent $608. Moreover, according to
Folkman, in December 1996 or January 1997, employee Allan Zufelt
“brought some pieces of sheet metal over to me . . . he had men over
stacking and would go back and bring more. And I was punching holes
in these pieces of sheet metal the whole time he was doing this . . . .
[O]ne of the times I took a stack over to the shelf, he took like four or
five pieces . . . together . . . and tried to punch through all of them at the
same time . . . which caused the punch to break,” causing damage val-
ued at $100. Webster was immediately told but did not discipline
Zufelt in any way. Neither Zufelt nor Webster denied the foregoing
testimony. On another occasion, according to Folkman, a welder used
the Piranha machine to bend a piece of steel but “he went to far,” plac-
ing “too much pressure on . . . the attachment and . . . [breaking] a bolt
that held up the attachment.” Webster observed what happened,
shouted at the welder that he should not have done what he did, but did
not discipline the person any further. Webster failed to deny this testi-
mony. Further, Darren Reynolds testified that the machine, to which he
was assigned, cut and routed aluminum panels and utilized two differ-
ent cutting blades and that, several months apart, he broke the same set
of blades, causing damage costing in excess of $500 for which he was
not disciplined.
11. Therein, Lewis set forth several “factors” in his decision to
terminate Folkman. Among these were prior written and verbal
warnings, which he had received, for substandard work per-
formance and violation of Rankin work rules, the two broken
drill bits, Folkman’s admitted knowledge of the Don Rankin
rule, and the company rule against malicious or negligent de-
struction of its property.
The final element of Respondent’s defense to the instant un-
fair labor practice allegations is its contention that, in a March
19 written statement to all its employees, Respondent issued a
statement, disavowing any intent to interfere with its employ-
ees’ Section 7 rights and, thereby, curing any “technical viola-
tions” of the Act. That document, issued by Cheryl Rankin,
reads, as follows:

Since I addressed the topic of unionization in the last
edition of the Rankin Review, several of you have been
asking me questions about the subject. I would like to
take this time to clarify things. First of all, let me empha-
size that although we strongly believe that a union is not in
this company’s best interest, nothing bad will happen to
any employee for supporting union efforts. You have the
right to make up your own minds. We just want to give
you the facts you need to make an informed decision abut
weather [sic] you want a union here . . . . The most impor-
tant fact to remember is that Unions cannot guarantee job
security. In our business, the only way to ensure job secu-
rity is to do top quality work and remain competitive in the
marketplace. Take a look at what happened to two of our
competitors . . . . Each of these Unionized companies
went under because they could not remain competitive in
our marketplace. Unions could not guarantee job security
for employees of those companies, nor could a union pro-
vide similar guarantees here. In fact, Union cannot make
any guarantees. Unions can promise you the moon, but
who can deliver on those promises? Only we can, by
working together. . . . The only thing a union can promise
is that, if elected, it will make employees pay union dues.
In exchange for those dues, the union can negotiate with a
company and, if it does not get its way, call a strike. We
all know that no one wins in a labor strike. We support a
union-free environment because together we have built a
terrific company, and we value the right to sit down one-
on-one with you and figure out ways to make Rankin &
Rankin even better. With a union comes endless negotia-
tions, bureaucracy and red tape, all of which cost compa-
nies lots of time and money. Having a union also means
that an employer cannot talk to employees about their jobs
or problems except through a third party. Finally, the un-
ion doesn’t know us. We have all worked hard to make
this company what it is. The union didn’t help us build this
company, and it doesn’t understand what a great thing we
have going. We do not believe that a union has anything
to offer the employees of Rankin & Rankin, but we en-
courage you to make up your own minds. Just remember,
if you have any questions at all, we are here to give you
the facts.
B. Legal Analysis
Initially, I shall discuss the violations of Section 8(a)(1) of
the Act, which are alleged in the instant complaint, and, in this
regard, turning to the comments of Respondent’s corporate
president, Cheryl Rankin, during the March 11 incident in the
RANKIN & RANKIN, INC. 1037
employee lunchroom, I note that there is no dispute as to what
she said to the employees. Thus, taking into account the re-
spective testimony of Darren Reynolds, Chris Folkman,48 and
Jason Bos and the admissions of Rankin, I find that, after re-
ceipt of the Union’s letter, which identified Folkman as a sup-
porter of the Union and a member of an employee organizing
committee, at approximately 12 noon on the above date, Rankin
entered the lunchroom, placed the letter on a table in front of
Folkman, and asked, “[W]hy he had done this to them” and
“[W]hat he was trying to do?” I further find that, after several
employees, including Folkman, answered her questions and
after she pointed out that, according to their 1997 W-2 forms,
she and her husband each had only been paid $20,000 or
$25,000 by Respondent in 1966 and said that they had “put
everything they have into the company” and “couldn’t afford a
union,” Rankin warned “that they’d fight the Union if [the em-
ployees] tried to bring it in, and that they’d close the doors
before . . . they’d ever have a union there.” Rankin admitted,
and I find, that she uttered this latter comment because some-
thing Folkman said had “irritated” her. Also, I find that, after
Rankin left the room, production manager, Chris Koski, and
Scott Zufelt entered and that, after ascertaining what had been
said by Rankin, Koski said, “[T]hey will shut it down” and “I
can’t believe we’ve got a bunch of [fucking] queers trying to
pull this stuff.”
The General Counsel alleges, in the complaint, that Rankin’s
comment, regarding her intent to close Respondent’s doors
rather than accepting union representation for its employees,
constitutes an unlawful threat of plant closure. Citing two
Board decisions, Benjamin Coal Co., 294 NLRB 572 (1989),
and Kawasaki Motors Mfg. Corp., 280 NLRB 491 (1986),
counsel for Respondent argues that, rather than uttering a
threat, Rankin was merely stating a lawful prediction for the
assembled employees. While, of course, pursuant to NLRB v.
Gissel Packing Co., 395 U.S. 575, 618 (1969), an employer
may “make a prediction as to the precise effect he believes
unionization will have on his company” as long as such is
“carefully phrased on the basis of objective fact,” rather than
being a mere prediction, in agreement with counsel for the
General Counsel, I believe Rankin’s comment constituted an
explicit threat, to the assembled employees, of adverse conse-
quences if they engaged in support for the Union. Thus, in one
of the cited Board decisions, Kawasaki Motors Mfg. Corp.,
supra, employees were presented with information and figures
on “the respondent’s losses, layoffs, payroll decreases, short-
ened workweek, and overstocked inventory” justifying possible
closure of its plant. In contrast, Cheryl Rankin merely told the
employees that she and her husband could not afford union
representation and, as proof, offered nothing more than what
she and her husband had been paid the year before. Moreover,
Rankin did not utter her comment in conjunction with her
statement that they could not afford the Union. Rather, what I
perceive as a threat of plant closure followed her statement of
resolve to fight the employees’ organizing efforts and was ut-
tered in an admitted moment of pique having nothing to do with
Respondent’s ability to afford to operate with union-
represented employees. In these circumstances, I must con-

48 While, as shall be subsequently noted, Folkman did not impress
me as being an entirely straightforward witness, I did not find him to be
an inherently deceitful one. Thus, I see no reason not to credit him
when uncontroverted or when corroborated by other witnesses.
clude that Cheryl Rankin’s warning was an explicit threat of
plant closure, blatantly coercive and violative of Section 8(a)(1)
of the Act. Baby Watson Cheesecake, 320 NLRB 779, 786
(1996); and Williamhouse of California, Inc., 317 NLRB 699,
713 (1995). With regard to the allegedly unlawful interrogation
of Folkman, I am cognizant that the legality of such conduct
involves consideration of the circumstances surrounding the
questioning. Rossmore House, 269 NLRB 1176, 1177 (1984).
In this regard, notwithstanding that Folkman had been identi-
fied, in the Union’s letter, as a union adherent, I agree that
Rankin’s interrogation of him was impermissibly coercive.
Thus, Respondent’s president neither gave the alleged dis-
criminatee any assurance against reprisals nor had any valid
reason for her questioning of him. Further, and of utmost sig-
nificance to my conclusion, is my finding that Rankin’s inter-
rogation of Folkman was closely followed by her threat of
business closure. In these circumstances, Rankin’s questioning
of Folkman was coercive and violative of Section 8(a)(1) of the
Act. Pepsi Cola Bottling Co., 301 NLRB 1008, 1011–1012
(1991); and Action Auto Stores, 298 NLRB 875, 902–903
(1990).
Concerning the comments of Chris Koski after he entered the
lunchroom, whether his comments may be attributed to Re-
spondent is, of course, dependent on his alleged status as a
supervisor within the meaning of Section 2(11) of the Act or as
an agent within the meaning of Section 2(13) of the Act. In
these regards, the record is uncontroverted that Len Lewis,
Respondent’s CEO, had been the production manager prior to
being promoted to his current position; that his prior position
was a supervisory position; that Lewis moved Koski into his
former position on receiving his promotion; that, as production
manager, Koski assigns work to shop employees, reassigns
employees from job to job when necessary, requires that em-
ployees work overtime when necessary, approves requests for
sick and vacation leave, and issues discipline to employees.
Further, admitted Supervisors Jeff Lovejoy and Tim Webster,
report directly to him. In these circumstances, there can be no
question that Koski is a supervisor within the meaning of Sec-
tion 2(11) of the Act and that his comments in the lunchroom
may be attributed to Respondent. I have previously concluded
that Rankin’s threat to close the doors rather than accept a un-
ion as the bargaining representative for Respondent’s employ-
ees constituted a coercive threat of plant closure, violative of
Section 8(a)(1) of the Act. Accordingly, by reiterating her
threat to the employees in the lunchroom, Koski likewise acted
in violation of Section 8(a)(1) of the Act, and I so find. Fur-
ther, by terming those employees, who supported the Union,
“fucking queers,” Koski clearly disparaged them before other
employees. The Board has held, and I find, that, when uttered
in the context of other unlawful comments, a disparaging char-
acterization, such as Koski’s, has the coercive effects of hold-
ing employees’ protected concerted activities up to ridicule and
frustrating such activities and is, therefore, violative of Section
8(a)(1) of the Act. Montgomery Ward & Co., 288 NLRB 126,
126–127, 177 (1988).
Turning to the employee meeting, which was held at the
close of the work on March 13, and the respective testimony of
current employees, Todd DeGraff and Jason Bos, and of Darren
Reynolds, I note that neither Lewis nor any other supervisor,
who was present, controverted the accounts of DeGraff and
Reynolds, each of whom impressed me as being an honest wit-
ness, testifying to the best of his recollection. While DeGraff’s
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1038
recollection of what occurred at the above employee meeting
obviously was shaken during cross-examination, as Reynolds
corroborated DeGraff as to an important aspect of his testimony
and as I was not impressed by Bos’ recollection of events,49 I
shall credit and rely on DeGraff’s version of what occurred at
the above meeting. Therefore, I find that Respondent’s CEO,
Lewis, conducted the meeting and, in the course of speaking to
the assembled employees, said that he wanted to explain “some
of the benefits or non-benefits” of being represented by a un-
ion; that, if the union demanded higher wages and the company
disagreed, the union could call a strike and the employees could
be replaced50 by new employees, hired for less money; and that,
if the employees chose to be represented by a union, other un-
ion members would have greater seniority “and they’d come in
and work for us and we’d have to wait for other jobs.” Further,
I find that Lewis also told the employees “that he was not op-
posed to anybody being pro-union or against the Union. Either
way it was fine as far as the company was concerned.” The
complaint, and counsel for the General Counsel, alleges that, by
what Lewis said, Respondent threatened employees with loss of
employment because they engaged in activities in support of
the Union. In defense, counsel for Respondent argues that
Lewis simply described “the nature of the bargaining process”
to Respondent’s employees—in the event of a strike, Respon-
dent retains “the option” of replacing striking employees. I
agree with counsel for the General Counsel that Lewis’ com-
ments, regarding replacement in the event of a strike, were
violative of the Act. Thus, counsel for Respondent is correct
that, in normal circumstances, “an employer does not violate
the Act by truthfully informing employees that they are subject
to permanent replacement in the event of an economic strike.”
Eagle Comtronics, Inc., 263 NLRB 515 at 515 (1982). How-
ever, if “the statement may be fairly understood as a threat of
reprisal against employees or is explicitly coupled with such
threat,” it is not privileged by Section 8(c) of the Act. Id. at
515–516. Here, while Lewis was obviously speaking about an
economic strike situation, his comment came just 2 days after
Cheryl Rankin, who was present during Lewis’ comments, had
unlawfully threatened employees with plant closure if they
continued to engage in activities in support of the Union.
Moreover, immediately after speaking about replacing employ-
ees who engaged in a strike, in a comment having no basis in
law, Lewis warned the assembled employees that selecting the
Union as their bargaining agent would mean that they could be
replaced by union members, who have greater seniority—a
statement clearly calculated to frighten employees with the
possibility of job loss if they continued to support the Union.
Accordingly, I believe that, when taken in the totality, Lewis’
comments to the assembled employees, at the March 13 em-
ployee meeting, constituted an implicit, if not explicit, threat of
job loss if they engaged in support for the Union and were,
therefore, violative of Section 8(a)(1) of the Act.51 Mediplex of
Danbury, 314 NLRB 470, 471 (1994); and Baddour, Inc., 303
NLRB 275 (1991).

49 While seeming to be a candid witness, his accounts of the March
11 lunch incident and of what was said during and after the March 13
meeting were vague and sketchy in comparison to other witnesses.
50 DeGraff could not recall if Lewis said the employees would be re-
placed or fired; I think it more likely that Lewis used the former word.
51 Contrary to Respondent’s counsel, I do not view Lewis’ comments
at the conclusion of the meeting as vitiating the coercive nature of his
earlier comments.
As to the final alleged violation of Section 8(a)(1) of the Act,
the testimony of employee DeGraff was uncontroverted that, on
March 14, the day following the scheduled union meeting at
alleged discriminatee Folkman’s home, a meeting which had
been publicized by only word of mouth, Supervisor Jeff
Lovejoy approached him and asked, “How did the Union meet-
ing go last night?” In a case involving a similar fact situation,
Pepsi Cola Bottling Co., supra at 1011, the Board concluded
that, when a management official approached an employee and
questioned him as to whether he had attended a union meeting
the previous day, not only did the conduct constitute unlawful
interrogation, it also unlawfully created the impression that the
employer had engaged in surveillance of its employees’ union
activities. Here, while DeGraff and Lovejoy were friends at
work, they were not social friends, and Lovejoy neither ex-
plained the reason for his question nor assured the employee
there would be no reprisals. Moreover, the question most cer-
tainly revealed, and was intended to reveal, to DeGraff that
Respondent was aware a union meeting had been scheduled. In
these circumstances, I find that Lovejoy’s conduct not only
constituted interrogation regarding Respondent’s employees’
union activities but also created the impression that Respondent
was engaging in surveillance of its employees’ union activi-
ties—conduct violative of Section 8(a)(1) of the Act. Id.
I now consider the most contentious of the several complaint
allegations—that Respondent issued two warning notices to and
terminated Chris Folkman in violation of Section 8(a)(1) and
(3) of the Act. At the outset, I note that significant evidentiary
points are the subject of admissions, are the subject of docu-
mentary evidence, or, such as the fact that the alleged discrimi-
natee broke two drill bits on March 12 and 13, are not in dis-
pute. However, with regard to certain matters, about which
there exists contradictory testimony, it is necessary to analyze
and compare the respective credibility of two witnesses—
Folkman and his supervisor, Tim Webster. In this regard, while
nothing about the testimonial demeanor of either witness sug-
gested an inherent lack of credibility, neither Folkman nor
Webster impressed me as being a consistently honest witness.
Indeed, based the testimonial demeanor of each and the record
as a whole, I believe that each dissembled as to important as-
pects of his testimony in order to buttress his party’s legal posi-
tion, and, as a result, undermined his overall credibility. In
particular, given the documentary evidence that Kevin O’Con-
nor performed extensive work each day on project 6I139, I find
it impossible to place any reliance on the alleged discrimina-
tee’s assertion that, during the mornings of March 12 and 13, he
observed Kevin O’Connor menially sweeping the floor of the
shop. Also, noting Webster’s contradictory testimony
regarding General Counsel’s Exhibit 14, the purported January
29 file memo, and the appearance of his name as “Tom”
Webster on General Counsel’s Exhibit 15, the purported
February 21 file memorandum, I am unable to credit his testi-
mony regarding oral discipline of Folkman for excessive talk-
ing during January, February, and March. Nevertheless, as
compared to Webster, Folkman appeared to be the more consis-
tently straightforward witness, and I shall rely on his version of
events whenever he and his supervisor were in conflict. Fi-
nally, with regard to the credibility of Lenond Lewis, his testi-
monial demeanor was that of an utterly disingenuous witness.
Moreover, as will be discussed in detail infra, his testimony
was contradictory and inconsistent. Accordingly, unless cor-
RANKIN & RANKIN, INC. 1039
roborated by more credible evidence or by document, I shall
not credit his version of events.
In determining whether Respondent acted in violation of
Section 8(a)(1) and (3) of the Act by issuing warning notices to
and terminating Folkman, I utilize the analytical framework, set
forth 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), approved in NLRB v. Transportation Management
Corp., 462 U.S. 393 (1983); and Lewis Mechanical Contrac-
tors, 285 NLRB 514 (1987). Thus, in order to prove a prima
facie violation of Section 8(a)(1) and (3) of the Act, the General
Counsel has the burden of establishing that the alleged dis-
criminatee engaged in union activities; that Respondent had
knowledge of such conduct; that Respondent’s actions were
motivated by union animus; and that Respondent’s termination
of the alleged discriminatee had the effect of encouraging or
discouraging membership in the Union. WMRU-TV, 253
NLRB 697, 703 (1980). Further, the General Counsel has the
burden of proving the foregoing matters by a preponderance of
the evidence. Gonic Mfg. Co., 141 NLRB 201, 209 (1963).
However, while the above analysis is easily applied in cases in
which a respondent’s motivation is straightforward, conceptual
problems arise in cases in which the record evidence discloses
the presence of both a lawful and an unlawful cause for the
allegedly unlawful conduct. In order to resolve this ambiguity,
in Wright Line, supra, the Board established a causation test in
all 8(a)(1) and (3) cases involving employer motivation. “First,
we shall require that the General Counsel make a prima facie
showing sufficient to support the inference that protected con-
duct was a ‘motivating factor’ in the employer’s decision.
Once this is established, the burden will shift to the employer to
demonstrate that the same action would have taken place even
in the absence of the protected conduct.” Id. at 1089. Four
points are relevant to the foregoing analytical approach. First,
in concluding that the General Counsel has established a prima
facie showing of unlawful animus, the Board will not “quantita-
tively analyze the effect of the unlawful motive. The existence
of such is sufficient to make a discharge a violation of the Act.”
Id. at 1089 fn. 4. Second, once the burden has shifted to the
employer, the crucial inquiry is not whether Respondent could
have engaged in its alleged unlawful acts and conduct, but,
rather, whether Respondent would have done so in the absence
of the alleged discriminatee’s support for the Union. Structural
Composites Industries, 304 NLRB 729 (1991); and Filene’s
Basement Store, 299 NLRB 183 (1990). Third, pretextual dis-
charge cases should be viewed as those in which “the defense
of business justification is wholly without merit” (Wright Line,
supra at 1084 at fn. 5), and the “burden shifting” analysis of
Wright Line need not be utilized. Arthur Anderson & Co., 291
NLRB 39 (1989). As to the latter point, “it is . . . well settled
that when a respondent’s stated motives for its actions are
found to be false, the circumstances . . . warrant the inference
that the true motive is an unlawful one that the respondent de-
sires to conceal.” Fluor Daniel, Inc., 304 NLRB 970 at 970
(1991); and Shattuck Denn Mining Corp. v. NLRB, 362 F.2d
466 (9th Cir. 1966).
Here, there can be no doubt that the General Counsel has es-
tablished a prima facie showing that Respondent was unlaw-
fully motivated in issuing warning notices to and terminating
Chris Folkman. Thus, it was uncontroverted that Folkman
fomented the union movement amongst Respondent’s employ-
ees; that Folkman was the employee who contacted the Union;
and that he arranged for a meeting at his home on March 13 so
that the employees could discuss a campaign for representation
by the Union. It was also uncontroverted that, in order to pro-
tect himself from retaliation, Folkman requested that the Union
send a letter, identifying him as a union supporter, to Respon-
dent and that the Union complied with his request. In this re-
gard, there is no dispute that Respondent received this letter
before noon on March 11, and I have previously found that
Respondent’s president, Cheryl Rankin, reacted by immediately
confronting Folkman with the letter and unlawfully interrogat-
ing him as to his purpose. Further, there is a surfeit of record
evidence, establishing Respondent’s animus toward its employ-
ees’ support of the Union in general and toward the alleged
discriminatee in particular. Initially, I note that the suspicious
timing of the first warning notice to Folkman, occurring on the
same day the Union’s letter was received by Respondent, and
of Folkman’s discharge, occurring a scant 2 days after Respon-
dent received the above letter, are suggestive of unlawful con-
siderations underlying Respondent’s actions. Q-1 Motor Ex-
press, 308 NLRB 1267, 1278 (1992). Moreover, I have previ-
ously concluded that, immediately after unlawfully interrogat-
ing Folkman and listening to other employees’ explanations for
seeking representation by the Union, Rankin blatantly threat-
ened the assembled employees with closure of the business
rather than acquiescence to union representation of her employ-
ees. Also, I have concluded that, within hours of discharging
the alleged discriminatee, Len Lewis conducted a meeting with
Respondent’s employees during which he warned them that a
consequence of representation by a union could be loss of their
jobs. As to Folkman himself, the record evidence of Respon-
dent’s unlawful animus is striking. In this regard, Rankin ad-
mitted that underlying her admitted threat to close the business
were the “many things” which were “beating” on her at the
time, including “I had an employee that I trusted back stab me.”
The depth of Respondent’s animus and exactly to whom she
was referring is made manifestly clear from the issue of the
Rankin Review, which was published shortly after Folkman’s
discharge and in which, after listing the “cons” of union repre-
sentation, informing the employees that the “shop is our entry
level place where we weed out undesirables,” and explaining
the many personal and business difficulties, which she had
endured in the past weeks, including “receiving the letter about
Folkman trying to unionize my plant,” Rankin wrote that she
and her husband “didn’t work this hard to allow someone
who’s only been with us a matter of months to come in and
start telling us how we are going to run our business. Even
without the courtesy of coming and talking to us before he took
this action to see if the problems could be worked out without
another party involved.” Given the foregoing, I find that the
General Counsel has made a prima facie showing sufficient to
compellingly establish that Respondent was unlawfully moti-
vated in terminating Chris Folkman.52
In these circumstances, the burden shifted to Respondent to
establish, by a preponderance of the relevant record evidence,

52 I am cognizant that there is record evidence, including Len Lewis’
comments during the March 13 employee meeting and Cheryl Rankin’s
remarks in her March 19 letter, showing Respondent’s respect for its
employees’ union activities. However, in analyzing whether the Gen-
eral Counsel has established a prima facie showing of unlawful animus,
I must not quantify the extant unlawful animus. Moreover, as will be
evident herein, I doubt the sincerity of Respondent agents when they
expressed themselves in this manner.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1040
that, notwithstanding the clear evidence that it harbored unlaw-
ful animus toward the alleged discriminatee, it, nevertheless,
would have terminated Folkman for business considerations.
At the outset, as I stated at the hearing and in agreement with
counsel for the General Counsel, in light of the General Coun-
sel’s rather convincing termination Folkman, is that the latter
was discharged for having broken two drill prima facie showing
of unlawful discrimination, Respondent’s burden in the above
regard was a substantial one. Venco, Inc., 304 NLRB 911, 912
(1991); and Eddyleon Chocolate Co., 301 NLRB 887 (1991).
With this precept in mind, Respondent’s defense to the com-
plaint provision, concerning the alleged unlawful bits, each
costing in excess of $100, after having been warned, by his
supervisor, Tim Webster, that the next person, who broke a drill
bit, would be fired. In this regard, Respondent’s defense is, in
part, predicated on a portrayal of Chris Folkman as a reprobate
employee, one whose misbehavior ultimately resulted in Web-
ster drafting the purported March 11 written warning notice and
recommending the alleged discriminatee’s termination. While
Webster testified, at length, as to Folkman’s asserted miscon-
duct—continually leaving his own work station in order to
speak to other employees, thereby interrupting them while they
worked, his testimony is the only record evidence of such ex-
tensive misconduct, and, as mentioned previously, I did not
find Webster to have been an entirely reliable witness, and
credit Folkman’s denials that he received an oral warning, con-
cerning his job performance, from Webster on January 29 or
that the latter ever orally disciplined him concerning speaking
to other employees during work time.53 My conclusion is fully
supported by the record. Thus, Webster initially testified that
he gave Folkman a written warning during the asserted January
29 disciplinary meeting but that “I didn’t actually write it my-
self . . .” however, after identifying General Counsel’s Exhibit
14 as the warning notice, he contradicted himself, stating that
the document was merely a note he made for himself and that
he never actually gave it to Folkman. Further, while identify-
ing General Counsel’s Exhibit 15, which is alleged to be a Feb-
ruary 21 memorandum describing an oral warning given that
day to Folkman for interrupting other employees while they
worked, as a document, which he drafted and placed in Folk-
man’s personnel file, Webster could not explain why it bears
the signature, “Tom” Webster. Clearly, given Webster’s ad-
mission, regarding the purported January 29 document, that he
did not write it himself and the wrong name on the February 21
document, the record warrants the inferences that neither
document is genuine; that each was drafted after the fact by
someone other than Webster in order to justify Respondent’s
discharge of the alleged discriminatee; and that Respondent
was unlawfully motivated in engaging in the acts and conduct.
Further, a like inference is warranted as to the purported March
11 warning notice. Thus, not only is it suspiciously dated the
same day on which Respondent received the Union’s letter,
revealing Folkman’s identity as a union adherent,54 but also

53 In so concluding, I do not mean to suggest that Folkman never
spoke to other employees during worktime or that Webster never cau-
tioned Folkman about speaking to other employees during worktime.
By discrediting Webster and crediting Folkman, I believe only that the
latter was never threatened with termination or other discipline for
engaging in such misconduct.
54 I place no credence in Webster’s testimony that he was not aware
of the Union’s letter. Certainly, Cheryl Rankin did not hide its exis-
tence, having shown it to her husband, interrogated Folkman about it,
Webster conceded that there was nothing different about Folk-
man’s misconduct that day and, while the former claimed that
the alleged discriminatee’s behavior “got worse” on March 11,
he offered no evidence as to this assertion and, notwithstanding
the apparent procedure for written warnings, Webster neglected
to give the written warning notice to Folkman or to solicit his
response.
There is no dispute that Webster, in fact, issued his broken
drill bit termination warning approximately 2 months prior to
Folkman’s termination after another employee, Kevin
O’Connor, had broken one and that Webster attributed this new
rule to Respondent’s vice president, Don Rankin; however,
what is disputed is whether, in fact, Don Rankin had imposed
such a new, unwritten policy directive or whether Webster was
merely hectoring in order to stress, to Respondent’s employees,
the importance of being careful in their use of company equip-
ment. In this regard, the only record evidence of Don Rankin’s
work edict is what Tim Webster testified Rankin told him, and,
as stated above, Webster was not a straightforward witness.
Moreover, the source of this unwritten policy, Don Rankin,
failed to testify; Respondent offered no explanation for his
absence; and Cheryl Rankin testified that her husband does not
become involved in matters involving the employees. Further,
Len Lewis, who based his decision to terminate Folkman on the
latter’s violation of this rule, admitted having no direct knowl-
edge of its existence and only knowing what Webster told him.
Finally, there is record evidence that Webster had a propensity
for invoking Don Rankin’s name while admonishing employees
and that he was not above posturing in dealing with the em-
ployees. Thus, the former failed to deny Folkman’s testimony
that he once cautioned the alleged discriminatee not to permit
Don Rankin to see him talking; that, after someone had used
the piranha machine in a negligent manner, he told Folkman
that Don Rankin wanted that employee fired and that, despite
repeatedly threatening Kevin O’Connor with termination for
reporting late for work, he never disciplined O’Connor. In
these circumstances, I do not believe that Respondent has, by a
preponderance of the evidence, proven the existence of the so-
called Don Rankin work directive.
Nevertheless, Len Lewis maintained that he decided to ter-
minate the alleged discriminatee solely because he had acted in
violation of the Don Rankin rule by breaking two drill bits,
each of which cost in excess of $100.55 However, while Lewis
testified that this purported directive was the actual underlying
reason for Folkman’s termination, as stated above, his de-
meanor, while testifying, was that of a mendacious witness, and
his testimony on this point was utterly contradictory. Thus,
although Lewis did aver that the breaking of the drill bits in
violation of the Rankin rule was “definitely” the cause of
Folkman’s discharge, he also admitted that the discharge was
based on “several performance items of Chris Folkman.”
Moreover, in the discharge letter, General Counsel’s Exhibit 7,
which, Lewis admitted, summarized the reasons for the alleged
discriminatee’s termination, he emphasized Folkman’s asserted
prior warnings for talking and interrupting others during work
hours and, in the concluding paragraph, explicitly justified
Folkman’s termination on the latter’s “unwillingness to comply

and discussed it with Len Lewis. Given the letter’s shock value, I can
not believe that Webster would not have been told about it.
55 It must be emphasized that it was for violating the Rankin rule and
not merely for breaking the two drill bits that Folkman was assertedly
terminated.
RANKIN & RANKIN, INC. 1041
with company rules” and emphasized that “we have rules and
we expect them to be followed.” Lewis conceded that, by the
plural “rules,” he was also referring to “talking on company
time, that’s against the rules.”56 In this same regard, in a sworn
pretrial “declaration,” Lewis listed the factors underlying his
decision to terminate the alleged discriminatee, including past
violations of company “work rules” and the company hand-
book, which lists “malicious or negligent destruction of com-
pany property” as a first offense termination rule. Furthermore,
contrary to what occurred here, there is substantial record evi-
dence that Respondent has tolerated costly damage to machin-
ery and other property without disciplining those employees
responsible. Thus, Darren Reynolds once broke two sets of
saw blades, costing in excess of $500, and was not disciplined.
Also, Allan Zufelt caused damage, valued at $100, to the pira-
nha machine without any discipline, and Randy Britt had an
automobile accident, which cost Respondent in excess of $600,
and was not disciplined. Also, there is record evidence that
Respondent has failed to enforce its disciplinary policy against
other employees for violating company rules. Thus, as stated
above, Kevin O’Connor repeatedly reported late for work, and,
despite threatening to fire him, Tim Webster never disciplined
him for this work rules violation. Finally, while Lewis dis-
claimed any unlawful animus in deciding to terminate Folkman,
I note that he and Cheryl Rankin contradicted each other re-
garding the extent of their conversation on March 11 after the
latter received the Union’s letter about the alleged discrimina-
tee and that Rankin admitted that she instructed Lewis to find a
“solution” to the “union business,” which had been instigated
by Folkman. In these circumstances, including the surfeit of
record evidence establishing unlawful animus, the conclusion is
warranted that Respondent has failed to establish, by a prepon-
derance of the evidence, that it would have issued the March 11
and 1357 written warning notices regarding Folkman and termi-
nated him notwithstanding his support for the Union,58 and,

56 I have already concluded that such was pretextual in nature.
57 I believe this warning notice was nothing more than an after-the-
fact justification for Respondent’s unlawful termination of Folkman
and do not credit the testimony of either Lewis or Webster as to it.
Further, as to whether the second drill bit was a new or used one, I
credit the more reliable testimony of Folkman that it was a used bit,
coated with oil. In this regard, I note that Webster was contradictory,
testifying, at one point, that the cabinet, in which the drill bit was lo-
cated, was unlocked and, later, that the “new” drill bit was kept “locked
up” in a cabinet. Further, based on my assessment of his obsequious
testimony, I believe that Webster dissembled by characterizing Folk-
man as “smiling and giggling” when he informed Webster of the sec-
ond broken drill bit.
58 In his posthearing brief, counsel for Respondent opined that the
record warrants a “strong inference” that Folkman broke the two drill
bits purposely, believing that the Union’s letter would protect him from
retaliation, and that he desired to “test” his protected status. While I
agree with counsel that Folkman did believe that the letter would offer
him some protection against retaliation for engaging in protected con-
certed activities, I reject his assertion that the alleged discriminatee
deliberately provoked his own termination. Thus, I agree with counsel
for the General Counsel that the point of the Union’s letter was to keep
Folkman employed. His actions were those of an employee intent on
seeking union representation for himself and his fellow employees. It
is specious to suggest that he could or would better accomplish this
goal by getting himself fired. Finally, in this regard, other than Web-
ster’s and Lewis’ conjecture, there is, of course, no record evidence that
Folkman operated the magnetic drill in an improper manner on either
March 12 or 13.
accordingly, I find that Respondent violated Section 8(a)(1) and
(3) of the Act by engaging in the above acts and conduct,
thereby ridding itself of the ringleader of the nascent union
organizing campaign amongst its employees.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. By issuing warning notices to an employee because he en-
gaged in union or other protected concerted activities, Respon-
dent engaged in acts and conduct violative of Section 8(a)(1)
and (3) of the Act.
4. By discharging an employee because he engaged in union
or other protected concerted activities, Respondent engaged in
acts and conduct violative of Section 8(a)(1) and (3) of the Act.
5. By interrogating employees about their union sympathies
and activities, Respondent engaged in acts and conduct viola-
tive of Section 8(a)(1) of the Act.
6. By threatening employees with closure of the facility if
they selected the Union as their collective-bargaining represen-
tative, Respondent engaged in acts and conduct violative of
Section 8(a)(1) of the Act.
7. By disparaging employees, who engaged in union or other
protected concerted activities, in the presence of other employ-
ees in order to discourage them from supporting the Union,
Respondent engaged in acts and conduct violative of Section
8(a)(1) of the Act.
8. By threatening employees with loss of their jobs if they
selected the Union as their collective-bargaining representative,
Respondent engaged in acts and conduct violative of Section
8(a)(1) of the Act.
9. By creating the impression amongst its employees that it
was engaging in surveillance of their union organizing activi-
ties, Respondent engaged in acts and conduct violative of Sec-
tion 8(a)(1) of the Act.
10. The above-described unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in serious unfair
labor practices violative of Section 8(a)(1) and (3) of the Act, I
shall recommend that it be ordered to cease and desist there-
from and to take certain affirmative actions designed to effectu-
ate the purposes and policies of the Act. I have concluded that
Respondent terminated its employee, Chris Folkman, because
he engaged in union or other protected concerted activities.
Accordingly, I shall recommend that Respondent be ordered to
offer Folkman immediate and full reinstatement to his former
position of employment or, if the position no longer exists, to a
substantially equivalent one, without prejudice to his seniority
and other rights and privileges of employment and to make
Folkman whole for any loss of earnings and other benefits he
may have suffered as a result of Respondent’s unlawful dis-
crimination, with interest. Such amounts shall be computed in
the manner set forth in F. W. Woolworth Co., 90 NLRB 289
(1950), with interest computed in accordance with New Hori-
zons for the Retarded, 283 NLRB 1173 (1987). I shall also
recommend that Respondent be ordered to remove from its files
any references to Folkman’s unlawful written warning notices
and discharge and to notify Folkman, in writing, that this has
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1042
been done and that those unlawful acts will not be used against
them in any way.59
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended60
ORDER
The Respondent, Rankin & Rankin, Inc., Roseville, Califor-
nia, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Issuing warning notices to employees because they en-
gaged in union or other protected concerted activities.
(b) Discharging employees because they engaged in union or
other protected concerted activities.
(c) Interrogating employees about their union sympathies
and activities.
(d) Threatening employees with closure of its facility if they
select a union as their collective bargaining agent.
(e) Disparaging its employees, who engage in union or other
protected concerted activities, in the presence of other employ-
ees in order to discourage the latter employees from supporting
the Union.
(f) Threatening employees with loss of their jobs if they se-
lected the Union as their collective bargaining representative.

59 In his posthearing brief, Respondent’s counsel contends that, pur-
suant to Passavant Memorial Hospital, 237 NLRB 138 (1978), Cheryl
Rankin’s statement (“nothing bad will happen to any employee for
supporting union efforts. You have the right to make up your own
minds”) in her March 19 letter to Respondent’s employees constituted a
disavowal of any desire to interfere with Respondent’s employees’ Sec.
7 rights and effectively cured any “technical” unfair labor practices,
which may have been committed by her. Insofar as such is relevant to
this case, in order to be effective, an asserted repudiation must be
“timely,” “unambiguous,” “specific in nature to the coercive conduct,”
and “free from other proscribed illegal conduct.” Further, the asserted
repudiation must also assure the employees that the employer will not
interfere with the exercise of their Sec. 7 rights in the future. Id. at 138.
Contrary to counsel, Rankin’s comments fall far short of the Passavant
Memorial Hospital standards. Thus, while perhaps timely, as Rankin’s
above-quoted comments occur in the midst of what must be character-
ized as an antiunion diatribe, as she failed to specifically address the
unfair labor practices which she is accused as having committed, as she
failed to specifically assure employees that she will never again inter-
fere with their guaranteed Sec. 7 rights, and as, most significantly, her
purported repudiation occurred in the context of other, serious unfair
labor practices, I must conclude that her alleged repudiation was inef-
fective and that a cease-and-desist order remains necessary to remedy
the unfair labor practices in which, on behalf of Respondent, she en-
gaged. Teksid Aluminum Foundry, 311 NLRB 711 at 311 fn. 2 (1993);
and Wireways, Inc., 309 NLRB 245 at 245 (1992).
60 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended 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.
(g) Creating the impression amongst its employees that it has
been engaging in surveillance of their union or other protected
concerted activities.
(h) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
to them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Offer Chris Folkman immediate and full reinstatement to
his former job, or if that job no longer exists, to a substantially
equivalent job, without prejudice to his seniority or other rights
and privileges and make him whole, with interest, for his all
earnings lost as a result of its discrimination against him in the
manner set forth in the remedy section of this decision.
(b) Within 14 days from the date of this Order, remove from
its files any references to Chris Folkman’s unlawful warning
notices and termination and, within 3 days thereafter, notify
him, in writing, that this has been done and that the unlawful
written warning notices and termination will not be used
against him in any way.
(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 necessary to
analyze the amount of backpay due under terms of this Order.
(d) Within 14 days after service by the Region, post at its fa-
cility in Roseville, California, copies of the attached notice
marked “Appendix.”61 Copies of the notice, on forms provided
by the Regional Director of Region 20, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent immediately on receipt and maintained by for
60 consecutive days in conspicuous places, including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other mate-
rial. In the event that, during the pendency of these proceed-
ings, 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 March 13, 1997.
(e) 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.

61 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.”