Raymond Engineering, Inc.

National Labor Relations Board - Board Decisions

Nov 30, 1987

286 N.L.R.B. 1210 (N.L.R.B. 1987)

1210 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Raymond Engineering , Inc. and International Union,
United Automobile, Aerospace, Agricultural Im-
plement Workers of America (UAW), Local
376. Cases 39-CA-2431 and 39-CA-2608
30 November 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND STEPHENS
On 7 May 1986 Administrative Law Judge
Norman Zankel issued the attached decision. The
General Counsel filed exceptions and a supporting
brief and the Respondent filed an answering brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions only to the extent consistent with this
Decision and Order.
Although generally agreeing with the decision of
the judge, we reverse in part and find the Respond-
ent violated Section 8(a)(3) and (1) of the Act
when it denied second-shift transfers to Gary
Novak and Ed Glinski.
Both Novak and Glinski were on the in-plant or-
ganizing committee and Novak's prounion senti-
ments were admittedly known to management. On
18 March 19852 the Respondent posted a notice to
employees regarding the start of a second shift.
The document announced the Respondent would
begin a second-shift operation in its machining de-
partment and currently employed, first-shift ma-
chine operators A and B were solicited to apply.
The notice indicated its posting was designed "to
encourage machinists on the first shift to transfer to
the second shift." Also the notice advised that the
second shift would begin on 15 April and employ-
ees on the new shift would receive a 20-percent
premium added to their base hourly rate.
Novak and Glinski were classified as machine
operators A on the first shift. Both of them applied
for transfer to the second shift. Novak spoke to his
supervisor about the job and was advised that Hunt
was to be the supervisor of the new shift. Novak
spoke to Hunt and said he hoped there would be
no hard feelings about a 21 September 1984 inci-
1 The General Counsel has excepted to some of the judge's credibility
findings. The Board 's established policy is not to overrule an administra-
tive law judge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect . Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for re-
versing the findings.
2 All dates are 1985 unless otherwise indicated
dent between them. Hunt indicated there would be
no problem. Novak said Hunt told him he would
probably need someone with the milling experience
Novak possessed on second shift. Hunt denied he
made such a statement.
Glinski also spoke with Hunt about his interest in
the second-shift job. Glinski testified that Hunt said
he could use Glinski on the second shift because of
Glinski's experience in the milling area. Glinski's
testimony regarding his second-shift conversation
with Hunt is uncontradicted.
Novak and Glinski were the only first-shift ma-
chine operators who applied for transfer to the
second shift. On 4 April Novak was told neither he
nor Glinski had been selected for the transfer.
Novak was given no reason.
Novak told Glinski they had not been selected.
Glinski asked management why he had not been
transferred. He was told he was needed on the first
shift.
The second shift began operations on 15 April
and was composed entirely of newly hired employ-
ees. Glinski finally was transferred to the second
shift on 5 August. He testified that the nature of his
job tasks had not changed after the transfer.
The judge held that under Wright Line, 251
NLRB 1083 (1980), no prima facie case had been
shown by a preponderance of the evidence and
thus there was no burden on the Respondent to ar-
ticulate a legitimate, nondiscriminatory reason for
the failure to transfer Novak and Glinski. The
judge, however, did concede that
[T]here is evidence from which I could infer
the necessary unlawful motivation [in failing to
transfer Novak and Glinski]. That evidence
consists of the fact current machine operators
were at [sic] all solicited for second-shift trans-
fer; Hunt said, at least to Glinski, he thought
Glinski's milling skills were needed on the
second shift; both Novak and Glinski clearly
possessed the technical experience and skills
solicited by Respondent's shift-opening notice;
no evidence was adduced to support the asser-
tion Novak and Glinski were needed on the
first shift; and Glinski's later transfer entailed
no alteration in his job functions. These factors
would warrant an inference that the transfers
were withheld for discriminatory reasons. On
the state of this record, however, I find these
factors merely establish suspicious circum-
stances.
Contrary to the judge, we find that these factors
do not merely establish suspicious circumstances,
they establish a prima facie case. The inference is
clear that union conduct was a "motivating factor"
286 NLRB No. 116
RAYMOND ENGINEERING 1211
in the decision to deny transfers to Novak and
Glinski. Thus, the burden shifted to the Respond-
ent to supply a legitimate , nondiscriminatory
reason for its failure to transfer Novak and Glinski
(the only applicants) to the second shift. The Re-
spondent failed to supply that reason. The reason
which the Respondent did offer, that Novak and
Glinski were needed on the first shift, not only fails
to rebut the prima facie case , it is plainly a pretext.
If first-shift operators were needed on the first
shift, then why bother to post a job opening solicit-
ing and encouraging them to apply to the second
shift? The Respondent's proffered reason makes no
sense . Faced with the absence of a reasonable ex-
planation for refusing the transfer , we are left with
inferring an unlawful reason , a reason predicated
on their union activity. Shattuck Denn Mining
Corp., 362 F.2d 466 (9th Cir. 1966).
Accordingly, we find the Respondent violated
Section 8(a)(3) and (1) by denying shift transfers to
Gary Novak and Ed Glinski.3
AMENDED CONCLUSIONS OF LAW
Substitute the following for the judge's Conclu-
sion of Law 3:
"3. By discriminatorily denying employees Gary
Novak and Ed Glinski transfers to the second shift
beginning 15 April 1985 because of their union ac-
tivities , the Respondent has engaged in unfair labor
practices affecting commerce within the meaning
9 Our dissenting colleague makes much of the fact that although we do
not find a violation of the Act in the Respondent 's denial of overtime to
Novak and Medina and its suspension of Novak , we do find a violation in
the Respondent 's denial of the second-shift transfers to Novak and
Glinski . Failing to find a violation for a particular course of conduct,
however, does not preclude us from finding a violation for a separate
course of conduct Determining violations of the Act is not an all-or-
nothing proposition.
The denial of overtime to Novak and Medina and the suspension of
Novak were reasonable, justified , and well articulated responses by the
Respondent to the behavior of its employees Novak 's conduct , in light of
the information the Respondent had at the time , warranted a suspension
Additionally , both Novak and Medma had clearly failed to work the
minimum amount of hours required to work overtime . The Respondent
offered evidence in support of its conduct with regard to Novak and
Medma which satisfied us that its actions were legitimate and nondiscrim-
inatory.
No such evidence was proffered with regard to the Respondent's fail-
ure to transfer Novak and Glinski . If no reasonable explanation for the
Respondent's allegedly unlawful conduct is offered , the only alternative
is to examine other factors which might explain the Respondent's actions.
Our review of the record , coupled with the numerous "suspicious cir-
cumstances" cited by the judge , convinces us that the General Counsel
clearly established a prima facie case , which was unrebutted by the Re-
spondent See NLRB v. Long Island Airport Limousine Service Corp, 468
F.2d 292 , 295 (2d Cir . 1972).
In reaching that conclusion , we also disagree with the dissent 's asser-
tion that Ghnski's transfer to the second shift 4 months after his request
for such a transfer had been denied undermines the General Counsel's
prima facie case . By the time the transfer was finally granted, the Re-
spondent had made its point to Glinski and other employees engage in
union activity at your peril More importantly, that belated transfer does
not supply the missing explanation for the denial of the transfer in April.
of Section 8(a)(3) and (1) and Section 2(6) and (7)
of the Act."
THE REMEDY
Having found that the Respondent has engaged
in certain unfair labor practices in violation of Sec-
tion 8(a)(3) and (1) of the Act, we will order the
Respondent to cease and desist and to take certain
affirmative action to effectuate the policies of the
Act. Specifically because we have found the Re-
spondent unlawfully denied a second -shift transfer
to Gary Novak, we will order that the Respondent
immediately offer the second-shift transfer position
to Novak or, if that job no longer exists, to a sub-
stantially equivalent position with equal pay and
benefits and without loss of seniority and other
rights and privileges previously enjoyed. We will
further order the Respondent to make Gary Novak
whole for any loss of earnings and benefits he suf-
fered as a result of the discrimination against him
from the date the second shift started (15 April
1985) to the date he begins his job on the second
shift or rejects the offer to work the second shift,
to include the 20-percent second-shift pay premi-
um. Further, as we have the found the Respondent
discriminatorily denied the second-shift transfer to
Ed Glinski from 15 April 1985 until 5 August 1985,
when he was finally transferred to the second shift,
we will order the Respondent to make whole Ed
Glinski for any loss of earnings and benefits he suf-
fered as a result of the discrimination against him
from 15 April 1985 until 5 August 1985, to include
the 20-percent second-shift pay premium. This
backpay remedy shall be computed in accordance
with F. W. Woolworth Co., 90 NLRB 289 (1950),
with interest computed in the manner prescribed in
New Horizons for the Retarded.4 Additionally, if Ed
Glinski is no longer on the second shift, we will
order the Respondent to offer the second-shift
transfer to Ed Glinski or, if such job no longer
exists, to a substantially equivalent position with
equal pay and benefits and without loss of seniority
and other rights and privileges previously enjoyed.
Last, we will order the Respondent to cease and
desist from in any like or related manner interfer-
ing with , restraining, or coercing employees in the
exercise of the rights guaranteed them by Section 7
of the Act. The General Counsel's request for a vi-
4 In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 (1987), interest on and after I January 1987 shall be
computed at the "short-term Federal rate" for the underpayment of taxes
as set out in the 1986 amendment to 26 U.S C § 6621 Interest on
amounts accrued prior to I January 1987 (the effective date of the 1986
amendment to 26 U.S.C. § 6621) shall be computed in accordance with
Florida Steel Corp., 231 NLRB 651 (1977)
1212 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sitatorial provision in the Order is denied as unnec-
essary.
ORDER
The National Labor Relations Board orders that
the Respondent, Raymond Engineering, Inc., Mid-
dletown, Connecticut, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Denying employees transfers to the second
shift or otherwise discriminating against them be-
cause of their union or other protected activities.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Offer to Gary Novak and Ed Glinski, if they
are not presently on the second shift, immediate.
transfers to the second shift or, if such jobs no
longer exist, to substantially equivalent positions
with equal pay and benefits, without prejudice to
their seniority or any other rights or privileges pre-
viously enjoyed, and make them whole for any loss
of earnings and other benefits suffered by them as a
result of the discrimination against them, in the
manner set forth in the remedy section of this deci-
sion.
(b) Post at its facility in Middletown, Connecti-
cut, copies of the attached notice marked "Appen-
dix."5 Copies of the notice, on forms provided by
the Officer-in-Charge for Subregion 39, after being
signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent immediate-
ly upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material.
(c) Notify the Officer in Charge in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
CHAIRMAN DOTSON, dissenting in part.
Contrary to my colleagues, and in agreement
with the administrative law judge, I find that the
Respondent did not unlawfully deny shift transfers
to employees Gary Novak and Ed Glinski in retal-
iation for their union activities.
s If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
Novak and Glinski attended the Union's Septem-
ber 1984 organizational meetings ; signed union au-
thorization cards; became members of the in-plant
organizing committee; solicited support for the
Union among other employees during work breaks
in the plant; leafletted employees in the parking lot;
wore hats, T-shirts, or jackets with union insignia;
and put union insignia on their toolboxes.
The Respondent openly and strongly opposed
unionization. In a notice to all employees, the Re-
spondent stated that it was firmly opposed to the
creation of any union within the Company, and
that it would oppose union activity and the cre-
ation of a union in every lawful way with "vigor
and enthusiasm." The Respondent's employee
handbook contained similar, albeit more muted, ex-
pressions of opposition to unionization. None of
these expressions of opposition to unionization
were alleged to be unlawful.
In March 19851 the Respondent posted a notice
announcing the creation of a second shift in the
machining department, and soliciting first-shift ma-
chinists to apply for transfer to this new second
shift, which would start 15 April and pay a 20-per-
cent premium.
Novak and Glinski were both first-shift machin-
ists and both applied for transfer to the second
shift. Second-Shift Supervisor Hunt told Novak
that Hunt "could probably need someone like"
Novak, with milling experience. Hunt told Glinski
that Hunt "could use" Glinski because of his mill-
ing experience. Novak and Glinski were the only
first-shift machine operators to apply for transfer to
the second shift; neither was selected. Novak was
given no reason for the denial of his transfer re-
quest. Glinski was told that he was not transferred
because he was needed on the first shift. The
second shift began operations 15 April, staffed en-
tirely with newly hired employees. Glinski was
subsequently transferred to the second shift 5
August.
The General Counsel alleged that the Respond-
ent denied shift transfers to Novak and Glinski in
April in retaliation for their earlier activities in sup-
port of the Union and in order to prevent the
spread of unionism to the second shift. Indeed, in
the instant case, the General Counsel alleged that
the Respondent had been unlawfully motivated by
such antiunion considerations in several instances:
(1) the suspension of Novak for 3 days in Septem-
ber 1984; (2) the denial of overtime work to Novak
and fellow union activist Jesus Medina in Novem-
ber 1984; and (3) the denial of transfers to Novak
and Glinski in April.
1 All dates are 1985 , unless otherwise indicated.
RAYMOND ENGINEERING 1213
The judge concluded that the Respondent's op-
position to the Union played no part whatsoever in
the Respondent's suspension of Novak for 3 days in
September 1984; its denial of overtime to Novak
and Medina in November 1984; and its denial of
shift transfers to Novak and Glinski in April 1985.
My colleagues and I affirm, without reservation or
comment, the judge's rejection of union animus as
a motivating factor in the Respondent's suspension
of Novak and its denial of overtime to Novak and
Medina; we have dismissed those complaint allega-
tions in their entirety. Nevertheless, my colleagues
do not affirm the judge's conclusion that the Re-
spondent's opposition to the Union also played no
part whatsoever in the denial of shift transfers to
Novak and Glinski. I disagree with my colleagues
on this issue.
In concluding that the Respondent did not vio-
late the Act by denying shift transfers to Novak
and Glinski, the judge found (1) that the General
Counsel had not met the initial burden, under
Wright Line,2 of establishing a prima facie showing
of antiunion motive on the Respondent's part in the
denial of the shift transfers, and (2) that in the ab-
sence of such a prima facie showing of discrimina-
tory motivation , the Respondent was under no ob-
ligation to show affirmatively that it would have
denied the shift transfers regardless of any antiunion
considerations . In finding that the General Counsel
had not established a prima facie showing of an-
tiunion motivation in this context, the judge relied
on (1) the total absence of any showing of antiun-
ion motivation on the part of the Respondent in
any respect in the instant case; (2) the fact that
Second-Shift Supervisor Hunt, who had told
Novak that he "could probably need someone like"
Novak on the second shift, nevertheless ultimately
had no input into second-shift staffing decisions; (3)
the Union's organizing campaign , begun in Septem-
ber 1984, was essentially dormant by the time the
Respondent began to make second-shift staffing de-
cisions in April 1985;2 and (4) an absence of any
showing that Novak and Glinski were treated dif-
ferently than other employees in being denied
transfers to the new second shift. More specifically
in this latter regard, Novak and Glinski were the
only employees who applied for transfer to the
second shift, thus making it impossible for the Gen-
eral Counsel to show, under the circumstances,
that Novak and Glinski were treated disparately
2 251 NLRB 1083 (1980), affd 662 F 2d 899 (1st Cir. 1981), cert
denied 455 U.S 989 (1982), approved NLRB v. Transportation Manage-
ment Corp, 462 U S. 393 (1983).
a Indeed, as pointed out by the judge in this regard, the Union's repre-
sentation petition had already been withdrawn for about a month by the
time the Respondent began to make its second-shift staffing decisions
from other employees in being denied transfers to
the second shift.
In reaching his conclusion that the General
Counsel had not carried the burden of establishing
a prima facie showing of discriminatory motivation
in the Respondent's denial of second-shift transfers
to Novak and Glinski, the judge also considered
factors from which, in his view, he could have in-
ferred discriminatory motivation. Those factors
were (1) the Respondent's active solicitation of
first-shift machine operators for second-shift jobs;
(2) Novak and Glinski both possessed the requisite
skills and experience to perform second-shift duties;
(3) Hunt told both Novak and Glinski that he
could use them on the second shift; (4) there was
no affirmative evidence offered in support of the
reason given Glinski for why his application for
transfer was denied, i.e., that he was needed on the
first shift; and (5) Glinski's transfer to the second
shift 4 months later entailed no alteration in his job
functions. As seen, the judge expressed the view
that although he could have inferred discriminato-
ry motivation from a consideration of just those
factors, standing alone , he nevertheless ultimately
found that those factors established merely suspi-
cious circumstances. These factors were out-
weighed in the final analysis by the earlier enumer-
ated factors relied on by the judge in concluding
that the General Counsel had failed to make a
prima facie showing of discriminatory motivation
in the Respondent's denial of second-shift transfers
to Novak and Glinski.
My colleagues, however, have reversed the
judge in this regard and have found that the Gen-
eral Counsel did establish a prima facie showing of
discriminatory motivation. Here, the majority spe-
cifically and expressly relies on the very factors
that were discounted by the judge as merely suspi-
cious circumstances. And it does so without analy-
sis, simply asserting that: "The inference is clear
that Union conduct was `a motivating factor' in the
decision to deny transfers to Novak and Glinski."
The majority does not discuss the other factors,
relied on by the judge in discounting the suspicious
circumstances which the majority now finds estab-
lish a prima facie case, and it thus does not attempt
to balance all of these various factors in the rever-
sal of the judge. My colleagues simply and sum-
marily find that "the inference [of discrimination] is
clear," and on that basis they purport to override
the judge's careful, balanced, and thorough analysis
of all the evidence in reaching his contrary conclu-
sion.
I decline to join my colleagues in this regard.
The judge's analysis is well reasoned and persua-
sive, and- his conclusion that the General Counsel
1214 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
has failed to establish a prima facie case is well- my colleagues have erred in this regard.7 I would
founded and supported. Indeed, in addition to
those considerations expressly relied on by the
judge in finding no prima facie showing of union
animus in the denial of second-shift transfers to
Novak and Glinski, I note two additional consider-
ations supporting that result. First, I note that
Glinski was subsequently transferred to the second
shift on 5 August, only 4 months after his initial ap-
plication for transfer had been denied. This circum-
stance undermines, in part, the General Counsel's
theory that the Respondent denied transfers to
Novak and Glinski in order to prevent the spread
of unionism to the second shift.
Second, and more importantly, I note that the al-
legedly discriminatory denial of shift transfers oc-
curred fully 7 months after the onset of union ac-
tivity and the start of open and active participation
by Novak and Glinski in the Union 's organizing
campaign. During that intervening 7 months, the
Respondent took adverse personnel action against
Novak twice and also against union activist Medina
in the second instance. In both instances, my col-
leagues and I have completely ruled out discrimi-
natory motivation as a factor in these adverse per-
sonnel actions. It is only in this third instance of al-
leged discrimination, the one furthest removed in
time from the peak of union organizational activity
in the plant, that my colleagues find such unlawful
discriminatory motivation. And they do so on the
basis of what I find, in agreement with the judge,
to be no more than suspicious circumstances, the
probative effect of which are amply overridden by
the other evidentiary factors relied on by the
judge-and not countered by the majority.
Repeatedly throughout his decision,4 the judge
articulates or clearly proceeds in accordance with
the axiom that mere suspicion cannot serve as a
substitute for proof of an unfair labor practice. 5
My colleagues and I have appropriately heeded
that axiom in our affirmation of the judge's conclu-
sions that the General Counsel failed to make a
prima facie showing of discriminatory motivation
in regard to the Respondent's suspension of Novak
and denial of overtime to Novak and Medina. It is
only in regard to the Respondent's denial of
second-shift transfers to Novak and Glinski that my
colleagues abandon the axiom that mere suspicion
cannot substitute for proof of an unfair labor prac-
tice.6 In my view, for the reasons discussed above,
4 JD fn 17, sec III,B ,2 (penultimate paragraph ), sec. III,C,(b),1; sec.
III,F,(2) (final paragraph)
6 See, e.g, Mason & Hanger Co, 270 NLRB 383 (1982), and cases cited
therein.
6 Thus, my colleagues readily acknowledge that their "review of the
record, coupled with the numerous 'suspicious circumstances ' cited by the
judge" (emphasis added ) convinced them that the General Counsel made
dismiss this allegation of the complaint.
a puma facie case . Their willingness to implant their mere suspicions for
what they perceive to be "the missing explanation " for the Respondent's
failure to transfer Glinski sooner is a good example of my colleagues' fail-
ure to abide by the above axiom
° In light of my finding that the General Counsel has failed to establish
a prima facie showing of discrimination in the Respondent 's denial of
shift transfers to Novak and Glinski , and that the majority has erred in
reaching a contrary result , I find it unnecessary to pass on my colleagues'
discussion of whether the Respondent rebutted the prima facie case
which they found was established
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT discriminate against you by deny-
ing transfers to the second shift because of your
union or other protected concerted activities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer Gary Novak and Ed Glinski, if
they are not presently on the second shift, immedi-
ate transfers to the second shift or, if such jobs no
longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other
rights or privileges previously enjoyed, and WE
WILL make Gary Novak and Ed Glinski whole for
any loss of earnings and other benefits resulting
from the discrimination against them, plus interest.
RAYMOND ENGINEERING, INC.
Michael A. Marcionese, Esq., for the General Counsel.
Richard D. O'Connor, Esq. (Seigel, O'Connor, Schiff, Zan-
gari & Kainen, F. C.), of Hartford, Connecticut, for the
Respondent.
Phillip A. Wheeler, of Hartford, Connecticut, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
NORMAN ZANKEL, Administrative Law Judge. These
cases were tried before me on various dates between 24
June and 4 December 1985 in Hartford, Connecticut.
The charge in Case 39-CA-2431 was filed by the
Union against Raymond Engineering , Inc. (Respondent)
RAYMOND ENGINEERING
on 27 November 1984,1 and was amended on 16 January
1985. The charge in Case 39-CA-2608 was filed by the
Union on 23 April 1985, and was amended on 6 June
1985 . The cases were heard pursuant to a consolidated
complaint that issued on 7 June 1985.
In substance , the complaint, as amended at the hearing,
alleges that Respondent violated Section 8(a)(1), (3), and
(4) of the of the National Labor Relations Act (the Act)
when it promulgated and enforced a rule for Saturday
overtime in an unlawfully selective and disparate
manner ; threatened employees who attended a National
Labor Relations Board (Board) hearing with loss of
overtime; threatened employees with discharge because
of their union activities ; interrogated employees regard-
ing their union activities; threatened employees with dis-
charge if they associated with other employees engaged
in union activities or became involved in union activities;
and discriminatorily (a) suspended Gary Novak on 25
September, (b) denied Novak and Jesus Medina Saturday
overtime work on 2 and 9 November, and (c) denied
Novak and Edmund Glinski a transfer to the second shift
on 4 April 1985.
Respondent filed a timely answer to the complaint.
The answer admitted some of the allegations, but denied
that Respondent committed any of the alleged unfair
labor practices.
All parties were provided an opportunity to present
oral and documentary evidence , cross-examine witnesses,
and to present oral argument . Posthearing briefs have
been received from the General Counsel and the Re-
spondent.
On the entire record , including my observation of the
demeanor of the witnesses , 2 and after due consideration
of the briefs, I make the following
FINDINGS AND CONCLUSIONS
1. JURISDICTION
Respondent, a Connecticut corporation, at all material
times, has been engaged in the business of designing,
manufacturing , and nonretail sale and distribution of pre-
cision electro-mechanical devices and torquing equip-
ment. The business has been conducted at its principal
office and place of business in Middletown , Connecticut.
During the calendar year immediately preceding com-
plaint issuance , Respondent sold and shipped products,
goods , and materials exceeding $50,000 in value , from its
Middletown facility directly to points outside of Con-
necticut.
Based on the above, Respondent's admissions, and the
record as a whole I find that Respondent , at all material
times, has been an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
All parties agree , the record reflects, and I find that
the Union , at all material times , has been a labor organi-
zation within the meaning of Section 2(5) of the Act.
' All dates are in 1984 unless otherwise indicated
2 All witnesses were sequestered
II. CREDIBILITY
1215
Resolution of almost each substantive allegation turns
on the relative credibility of witnesses for the respective
parties. Also, witness credibility is a key to many of the
critical factual findings except, of course, those that will
be based on the parties ' agreement and otherwise undis-
puted matters.
The evidence is replete with instances of witnesses for
each litigant providing testimony in direct opposition to
that presented by those of opposing litigants. I will not
discuss all these testimonial conflicts.
That task would unduly lengthen this decision. On the
other hand , I have not ignored all such testimony, nor
the arguments of counsel on it . Resolution of witness
credibility frequently is a difficult task. It has been com-
plicated in this case by a plethora of variations among
witnesses and numerous arguments regarding their use. I
find this situation gives rise to a condition in which the
truth may rest in the testimony of one side in a given re-
spect and of the other side in another. Nevertheless, the
overall impression of credibility with respect to each wit-
ness does not allow for such fine distinction where, as
here, virtually every material fact has been placed in
issue by contradictory testimony.
Virtually every witness had some personal interest in
the outcome of this litigation. I have carefully considered
this situation in my assessment of crucial credibility
issues . With respect to the text of conversations, I have
considered that witnesses generally exhibit a tendency to
testify in terms of their impressions or interpretations of
what was said rather than attempting to give verbatim
accounts of conversations.
In general, my credibility resolutions are based on my
observation of witness demeanor, the weight of the re-
spective evidence, established or admitted facts, and in-
herent probabilities and reasonable inferences that may
be made from the record as a whole. Gold Standard En-
terprises, 234 NLRB 618 (1978); V & W Castings, 231
NLRB 912 (1977); Northridge Knitting Mills, 223 NLRB
230 (1976).
I have also considered the principle that testimony of
current employees who testify against their employer's
interests , is not likely to be false . Shop-Rite Supermarket,
231 NLRB 500 (1977); Georgia Rug Mill, 131 NLRB
1304 fn. 2 (1965), modified on other grounds 308 F.2d 89
(5th Cir. 1962).
Finally, I have also utilized the principle that a trier of
fact need not discredit a witness simply because all of
that witness' testimony is not believed. "Nothing is more
common than to believe some and not all of what a wit-
ness says ." Edwards Transportation Co., 187 NLRB 3, 3-4
(1970), enfd. per curiam 437 F.2d 502 (5th Cir. 1971);
Wilco Energy Corp., 246 NLRB 851 fn. 1 (1979).
The description of events and analysis which follows,
infra, will contain more particularized and explicit credi-
bility findings . Those determinations are based on my ob-
servation of witness demeanor, one or more of the
above-stated principles, and other factors that will be
further described.
1216 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Backgrounds
In early September, the Union initiated an organiza-
tional campaign among Respondent 's production and
maintenance employees. The production operations
were, in part, conducted within department 25, the ma-
chine shop. Department 25 contains 13 work centers.
The complaint 's allegations emanate from incidents in-
volving personnel of, and activities in, two of those work
centers ; the milling area (center 202) and the turning area
(center 204).
Respondent's relevant supervisory hierarchy, at mate-
rial times, includes H. Cox, president ; N. Harper, manag-
er of personnel ; W. Guess, general foreman ; L. Bazarm,
foreman of center 202; D. White, foreman of center 204
(Sep.-Nov.); and J. Covey, foreman of center 204
(Nov.-present).
The Union's campaign began on 4 September. On that
date, approximately seven employees met with Union
President P. Wheeler at the Union's Hartford office.
Novak, Medina, Glinski, and another employee,
S. Balkun, were among those present . Each of these em-
ployees was regularly assigned to work center 202. Each
employee at the meeting signed a union authorization
card. Each was designated a member of the inplant orga-
nizing committee.4 Weekly meetings of the inplant com-
mittee were subsequently conducted in the Union's office
for at least the remainder of 1984.
Solicitation of support from other employees began
immediately after the 4 September meeting . Inplant com-
mittee members engaged in solicitation of support from
other employees during work breaks in the plant. They
leafletted employees in Respondent 's parking lot. These
committee members wore hats, T-shirts, or jackets bear-
ing union insignia . Also, they attached union insignia in
prominent places on their toolboxes.
This union activity rapidly came to Respondent's at-
tention. On 12 September, Respondent's president, Cox,
issued a notice to employees. The notice was posted on
employee bulletin boards. Cox referred to the "union or-
ganizing ." He wrote, in relevant part that he was "firmly
opposed to the creation of a union, any union, at the
Company .... The Company will oppose union activi-
ty and the creation of a union in every lawful way, and
it will do that with vigor and enthusiasm." The notice
urged employees not to sign a union card . Also, Cox
wrote, in the notice, that "There is no place for a union
at Raymond Engineering."5
3 Background facts are derived from parties ' stipulations , admitted
facts, and undisputed evidence Not every bit of evidence, or argument of
counsel, is contained in this section, or subsequent sections of this deci-
sion However, each has been considered. Omitted material is deemed ir-
relevant, superfluous , or of little probative value
4 In October, J. Lilja, another center 202 employee, joined the in plant
committee.
5 Respondent 's employee handbook contains similar sentiments The
third page of the handbook declares that "antagonisms, dissensions and
disruptions often associated with union representation can be inconsistent
with success and growth ," and decries "the insertion of a third party be-
tween employees and management" as a destructive force None of the
quoted language from the handbook and Cox's 12 September notice is
separately alleged as violative of the Act
On 21 September an incident occurred between Novak
and employee D. Hunt. The incident took place in center
204. Hunt regularly was assigned there. The details of
this event will be described below within the discussion
of Novak's suspension . A 3-day suspension from work,
without pay, was imposed on Novak on 25 September.
Hunt received a written warning.
On 9 October the Union filed a petition for certifica-
tion of representative (Case 39-RC-550). A hearing on
the petition was conducted at the Board's Hartford office
on 1 November. Novak and Medina attended the hear-
ing.
On 2 November Novak and Medina returned to work.
Bazar told them they could not work overtime the next
day, Saturday, 3 November.
On 5 and 6 November Novak and Medina attended
additional hearing sessions of the representation case.
Once again, Bazar told them they could work no over-
time on Saturday, 10 November.6
Other incidents are relevant. They form the basis of
the allegations that employees were (a) unlawfully
threatened on 2 and 20 November; (b) unlawfully inter-
rogated and threatened in February 1985; and (c) discri-
minatorily denied second-shift transfers on 4 April 1985.
Detailed discussion of these events will appear below.
B. Novak's 25 September Suspension
The composite of complaint paragraphs 12, 15, 16, 18,
and 19 allege that Respondent violated Section 8(a)(1)
and (3) of the Act by suspending Novak on 25 Septem-
ber because Respondent mistakenly believed he engaged
in misconduct during the course of his pursuit of protect-
ed concerted activity and that the suspension was moti-
vated by discriminatory reasons.
1. The facts?
On 25 September Novak was suspended, without pay,
for the next 3 work days. Harper imposed the discipline,
Whether the inability to work overtime on 3 and 10 November con-
stitutes an unfair labor practice will be explicity addressed below within
discussion of the Saturday overtime rule.
7 Novak testified as a witness for the Board 's General Counsel The
testimony concerned several subjects They included, among others, the
circumstances surrounding his 25 September suspension , denial of Satur-
day overtime, and rejection of application for second-shift transfer
Novak was cross-examined extensively by Respondent's attorney (see Tr
234-275). On conclusion of the cross-examination , Respondent's attorney
announced he had nothing "further of this witness at the moment."
Counsel for the General Counsel engaged Novak in redirect examination.
Thereafter, Respondent 's counsel, for the first time, requested production
and delivery of Novak's prehearing affidavit That request was declined
Respondent asked me to order production of Novak's affidavit. I declined
to do so. In my ruling, I explicitly concluded that Respondent was af-
forded adequate opportunity to cross-examine Novak and did so fully
without benefit of the affidavit (see Tr 288-292)
Respondent now moves that Novak' s testimony be struck from the
record, because of the General Counsel's refusal to produce the affidavit
(See fn. 3, R Br). The motion is denied.
The proper time to request production of preheanng statements of wit-
nesses in the Board 's unfair labor practice hearings is at the close of
direct examination (Sec. 102118 (b)(1), Board 's Rules and Regulations).
Herein, the production request was not made until Novak's cross-exami-
nation was complete This circumstance renders Respondent's request for
Novak's affidavit untimely (Army Aviation Center Federal Credit Union,
216 NLRB 435 (1975)).
RAYMOND ENGINEERING 1217
in writing. The suspension letter noted "the company re-
ceived complaints about certain events which occurred
during work time on the Company premises on . . . Sep-
tember 21"; that an investigation was conducted; that
Novak was offered "the opportunity to speak in connec-
tion with lose matters but declined to do so", and that
the suspension was being imposed as a result of the in-
vestigation . Specifically, Harper advised Novak was "re-
ceiving this discipline as a result of engaging in unau-
thorized activities at an unauthorized time in an unau-
thorized place." The suspension letter also counseled
Novak that "It is important that you make your contri-
bution to the safe and comfortable working environment
that Raymond has tried to establish over the years. Your
failure to play your part in maintaining that environment
is not acceptable. Adherence to Company rules and reg-
ulations is a required part of your obligation as . . . [an]
.. . employee." Finally, the letter warned Novak's fail-
ure to comply with Respondent's rules and regulations
"will lead to further discipline."
No party disputes Novak and Hunt had an adversarial
verbal confrontation on 21 September. On that date,
Novak had worked in center 202 where he was regularly
assigned. Earlier, in September, Novak had been assigned
to work in center 204. Novak apparently left a tool-his
adjustable wrench-in custody of R. Kopcza, an employ-
ee in center 204 on 20 September.
Near work's end, at approximately 5:45 p.m., 21 Sep-
tember, department 25 employees were engaged in end-
of-shift cleaning of tools and equipment. Supervisors
were absent. They were attending a management meet-
ing away from Respondent's plant. White, in particular,
was absent from center 204. Novak, who worked in
center 202 that day, went into center 204 to retrieve his
wrench from Kopcza. It was then the Novak-Hunt con-
frontation occurred.
The parties vigorously dispute whether the incident
was initiated by Novak or Hunt. Also, the parties widely
disagree about precisely what each of them said and did.
Hunt and Novak presented totally divergent accounts of
their confrontation. Covey, a Respondent witness, testi-
fied about the event. Kopcza described the confrontation
as a General Counsel witness.
The parties adduced a plethora of evidence to support
the credibility of each witness. My view of the issues
presented by Novak's suspension (see accompanying
analysis) does not compel me to deal with the vast
amount of evidence respecting the relative veracity of
each witness to the Hunt-Novak argument. I consider it
sufficient, at this juncture, to explain I found neither
Novak nor Hunt credible or reliable indicators of exactly
what happened between them. The testimony of each
shows he cast events in a light most favorable to him.
Novak's unequivocal denial he used foul language
toward Hunt cannot be credited for at least two reasons.
First, it is self-contradictory. In later testimony, Novak
admitted he uttered at least one vulgar term. Second,
Novak's denial is inconsistent with that of Kopcza, the
General Counsel's other witness on this subject. Kopcza,
whom I credit regarding the event, testified that he
heard both Novak and Hunt swearing and shouting at
one another.8
Hunt's testimonial demeanor was unimpressive. He
apppeared extremely nervous. His portrayal of Novak as
an aggressor who engendered virtual mortal fear in Hunt
is a gross exaggeration. In physical appearance, Hunt is
tall. He possesses athlei,ic features. Hunt testified that
Novak's words and actions made him fearful of physical
assault on him during their argument. This context ren-
ders it unlikely that Hunt suffered the extent of fear he
described at the hearing. I consider his testimonial em-
phasis on such fear a blatant exaggeration. This conclu-
sion is supported by Hunt's admission that he used foul
language toward Novak. That sort of response is not
likely from one who has been intimidated by the address-
ee. Moreover, Hunt was no stranger to disputes with
other employees. In July 1981 he and employee Lomarta
were involved in an argument over a roll of paper
towels. Some time later, Hunt addressed unsavory epi-
thets and a racial slur to employee Crumble. These
events, in my view, tend to diminish Hunt's claimed fear
and reticence. Another example of Hunt's exaggeration is
his testimony he was afraid Novak would physically beat
him during the week immediately after their 21 Septem-
ber argument. Hunt testified that "all during the week"
after the argument he saw Novak pounding his fist at
Hunt in a threatening manner. According to Hunt, this
occurred "probably a dozen times" throughout that ensu-
ing week.9 I conclude Hunt's purported observations are
improbable. Novak's 25 September suspension was imple-
mented immediately. Thus, Novak was not at work at
least 3 of the 5 working days during which Hunt claims
he had been further intimidated by Novak. These cir-
cumstances support my conclusion that Hunt's testimony
is riddled with sufficient exaggeration as to render his ac-
count of the 21 September incident unreliable.10
I credit both Covey and Kopcza. Each appeared nerv-
ous when testifying. That condition is understandable.
Covey had become a supervisor since the 21 September
event; and Kopcza testified as a current employee, pre-
sumably with evidence damaging to his Employer. How-
ever, Covey and Kopcza presented straightforward and
forthright accounts of what occurred regarding the 21
September incident. Moreover, I found Covey candid.
Some of his responses potentially were adverse to Re-
spondent's cause (e.g., Covey acknowledged his disdain
toward Novak). Also, I conclude Covey's description of
conversations relevant to the allegations of unlawful
threats and interrogation are logical, plausible, and inher-
ently consistent with admitted or undisputed facts.' 1
8 Novak's overall effort to narrate matters to his best advantage ap-
pears further in a critical contradiction of his testimony by Kopcza re-
garding the allegation pertaining to Saturday overtone.
8 This quotation, and that immediately preceding , appear on Tr. 773.
See also Tr 751-752.
1° Hunt's propensity to exaggerate is further demonstrated and reflect-
ed in testimony relating to the Saturday overtime allegation . In that con-
nection, Hunt claimed that the rule which conditioned overtime work on
Saturday on an employee first working 50 hours during the preceding
weekdays was universal in all Respondent's departments The record as a
whole shows this to be untrue This is another example of Hunt portray-
ing circumstances in a light most favorable to Respondent
11 More specific discussion on this conclusion appears in sec. III,E,
below
1218 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Kopcza, too, was candid. He described the 21 Septem-
ber argument without embellishment. Kopcza was frank,
even when his testimony was adverse to the General
Counsel who called him as a witness (e.g., Kopcza con-
firmed Respondent's claim the 50-hour Saturday over-
time rule existed long before claimed in the complaint).1 z
My factual findings relative to the 21 September
Novak-Hunt confrontation are based on the foregoing
credibility conclusions.19 My factual description is a
composite of the credited testimony of Covey and
Kopcza.
I make no finding with respect to who initiated the 21
September confrontation. 14 Novak and Hunt had words
with each other, apparently after Novak retrieved his
wrench . They met near Hunt 's machine , located near
Kopcza's . Covey and Kopcza agreed that foul language
was spoken. Kopcza recalled both Novak and Hunt
swore at one another. Kopcza could not recount precise-
ly what words were used by the disputants. Kopcza said
some machines were still operating. Also, he had not
been attentive to the argument . Kopcza thought the inci-
dent merely consisted of "two guys letting off steam."
Covey's recollection was more precise. I adopt his
version of the argument. Accordingly, I find the follow-
ing dialogue and actions took place between Novak and
Hunt (Tr. 807-810):
NOVAK: Hey, Hunt where's your big mouth
now? Dave White's not here to protect you, is he,
so you don't have anything to say now, have you?
HUNT: I have plenty to say, but not to you.
NOVAK: Yuh, you know why? Because you ain't
got no f--n' b--s! You ain't got no f-n'
b--s! 15
After hearing this, Hunt gestured to Novak as if to
wave good-bye. However, the dialogue continued:
NOVAK: When the union gets in, you'll be on the
outside looking in.
HuNT: Oh, no; you'll be on the outside, not me.
NOVAK: You wanna bet? You wanna bet I'm in?
HuNT: I don't be with a-h-s.
NOVAK: What did you say? What did you call
me?
12 Further discussion of this matter is contained in sec III,C, below.
19 The parties have urged the use of notes made by Personnel Manag-
er Harper as an important tool in assessing credibility (Harper, as will be
shown, spoke with Covey, Hunt, Kopcza, and Novak on 24 September)
I am more persuaded by the testimonial demeanor of those witnesses as
they appeared before me Harper 's notes do not purport to be verbatim
accounts of what was said to him and are hearsay evidence as to 21 Sep-
tember incident . Counsel have noted consistencies and discrepancies be-
tween Harper's notes and the witnesses ' testimony . I have considered
these matters in my credibility evaluations. The arguments in this connec-
tion are unpersuasive because I am satisfied that each witness provided
reasonable explanation of material variations between the notes and live
testimony at the instant hearing
14 Covey claimed Novak started the argument with Hunt Kopcza's
testimony is to the contrary. I conclude resolution of this matter is not
critical to disposition of the principal issue
15 Covey testified that Novak punctuated these exclamations with
hand gestures pointing to, and in the vicinity of his grow
Neither Novak nor Hunt attempted to strike the other
with physical blows. After the oral exchange Novak left
Hunt's work center and returned to his own.
White, center 204 supervisor, learned an incident oc-
curred in his work center. This information was relayed
to White at the management meeting on 21 September. It
was delivered to White by another supervisor who ap-
parently went to the meeting later than White. Harper
also attended that management meeting . White told
Harper he learned some incident occurred. Harper told
White He would investigate. He asked White to send
Hunt to the personnel office.
The day following the Hunt-Novak argument was Sat-
urday. Covey and Hunt worked that day. The personnel
office was closed. Respondent's president, Cox, was on
the premises. Hunt reported the incident to Cox. Both
Hunt and Covey reported the 21 September events to
Cox, White, and General Foreman Guess, that Saturday.
On 24 September, Harper investigated the 21 Septem-
ber incident. Respondent's labor relations attorney, Rich-
ard D. O'Connor; and manager of manufacturing, L.
Brainerd, also participated in the investigation. 16 Covey,
Hunt, Kopcza, and Novak were asked to particiapte in
the investigation. Also, employees R. Rafalo and R.
Strom were requested to do so.17 Each employee was
advised of his rights under the Act to participate, or re-
frain from participation, in the interview with manage-
ment officials.18 Covey, Hunt, and Kopcza presented
their versions of the 21 September incident. As previous-
ly noted, Harper took notes. Novak was the final em-
ployee called to appear. He, too, was presented with a
statement of his interview rights. Each of the other em-
ployees were asked to sign an acknowledgement of those
rights. They did so. Novak declined to sign the acknowl-
edgement. Novak also said he did not want to participate
in the investigation. He left without giving his version of
what occurred on 21 September.
The General Counsel notes that no one specifically
told Novak the investigation related to his own conduct;
and also that Respondent's attorney orally gave Novak
assurances against reprisal. From this, the General Coun-
sel suggests I should infer the existence of a discriminato-
ry motive regarding Novak's suspension . I disagree.
The record does not support the General Counsel's
claim that Novak was misled , or wittingly prejudiced, by
Respondent's failure to tell him his own conduct was the
subject of Harper's investigation. Novak merely testified,
on direct examination, Harper asked him to go upstairs
"to talk to a company lawyer." Novak also testified the
lawyer "said he wanted to talk to me about an incident
16 Harper credibly explained O'Connor's presence was inspired by the
need for Respondent to exercise caution in employee relations in the
midst of the then-current union activity
14 Rafalo and Strom did not witness the 21 September confrontation.
They were questioned concerning conversations they had with Novak re-
garding general working conditions . The General Counsel suggests I
should attach some sinister significance to this situation . I am unwilling to
do so . Arguably, there is suspicion cast on the bona fides of the investiga-
tion. However , I conclude the record as a whole dispels the use of such
mere suspicion as a legitimate basis of support for the complaint allega-
tions.
18 No part of the investigation is alleged to constitute an unfair labor
practice
RAYMOND ENGINEERING 1219
that happened the latter part of the preceding week"; but
did not identify the incident. This testimony, in isolation,
supports the General Counsel's contention.
However, Novak was more equivocal during cross-ex-
amination . Novak was asked whether he knew the sub-
ject of Harper's inquiry was the 21 September incident at
the time he was asked to participate. Novak first un-
equivocally denied he knew why the investigation was
being conducted when called to speak to Respondent's
attorney. But, when pressed, Novak conceded he did not
recall whether he learned of the subject under investiga-
tion before or after he was asked to participate.
I consider it likely Novak knew what was being inves-
tigated from the moment he was asked to join in it.
There is no evidence to show Novak was either a partic-
ipant in, or even a witness to, any recent event except
the 21 September argument with Hunt. In this circum-
stance , it is likely Novak was entirely aware of the
reason for the investigation when first asked to partici-
pate. 19
Similarly, I conclude there is no basis to make adverse
inferences against Respondent because Novak's refusal to
join in the investigation may have been in reliance on the
assurances against reprisals. In a like vein, I also con-
clude the totality of circumstances relevant to Novak's
suspension does not warrant inferences against Respond-
ent's interests because the suspension was imposed after
Novak received assurances against reprisal.
The suggestion that unlawful motivation somehow
flows from imposition of discipline after providing guar-
antees of freedom from reprisal is contrary to the instant
facts. The document (R. Exh. 3) containing the employ-
ees' rights advises them of the following: participation in
the investigation was voluntary; they could leave imme-
diately or at any time during the interview; and no ques-
tions need be answered, orally or in writing. The state-
ment concluded, "The company will not hold any of the
actions above described against you in any way, now or
in the future, or take any reprisals." There is no evidence
that Attorney O'Connor (or any other of Respondent's
representatives) said anything contrary to, or expansive
of the quoted language . There is evidence that O'Connor
made oral remarks that reinforced, and were consistent
with, the written assurances.
I find nothing in the written or spoken language per-
taining to participation in the investigation that could
form the basis of the suggested adverse inferences. The
plain meaning of what was said to employees is neither
unlawful nor suspect. There is no indication Respondent
harbored some sort of hidden agenda. The words of the
assurances reflect only that failure to participate in the
investigation would not be used as a ground for disci-
pline, or any other reprisal, against any employee who
19 Novak's equivocal responses on this subject are an example of eva-
sive conduct that adversely impacts on his overall reliability as a witness
(see Tr 264-265) The evasion is exaggerated by a comparison of
Novak's oral responses to the language of the document Respondent's at-
torney gave him on 24 September to advise him of his rights (see R Exh.
3). That document clearly apprises the reader with the investigation's
purpose . It states, "that certain activities occurred at [Respondent's]
facility at or about the close of the workday on Friday, September 21,
1984 . and the company is in the process of investigating the occur-
rence " Novak admitted he read this document (Tr 266)
exercised that option. There are no words which explic-
itly shield the employees from discipline as a result of
what misconduct, if any, might be uncovered from the
investigation. There is no allegation or contention that
Novak's suspension was based on his refusal to partici-
pate in the investigation. I am, in all the circumstances,
unwilling and unable to attach the suggested motivation,
especially in the absence of other cogent evidence of un-
lawful animus.
As previously reported, Novak was the final employee
asked to join in the investigation. Later, Harper decided
to discipline both Novak and Hunt. This decision result-
ed in Novak's 25 September suspension. Hunt received a
written warning.20
Harper testified. He was relaxed, direct, comprehen-
sive, and precise. He impressed me as a vigorous rule en-
forcer. He was candid, readily acknowledging he knew
Novak was a union protagonist before imposing the sus-
pension. Harper testified, in particularly convincing
terms and tone, that the disciplinary decisons attending
the 21 September incident were personal judgments. He
testified those judgments were applied by the exercise of
"common sense" to implement Respondent's rules of
conduct.
Those rules are set forth in general terms in Respond-
ent's employee handbook. In relevant part, the handbook
contains this statement: "Rules of conduct are . . . im-
portant in an organization the size of this company. To
work happily and safely each of us must respect the
rights of fellow workers . . . each of us must conduct
himself in such a way that will not interfere with the or-
derly, efficient progress of work" (R. Exh. 1 at 30).
Harper's explanation of his decision to implement the
rules of conduct was spontaneous and persuasive. He tes-
tified:
Novak had no business being in that area-in the
turning area, at all. He was in the miling area, well
over 100 feet away. He didn't get permission to
leave that area to come down to the turning area.
He got down there and he started dialogue-an ar-
gument, okay? A very heated argument using curse
words and intimidating manner with another em-
ployee. He had no right to be there. Okay? That
was a value judgement on my part, okay? If it had
been turned around, okay, if Mr. Hunt had traveled
down to the milling area and did the same thing,
he'd have gotten the same damned thing. He'd have
been outside for three days, and Mr. Novak would
have gotten a written warning.. .. It was based on
the infraction of rules, as I saw it then [Tr. 182-
183].21
20 Novak had no previous discipline Hunt had previously been
warned about racial slur
21 Regarding Harper's claim Novak should not have been in Hunt's
work center, the record establishes Respondent 's rules expected employ-
ees to be at their work stations during worktime except to obtain work,
tools, and parts . Visits to bathrooms were permitted, as were trips to
vending machines for refreshments (Harper's self-serving conclusions
which appear on the cited transcript pages are omitted )
1220 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
I accept Harper 's explanation as a description of the
factors comprising the exercise of his judgment . Howev-
er, I disagree with Harper 's conclusion that Novak had
no right to be in the turning area . Kopcza 's credited tes-
timony shows Novak was in that work center to retrieve
his wrench . There is ample evidence to find , as I do, that
traveling from one work center to another for such a
purpose was missable activity as Respondent 's rules had
been enforced . (See Tr . 233, 239; 333-334; 335-356; 388-
389, and 539-540.) Employee movements were restricted
if excessive or interfered with production (see Tr. 552-
553; 750; 771-772; 818; and 848-849).
One final matter is relevant to Novak 's suspension: Re-
spondent 's history of suspensions . The parties stipulated
that the only other work suspensions imposed in 1983
and 1984 were for poor attendance or job performance.
Before 1983, Respondent suspended or terminated three
employees because they intimidated or harassed other
employees . In 1979 , Harper suspended J. Kissel for 3
days . The reason : "Intimidating an employee , a fellow
employee , in an argumentative manner, raising his voice.
Just plain being coercive , just intimidating that employ-
ee."22 No prior oral or written warning had been given
to Kissel . In July 1981 Lomarta was suspended for 2
days after the argument (previously reported) he had
with Hunt . Lomarta physically injured a third employee
when he picked up a chair intending to throw it at Hunt.
In December 1981 employee J. Curtis was terminated
without prior notice or warning . The offense : "Making
life difficult for [other employees] . . . in the work area,
threatening them , leading them , baiting them . " 23 Harper
acknowledged that Curtis had physically lifted another
employee up by the nape of the neck and marched that
employee up against a wall. In January 1984 employee J.
Bailey was issued a written warning because other em-
ployees objected to her use of "abusive language,
report[ing] on [her] . . . after hour activities and .. .
[making] uncomplimentary remarks about fellow work-
ers" (G .C. Exh. 7). The warning ended with the state-
ment that if the objectionable conduct "continues further
discipline action will be taken ." (G.C. Exh. 7.)
B. Analysis
Two theories of violation arise from the complaint al-
legations regarding the unlawful character of Novak's 25
September suspension.
The first theory asserts that Novak was suspended be-
cause Respondent mistakenly believed he engaged in
misconduct in the course of protected activity (see com-
plaint pars . 12 and 15). This theory will be called the
Burn up & Sims theory . The second theory asserts the
suspension was motivated by antiunion considerations
(see complaint pars. 12, 16, and 19 ). This theory will be
called the motivational theory.
1. The Burnup & Sims theory
An employer commits an unfair labor practice, under
Section 8(a)(1) of the Act, when imposing discipline on
22 Uncontroverted , and credited , testimony of Harper.
23 Uncontradicted , and credited , testimony of Harper
an employee in the mistaken belief the employee has en-
gaged in misconduct in the course of protected activity.
(NLRB v. Burnup & Sims, 379 U . S. 21, 23 ( 1964)). In
that case , the Supreme Court instructed:
§ 8(a)(1) is violated if it is shown that the dis-
charged employee was at the time engaged in a pro-
tected activity , that the employer knew it was such,
that the basis of the discharge was an alleged act of
misconduct in the course of that activity , and that
the employee was not , in fact , guilty of that miscon-
duct.
Thus, the Court established three criteria that must be
met by the General Counsel . First , an employee must be
engaged in protected activity . Second , the employer
must have knowledge the employee is engaged in that
activity . Third, the alleged misconduct on which the dis-
cipline is based occurred during the course of the em-
ployees ' protected activity.
I conclude there is no merit to the Burnup & Sims
theory. The first and third predicate facts are missing.
Concededly , there is considerable evidence to show that
Novak had been an active union protagonist throughout
the organizational campaign. However , my analysis of
the applicable decisional precedent reflects that mere
general union support and activity does not satisfy the
Burnup & Sims requirement . I conclude there must be a
showing that the disciplined employee was actually en-
gaged in protected activity at the time of the alleged mis-
conduct that comprised the basis for discipline.
The General Counsel cites several cases in support of
the Burnup & Sims theory. I find each case materially
distinguishable from the case at bar . Each cited case con-
tains evidence the alleged misconduct occurred simulta-
neously with protected activity by the disciplined em-
ployee . In Coca Cola Bottling Co., 274 NLRB 1341
(1985), the employee was on strike ; in Diversified Prod-
ucts, 272 NLRB 1070 (1984), the employee was actually
in the midst of discussing a union with another ; in Enter-
prise Products Co., 265 NLRB 544, 554-555 (1982), the
disciplined employees were involved in providing evi-
dence in support of a pending unfair labor practice
charge ; in Presbyterian/St. Luke's Medical Center, 258
NLRB 93, 102-103 (1981), the employees actually were
discussing union authorization cards; in Dravo Corp., 255
NLRB 584, 590 ( 1981), the employee actually had been
engaged in simultaneous union activities; in NLRB v. Or-
leans Mfg. Co., 412 F.2d 94 , 98 (2d Cir . 1969), the em-
ployee was soliciting union support.
Novak was not engaged in any activity protected by
the Act when his confrontation with Hunt occurred on
21 September . My earlier finding that Novak legitimately
was in Hunt 's work center does not per se confer the
Act's protection on him . Novak was there to retrieve his
wrench . There is no evidence he was in Hunt's work
center to simultaneously conduct any activity related to
the Union or its organizational campaign.
The Novak -Hunt argument involved their personal
union sentiments. That fact , alone, does not bring the in-
stant case within the ambit of Burnup & Sims . The sepa-
rate views of unionism and its effects clearly fueled the
RAYMOND ENGINEERING 1221
argument between Novak and Hunt. However, they do
not establish that Novak was engaged in protected activ-
ity at the time the alleged misconduct took place.
On the foregoing, I find no merit to the combined alle-
gations of complaint paragraphs 12 and 15 that Novak
was suspended on 25 September because of Respondent's
mistaken belief he was engaged in protected activities.
2. The motivational theory
The theory must be analyzed and decided under the
teachings of Wright Line, 251 N]LRB 1083 (1980), affd.
662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982); approved NLRB v. Transportation Management
Corp., 462 U.S. 393 (1983). The General Counsel has the
initial burden to prove that union or other activity pro-
tected by the Act was a motivating factor in an employ-
er's decision to take adverse action against an employee.
If the General Counsel meets this burden, the employer
then has the burden to show it would have taken the
same action even in the absence of the protected activity.
Here, I conclude no prima facie case has been proved. I
find the General Counsel has proved certain elements of
a prima facie case . Those elements are (1 ) Novak gener-
ally was engaged in union activity; (2) Respondent had
knowledge of that fact; and (3) Novak was disciplined.24
However, unlawful motivation is a critical component
of a prima facie case of discrimination under Section
8(a)(3). This is the violation alleged to flow from the mo-
tivational theory (see complaint pars . 12, 16, and 19). I
conclude the evidence does not establish that Novak,s
suspension was discriminatorily motivated.
The General Counsel asserts a variety of evidence pro-
vides the grounds for a fording of unlawful motivation.
The significant contentions are:
(1) Respondent's employee handbook and Cox's 12
December published notice contain statements of antiun-
ion animus . My description of background events (sec.
III,A, above) shows Cox informed employees he was
"firmly opposed to the creation of a union" and Re-
spondent "will oppose" a union with "vigor and enthusi-
asm." Also, I noted that similar sentiments appear in the
employee handbook.
The General Counsel contends the quoted statements
are evidence of antiunion animus . In support, I am re-
ferred to Masoneilan International, 223 NLRB 965, 966
fn. 5 (1976). The cited case broadly stands for the propo-
sition propounded by the General Counsel. However, I
ford Masoneilan sufficiently factually different as to
render it inapposite. In Masoneilan , the Board was con-
fronted with an employer that made captive audience
speeches in the course of a vigorous antiunion campaign.
The campaign also included publication of antiunion
posters. Thus, the employer's ei+pressions were given a
more onerous and hostile meaning than that I conclude
the instant context can sustain . The mere articulation of
opposition to a union, or unionization , does not necessar-
ily rise to the level of such animus as would support a
fording that an employer harbored, or acted pursuant to,
discriminatory motivation. More is needed.
The Masoneilan decision cited Lopeka, Inc., 187 NLRB
750 (1971). In Lopeka, also, I find material distinctions.
There, an employer's antiunion statements were viewed
in, and given meaning by, the context of an intensive
campaign in which the union was accused of causing a
strike and job loss to employees. The union was blamed
for any troubles that befell the employees.
Respondent's views of unions are contained in a con-
text vastly different from those present in Masoneilan and
Lopeka. The statements which appear in the employee
handbook preceded the Union' s organizing efforts. There
is no evidence those statements resulted from, or were
connected to, the Union's 1984 organizing efforts or to
any earlier similar campaign. Viewed in this posture,
albeit isolated, I conclude the statements in the employee
handbook are a legitimate expression of views on unions
and unionism that employers are free to make.
Similarly, I find no reason to conclude Cox's 12 Sep-
tember statements bear a different character. Those state-
ments are the only bit of campaign literature produced in
evidence. There is no evidence to show Respondent
waged an antiunion campaign approximating those in
Masoneilan and Lopeka. In the absence of cogent evi-
dence of other conduct that shows Respondent's propen-
sity to interfere with employees' statutory rights '25 1 am
unwilling to attribute the meaning sought by the General
Counsel to Respondent's quoted statements.
(2) Threats and interrogation by Respondent's supervi-
sors, in November and again in February 1985, comprise
examples of its antiunion animus. This General Counsel
assertion assumes merit will be found to the complaint's
allegations that Respondent committed independent
8(a)(1) violations. My conclusion, noted immediately
above, that no such violations have been proved, negates
the contention that unlawful animus may be derived
from proof of subsequent unfair labor practices.
(3) Respondent treated Novak in a disparate manner.
This factor is frequently a valid basis on which to infer
the existence of antiunion animus. It is admittedly more
difficult to resolve than the others cited by the General
Counsel as indicia of antiunion animus.
On balance, I disagree with the General Counsel's
claim that the record demonstrates Novak was treated so
differently from other employees as to warrant making
an adverse inference against Respondent. The General
Counsel claims that the history of employee suspensions
shows that discipline was imposed in situations where
employees engaged in "much more egregious conduct"
than Novak. The General Counsel bases the quoted con-
tention on the suspensions of employees Lomarta and
Curtis (see G.C. Br. at 44). I acknowledge those employ-
ees' offenses were more aggravated than Novak's. If that
were the only evidence of disciplinary past practice, I
would be inclined to agree there is such disparate treat-
ment against Novak as warrants the inference the Gener-
al Counsel requests.
However, as previously reported, there is evidence
that a third employee, Kissel, had been suspended for 3
25 The absence of such evidence is based on my conclusions , discussed
below, that Respondent committed none of the unfair labor practices al-
24 These conclusions, and their bases, appear in sec III,A , above leged in the complaint.
1222 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
years. That suspension did not involve the physical as-
saults present in the Lomarta and Curtis situations. Kis-
sel's suspension was for "Intimidating and employee .. .
in an argumentative manner ." I find Kissel's suspension
virtually identical to the Novak case. My factual findings
concerning the Novak-Hunt argument readily lead to the
conclusion, which I make, that Respondent had reason to
believe Novak began the dialogue, was first to use pro-
fanity, and became abusive .26 This perspective leads me
to reject the General Counsel' s claim that Novak was
disciplined in a disparate manner.
The General Counsel contends the more appropriate
comparison should be between Novak's discipline and
that imposed on employee Bailey. I disagree. According
to the General Counsel, Bailey was "merely counseled
.. . (for use of abusive language) despite the fact that
she had received prior warnings for misconduct." To the
contrary, I have found the documentary evidence shows
Bailey actually received a written warning. (See G.C.
Exh. 7.) This was more stringent discipline than counsel-
ing. Moreover, that warning is not as innocuous as the
General Counsel suggests . Bailey was also warned in
writing, that like future conduct would subject her to
further discipline.
Finally, the General Counsel claims that the different
disciplines imposed on Hunt and Novak prove Novak
was treated in a disparate manner. Hunt received only a
written warning for his participation in the 21 September
incident, although he had (sometime earlier) been
warned for having made a racial slur on another employ-
ee.
In other circumstances, the difference in discipline
would assume greater significance . In this case, I have
found that the accounts of the 21 September incident at
Harper's disposal at the time he decided to discipline
Hunt and Novak reasonably gave him cause to believe
Novak precipitated the argument and was the more ag-
gressive and abusive party to it. I find Harper acted rea-
sonably under all the circumstances. He had no input
from Novak. Harper made a value judgment. His deci-
sion to discipline Novak and Hunt in different ways is
not so arbitrary, unreasonable, and contrary to past prac-
tice as to constitute evidence of antiunion animus.
(4) An inference that Novak's union activity motivated
his suspension should be made because Respondent's in-
vestigation of the 21 September incident included inter-
views with employees Rafalo and Strom. The General
Counsel argues the inference is appropriate because nei-
ther Rafalo nor Strom had witnessed the Novak-Hunt ar-
gument. The record shows Rafalo and Strom were inter-
rogated concerning their conversations with Novak over
working conditions. Assuming Novak had those conver-
sations under the mantle of the Act's protection, I do not
agree that fact provides sufficient basis to draw the con-
clusion requested by the General Counsel. This is so be-
cause (1) there is no such evidence Respondent claimed
it was aware, as suspected , Novak engaged in any mis-
conduct in the course of that activity, and (2) I credit
26 I have previously found that Hunt also used foul language Howev-
er, Covey 's account of the argument (that I adopted) clearly reflects
Novak was considerably more abusive.
Harper's testimony that he did not use information sup-
plied by Rafalo and Strom in his decision to suspend
Novak. In this context, I consider this aspect of the Gen-
eral Counsel's argument highly speculative.
(5) Respondent's use of Attorney O'Connor supports a
conclusion that antiunion considerations engendered
Novak's suspension and the discipline was disparate
treatment. Concededly, there is no evidence that Harper
had previously disciplined employees with assistance of
any type, particularly labor relations counsel. Nonethe-
less, at best, I conclude that O'Connor prepared a writ-
ten declaration of employees' investigatory rights, and
conducted the investigation of the 21 September incident
is not a persuasive indicator that Respondent was moti-
vated by antiunion animus in its suspension of Novak.
O'Connor's participation is equally, if not more, suscepti-
ble to the conclusion that Respondent was taking pains
to avoid the commission of unfair labor practices. The
record shows that Respondent and Harper had experi-
ence in earlier efforts of the Union to organize Respond-
ent's operations; Harper and other management officials
had been educated in the parties' and employees' respec-
tive rights during organizational campaigns. I have found
that Respondent was aware of Novak's then-current
union activity. This context, I conclude, tends to render
extremely conjectural the General Counsel's claim re-
garding Respondent's use of O'Connor in the 21 Septem-
ber investigation.
In sum, I conclude the above-discussed five arguments,
separately or in any combination, do not warrant a find-
ing that Novak's suspension was motivated by antiunion
considerations.2 7
My finding that Novak was properly in Hunt's work
area has been factored into the evaluation of motivation-
al evidence. In other circumstances, that finding would
provide a foundation for me to infer the presence of the
requisite antiunion animus to support a prima facie case
on the motivational theory. However, such an inference
is not to be made lightly or mechanistically. The sur-
rounding circumstances must be examined to determine
whether such an inference is logical, reasonable, or oth-
erwise justified.
Here, I conclude the record, in its entirety, neither
supports nor warrants an inferential finding that Novak
was suspended for reasons discriminatory within the
meaning of the Act.
The factors enumerated by the General Counsel as
motivational evidence have been discarded as unpersua-
sive. In this context, the legality of Harper's decision to
suspend Novak turns on whether it can be said the deci-
sion was so outrageous as to be unreasonable. If that
were so, I would be inclined to conclude Respondent's
contentions do not withstand scrutiny. Then, I would
infer Respondent's claimed defense is pretextual. I have
found Harper's decision was a personal exercise of mana-
gerial judgment. It was reasonably consistent with Re-
27 In this conclusion, I have considered the General Counsel's further
argument that Respondent 's treatment of Medma in November is evi-
dence of disparate treatment toward union activists As will be seen
below, I conclude the record fails to support the General Counsel' s posi-
tion.
RAYMOND ENGINEERING
spondent's past practice. It comports with my observa-
tion of Harper as a firm disciplinarian. As previously
stated , Harper's judgment was based on the available
facts. There is no direct evidence: the investigation was
perfunctory, shallow, or contrived.
Kopcza's statement to O'Connor and Harper during
the investigation gave them cause to believe Novak was
properly in Hunt's work center. That belief certainly cast
doubt on Respondent's asserted reason for Novak's sus-
pension. The suspension letter indicates the discipline
was due, in part, to Novak being in an "unauthorized
area." Harper also claimed that Novak "had no business
being in that [Hunt 's] area." Respondent 's reliance on
these statements would cast serious doubt on the trust-
worthiness of its defense, if viewed in isolation. Herein, I
conclude the attendant circumstances show that Re-
spondent 's failure to be more explicit in describing the
reason for the suspension is explained by all the factors
discussed above that override the need for such specifici-
ty. If I am ultimately not sustained in this latter conclu-
sion, then, in any event, the words Respondent used to
describe the reason for suspending Novak create only a
suspicious condition . Suspicions, alone , cannot support
unfair labor practice allegations.
.On the above, I conclude the preponderance of evi-
dence does not establish a prima facie case in support of
the motivational theory. Accordingly, I find no merit to
the combined allegations of complaint paragraphs 12, 16,
and 19 that Novak was discriminatorily suspended on 25
September.
C. The Saturday Overtime Rule
As earlier reported, Supervisor Bazar instituted a re-
quirement in center 202 that employees work 50 hours in
the week immediately preceding a Saturday in order to
be eligible to work overtime on that Saturday. This rule
(hereafter the 50-hour rule) became effective around 1
November in center 202.
Several violations of the Act are alleged to have re-
sulted from this rule. The complaint (pars. 8(b) and 18)
alleges that Respondent 's maintenance and enforcement
of the rule constitutes an independent 8(a)(1) violation.
The complaint (pars . 8(a) and 18) also alleges promulga-
tion of the rules as an 8(a)(1) violation. The General
Counsel's brief is more explicit. There, the General
Counsel contends Respondent violated Section 8(a)(1)
"by telling Novak and Medina . . . the reason they
could not work on . . . 3 and 10 November was their
attendance at the [representation] hearings."
Finally, the complaint (pars. 8(b), 13, 17, 19, and 20)
alleges Respondent discriminated against Novak and
Medina by applying the 50-hour rule to them on 2 and 9
November. This action is alleged to be violative of Sec-
tion 8(a)(4), (3), and (1) of the Act because Novak and
Medina attended the representation hearings at the
Board 's office on 1, 5, and 6 November.
1. The facts
Respondent admits that on Friday, 2 and 9 November,
Bazar told both Novak and Medina they could not work
overtime on the next day, a Saturday. Each of them had
1223
attended the Board's representation hearing on 1 Novem-
ber, and again on 5 and 6 November.
Novak and Medina testified Bazar told them Saturday
overtime was not available to them because they attend-
ed the Board's hearing. Bazar unequivocally denied
making that statement . He acknowledged that he told
Novak and Medina they could not work overtime be-
cause he was implementing the 50-hour rule.28
I credit Bazar wherever his testimony conflicts with
Novak and Medina. Bazar testified in a relaxed, forth-
right manner. His explanation of events is logical, com-
prehensive, and spontaneous.
Some specific credibility observations are necessary re-
garding Novak and Medina in connection with the over-
time work allegations . Novak steadfastly claimed the 50-
hour rule was absolutely new, that he had not heard of it
before 2 November. This is a gross exaggeration. It fur-
ther diminishes Novak's testimonial reliability. Several
bits of evidence belie Novak's claim: (1) Documentary
evidence (G.C. Exhs. 11-13) substantially supports Su-
pervisor White's testimony that the 50-hour rule was in
effect in his work center, center 204, during the time
Novak was temporarily assigned to work there.29 Those
documents support White's testimony that he advised
Novak of the 50-hour rule's existence on the first day
Novak reported to center 204 in September. Specifically,
General Counsel's Exhibits 11-13, I conclude, reflect
that Saturday overtime was performed by employees
who met, or came quite close to meeting, the 50-hour
rule requirements, except in the Labor Day holiday
week; (2) many of Respondent's witnesses testified that a
50-hour, or similar Saturday overtime, rule existed in dif-
ferent work centers long before Bazar instituted it. These
witnesses were mutually corroborative; and (3) Kopcza,
a General Counsel witness, confirmed the earlier exist-
ence of the 50-hour rule. Kopcza testified that he knew
White had the rule at least since the February preceding
its promulgation by Bazar. Kopcza's credited testimony
directly contradicts Novak.
Medina testified aggressively. He displayed a marked
tendency to embellish descriptions of events so as to veer
from precision. His testimony is sometimes confusing,
riddled with exaggerations, and self-contradictory.
Medina clearly sought to magnify Bazar 's refusal to
allow him to work overtime on 3 and 10 November.
Thus, Medina exclaimed, "I love to work overtime. You
can check my record eight years back and you can see in
there that I was the only guy who worked 55 hours
straight every week."30 Documentary evidence reveals
31 Respondent agrees that the rule was first applied by Bazar in center
202 at the beginning of November.
29 The General Counsel contends that Respondent is precluded from
adducing such evidence , because it contravenes a stipulation that the
company had no rule that required 50 hours of work on weekdays as a
condition for Saturday overtime I disagree First, the stipulation referred
to was extracted from a broader one that sought to establish conditions in
center 202 . This was not White's work center. Second, the stipulation
was directed to overall policy of Respondent. Uncontroverted evidence
shows overtime rules were established by line supervisors according to
production schedules in their work centers This context, I conclude,
makes it appropriate to receive, and consider , evidence of overtime rules,
if any , in other than Bazar's work center.
30 Tr 614
1224 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Medina did not at all work overtime on Saturday be-
tween the payroll week ending 1 April-4 November.
Those Respondent's records show Medina, during the
same timespan , worked overtime, on as sporadic basis, by
working in excess of 8 hours on a particular weekday.
Medina's tendency to portray events in a light most fa-
vorable to his cause extended even to matters otherwise
innocuous. Medina adamantly denied he worked in a
repair/construction business. Apparently, Medina denied
this to bolster his claim that he "loved" overtime. The
denial continued, even when Medina was confronted
with a business card which bore the legend "Sunny
(Medina) and Sons, House Doctor, Repairs, Excavations,
Remodeling." Medina claimed the card was printed as a
joke. I find Medina's responses evince a reckless disre-
gard for verity. This conclusion is buttressed by Harper's
credible, and uncontroverted, testimony that Medina per-
formed work on Harper's house and was paid for it. My
observations and conclusions regarding Medina's credi-
bility lead me to reject his testimony that Bazar explicity
connected the refusal to let Medina work on 3 and 10
November to his attendance at the Board hearing.3 t
Bazar credibly, and without contradiction, testified
that Respondent's production planner and coordinator, in
July, told him center 202 employees needed to work 55
hours a week to meet production schedules. Bazar tried
to extract additional work hours from the employees in
his work center in August. Bazar 's effort did not suc-
ceed. Bazar then solicited additional working time by
speaking with each center 202 employee in September.
He asked each of them to work more hours. (Respond-
ent's general policy made overtime voluntary. Mandato-
ry overtime was required only if overtime worked on a
voluntary basis was insufficient to meet production re-
quirements.) During the September discussions, Bazar
told the center 202 employees that they were not provid-
ing enough voluntary overtime. He said this situation
would lead to imposition of a 50-hour rule that was used
in center 204. Specifically, Bazar testified he made these
statements to Novak and Glinski. Bazar claimed Novak
did not respond, and Glinski said he did not like a 50-
hour rule, but would "go along" with it. According to
Bazar, Medina asked Bazar some questions about the
rule. 3 2
Bazar claimed that, in October, he concluded he failed
in his efforts to procure additional voluntary overtime. I
credit this testimony. It is supported by Respondent's
records (see G.C. Exhs. 13-18). Those records reflect
that center 202 employees worked an average of approxi-
mately 45 total number of hours (including straight time
and overtime hours) between the payroll weeks ending
23 September and 28 October.33 Thus, Bazar 's efforts to
31 I also reject Novak's testimony to the same effect This rejection is
based on all factors discussed which relate to his reliability as a witness
32 Bazar's account is fully credited It is refuted only by uncredited
denials of Novak and Medina Ghnski testified He was forthright,
candid, and direct I credit him. Glinski confirmed Bazar's description of
their overtime conversations Glinski appeared as a General Counsel wit-
ness. He acknowledged that Bazar explained that Respondent wanted
production of work during the week, and the 50-hour rule was necessary
to induce more production on weekdays
33 This statistic is the product of averaging the approximate number of
total straight time and overtime hours worked in each of the weeks in-
obtain voluntary overtime fell short of the 55 hours re-
quested by Respondent's production coordinator.34 Ac-
cordingly, Bazar decided to make overtime mandatory.
He instituted the 50-hour rule. He gave each employee in
his work center notice of the rule within the week before
its implementation.
Bazar testified he enforced the rule in a flexible way.
He claimed he made exceptions for legitimate reasons.
Also, Bazar testified the rule was applied uniformly to all
employees in center 202, without regard to their union
sympathies or affiliation. I credit these assertions. They
are supported by Respondent's records (see G.C. Exhs.
19-25). Those records show that whenever employees
Bruenn , Gudelski, and Sauer worked 5 hours Saturday
overtime within the 6 weeks immediately following the
announcement of Bazar's rule, those employees also
worked the 50-weekday hours required by the rule.35
There is not evidence that Bruenn , Gudelski, Sauer, and
Strom were union activists.
I find Respondent's records relating to the union pro-
ponents support Bazar's claim and Respondent's conten-
tions . In the 6 weeks immediately following implementa-
tion of Bazar's rule , Glinski (in-plant organizing commit-
teeperson) worked the full 50-weekday hours in the 3
weeks he also worked on Saturday; and that in-plant or-
ganizing committee members Novak and Lilja were per-
mitted to work Saturday overtime during the week
ending 16 December, although Lilja only worked 42.75
hours, and Novak only 44 hours that week.36
2. Analysis
I conclude there is no merit to any of the complaint
allegations that assert Respondent's adoption, institution,
application , and enforcement of Bazar 's 50-hour rule is
discriminatorily within the meaning of Section 8(a)(4),
(3), and (1) of the Act or is independently violative of
Section 8(a)(1).
volved. The records show those approximate (fractions of hours were
eliminated from computation ) hours, as follows. week ending 23 Septem-
ber, 42 hours; week ending 30 September , 41 hours; week ending 7 Octo-
ber, 41 hours , week ending 14 October, 46 hours, week ending 21 Octo-
ber, 52 hours; and week ending 28 October, 50 hours
94 I recognize the records show weekly increases in approximate total
number of hours worked from 23 September to 28 October That in-
crease does not alter the fact that the desired number of working hours
had not yet been reached by the end of October
The General Counsel, in his brief, implies the failure to produce the
production coordinator, DiDato, to testify should bear adverse conse-
quences to Respondent . I disagree I find Bazar and Rich credible wit-
nesses. DiDato's testimony would be merely cumulative . I draw no ad-
verse inferences from DiDato 's failure to testify
ss There is one exception to this statement Sauer worked 5 hours on
the Saturday during week ending 2 December, but only worked 48 hours
the preceding weekdays Also, Strom worked Saturday overtime in the
week ending 4 November, but only worked 48 5 weekday hours that pay-
roll week
3e The General Counsel accurately notes that overtime hours declined
during the 5 weeks immediately after the 50-hour rule was imposed This
fact is urged to show the falsity of Respondent 's "stated objective" in es-
tablishing the rule In isolation , this contention could be impressive
However, I find that Respondent had more than a single objective Bazar
testified , and employee witnesses Lilja and Glmski confirmed , that an-
other objective was to induce employees to increase the number of hours
they worked on weekdays.
RAYMOND ENGINEERING 1225
The credited evidence shows, a nd I find , that Bazar
did not tell Novak or Medina the reason they could not
work overtime on 3 and 10 November was because they
attended the representation hearing . This fmding effec-
tively disposes of the allegation that Respondent commit-
ted an independent violation of Section 8(a)(1). I find no
merit to that allegation.
I also conclude Respondent did not discriminate
against Novak or Medina , in violation of Section 8(a)(4)
and (1). The General Counsel's contentions as to this al-
legation (and also those alleging 8 (a)(3) discrimination re-
sulted from 50-hour rule) are appealing , but only superfi-
cially . They do not withstand scrutiny . This conclusion
is based on a failure of the evidence to establish discrimi-
natory motivation regarding the 50 -hour rule.
Several factors are cited as evidence of unlawful moti-
vation . Each is described below , together with my
reason for finding it inadequate to support a prima facie
case:
1. The General Counsel argues implementation of the
rule coincided with the representation hearing . At most,
this element raises suspicions that the rule 's implementa-
tion is connected to employees ' protected activities.
However, suspicious circumstances , alone , cannot sustain
findings of unlawful motivation . Moreover, my earlier
findings show a legitimate need for Bazar to have imple-
mented the rule when he did. Specifically , Bazar's em-
ployees worked only an approximate average of 45 total
hours between 23 September and 28 October . Yet, in this
period , Bazar 's targets were to obtain 55 hours, and to
have employees working more hours on weekdays. The
presence of these legitimate goals dispels the unlawful in-
ferences that might be made from the suspicious timing
of the rule 's implementation.
Bazar testified he gave advance notice of the rule to
employees during the workweek preceding 3 November.
This is contradicted only by Novak and Medina. Bazar
was specific , direct, and comprehensive in this regard.
Novak and Medina were grossly exaggerated in this area
of their testimony . I credit Bazar . The logic of his ac-
count is persuasive . I find it likely that Bazar would have
given advance notice of the rule . I find it unreasonable
to believe Bazar would have risked the repercussions
that surely would have resulted from denial of work on
3 November if he had not first advised employees of the
rule.37
The advance notice preceded the representation hear-
ing. All evidence adduced to show the earliest date on
which Respondent learned that Novak and Medina were
to attend , or had attended , the representation hearing
places such knowledge after Bazar began announcing he
would implement the 50-hour rule. I conclude this con-
text shows Bazar 's announcements, and implementation,
er Novak and Medina were outraged by the denial of Saturday work
to them . I conclude the totality of the record leads to the reasonable pre-
sumption their feelings resulted from a preception that engaging in the
protected activity of attendmg the representation hearing would excuse
them from application of the 50-hour rule I find it manifestly unreason-
able to conclude Bazar would have risked the very union response he re-
ceived (filing the instant charges) by engaging in conduct so blatantly
provocative
of the 50-hour rule is purely coincidental to the represen-
tation hearing.
2. The General Counsel asserts the rule was applied to
Novak and Medina for the first time immediately after
they attended the representation hearing. In other cir-
cumstances, this factor could form the basis for fmding
Respondent had been unlawfully motivated. However,
contrary to the General Counsel's assertions, I have
found the 50-hour rule, or a similar rule, was not first
used in November. Rather, the record reveals previous
applications of such a rule by supervisors other than
Bazar. Also, Bazar implemented the rule with substantial
uniformity among center 202 employees. For example,
both Novak and Li1ja, union protagonists, worked Satur-
day even though each worked less weekday hours (44
and 42.75 hours, respectively) than employees (not
known union adherents) such as Strom (48.5 hours) and
Evard (43 hours).38 From this, I conclude there is no
cogent evidence that Novak and Medina were singled
out for distinctive treatment because they attended the
representation hearing.
3. The General Counsel urges the evidence shows Re-
spondent failed to establish the 50-hour rule was estab-
lished for a legitimate business reason . Under Wright
Line, I need not reach the issue of whether Respondent
satisfied its burden, because I conclude there is no prima
facie case.
In any event, I find ample credible support for a con-
clusion that the 50-hour rule was established by Bazar
for a legitimate business purpose.39 That evidence
shows: (1) the rule accorded with past practice as con-
ducted by other line supervisors; (2) Respondent's pro-
duction coordinator asked Bazar to schedule employees
for 55 hours' work weekly; (3) Bazar could not meet his
goals by requests for voluntary weekday overtime.40
There is a fourth factor, not previously reported, that
suggests the conclusion the rule evolved from legitimate
business considerations. First, prounion employee, Lilja,
corroborated Bazar's claim that a purpose of the 50-hour
rule was to increase the number of hours the employees
would work on weekdays. Second, Li1ja also confirmed
that the back orders of work had been increasing during
the period preceding November. In Lilja's words, "the
parts kept coming and stacking up" in early November
in department 25. He acknowledged this meant there had
been an increase in business over what previously had
been there. Uncontroverted evidence shows that Bazar's
work center produces parts critical to the assembly proc-
ess, and that if parts are not timely produced in that
work center, a delay ultimately ensues in overall produc-
tion.
38 See G.C. Exhs. 19 , 23, and 25
38 Such a conclusion vitiates the contention that Respondent violated
Sec 8(axl) by Bazar 's announcement, and implementation , of the 50-hour
rule. See Budget Rent-A-Car, 276 NLRB 315 ( 1985); Electric Hose &
Rubber Co, 262 NLRB 186, 187 (1982).
40 Respondent 's records show an increase in the total number of week-
day hours worked by some individual employees in the 5 weeks poor to
when the 50-hour rule took effect I conclude this fact lends credence to
Bazar's testimony he teed to obtain the necessary work through volun-
tary methods
1226 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The matters enumerated above lead me to conclude
there is no predicate evidence on which to find that the
50-hour rule was applied to Novak and Medina because
they attended the representation hearing; or that the rule
was established, announced, implemented, and enforced
for any other reason that is discriminatory within the
meaning of the Act.41
D. Threats of Reprisal-November 1984
Complaint paragraphs 9, 10, and 18 allege that Bazar,
on 2 November, and Guess, on 20 November, violated
Section 8(a)(1) by threatening employees with economic
reprisal because they engaged in activities protected by
the Act.
The allegation as to Bazar is based on the claim that
he told Medina and Novak they could not work Satur-
day overtime because they attended the representation
hearing . I have found Bazar did not make that statement.
Accordingly, I find no merit to the allegation (complaint
par. 9) that on 2 November, Respondent threatened em-
ployees with loss of Saturday overtime.
Guess was Respondent's general foreman on 20 No-
vember. The complaint (par. 10) specifically alleges that,
about that date, Guess threatened employees with dis-
charge because of their union activities , sympathies, and
affiliations.
1. The facts
The operative factual background of this allegation is
largely undisputed . 42 Medina, and the other members of
the Union 's in-plant organizing committee , distributed
prounion literature in Respondent's parking lot to em-
ployees coming to work on the morning of 20 Novem-
ber. Medina, and three other union protagonists, were
almost struck by an automobile driven by yet a different
employee. The incident occurred when the vehicle
swerved around other cars that had temporarily stopped.
Medina told Bazar he and other employees nearly had
been run down by the car in the parking lot. Bazar in-
formed Guess of the incident. Medina requested a con-
ference in Respondent 's personnel department . Guess ar-
ranged an appointment . Bazar told Medina an appoint-
ment had been arranged to see Buttinger. Medina told
Bazar he wanted to bring witnesses with him. This re-
quest was conveyed to Guess. Guess spoke with Medina.
He rejected Medina 's request to bring wttnesses.43
Medina testified that he then opined to Guess, "If that
were me, I would be fired in the spot." Medina claimed
Guess responded, "You're right, one-hundred per cent."
Guess unequivocally denied he made this comment. I
credit this denial .44 In fact, Medina never did make his
report directly to the personnel office .4 5
2. Analysis
The General Counsel's posthearing brief articulates a
theory of violation that differs from the complaint allega-
tion . As earlier reported, the complaint directly impli-
cates Guess in making a discharge threat. The General
Counsel's brief contains no explicit argument concerning
such a threat. Instead, the General Counsel claims Sec-
tion 8(a)(1) was violated because Guess ' alleged response
"you're right, one-hundred per cent" suggests to employ-
ees that employees who support the Union would, in the
General Counsel's words, "be treated more severely"
and their treatment "will be determined by their support
or non-support of the Union."
I have credited Guess' denial he made the statement
alleged to comprise a violation. Moreover, the General
Counsel has not referred me to anything else said by
Guess that is an explicit or implicit discharge threat. Ac-
cordingly, I find no merit to the allegation that Respond-
ent violated Section 8(a)(1) on 20 November threatening
to discharge them.
Assuming, arguendo, it was ultimately found that
Guess actually answered Medina as the General Counsel
contends, I would find that response does not comprise
an 8(a)(1) violation . The instant matter is vastly different
from Teledyne McCormick Selph, 246 NLRB 766, 773
(1979). This case is cited by the General Counsel to sup-
port the theory of violation presented by the brief. In Te-
ledyne, an 8(a)(1) violation was based on evidence that a
supervisor ascribed the harsh treatment accorded union
supporters directly to their having engaged in protected
activities. Also, in Teledyne, there was evidence of wide-
spread 8(a)(1) and (3) violations.
This instant case is not at all similar to Teledyne. The
statement allegedly made by Guess is ambiguous, at
most. Its meaning must be evaluated in the context ut-
tered. Thus, Medina's statement to Guess does not define
the subject matter over which the alleged discharge
would be imposed. The phrase "If that were me" stands
41 I have considered the fact that 50 percent of the Union's in-plant
organizing committee was housed in Bazar 's work center In other cir-
cumstances , this could support an inference of unlawful motivation. Here,
I conclude the substantial evidence of business justification overrides the
import of the concentration of union proponents ' work stations
42 Guess, Medina, Bazar , Lilja, and K Buttinger , Respondent's assist-
ant personnel manager, were the principal witnesses on the instant allega-
tion. I found Medina's account confusing . During cross-examination, Me-
dma's responses further revealed his tendency to embellish events to fur-
ther his cause. Buttinger tetified in a confident , direct , candid, and articu-
late manner Much of his testimony stands unrefuted I credit Buttinger.
Bazar and Lilja are largely uncontradicted in their testimony on this alle-
gation . Guess impressed me with his apparent sincerity. He testified
calmly, directly, and in a forthright manner Wherever conflicts occur
between Guess and Medina , I credit Guess. The facts regarding this alle-
gation are a composite of all credible witnesses who addressed the sub-
ject
as I credit Buttinger's testimony that he wanted to defer interviews
with witnesses until he received the particulars of the complaint from
Medina This is consistent with the way Respondent conducted its inves-
tigation of the 21 September incident between Hunt and Novak.
*' There are two bases for this conclusion First, it is illogical Guess
would have answered Medina as the latter claims There is no record evi-
dence that Respondent summarily disciplined employees . Actually, the
evidence shows Respondent historically conducted investigations of inci-
dents that bore potential for discipline . Second , the relative demeanor of
Medina and Guess persuades me it is not likely Guess would have used
the phraseology Medina attributed to him, and especially not in such pre-
emptive manner.
45 The parties produced considerable evidence regarding employees'
direct accessibility to the personnel department I need not discuss that
evidence any further It has little probative value to assessment of the
General Counsel 's theory of violation (see accompanying analysis).
RAYMOND ENGINEERING
in isolation. It is equally susceptible to an interpretation
bearing a lawful meaning , as to unlawful import. The
phrase, made in the midst of reporting a near-miss auto-
mobile accident, could be interpreted as applying to
Medina as if he had been the errant operator of the vehi-
cle. Such an interpretation suggests a lawful meaning to
Guess' reply. His response would indicate that employ-
ees who drive recklessly and endanger other employees
would be disciplined. In contradistinction, "If that were
me" might refer to Medina's prounion activities. If so,
then Guess' comment might assume the unlawful tenor
urged by the General Counsel.
In the absence of any other conduct which (as in Tele-
dyne) signifies Respondent committed other 8(a)(1) viola-
tions or discriminated in violation of Section 8(a)(4), (3),
and (1), there is no legitimate basis to apply an unlawful
interpretation to Guess' 20 November statement to
Medina, if it were determined the remark actually had
been made. This conclusion takes into account the Gen-
eral Counsel's claims that (1) what Guess said reflects an
extension, and continuation, of the disparate treatment al-
legedly accorded Novak by his 25 September suspension;
and (2) the failure to give Medina access to the personnel
department on 20 November is further evidence of dis-
parate treatment toward him.
The first argument has no merit. It is disposed of by
my findings and conclusions regarding Novak's suspen-
sion.
Regarding the second argument, the General Counsel
asserts that the participation of Respondent's president,
Cox, in the 22 September report by Hunt and Covey of
Hunt's confrontation, the previous day, with Novak con-
tradicts Respondent's claim (and my recent finding) that
Buttinger's desire to meet Medina, sans witnesses, and
Guess' statement to Medina to that effect, demonstrates
union protagonists were treated differently, and more
harshly, than other employees. Ostensibly, this argument
has merit. However, the prevailing conditions at Re-
spondent's facility during the Hunt meeting with Cox
were materially different from the time Medina tried to
bring witnesses to the personnel office. Hunt's situation
occurred on 22 September-a Saturday. The personnel
office was closed. Medina's request to bring witnesses
occurred on 20 November-a Tuesday. The personnel
office was open. Neither Harper nor Buttinger was avail-
able for Hunt's situation. Buttinger was available for Me-
dina's request. The only evidence available showing how
the individuals in the personnel department conduct in-
vestigations involves their investigation of the Novak-
Hunt argument. Then, Harper and Attorney O'Connor
interviewed employee witnesses on an individual basis.
This is precisely how Buttinger wanted to deal with Me-
dina's 20 November incident. I conclude, contrary to the
General Counsel's contention, that there is no cogent
evidence to sustain the claim of disparate treatment to
union supporters.
On all the foregoing, I find no merit to the allegations
that Respondent threatened employees with discharge or
other reprisals in November. Even if Guess made the al-
leged statement, I find it is not unlawful under the prin-
ciples of Rossmore House, 269 NLRB 1176 (1984), affd.
760 F.2d 1006 (9th Cir. 1985). The ambiguous character
1227
of the alleged unlawful statement and the attendant sur-
rounding circumstances dispel validity to a conclusion
that Guess' words possessed the reasonable tendency to
interfere with employees' statutory rights.
E. Interrogations and Threats-February 1985
Complaint paragraphs 11 (a)-(c) and 18 contain allega-
tions that, in February 1985, Respondent unlawfully
questioned and threatened employees with economic re-
prisals in violation of Section 8(a)(1) of the Act.
1. The facts
Three separate incidents are alleged. Covey is the su-
pervisor charged with each transgression. Two of the al-
leged violations, unlawful interrogation and discharge
threat, emanate from a conversation Covey had with R.
Barkman, then a probationary employee.46 The conver-
sation occurred on a Saturday afternoon in February
1985 at a bar owned by Barkman.
The third allegation arises from a conversation be-
tween Covey and employee W. Sharp later that month.
The conversation occurred at Respondent's facility.
Covey allegedly made an unlawful threat of unspecified
reprisal.
The parties are sharply divided on what took place be-
tween Covey and Barkman. Credibility resolution is criti-
cal to the factual findings on this issue.
Barkman, nonemployee S. Butterfield; Covey, and
Sharp testified regarding the February 1985 allegations. I
credit Covey and Sharp over Barkman and Butterfield.
Barkman and Covey actually had three conversations
about the Union. (Only the first two, I conclude, are rel-
evant to the allegations.) Covey's descriptions of what
was said are more plausible and internally consistent than
Barkman's. Covey was more precise and comprehensive.
Covey claimed the first conversation occurred during
Barkman's preemployment tour of Respondent's prem-
ises . Covey conducted the tour. Barkman agreed he first
met Covey then. (Barkman had been a union steward
and executive board member where he worked before
coming to Respondent.) According to Covey, Barkman
raised the union issue during the tour.
For reasons appearing below, I adopt Covey's testimo-
ny that Barkman asked whether there was a union at Re-
spondent. Covey said no. Barkman responded, "The only
people who want a union are people who don't want to
work."
Barkman claimed he first spoke about a union with
Covey after Barkman had begun working. Barkman as-
serted Covey initiated the conversation when he saw a
union emblem on Barkman's toolbox. According to Bark-
man, Covey said, "You really ought to sign a card be-
cause if you do you are going to lose your job."
48 Barkman was employed by Respondent on 14 January 1985 and was
terminated on 15 April 1985 His ternnnation was included as part of one
of the instant unfair labor practice charges, Case 39-CA-2608 After re-
gional investigation , that charge was amended to delete Barkman 's termi-
nation as a substantive issue
1228 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Covey's version is consistent with the surrounding cir-
cumstances . It was presented in a candid manner.47
Barkman served as a union official for over 5 years
during his former employment. His demeanor as a wit-
ness reflected he is a vigorous union proponent . Barkman
markedly sought to cast his testimony in the most favor-
able light to him. In fact, he expressly acknowledged his
belief that the instant litigation still involved his own ter-
mination and could provide a remedy for it. Sharp,
whom I credit for reasons stated below, testified that
Barkman solicited Sharp to portray events in a distorted
way favorable to Barkman.
Barkman's testimony that Covey threatened him with
job loss during their first union conversation reflects
poorly on Barkman's credibility. His description of the
alleged statement was generalized and abbreviated
during direct examination . Barkman merely claimed
Covey saw that Barkman had a union briefcase on his
toolbox. The General Counsel asked, "What happened in
that conversation?" Barkman answered, "Not much then,
but he [Covey] proceeded to stop down the bar one time
and made it a point that I should not [sic]48 join the
union." (Emphasis added.) The italicized phrase com-
prises Barkman's original and entire description of his
first union conversation with Covey. The General Coun-
sel did not ask Barkman any further questions about that
conversation.
Respondent's counsel pressed Barkman to more fully
describe that conversation during cross-examination.
Then, Barkman testified that Covey said he saw the
union emblem on Barkman 's toolbox and told Barkman
the emblem did not "look good" and that Barkman could
lose his job if he signed a union card.
Notably, Respondent is the party who elicited this tes-
timony that is potentially a separate unfair labor practice.
Barkman's direct testimony was left in a nebulous condi-
tion regarding what Covey my have said to him when
they first spoke about the Union.
Covey's purported threat is not the subject of any
complaint allegation. The General Counsel did not pur-
pose to amend the complaint to add this particular threat
as a violation, even after Barkman testified.
In contrast, the allegation involving Sharp was added
by the General Counsel's motion at the hearing. I con-
clude the above circumstances cast doubt on Barkman's
testimonial reliability. They strongly suggest Barkman's
description of certain events were contrived for litigation
purposes. I conclude, also, that his broadened description
of what Covey said is an example of his tendency to ex-
aggerate facts in his favor.
Covey's version is more probable. Barkman's former
union stewardship makes it likely he would be interested
in Respondent's unionized status. A preemployment tour
is an opportune time to ask about that status. I find it
47 Covey generally testified convincingly I was particularly impressed
with his candor He testified, without hesitation , to matters which poten-
tially bore adverse consequences to Respondent For example, Covey
readily admitted he did not like the Union and that he had referred to
Novak as a rabblerouser.
48 I correct the official transcript , sua sponte p 439, L. 3, to insert the
word "not," as indicated Clearly, that correction conforms to the overall
tenor of Barkman 's testimony and comports with my recollection of it.
perfectly plausible that Barkman raised the subject at
that time. This is more reasonable than believing Covey
spontaneously began a conversation about signing a
union card . Barkman 's version of the discussion arises
from vacuous circumstances. It is devoid of a factual
context.
Barkman and Covey agreed their second union con-
versation was held at Barkman 's bar . Barkman 's narra-
tion of this conversation, during direct examination, was
brief. He claimed it started with "small talk," after which
Covey raised the union subject. Barkman testified Covey
asked him "if I wanted to join the union and stuff like
that." Also, Barkman claimed Covey told him the Union
was voted down twice earlier and cautioned him to
avoid Medina because Medina was a troublemaker and
"the leader of everything."
Finally, Barkman testified that Covey asked whether
Medina solicited Barkman to sign a card . Barkman said
Medina did so during lunch hour . Barkman asserted
Covey warned that Barkman could get Medina "fired if
he [Medina] approaches you on company time"; and that
Novak and Medina were "the two guys" who were
trying to get the Union "going."
Butterfield was presented by the General Counsel to
corroborate Barkman's testimony of the alleged threat
made at the bar, Butterfield testified she overheard part
of the discussion. Butterfield claimed she heard the
person, later identified to her as Covey, loudly refer to
someone named "Sonny"49 and "signing papers."
Initially, during direct examination, Butterfield recalled
Covey "was talking about somebody, about Sonny and
signing papers and if they did-I can't remember the
exact words, but it would be out the door type remarks.
But he didn't say what it was about. I wasn't really lis-
tening because I didn't think it was my business, but then
when he [sic] raised his voice, you can't help but hear."
Butterfield later recalled that when Covey referred to
"signing papers" he expressly said, "Union papers, and
you will be sorry." Butterfield claimed Covey "went on,
and he more or less repeated himself, using different
words, but for 5 or 10 minutes he just kept asking [Bark-
man], 'Do you hear what I'm saying?' and [Barkman]
just stood there and didn't answer."
Butterfield testified she asked Barkman about the dis-
cussion shortly after it took place. According to Butter-
field, Barkman "didn't say what they were talking about.
He just said it was some man [sic] from work, Raymond
Engineering, where he worked. That is all."
During cross-examination , Butterfield admitted that
the statements she attributed to Covey during her direct
testimony were not verbatim accounts of what was said.
She also acknowledged that her description of Covey's
statements included words she created from her memory
of the sense of what was said. Nonetheless, Butterfield
steadfastly maintained Covey referred to signing papers,
a union, and Sonny.
Butterfield presented her testimony in an apparent
convincing tone and moderate temperament. She is the
49 This is Media's nickname
RAYMOND ENGINEERING
solitary witness for any party who did not have an obvi-
ous personal interest in the outcome of this litigation.
However, I perceive serious flaws in her testimony. As
she testified, she appeared anxious to help Barkman's
cause. The record shows that Butterfield and Barkman
are friends. The two of them bowled together since Sep-
tember 1984. Next, I conclude Butterfield's testimony is
pervaded by exaggeration. Barkman did not claim, as did
Butterfield, that Covey repeated himself for 5 or 10 min-
utes. Reliance on this characterization conjures visions of
Covey engaged in a maniacal tirade. Further, Butter-
field's claim Covey was repetitious for so long a period
is inconsistent with her testimonial assertion that she
"wasn't really listening."
Butterfield consistently claimed she heard Covey tell
Barkman , in general terms, that unions are no good. I
find this contradictory to her pre hearing affidavit. There,
Butterfield claimed she had not paid "much attention
untie' she heard Covey say something "about if he found
out Sonny or anybody signing union papers, they will be
out the door." (Emphasis added.) Barkman placed the al-
leged discharge threat at the end of Covey's remarks. If,
in fact, Butterfield had not been attentive to the discus-
sion until she heard the alleged discharge threat, then her
claim she heard Covey otherwise disparaging the Union
is exaggerated, inaccurate, or untrue. In any event, this
part of Butterfield's testimony is inconsistent with Bark-
man's.
Finally, I find one bit of evidence impacts equally on
the reliability of both Barkman and Butterfield. As re-
ported, the two of them discussed what happened be-
tween Covey and Barkman . I conclude that conversa-
tion, held virtually contemporaneous to the alleged un-
lawful event, renders it unlikely Covey made the threats
to Barkman or interrogated him as Barkman described.
Specifically, when Butterfield questioned Barkman
about the incident, Barkman was brief and unemotional.
He only said his conversation was with "some man"
from work. He did not even attempt to identify the sub-
ject matter of Covey's discussion. I find Barkman's be-
havior uncharacteristic to his demeanor, antithetical to
his background, and inconsistent with the realities of
general human conduct.
As reported above, Barkman was a former union offi-
cial. I found him opportunistic and to possess an exploi-
tive character. These factors make it reasonable to
expect Barkman would have revealed an explosive atti-
tude if he actually had been subjected to the interroga-
tion and threats in the manner described by him and But-
terfield. It is likely the alleged unlawful conduct would
have stimulated an emotional outburst of some sort.
Surely, it is reasonable to expect he would have made
an effort to, at least, identify to whom he spoke as one of
Respondent's supervisors. Instead, Butterfield's testimony
reflects a tranquil and concerned atmosphere and attitude
on Barkman's part. This testimony makes Barkman's ac-
count of Covey's interrogation and threat implausible. It
also demonstrates the extreme to which Butterfield exag-
gerated her testimony.
On the above discussion concerning the relative credi-
bility of Barkman, Butterfield, and Covey, I adopt
Covey's version of what occurred at Barkman's bar.
1229
Thus, I find that Covey and Barkman did talk about the
Union. The conversation was initiated by Barkman.
Barkman commented he was happy he did not have to
work that day because he could get away from Novak
and Medina. Barkman told Covey that Novak and
Medina were trying to get him to sign a union card, but
he did not want to do so. Then, Barkman made some
specific complaints about the annoyances he suffered as
union steward at his previous place of employment. Spe-
cifically, Barkman claimed he did not want to deal any
longer with petty problems and unworthy grievants.50
Covey said he agreed with Barkman. He told Barkman
he believed Respondent did not need a union.
I credit Covey's unequivocal denials that he told Bark-
man no to sign a union card, or that his employment was
in jeopardy if he signed a union card.
I now turn to the threat of unspecified reprisal alleged-
ly made by Covey to Sharp. Sharp's direct, candid de-
scription of his late February conversation with Covey
stands uncontradicted. He testified that Covey ap-
proached him as Sharp was engaged in a union discus-
sion with some other employees. Sharp asserted Covey
said, "In his [Covey's] own opinion, it would be a good
idea for me to stand clear of any controversies, just do
your job, you are a new guy here, put in your hours and
mind your own business." Sharp testified Covey also
told him to "Get back to your machine. You're not being
paid to be over here talking. You're supposed to be
working at your machine."
The General Counsel argues Sharp's testimony regard-
ing Covey's statements to hun are credible; but that
Sharp's testimony is less credible than Barkman's. As ear-
lier indicated, I credit Sharp-and do so in all respects. I
need not enlarge this already extended decision to con-
sider the General Counsel's anomalous position.
One point is appropriate, however. I agree with the
General Counsel that Sharp appeared reluctant to impli-
cate Covey. That condition, in my view, enhances
Sharp's veracity in areas where he testified adversely to
Respondent. But, it does not necessarily require that I
find Sharp so hostile to the General Counsel's cause or
to the General Counsel's witnesses as to find those wit-
nesses more credible than Sharp. In brief, I found Sharp
reluctant, but he impressed me with his candor and trust-
worthiness. Accordingly, I find that Covey's conversa-
tion with Sharp occurred as described by Sharp. Specifi-
cally, I find that Sharp did not explicitly mention the
Union or union activity.51
2. Analysis
I conclude there is no merit to any of the allegations
that Respondent unlawfully interrogated and threatened
employees in February 1985. My factual findings reflect
that Covey simply did not make the statements that com-
prise the bases for those allegations. Accordingly, I shall
recommend dismissal of the allegations in complaint
paragraphs 11(a)-(c) and 18.
ao The content of this conversation is consistent with what Barkman
conveyed during his preemployment tour
51 Sharp did not recall that Covey referred specifically to union activi-
ty.
1230 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The allegations that Covey engaged in unlawful con-
duct at Barkman's bar should be dismissed even assuming
he actually asked Barkman whether Medina solicited him
to sign a union card and also warned Barkman to avoid
Medina because Medina could get fired for soliciting on
company time. The lessons of Rossmore House, supra, are
applicable to the instant allegations even though the
record does not establish Barkman as a union adherent
when employed by Respondent. See Sunnyvale Medical
Clinic, 277 NLRB 1217 (1985).
In my view, the totality of relevent circumstances does
not bear the coercive tendency requisite to find Covey's
statements unlawful. Factors to be considered are (1) the
background; (2) the nature of the information sought; (3)
the identity of the questioner; and the place and method
of interrogation (Rossmore, fn. 20).
The conversation at Barkman's bar reasonably may be
viewed as an extension of the union discussion between
Barkman and Covey during the former's preemployment
tour. That earlier discussion provides convincing back-
ground. The tenor of the preemployment conversation
clearly was friendly. Barkman and Covey then apparent-
ly shared similar negative feelings toward unionism.
The bar discussion occurred in a casual atmosphere
away from Respondent's workplace. Barkman and
Covey engaged in social drinking. Covey was not Bark-
man's immediate supervisor. I conclude this backdrop vi-
tiates the potentially coercive tendency of Covey's state-
ments. Instead, I would find that the interrogation con-
cerning solicitation and signing of a union card was more
in the nature of casual shop talk between individuals
with similar attitudes toward unions than a threatening
admonition from a supervisor to an employee.
The General Counsel contends Covey's allusion to
Medina's potential for getting fired (if made), coupled
with the suggestion Medina should be avoided, bears the
implication that association with Medina might incur
similar consequences for Barkman. I disagree. In other
contexts there is arguable merit to the General Counsel's
position. The totality of instant circumstances, however,
persuades me Covey's remarks should not be interpreted
in an unlawful way.
The circumstances surrounding Sharp's conversation
with Covey also do not establish unlawful conditions suf-
ficient to meet the Sunnyvale test. Sharp was not a
known union adherent when Covey talked to him. The
evidence does not clearly reflect that Covey's advice to
avoid "controversies" was union connected. I reject the
General Counsel's argument to the contrary. That argu-
ment is based solely on Sharp's testimony that he was
speaking about the Union with other employees at the
time Covey made the alleged unlawful statements. There
is no evidence, from any source, that Covey overheard,
or otherwise knew the Union was under discussion. This
framework makes the General Counsel's argument
highly speculative.
I simply cannot agree, on this record, with the Gener-
al Counsel's contention that Covey "obviously" referred
to the Union's continuing organizing efforts. Sharp's
status as a newly hired employee provides a stronger,
and logical, base on which Covey's statements can be in-
terpreted. The bulk of what Covey told Sharp readily is
consistent with a supervisor's directive to any employee
observed to be away from his machine . I conclude it is
reasonable that a supervisor would admonish an employ-
ee as Covey did to Sharp . This is valuable advice to any
employee , especially one newly hired . In the absence of
evidence that Respondent was engaged in other unfair
labor practices , and in an atmosphere where neither
party apparently was engaged in vigorous campaigning, I
am not able to make the inferences necessary to find
Covey's words to Sharp constitute unlawful threats of
unspecified reprisals.
F. Denial of Second-Shift Transfers
In complaint paragraphs 14, 16, and 19 , Respondent is
alleged to have discriminated against employees in viola-
tion of Section 8(a)(3) and (1) by denying Novak and
Glinski a transfer to the second shift on 4 April 1985.
The applicable facts are virtually undisputed.
1. The facts
On 18 March 1985 Respondent posted a notice to em-
ployees regarding a second shift. That document an-
nounced Respondent would begin a second-shift oper-
ation in its machining department. Currently employed
first-shift machine operators A and B were solicited to
apply. The notice indicated its posting was designed "to
encourage machinists on the first shift to transfer to the
second shift." Also, the notice advised that the second
shift would begin on 15 April and employees on the new
shift would receive a 20-percent premium added to their
base hourly rate.
Novak and Glinski were classified as machine opera-
tors A on the first shift. Both of them applied for trans-
fer to the second shift. Novak first spoke to Bazar, his
immediate supervisor. Novak asked questions about the
new job and told Bazar of his interest in the transfer.
Bazar obtained answers to Novak's questions. Bazar told
Novak that Hunt was to be supervisor of the new shift,
and Novak should address additional questions directly
to Hunt.
Novak spoke with Hunt about the transfer. First,
Novak commented he hoped there would be no hard
feelings between them. (This comment referred to their
21 September confrontation.) Hunt said their earlier en-
counter would be no obstacle to them working together.
Novak testified that Hunt also said he could probably
need someone like Novak with milling experience. Hunt
denied he said anything regarding Novak's usefulness to
second-shift operations.52
Glinski told Bazar he was interested in a second-shift
transfer. Bazar referred Glinski to Hunt. Glinski advised
Hunt of his interest. Hunt referred Glmski to Guess.
Glinski testified that Hunt said he could use Glinski on
the second shift because of Glinski's experience in the
milling area . Glinski's testimony regarding his second-
shift conversation with Hunt is uncontradicted.
Glinski and Novak were the only first-shift machine
operators who applied for transfer to the second shift.
52 I find it unnecessary to resolve this conflict For analysis purposes, I
shall assume Hunt made the statement
RAYMOND ENGINEERING 1231
Nonetheless , on 4 April 1985 Guess told Novak neither
he nor Glinski had been selected for transfer . Guess gave
Novak no reason.
Novak told Glinski they had not been selected . Glinski
asked Bazar for a reason . Bazar inquired , and reported to
Glinski he was not transferred because he was needed on
the first shift.
The second shift began operations on 15 April 1985, as
previously announced . That shift was composed entirely
of newly hired employees. Glinski finally vas transferred
to the second shift on 5 August 1985. He testified that
the nature of his job tasks had not changed after the
transfer.
Respondent offered no evidence to show who made
the initial staffing selections to start up the second shift;
the basis for selection ; or support for the asserted need
for Glinski (and presumably Novak) to remain on the
first shift . It is undisputed that Hunt was not involved in
the selection process.
However , Respondent's defense relies, in part , on cer-
tain factual stipulations . Thus , the parties stipulated the
Union's representation petition in Case 39-RC-550 was
filed 9 October ; hearings were conducted (as previously
described) on 1, 5 , and 6 November , and then postponed
indefinitely . The parties further stipulated that on 31 Jan-
uary 1985 the petition was blocked on issuance of the
complaint in one of the instant cases, Case 39-CA-2432;
that on 28 February 1985 , the Board ordered continued
processing of the petition ; and the Union withdrew the
petition on 12 March 1985.
2. Analysis
This issue requires resolution tinder the Wright Line
principles . The General Counsel must prove the exist-
ence of a prima facie case of discriminatory treatment
before Respondent needs to demonstrate it would have
acted the way it did in any event . I conclude that a
prima facie case has not been established by a preponder-
ance of the evidence.
The General Counsel argues Novak and Glinski were
not selected for transfer in April 1985 because Respond-
ent desired to prevent the spread of union support into
the second shift . This contention is largely dependent on
successful demonstration that Respondent committed the
various other unfair labor practices alleged in the com-
plaint . I have found Respondent engaged in none of that
unlawful conduct . This situation makes it difficult, if not
impossible , to ascribe discriminatory motivation to the
failure to transfer Novak and Glinski.
Concededly , there is evidence from which I could
infer the necessary unlawful motivation . That evidence
consists of the fact current machine operators were at all
solicited for second-shift transfer ; Hunt said , at least to
Glinski , he thought Glinski 's milling skills were needed
on the second shift ; both Novak and Glinski clearly pos-
sessed the technical experience and skills solicited by Re-
spondent's shift-opening notice ; no evidence was ad-
duced to support the assertion Novak and Glinski were
needed on the first shift ; and Glinski's later transfer en-
tailed no alteration in his job functions . These factors
would warrant an inference that the transfers were with-
held for discriminatory reasons . On the state of this
record , however, I find these factors merely establish
suspicious circumstances.
Other evidence must be balanced against the above
factors . That other evidence militates against an infer-
ence that the failure to transfer Novak and Glinski was
motivated by unlawful considerations . This evidence is
summarized below:
(a) The available evidence reflects Hunt did not par-
ticipate in second-shift staffing decisions . I conclude this
condition diminishes the probative value of Hunt's state-
ments to the effect that Glinski and Novak would be val-
uable to the second -shift operations ; that he bore no hard
feelings toward Novak; and they could work together
with no problem.
(b) The Union's organizing campaign was ostensibly
dormant when Respondent initially staffed the second
shift . The Union withdrew its representation petition 6
days before Respondent announced the second shift, and
approximately 1 month before the shift 's operations
began. This scenario tends to defuse the contention Re-
spondent's failure to transfer in-plant committeemen
Glinski and Novak was designed to prevent known
union activists from expanding their influence on new
employees or to another shift . The element of timing
works to Respondent 's advantage.
(c) There is no evidence to show the failure to transfer
constituted disparate treatment toward Glinski and
Novak. They were the only then-currently employed in-
dividuals who applied for the transfer . That condition
renders it impossible to determine whether Respondent
treated them differently from nonunion adherents. The
absence of such disparate treatment removes a significant
basis on which to infer Respondent's conduct was moti-
vated by unlawful considerations.
No one of the above factors is deemed dispositive of
the issue. However , I conclude their combined effect
overrides the elements relied on to establish a prima facie
case.
The General Counsel has emphasized that Respondent
did not offer evidence to explain the reason it did not
transfer Glinski and Novak . The record only shows that
Guess told Glinski he was needed on the first shift. In
other circumstances , this is a non sequitur.
However , I conclude Respondent is not required to
produce further explanatory evidence. The Wright Line
burden imposed on Respondent needs to be satisfied only
after a prima facie case has been established. In the par-
ticular circumstances of this case, I find the absence of
evidence to show a reason other than proferred creates,
at best, a suspicious condition. Mere suspicion "cannot
serve as a basis for finding a violation." See Mason &
Hanger-Silas Mason Co., 270 NLRB 383, 385 , and cases
cited at fn . 7 (1984).
On the above findings of fact , and on the entire record
in the case , I make the following
CONCLUSIONS OF LAW
1. Raymond Engineering , Inc. is an employer engaged
in commerce within the meaning of Section 2 (6) and (7)
of the Act.
1232 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2. International Union, United Automobile, Aerospace 3. Raymond Engineering, Inc. did not engage in any
and Agricultural Implement Workers of America of the unfair labor practices alleged in the complaint.
(UAW), Local 376 is a labor organization within the [Recommended Order for dismissal omitted from pub-
meaning of Section 2(5) of the Act. lication.]