Remington Electric

National Labor Relations Board - Board Decisions

Jul 21, 1995

317 N.L.R.B. 1232 (N.L.R.B. 1995)

1232
317 NLRB No. 179
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The exception was limited to the judge’s finding that Peter Bar-
rett was an employee and that his discharge violated Sec. 8(a)(1) and
(3) of the Act.
2 The Order is modified to include an 8(a)(1) violation found by
the judge regarding recanting testimony that was included in his con-
clusions of law and remedy, but inadvertently left out of his rec-
ommended Order and notice. They have been changed accordingly.
Remington Electric, Inc. and International Brother-
hood of Electrical Workers, Local Union No.
110
Remington Electric, Inc. and Daniel Kees. Cases 18–
CA–12953 and 18–CA–13060
July 21, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND TRUESDALE
On April 13, 1995, Administrative Law Judge Wil-
liam L. Schmidt issued the attached decision. The Re-
spondent filed an exception.1
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exception and has decided to af-
firm the judge’s rulings, findings, and conclusions and
to adopt the recommended Order as modified.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Remington Electric, Inc.,
Vadnais Heights, Minnesota, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the Order as modified.
1. Insert the following as paragraphs 2(a) and (b)
and reletter the subsequent paragraphs.
‘‘(a) Offer Peter Barrett immediate and full rein-
statement to his former job or, if that longer exists, to
a substantially equivalent position, without prejudice to
his seniority or any other rights or privileges pre-
viously enjoyed, and make him whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against him, in the manner set forth in
the remedy section of the decision.
‘‘(b) Remove from its files any reference to the un-
lawful layoff and notify Peter Barrett in writing that
this has been done and that the layoff will not be used
against him in any way.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
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 or-
dered us to post and abide by this notice.
WE WILL NOT lay off and refuse to recall employees
in order to discourage membership in International
Brotherhood of Electrical Workers, Local Union No.
110 (Local 110) or any other labor organization, or be-
cause they file charges or give testimony under the
Act.
WE WILL NOT coercively interrogate employees con-
cerning their union activities and sympathies, or the
union activities and sympathies of other employees, or
their reasons for filing charges with the NLRB.
WE WILL NOT create the impression that employee
union activities are under surveillance.
WE WILL NOT threaten our employees by telling
them that all employees will be out of a job if they
chose to contact a union representative, or by telling
them that their job could be affected by filing charges
or giving testimony to the NLRB.
WE WILL NOT tell employees to recant testimony
they provided to the NLRB in the investigation of un-
fair labor practice charges.
WE WILL NOT threaten to physically harm employ-
ees, either literally or figuratively, in order to discour-
age participation in an NLRB investigation of unfair
labor practice charges.
WE WILL NOT tell employees that we intend to make
inaccurate entries in our records for the purpose of
covering up the layoff of other employees for their
union activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer Peter Barrett immediate and full rein-
statement to his former job or, if that job no longer ex-
ists, to a substantially equivalent position, without prej-
udice to his seniority or any other rights or privileges
previously enjoyed and WE WILL make him whole for
any loss of earnings and other benefits resulting from
his discharge, less any net interim earnings, plus inter-
est.
WE WILL notify him that we have removed from our
files any reference to his discharge and that the dis-
charge will not be used against him in any way.
1233REMINGTON ELECTRIC
1 Daniel Kees’ name was added to the caption, a correction that
reflects the General Counsel’s hearing amendment.
2 The relevant events occurred between November 1993 and April
1994. If not shown otherwise, further references to the months of
November and December are in 1993; all other dates refer to 1994.
3 Respondent admitted Prince is a 2(11) supervisor in answer to
the complaint in Case 18–CA–12953 but denied that allegation in
the amended consolidated complaint. The parties stipulated to
Prince’s supervisory status, however, at the hearing.
WE WILL make whole the estate of Daniel Kees for
all losses incurred as a result of our discrimination
against him together with interest as provided by law.
REMINGTON ELECTRIC, INC.
A. Marie Simpson, Esq., for the General Counsel.
Phyllis Karasov and Noel Franklin, Esqs. (Moore, Costello
& Hart), of Minneapolis, Minnesota, for the Respondent.
Jim Wagner, IBEW Local 110 Assistant Business Manager,
for the Charging Party.
DECISION
STATEMENT OF THE CASE1
WILLIAM L. SCHMIDT, Administrative Law Judge. The
issues here are whether Remington Electric, Inc. (Respondent
or Remington) violated: (1) Section 8(a)(1) of the National
Labor Relations Act (NLRA or Act) by certain statements its
supervisors and agents made to its employees during an orga-
nizing drive by the International Brotherhood of Electrical
Workers, Local Union No. 110 (Union or Local 110); (2)
Section 8(a)(1) and (3) by laying off Peter Barrett in Decem-
ber 1993; and (3) Section 8(a)(1), (3), and (4) by laying off
Daniel Kees in March 1994.2 In Barrett’s case, an issue ex-
ists regarding whether he was an employee within the mean-
ing of Section 2(3) while in Respondent’s employ because of
his compensation arrangement with Local 110 in consider-
ation for engaging in organizing activities.
The Union filed 18–CA–12953 on December 20. The Re-
gional Director for Region 18 of the National Labor Rela-
tions Board (NLRB or Board) issued a complaint in that case
on February 28. Kees filed 18–CA–13060 on March 30.
Thereafter, the Regional Director consolidated the two cases,
and issued a consolidated and amended complaint (the Gen-
eral Counsel’s operative pleading) on May 6. Respondent
filed a timely answers denying the unfair labor practices al-
leged.
I heard this matter at Minneapolis, Minnesota, on July 27
and 28. After carefully considering the entire record, the de-
meanor of the witnesses, and the post-hearing briefs of the
General Counsel and the Respondent, I find Respondent vio-
lated the Act substantially as alleged based on the following
FINDINGS OF FACT
I. OVERVIEW
Respondent, a Minnesota corporation with an office and
place of business in Vadnais Heights, Minnesota, provides
electrical contracting services for commercial, residential,
and specialty projects. Respondent, in the course and conduct
of its business, purchased and received at its construction
projects within the State of Minnesota, goods valued in ex-
cess of $50,000 from other enterprises located within the
State of Minnesota, each of which had received these goods
directly from points outside the State of Minnesota. Respond-
ent admits, and I find, that it is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
The consolidated and amended complaint (complaint) al-
leged, Respondent admits, and I find that the Union is, and
has been at all material times, a labor organization within the
meaning of Section 2(5) of the Act.
Before entering the electrical contracting business about 8
years ago, Tom Johnson, Respondent’s owner and president,
worked as a journeyman electrician and maintained member-
ship in Local 110. Remington is, however, a nonunion oper-
ation.
In recent years, Respondent employed a core group of em-
ployees more or less on a regular basis. That core group in-
cluded Foreman Terry Prince,3 Master Electrician Robert
Volk, and Kees, an apprentice electrician. Prince and Volk
began working for Remington in late 1990 or early 1991;
Kees started in August 1991. Other employees are hired from
time to time as the workload dictates. Obviously, the work-
load arrived at a point requiring added personnel in late Oc-
tober and Respondent set about hiring more employees.
The first addition was Peter Barrett. He is a state certified
journeyman electrician and a member of Local 110. Prior to
his employment with Respondent, Barrett generally secured
employment through the Local 110 hiring hall. In the fall of
1993, however, the referrals were scarce and Barrett was far
down on the referral list after his layoff by a union contrac-
tor in October. Accordingly, Barrett arranged with Assistant
Business Manager Jim Wagner to seek work at a nonunion
shop. Under that arrangement, Wagner agreed that Local 110
would pay Barrett’s fringe benefits and ‘‘possibly’’ any dif-
ference in wages if he engaged in organizing activities after
obtaining nonunion employment.
In early November, Barrett completed a written employ-
ment application at Respondent’s office that reflects prior
work exclusively with area union contractors. By the time
Johnson contacted Barrett a few days later, Barrett had ob-
tained short-term employment through the hiring hall but
agreed to notify Johnson when that job ended. On November
22, Barrett notified Respondent’s office person of his avail-
ability.
Shortly thereafter that same day, Johnson called Barrett
and asked him to report for work immediately at Respond-
ent’s Edina, Minnesota, post office project. Barrett arrived at
the job within an hour and started to work. In addition to
Prince, who was supervising the Edina project, Volk and
Kees were working at that job when Barrett started.
Johnson said nothing to Barrett about his Local 110 affili-
ation throughout this preemployment period even though he,
in all likelihood, knew that Barrett belonged to that Union.
Any possible doubt ceased when Wagner wrote to Respond-
ent on December 1, notifying Johnson that Barrett was en-
gaged in organizing activities for Local 110. By this time,
Barrett had begun speaking to the other electricians, includ-
ing Prince, about the Union’s benefits.
Respondent hired Dan Nerby and Tim Wiener for the
Edina job around December 1. Weiner had about 2 years ex-
1234 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
perience in the trade. Nerby’s resume reflects about 10 to 12
years experience as an electrician. Nevertheless, Johnson
characterized both as apprentices.
As the Edina project neared completion in mid-December,
Barrett was laid off but Wiener and Nerby were assigned to
other projects. The Union promptly filed the unfair labor
practice charge in Case 18–CA–12953 claiming that Barrett
was laid off because of his union organizing activities. Dur-
ing the investigation of that charge, Kees provided an affida-
vit to the NLRB investigator. The complaint that issued in
that case on February 28 alleging that Barrett’s layoff was
unlawful also alleged several statements by Johnson and
Prince, easily attributable to Kees, independently violated
Section 8(a)(1).
Johnson laid Prince and Kees off on March 22 following
attempts by Prince on the previous Friday to pressure Kees
into recanting his NLRB statement in the Barrett case. Kees
thereafter filed the unfair labor practice charge in Case l8–
CA–13060 claiming that his layoff resulted from his testi-
mony in Barrett’s case and from his own union activities.
The events relevant to the specific complaint allegations are
detailed below.
Charging Party Kees is the foundation of the General
Counsel’s case. With the exception of complaint paragraph
5(b), discussed initially below, Kees’ testimony is either the
sole supporting evidence or the most critical evidence in sup-
port of the General Counsel’s case. If you believe his testi-
mony, the findings are clear. Respondent, obviously rec-
ognizing this fact, vigorously attacks his credibility.
As a witness, Kees impressed me as a youthful, self-as-
sured, arrogant individual. Based on his deameanor alone, I
have little difficulty believing some of the derelictions attrib-
uted to him by Respondent’s witnesses, i.e., that he on occa-
sion was late for work, that he abused the break periods and
Respondent’s telephone privileges, that he complained about
assignments outside the Twin Cities, that he resisted leaving
for these out-of-town assignments until the last minute and
complained about not returning early enough, that he pur-
chased personal tools on Respondent’s account without the
any prior authorization of the owner, and that he filed a
claim for medical services without fully disclosing his assets.
Respondent’s witnesses painted a picture of Kees as a brash
employee and Respondent argues that he has a dismal record
for truth telling.
I find it impossible to rely on these subjective, demeanor
based judgments, however, and conflicts over ancillary mat-
ters. Other more objective guideposts strongly favor Kees’
credibility on the significant issues in this case. Thus, as will
be detailed more specifically below, some of Respondent’s
witnesses actually corroborated all or significant portions of
Kees’ account about important issues. In other instances of
substance, Respondent’s witnesses failed to deny critical as-
sertions made by Kees. And in at least one instance, Re-
spondent called a witness who could have corroborated asser-
tions made by its agent on a particular issue but failed to
make any inquiry of that witness concerning the disputed
matter. For these latter reasons, I have accorded Kees’ testi-
mony substantially more credence than I otherwise would.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The 8(a)(1) Violations
Section 7 of the Act guarantees employees the right ‘‘to
self-organization, to form, join, or assist labor organizations,
to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the
purpose of collective-bargaining or other mutual aid and pro-
tection . . . .’’ Section 8(a)(1) prohibits employer inter-
ference, restraint, or coercion of employees in the exercise of
the Section 7 rights guaranteed under the Act. The specific
activities called into play by the 8(a)(1) allegations in this
case are: (1) creating an impression that employee union ac-
tivities are under employer surveillance; (2) coercively inter-
rogating employees about their protected activities; and (3)
threatening employees for exercising Section 7 rights.
1. Complaint paragraph 5(b)
Complaint paragraph 5(b) alleges that Prince threatened an
employee at the Edina job that joining the Union would put
Respondent out of business. In support of this allegation,
Barrett testified that he had approximately three conversa-
tions with Prince at the Edina job related to the Union’s
wages and benefits as a part of his efforts to interest employ-
ees in the Union. The first exchange occurred on December
2 or 3, during which Prince asked Barrett about the Union’s
medical benefits. After Barrett gave a brief summary from
memory, Prince told Barrett that Johnson would never pay
for a medical plan. About a week later, Barrett showed
Prince a copy of the Union’s current contractual wages and
benefits. Prince told Barrett on this occasion that Johnson
would never pay the wage rates indicated. Finally, on De-
cember 10, Barrett gave Prince copies of the union wage and
benefit package and told Prince, ‘‘You might want to give
Jim Wagner a call.’’ Barrett claims that Prince told him that
calling the Union would put them all out of work.
Prince admits that Barrett spoke to him about union wages
and benefits. He claims, however, that he told Barrett that
Remington would probably lose one-third to one-half of its
customers due to the pay hikes that would be required under
the Union’s area contract and that he did not believe Johnson
‘‘would be able to remain in business because of it.’’ Prince
conceded that he probably also told Barrett that joining a
union would ‘‘probably put us all out of work.’’
Respondent argues that Prince’s statements are lawful pre-
dictions about the consequences of unionization. Employer
predictions of adverse economic consequences from union-
ization made with supporting objective facts over which the
employer has no control are lawful. NLRB v. Gissel Packing
Co., 395 U.S. 575, 618 (1968); but see Madison Industries,
290 NLRB 1226, 1230 (employer’s bare prediction that com-
pany would ‘‘go broke’’ if the union was not voted out held
unlawful when employer failed to provide objective support
for its prediction).
The General Counsel’s brief contends that Prince’s state-
ments ‘‘were emphatic and unequivocal, cause-effect: if em-
ployees exercise their statutory right to be represented by the
Union, Respondent will cease operations and terminate their
employment. As such, the General Counsel contends, Prince
made no predictions, based on objective considerations, of
1235REMINGTON ELECTRIC
4 Despite the variance between this finding and the original allega-
tion, I am satisfied that the finding is warranted when, as here, the
matter was fully litigated.
5 No allegation was made that Respondent independently violated
Sec. 8(a)(1) by Johnson’s statement to Kees that Barrett had been
laid off because he was a union plant.
what might result from good-faith bargaining. Respondent,
relying on Prince’s account, claims that in its proper context
Prince lawfully predicted that Remington would lose such a
substantial portion of its customer base if it had to pay the
union contract wages and benefits that it would be forced out
of business.
Barrett and Prince have always agreed that Prince made
the out-of-work remark. Prince admitted this on cross-exam-
ination in a prehearing statement provided to the General
Counsel, however, he did not elaborate further. This admis-
sion leads me to believe that the critical loss of customers
prediction that Prince related in his testimony at the hearing
is a recent fabrication designed to mitigate Respondent’s li-
ability. Accordingly, I credit Barrett’s version of the critical
exchange and conclude that the admitted out-of-work remark
in response to Barrett’s invitation that Prince call Union
Agent Wagner conveys the message that employees would
be risking their employment prospects simply by exploring
the subject of unionization. As such, it is unrelated to any
lawful prediction under the Gissel test; instead, the out-of-
work remark is an unlawful threat that violates Section
8(a)(1).4
2. Complaint paragraphs 5(a), (c), (d), and (e)
Complaint paragraphs 5(a), (c), (d), and (e) allege that
Johnson unlawfully interrogated an employee and created the
impression that employee union activities were under surveil-
lance. In support of these allegations, Kees testified that, dur-
ing the first week of December, Johnson asked him if Barrett
had ever talked to him about anything. Kees, who assumed
that Johnson was referring to union talk, answered, ‘‘No, he
hasn’t.’’ Johnson pressed the inquiry by asking if Kees was
sure and Kees again denied that Barrett had spoken to him
and asked Johnson about his curiosity. Johnson told Kees,
‘‘Well, Pete’s a Union plant.’’ Kees asked Johnson how he
knew this and Johnson answered, ‘‘I have my ways of find-
ing out.’’ Johnson denied the ‘‘have my ways’’ remark but
he recalled that Kees, ‘‘asked me how I knew about Pete
Barrett and I told him a friend of mine who is still an em-
ployee of Local 110 had called me up and mentioned it to
me.’’
On December 21, Kees stopped at Johnson’s office. Kees
testified that he asked Johnson about upcoming jobs and that
that Johnson responded, ‘‘Why, are you going to tell the
Union?’’ After Kees answered in the negative, Johnson then
asked Kees if anyone from the Union had contacted him.
Kees answered, ‘‘no.’’ Johnson then said, ‘‘Are you sure no-
body’s contacted you recently?’’ Kees again denied talking
to anyone from the Union. Johnson then told Kees that he
knew Kees hadn’t talked to the Union for awhile. During the
same conversation, Kees mentioned the fact that Barrett was
‘‘no longer with us.’’ Purportedly, Johnson responded,
‘‘Yeah, I laid him off,’’ and when Kees asked why, Johnson
told him ‘‘[b]ecause he was a union plant.’’ Kees testified
that Johnson then showed him the Union’s letter about Bar-
rett and that he read it.5
Johnson generally denied questioning any employees
whether they were involved in union activities and he had no
recollection of asking any employee about union contacts.
Wiener, however, called as one of Respondent’s own wit-
nesses, testified that Johnson had also asked him whether the
Union had contacted him.
The General Counsel alleges that Johnson unlawfully in-
terrogated Kees and created the impression that employee
union activities were under surveillance during the course of
these two December conversations. Relying on its contention
that Kees is not a credible witness in general as well as
Johnson’s specific denial of the ‘‘I have my ways’’ remark,
Respondent argues that the offending exchange never oc-
curred and ‘‘is particularly unreasonable’’ in light of the fact
that the Union notified Johnson of Barrett’s organizing inten-
tions. Respondent contends, however, somewhat inconsist-
ently that Kees’ attempted to ‘‘set Mr. Johnson up’’ by
pressing Johnson for the source of his information about Bar-
rett. Respondent argues further that Johnson’s December 21
remarks are insufficient to support the 8(a)(1) allegation even
if Kees’ testimony is true.
Employer interrogation of employees regarding union ac-
tivities is unlawful if, on consideration of all of the cir-
cumstances, the conclusion is warranted that the questioning
is coercive. Garner Engineering, 313 NLRB 755 (1994).
Relevant factors considered in determining the coerciveness
of employer interrogation include: (1) the background of the
case; (2) the type of information sought; (3) the questioner’s
identity; and (4) the means and location of the interrogation.
Rossmore House, 269 NLRB 1176, 1178 fn. 20 (1984), enfd.
760 F.2d 1006 (9th Cir. 1985).
Employer actions or statements that would tend to create
the impression that its employees’ lawful union activities are
under surveillance violate Section 8(a)(1). Mississippi Trans-
port v. NLRB, 33 F.3d 972, 978 (8th Cir. 1994). An impres-
sion of surveillance is created when an employee can reason-
ably assume from the statement in question that their union
activities were being observed and reported or noted. Rood
Industries, 278 NLRB 160, 164 (1986). The standard is an
objective one based on the perspective of a reasonable em-
ployee. See Flexsteel Industries, 311 NLRB 257 (1993). Evi-
dence that management is, in fact, engaging in spying or sur-
veillance is not required in order to show that an unlawful
impression of surveillance has been created. Id.
For reasons already discussed, I am unwilling to discredit
Kees testimony as Respondent would have me do. Instead,
because of Johnson’s lack of recollection concerning his in-
quiries of employees concerning their union contacts,
Weiner’s separate corroboration that Johnson made inquiries
of this nature, and the time connection between Wagner’s
notice concerning Barrett and the first Johnson-Kees ex-
change, I credit Kees testimony concerning these two De-
cember conversations and find, in agreement with the Gen-
eral Counsel, that Johnson unlawfully interrogated Kees
about employee Section 7 activities.
1236 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Kees testified that Prince also told him that Barrett had been let
go because of that Union ‘‘bullshit’’ but the record does not indicate
when Prince made this remark. The complaint contains no independ-
ent 8(a)(1) allegation concerning this remark by Prince.
7 I make this inference not merely because Respondent called Wie-
ner as its witness but also because Wiener, in the course of his testi-
mony, made it clear that he was favorably disposed toward Respond-
ent and opposed to the Union. See International Automated Ma-
chines, 285 NLRB 1122 (1987).
Several factors support the conclusion that Johnson’s early
December inquiries were coercive. First, Johnson, as the
president and owner, clearly had the authority to affect Kees’
job. Second, Kees would likely perceive Johnson as having
a direct interest in determining the extent and nature of any
union organizing efforts. Third, the discussion took place
only a few days after Johnson learned that Barrett was a
union organizer, thus suggesting that Johnson’s purpose was
to learn the progress of any union organizing among
Remington’s employees and Kees’ role in it, if any. And
fourth, the interrogation was part and parcel of Johnson’s ul-
timate message to Kees that he had the means of finding out
about employee union activities.
For similar reasons, I conclude that Johnson’s questioning
of Kees on December 21 was also unlawful. The questioning
took place within a week of Barrett’s dismissal and in the
course of the same conversation, Johnson told Kees that Bar-
rett had been laid off because he was a union ‘‘plant.’’6
Moreover, Johnson’s pressing inquiry about Kees’ contacts
with the Union again served as a prelude for Johnson’s mes-
sage that Kees’ contacts with the Union were being mon-
itored. In view of these circumstances, I conclude that John-
son’s questions were coercive.
I also conclude that Johnson’s statements to Kees in early
December about Barrett as a union ‘‘plant’’ would tend to
create an impression of surveillance regardless of the account
credited. Thus, by either witness’ version, the message im-
plicitly conveyed to Kees was that Johnson had secret
sources providing him with information about employee or-
ganizing activities. Contrary to Respondent’s contention, I do
not find the allegation at all unreasonable because the Union
had officially notified Respondent that Barrett would be en-
gaged in organizing activities where, as here, Johnson failed
to truthfully disclose that fact to Kees until their December
21 conversation. Having once implied to Kees that he had
sources providing him with information about organizing ac-
tivities, I find Johnson further statement to Kees on Decem-
ber 21 to the effect that Johnson knew Kees had not con-
tacted the Union for awhile also tends to create an impres-
sion of surveillance as alleged.
3. Complaint paragraph 5(f)
Complaint paragraph 5(f) alleges that Johnson threatened
an employee with physical harm if the employee participated
in the investigation of the Barrett case. On January 10, Kees
was present in Respondent’s office while Johnson was on the
phone. From the context of the conversation, Kees assumed
that Johnson was talking to Prince about a visit from an
agent from the National Labor Relations Board. While on the
phone, Johnson looked toward Kees and said, ‘‘Well, they
probably have Dan on their side,’’ and then stated, ‘‘If he’s
involved in this investigation, I’m going to break his fucking
legs.’’ Kees asked him if he thought he could, to which
Johnson replied, ‘‘[Y]eah.’’
Johnson recalled this particular incident but he denied say-
ing that he was going to break Kees’ legs or directing such
a comment towards Kees. Instead, Johnson asserts that he
was simply responding to an unnamed caller’s question about
whether Johnson was ‘‘going to break a leg here?’’ Both
Kees and Johnson agree that Wiener was also present on this
occasion but he was not asked to corroborate Johnson’s ac-
count when called as Respondent’s witness.
Although both Kees and Johnson agree that some such
comment occurred, they disagree about the direction and pur-
pose of the remark. As Weiner was not asked about the inci-
dent when called as Respondent’s witness, I find it reason-
able to infer that Wiener would not have supported John-
son’s version if he had been asked.7 Moreover, even though
Johnson claimed to remember the incident, his account is
otherwise vague and unsupported by any specific informa-
tion. For these reasons, I credit Kees account of the con-
versation.
Employer threats directed at employees, including figu-
rative threats of physical harm, which have a tendency to in-
hibit the free exercise of Section 7 rights violate Section
8(a)(1). Cox Fire Protection, 308 NLRB 793 (1992) (em-
ployer’s figurative statement to an employee that he wanted
to kick his ass because of the employee’s union activity held
unlawful.). The test for determining the unlawfulness of such
threats, as well as other statements alleged as unlawful under
Section 8(a)(1), turns on whether the employer’s statement
‘‘has the tendency to interfere with, restrain, or coerce the
employees in the exercise of their Section 7 rights’’ rather
than the employer’s actual intent. Id.
I find, in agreement with the General Counsel’s conten-
tion, that Johnson’s remark in the presence of Kees and Wie-
ner violated Section 8(a)(1). Although no basis exists to con-
clude that Johnson was speaking other than metaphorically,
the context described by Kees warrants the conclusion that
Johnson was threatening retaliation against Kees if he co-
operated with the investigation of Barrett’s charge. As such,
the remark is comparable in nature and circumstance to the
remark found unlawful in the Cox case. By intimidating
Kees with respect to the his cooperation in the Barrett inves-
tigation, Johnson necessarily infringed on the Section 7 rights
of not only Kees and Wiener who overheard the remark but
also Barrett who was not present.
4. Complaint paragraph 5(g)
Complaint paragraph 5(g) alleges that Johnson ‘‘threat-
ened’’ to alter an employee’s attendance record to aid its de-
fense of the Union’s charge. In support of this allegation,
Kees testified that he went to Johnson’s office for his pay-
check on February 11, just prior to leaving on his vacation.
At that time, Johnson purportedly told Kees that his vacation
time would be recorded as a temporary layoff in order to im-
prove Respondent’s defense in Barrett’s case. Johnson denied
this assertion by Kees and correctly pointed out that Kees’
record was not, in fact, altered. The payroll records in evi-
dence do not reflect any reason for Kees’ subsequent ab-
sence. For that matter, Respondent’s records do not reflect
that either Barrett or Kees’ were laid off as discussed below
1237REMINGTON ELECTRIC
8 Kees claimed that in an earlier conversation around March 1,
Prince had stated that he did not like ‘‘lying for Tom’’ when he
gave his NLRB affidavit.
but they do indicate that a break in Prince’s pay in March
and April was due to a layoff.
In view of the conclusion I reached with respect to com-
plaint paragraph 5(f), above, and complaint paragraphs 5(i)
through (n), below, I credit Kees’ account of this exchange.
In reaching this conclusion, I have also considered Johnson’s
inconsistent statements about the exchanges leading up to
Kees’ vacation as well as the fact that Respondent did not
always make any record entry in its payroll records concern-
ing the purpose for an absence. Although the record dem-
onstrates Respondent’s awareness of Kees’ prounion senti-
ments and cooperation in the investigation of Barrett’s layoff,
the plethora of evidence reflecting attempts by Respondent’s
agents to interfere with that investigation does not render this
Kees’ testimony on this allegation implausible. As Kees’ ac-
count reflects that Johnson disclosed to Kees that he was
considering using Kees’ absence for misleading purposes in
the pending Barrett case, I find the remark violates Section
8(a)(1) as alleged.
5. Complaint paragraph 5(h)
Complaint paragraph 5(h) alleges that Prince interrogated
an employee on or about March 14 about whether the em-
ployee had given a statement to the Board. The only evi-
dence remotely related to this allegation is Kees’ testimony
that he told Prince in the course of a discussion around
March 12 that he had given a statement to the Board. I agree
with Respondent’s contention that Kees volunteered this
statement without any prompting on Prince’s part. Accord-
ingly, I will recommend dismissal of this allegation.
6. Complaint paragraphs 5(i) through (l)
Complaint paragraphs 5(i) through (l) allege that Prince
unlawfully interrogated and threatened Kees, and told him to
recant his Board testimony. Prince and Kees had two rel-
evant conversations on March 18. The first occurred imme-
diately after Prince arrived at the jobsite in the morning and
the second occurred at lunchtime. By Kees’ account, Prince
said to Kees during the first conversation: ‘‘Do you have
something with the Union? If you do, you can tell me. I
won’t tell Tom.’’ Kees denied that he did but he again men-
tioned that he had given a statement to the Board. Kees went
on to say, ‘‘I talked to them [the Board] about the threat he
[meaning Johnson] made to me, I could’ve told him a lot
more.’’ Prince shook his head and stated, ‘‘Well, you should
call the NLRB up and take back everything you said. Tell
them you were just pissed at Tom at the time and try to call
Tom and try to work things out with him.’’ Prince then told
Kees his statement to the Board may have cost him his job.
Purportedly, Prince also asked if Kees had told the Board
agent that Prince had lied when he gave his statement, and
told Kees that he would be very angry if Kees had revealed
his dishonesty.8
According to Kees, Prince urged him again at lunch to call
the NLRB and recant his statement. Prince then related to
Kees that Johnson ‘‘wasn’t real happy with [Prince] for what
he said to the NLRB.’’ Prince told Kees that Johnson had
said that Prince’s statement ‘‘didn’t hurt him’’ but that it
‘‘didn’t help him either.’’
Prince admitted that he asked Kees to change the state-
ment he had given to the NLRB but did not otherwise ad-
dress the March 18 conversations recounted by Kees
Employer attempts to influence an employee’s testimony
before the Board or discourage an employee from pursuing
an unfair labor practice charge are unlawful. Aero Metal
Forms, 310 NLRB 397, 398 (1993) (discharging an em-
ployee for refusing to fabricate Board testimony held unlaw-
ful); Weinreb Management, 292 NLRB 428, 432 (1989)
(pressuring an employee to abandon a grievance held unlaw-
ful); Independent Stave Co., 278 NLRB 593, 598 (1986)
(telling an employee that he would ‘‘get his ass in trouble’’
for filing unfair labor practice charges held unlawful).
In view of Prince’s admission and Kees uncontradicted
testimony concerning the other matters of substance during
the two March 18 conversations, I find that General Counsel
has proven the allegations in complaint paragraph 5(i) con-
cern interrogation about ‘‘involvement with the Union,’’
paragraph 5(j) concerning the Prince’s direction to Kees
about recanting testimony provided to the Board, and para-
graph 5(k) concerning the potential impact Kees’ Board
statement might have on his job.
I recommend dismissal of complaint paragraph 5(l). It as-
serts that Prince threatened Kees about by telling him that
Johnson was ‘‘angry about statements made to the Board.’’
In her brief, counsel for the General Counsel argues that
Prince’s remark in the second March 18 exchange that John-
son ‘‘wasn’t real happy’’ with Prince over Prince’s state-
ments to the Board, would tend to exert a coercive influence
on Kees to avoid actions that might endanger his continued
employment.
At best, I find that the remark is a very oblique reinforce-
ment of the direct threat Prince made early that morning that
Kees could lose his job because of the statement he had pro-
vided the Board agent. As such, the allegation adds nothing
to the remedial Order below. Moreover, because Prince is a
supervisor, I am not satisfied that this remark, standing
alone, would be sufficient to violate the Act. Although the
Board adheres to the theory that the Act protects statutorily
excluded individuals from discrimination designed to dis-
courage their participation in the Board’s processes, I do not
read that protection—articulated in Parker-Robb Chevrolet,
262 NLRB 402 (1982), Oakes Machine Corp., 288 NLRB
456 (1988), and similar cases—as being so broad that em-
ployer criticism of supervisors about the content of their
statements to the Board is precluded. That seems especially
true when, as here, Johnson was present and overheard both
the tone and substance of Prince’s statements to the Board
agent.
7. Complaint paragraphs 5(m) and (n)
Complaint paragraphs 5(m) and (n) allege that Prince in-
terrogated an employee about his reasons for filing a Board
charge and threatened the employee that his job had been
jeopardized because of the employee’s involvement with the
Board. As noted above, Kees filed a charge with the NLRB
on March 30 concerning his layoff about a week earlier. In
early April 1994, Prince telephoned Kees to ask why he had
filed the charge. Prince then tried to convince Kees that
Johnson did not lay Kees off due to his union activity or his
1238 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 As previously mentioned, Kees testified that Johnson told him on
December 21 that Barrett had been laid off because he was a union
plant. Kees testified that Prince told him Barrett had been laid off
because of the ‘‘Union bull-shit.’’ Johnson denied the statement at-
tributed to him by Kees; Prince did not.
statement to the Board. Prince told Kees, however, that he
had ruined his chances of being called back by filing the
charge.
On this latter point, Prince testified that he told Kees that
he ‘‘may have jeopardized’’ his chances of being called back
by filing the charge. Prince also testified that he informed
Johnson of this call a couple of days later. There is no evi-
dence that Johnson reacted to this information by taking ac-
tion of any kind to diminish its import.
I find Prince’s inquiry concerning the reasons Kees filed
a charge is unlawful, coercive interrogation especially when
Prince also unlawfully threatened in the same phone call that
Kees might not be recalled from layoff because he filed a
charge. Although Prince was also laid off at that time, his
uncontradicted testimony that he informed Johnson of the
call a short while later coupled with Johnson’s inaction on
learning of that news leads me to conclude that Johnson ef-
fectively adopted Prince’s conduct. Accordingly, I find Re-
spondent violated Section 8(a)(1) as alleged in complaint
paragraphs 5(m) and (n).
B. The 8(a)(3) and (4) violations
Section 8(a)(3) prohibits employers from discriminating in
regard to an employee’s ‘‘tenure of employment . . . to en-
courage or discourage membership in any labor organiza-
tion.’’ Section 8(a)(4) prohibits employers from ‘‘discharg-
[ing] or otherwise discriminat[ing] against an employee be-
cause he has filed charges or given testimony under [the]
Act.’’
An employer violates Section 8(a)(3) by laying off em-
ployees because of their union activities. Equitable Re-
sources, 307 NLRB 730, 731 (1992). An employer violates
Section 8(a)(4) by laying off an employee suspected of fur-
nishing information supporting unfair labor practice charges
in another case. Operating Engineers Local 302, 299 NLRB
245 (1990).
As 8(a)(3) and (4) cases generally turn on the question of
employer motivation, the Board and the courts employ a cau-
sation test to analyze the merits of such allegations. Wright
Line, 251 NLRB 1083 (1980); NLRB v. Transportation Man-
agement Corp., 462 U.S. 393 (1983). See also NLRB v. Sea-
Land Service, 837 F.2d 1387 (5th Cir. 1988). The Wright
Line test requires the General Counsel to make a prima facie
showing sufficient to support an inference that the employ-
ee’s protected conduct motivated the employer’s adverse ac-
tion. Typically, the General Counsel meets this burden by
presenting credible evidence showing a reasonable proximity
in time between the adverse action in question and the em-
ployer’s knowledge of, and hostility toward, the employee’s
protected activity. Best Plumbing Supply, 310 NLRB 143
(1993). Although not conclusive, timing is usually a signifi-
cant element in finding a prima facie case of illegal layoff.
Equitable Resources, supra.
If the General Counsel establishes a prima facie case, the
employer must then shoulder the burden of persuading the
trier of fact by a preponderance of the evidence that the same
adverse action would have been taken even in the absence
of the employee’s protected activity. Best Plumbing Supply,
supra. To meet this burden ‘‘an employer cannot simply
present a legitimate reason for its action but must persuade
by a preponderance of the evidence that the same action
would have taken place even in the absence of the protected
conduct.’’ Roure Bertrand Dupont, 271 NLRB 443 (1984).
1. Barrett’s layoff
As noted above, Barrett began working for Respondent on
November 22, and was laid off on December 14, ostensibly
for lack of work. Of the three employees hired in late 1993,
only Barrett was a licensed electrician. As such, Barrett
could legally work by himself on a project in Minnesota.
I am satisfied the General Counsel established a prima
facie case that Barrett was selected for layoff because of his
union activities during his short tenure with Respondent. This
conclusion is based on the evidence detailed previously that
establishes that Barrett, in accord with the prior arrangement
made with Union Agent Wagner, talked to other employees
about the benefits of unionization, and that Johnson knew of
both Barrett’s arrangement with the Union and his specific
activities on the Union’s behalf at the Edina job. Soon after
learning of Barrett’s activities, Johnson set about interfering
with that activity by unlawfully interrogating Kees, known to
be a likely supporter of unionization, and by attempting to
create the impression of surveillance. Prince reinforced Re-
spondent’s hostility toward unionization by telling Barrett
that contacting the Union’s agent would ‘‘probably put us all
out of work.’’ Finally, Kees claims that both Johnson and
Prince admitted to him, following Barrett’s layoff, that Bar-
rett had been let go because of his union organizing activi-
ties.9
According to Johnson, Barrett’s layoff coincided with the
normal winter slowdown. Although some work remained and
additional work was in the bidding stage, Johnson asserts
that he concluded there was not enough work to keep every-
one busy and that he selected Barrett for layoff essentially
because his pay rate was higher than either Weiner or Nerby,
the other newly hired employees, and because Barrett’s le-
thargic work manner required constant supervision.
There is mixed evidence about the winter slowdown. Some
evidence indicates that Respondent’s overall claim of a work
slowdown is questionable. Both Barrett and Kees claim that
numerous job orders were posted on the board behind John-
son’s desk during the week prior to Barrett’s layoff. In fact,
Barrett testified that Johnson advised him on December 12
that he would be assigned to a job in southern Minnesota if
it appeared following Johnson’s personal inspection the fol-
lowing day that the necessary trenching through the frost-
laden ground could be performed with the Remington’s
equipment. Johnson then telephoned Barrett on December 14
to advise that he was being laid off because the Respondent
was going to a ‘‘skeleton crew’’ for the winter and appar-
ently never mentioned the southern Minnesota job further.
Furthermore, when Kees made requests in late December and
in January for vacation time in February, Johnson refused to
accede to the request on the ground that Respondent was too
busy.
On the other hand, Johnson asserts that the postings on job
board are not a reliable measure of the amount of work
1239REMINGTON ELECTRIC
10 Likewise, no other circuit has gone so far as to hold that part-
time union organizers are lack employee status under Sec. 2(3) of
the Act. See Ultrasystems Western Contractors v. NLRB, 18 F.3d
251, 255 (4th Cir. 1994); NLRB v. Elias Brothers Big Boy, 327 F.2d
421, 427 (6th Cir. 1964); Wilmar Electric Service v. NLRB, 968 F.2d
1327, 1329–1331 (D.C. Cir. 1992), cert. denied 113 S.Ct. 1252
(1993); NLRB v. Henlopen Mfg. Co., 599 F.2d 26, 30 (2d Cir. 1979).
Presumably, this conflict between the Eighth Circuit and the other
courts of appeals that have considered this issue will now be re-
solved by the Supreme Court in the Town & Country case pending
before it.
available to Remington employees at any given time. Al-
though Johnson made no attempt to explain the situation
with the particular job identified as Barrett’s next potential
assignment in the December 12 telephone call, it is possible
to infer that job was either given to another contractor or de-
ferred to the following spring. Johnson also explained that he
refused to make an early commitment concerning Kees’ va-
cation request because he anticipated a project on which
Kees would be required but that it did not materialize. But
most importantly, no new employees were hired after
Barrett’s layoff and Respondent’s individual earnings records
do not show an unusual amount of overtime was worked fol-
lowing Barrett’s layoff. This more objective evidence indi-
cates that a business justification existed for a layoff so the
question then becomes why Barrett was selected.
Regarding the wage differential, Johnson initially testified
that Barrett’s hourly pay was $30 compared to Nerby’s $15
hourly rate and Weiner’s $7 or $8 hourly rate. On cross-ex-
amination, however, Johnson admitted that Barrett’s normal
wage rate was $17 per hour and that Barrett was only paid
the $30 rate on the Edina post office job pursuant to a pre-
vailing wage regulation. Hence, this initial attempt to mag-
nify Barrett’s wage differential detracts from the convincing
character of Respondent’s case on this point.
At the hearing, both Prince and Weiner supported John-
son’s claim that Barrett was a slow or lethargic worker.
Kees, Prince, and Weiner all testified, however, that they
never heard Johnson criticize Barrett’s work habits before his
layoff and neither Kees nor Weiner ever overheard Prince
comment negatively about Barrett’s work. By contrast, Kees
and Weiner both heard Johnson complain about Nerby’s
slowness prior to Barrett’s layoff, and Prince agreed that
Nerby was not a fast worker. In an apparent effort to explain
this inconsistent prior assessment, Johnson admitted, in ef-
fect, that he initially had made a mistaken assessment of
Nerby’s work. Because of this inconsistent assessment, Re-
spondent’s evidence about Barrett’s work appears tailored to
justify Barrett’s layoff for purposes of this case.
Finally, Respondent’s contention that it had hired other
employees in the past who have had an affiliation with the
Union or its sister locals, while obviously relevant especially
to the question of hostility, does not conclusively dem-
onstrate the lack of an unlawful motive in Barrett’s case be-
cause there is no evidence that these other employees ever
actively engaged in organizing efforts.
Based on the foregoing discussion, I find Respondent has
failed to meet its burden of persuasion. Even assuming that
Respondent needed to layoff one employee at the time Bar-
rett was let go, Respondent’s explanation for selecting Bar-
rett is not convincing especially in view of Johnson’s stated
assessment of Nerby as a slow worker contemporaneous with
his selection of Barrett as the employee to let go. When cou-
pled with Johnson’s initial attempt to paint a misleading pic-
ture concerning Barrett’s regular pay rate, Respondent’s ex-
planation for targeting Barrett acquires an entirely uncon-
vincing quality. I conclude, therefore, that the explanation of-
fered concerning Barrett’s selection for layoff is pretextual
and designed to mask its unlawful motive.
Despite its motive, Respondent claims that, as a paid union
organizer, Barrett was not an employee within the meaning
of Section 2(3) of the Act while in its employ and, hence,
he is not entitled to the Act’s protection. In support, Re-
spondent cites Town & Country Electric v. NLRB, 34 F.3d
625, 628 (8th Cir. 1994), cert. granted 115 S.Ct. 933 (1995).
In that case, the Eighth Circuit held, contrary to the Board,
that part-time paid union organizers who apply for jobs for
the purpose of organizing workers are not employees within
the meaning of the Act. Id. at 629.
Despite the fact that Barrett ultimately received no reim-
bursement from the Union because almost all of his employ-
ment with Respondent was on a job governed by prevailing
wage regulations, his admitted arrangement with Wagner ap-
pears to bring this case squarely under the Town & Country
holding by the Eighth Circuit in which this case arises. Es-
tablished Board precedent provides, however, that the term
‘‘employee’’ should be construed broadly to include even
paid, full-time union organizers. Sunland Construction Co.,
309 NLRB 1224 (1992).10 As an administrative law judge I
am compelled to apply Board precedent until it is reversed
by either the Board or the Supreme Court. Iowa Beef Pack-
ers, 144 NLRB 615, 616 (1963). Accordingly, with all due
deference to the Eighth Circuit’s holding in the Town and
Country case, I find that Barrett is an employee within the
meaning of Section 2(3) of the Act and that Respondent vio-
lated Section 8(a)(1) and (3), as alleged, by discriminatorily
laying off Barrett for his union activities.
2. Daniel Kees’ layoff
Daniel Kees began working for Respondent as an elec-
trician apprentice in August 1991. In 1992, Kees was laid off
twice in by the Respondent and subsequently rehired. Kees’
tenure with Respondent continued until late March 1994
when he, too, was laid off.
According to Johnson, Kees and Prince were laid off on
March 22 because of a further slow down in work. Imme-
diately prior to their layoff, Kees and Prince had been work-
ing at a Wabasha Street location in St. Paul, Minnesota.
When they completed their work on that project at about
noon on March 22, Prince telephoned Johnson for instruc-
tions. Johnson asked that they wait at the jobsite until he ar-
rived. After arriving a short while later, Johnson informed
Kees and Prince that he had no further work for them and
would have to lay them off.
Johnson testified that he anticipated the layoff and had de-
cided on the previous day on the selection process he would
use. As Johnson explained it, he had to keep Volk,
Remington’s master electrician, and he decided to keep
Weiner, the least experienced and one of the most junior em-
ployees, ‘‘because he was really doing quite well for the
company.’’ In contrast, Johnson claimed that Kees’ depend-
ability was ‘‘greatly deteriorating’’ toward the end of his em-
ployment. Nerby was laid off about a week after Kees and
1240 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 The payroll records depict a confusing picture that was never
adequately explained but no argument is fashioned around the
records. Thus, the records show that Kees received two checks on
March 22, apparently because he requested to be paid immediately.
Both Nerby and Prince received paychecks for the week ending
March 25 and paychecks for less than 15 hours work for the week
ending April 1. Nerby received checks for a small number of hours
each week for the other April pay periods with the exception of the
week ending April 22.
12 Prince asserted that he had been laid off for comparable periods
during the same months in 1992 and 1993. The payroll records
seemingly show otherwise but this may be due to Respondent’s prior
practice of allowing employees to bank overtime throughout the year
for use when they were laid off or otherwise chose not to work.
13 At the hearing, Volk and Kees impressed me as having a mas-
sive generational, temperamental, and personality gap.
Prince.11 There is no evidence that replacements were hired
for the three laid off employees but Nerby and Prince re-
turned to work more or less full time about 6 or 7 weeks
later.12 Kees was never recalled.
The General Counsel established a prime facie case that
Kees’ layoff and Respondent’s subsequent failure to recall
Kees were both motivated for reasons prohibited by Section
8(a)(4). The clear essence of the Prince-Kees exchanges on
March 18 was as follows: (1) Johnson and Prince had dis-
cussed the investigation that led to the complaint issued
against Respondent about 3 weeks earlier; (2) Johnson was
not pleased with even with Prince’s testimony in the inves-
tigation; and (3) Kees should recant his statement to the Gen-
eral Counsel and make peace with Johnson or his job was
in jeopardy. The timing between Prince’s advice and Kees
layoff strongly supports an inference that Kees was targeted
for layoff because he failed to heed Prince’s March 18 ad-
vice. Moreover, Prince’s April telephone call to Kees about
his own charge and advising that he had harmed his chances
for recall also permits an inference that his subsequent failure
to be recalled was unlawfully motivated.
Respondent’s brief argues in pertinent part that ‘‘[Re-
spondent] simply did not have enough cash flow and could
not afford payroll: Despite Mr. Kees’ performance problems,
Mr. Johnson kept him until Remington could no longer af-
ford to retain all of its employees.’’ Although the reasons as-
serted by Respondent may, if true, provide Respondent with
several legitimate reasons for deciding to lay Kees off, I am
not persuaded that they are the true motivating factors.
Respondent attempted to justify Kees’ layoff selection
through proof that Kees was indolent, unreliable, and dishon-
est. To support its claim, Respondent submitted evidence of
conflicts between Kees and Master Electrician Volk. Volk
complained that Kees made too many personal calls during
worktime, took excessive breaks, resisted his instructions,
and frequently wanted to return from out-of-town projects
early on Fridays. Eventually, Volk advised Johnson that he
would not work with Kees again. Nevertheless, most of
Volk’s complaints concerned their work on projects at least
a year prior to Kees’ final layoff and Johnson, for all intents
and purposes, ignored Volk’s request concerning Kees as-
signments albeit Johnson informed Kees of Volk’s ulti-
matum.13 Likewise, Respondent’s assertions that Kees com-
plained about, or resisted, working on projects away from the
Twin Cities is weakened by evidence showing that Kees, in
fact, worked out of town numerous times and Johnson’s ad-
mission that Kees would go to the jobs as assigned.
Respondent also raised the accusation that Kees had stolen
equipment and materials from Remington. This claim also
had a stale quality to it. In 1992, Kees was laid off from
mid-June until November following a report to Johnson by
Kees’ exgirlfriend, the former office secretary at Remington,
that Kees had stolen company tools and materials and had
invited union agents to photograph him working alone on
projects to support complaints against the Remington. Kees
flatly denied the accusation about stealing from Remington
and asserted that he did not learn of the reason for the long
layoff until shortly before he returned to work. By Kees’
uncontradicted account, Prince and Volk aided in his return
to work for Respondent. Neither Prince nor Volk knew of
Kees misappropriating Respondent’s property.
Johnson also alleged that Kees would sometimes report to
work late—that there were even instances where he called
Kees as late as 9 a.m. to wake him for work. Prince likewise
testified that Kees would sometimes report to work 5 to 10
minutes late. Yet, these assertions are inconsistent with John-
son’s statement that Kees and Prince routinely arrived at
projects between 7 and 7:30 a.m. even though the required
reporting time was 8 a.m. In addition, Johnson failed to pro-
vide any timeframe concerning the alleged wake up calls and
Prince admitted that he usually did not tell Johnson about
Kees’ tardiness.
Johnson asserted other miscellaneous allegations that Kees
purchased personal tools on Respondent’s account without
Johnson’s required prior approval, entered Johnson’s office
in February 1994 without authorization, and used company
tools for personal projects without authorization. No specific
evidence was adduced concerning the latter allegation. Kees
admitted entering Respondent’s locked office in February
while both Johnson and the office secretary were absent but
asserts, without contradiction, that Johnson learned of this in-
cident when Kees answered Johnson’s phone call to the of-
fice. The unauthorized tool purchases purported occurred in
December, February, and March but there is no evidence that
Kees was ever reprimanded for these purchases or that Kees
intended to avoid reimbursing Respondent for these minor
purchases.
Against the strength of the General Counsel’s case, I find
Respondent’s explanation for targeting Kees for layoff in
March an unpersuasive laundry list of derelictions, most long
tolerated by Johnson, now seized on to justify laying off
Kees. Indeed, Johnson admitted that when interviewed by a
Board agent regarding the reasons for Kees’ layoff, he ne-
glected to raise most of the reasons cited at the hearing. This
admission reinforces my belief that the explanations pro-
pounded by Respondent represent a groping effort to justify
getting rid of Kees for unlawful reasons.
In sum, I conclude that Respondent has failed to meet its
Wright Line burden with regard to Kees’ layoff. I find, there-
fore, that Respondent violated Section 8(a)(1) and (4) of the
Act by laying Kees off on March 22 and failing thereafter
to recall him for work. In view of this conclusion, I find it
unnecessary to consider General Counsel’s further claim that
Respondent also violated Section 8(a)(3) by Kees’ layoff.
1241REMINGTON ELECTRIC
14 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
15 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7).
2. The Union is a labor organization within the meaning
of Section 2(5).
3. Peter Barrett is an employee within the meaning of Sec-
tion 2(3).
4. Respondent engaged in unfair labor practices within the
meaning of Section 8(a)(1) by (a) coercively interrogating an
employee about his union activities, the activities of other
employees, and his reason for filing an NLRB unfair labor
practice charge; (b) creating the impression that employee
union activities were under surveillance; (c) telling an em-
ployee that all employees could be put out of work by con-
tacting a union agent; (d) telling an employee that his legs
would be broken if he cooperated in an NLRB investigation;
(e) telling an employee that it might alter its records to show
vacation time as layoff time in order to strengthen its defense
against an NLRB unfair labor practice charge; (f) requesting
that an employee recant testimony given to the NLRB; and
(g) telling an employee that he had harmed his chance of re-
call from layoff because he filed an NLRB unfair labor prac-
tice charge.
5. Respondent engaged in an unfair labor practice within
the meaning of Section 8(a)(1) and (3) by laying off Peter
Barrett on December 14, 1993.
6. Respondent engaged in an unfair labor practice within
the meaning of Section 8(a)(1) and (4) by laying off Daniel
Kees on March 22, 1994, and thereafter failing to recall him.
7. The unfair labor practices of Respondent affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, the recommended Order requires Re-
spondent to cease and desist therefrom and to take the fol-
lowing affirmative action designed to effectuate the policies
of the Act.
Respondent must immediately offer in writing to reinstate
Peter Barrett to his former position or, if that position no
longer exists, to a substantially equivalent position. No rein-
statement order will be entered for Daniel Kees in light of
counsel for the General Counsel’s representation in her brief
that Kees was killed in an accident in September 1994. Re-
spondent must also make Peter Barrett and the estate of Dan-
iel Kees whole for the loss of earnings and other benefits
suffered by reason of Respondent’s discrimination against
them. Backpay will be computed on a calendar quarterly
basis as provided in F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest computed as prescribed in New Horizons
for the Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended14
ORDER
The Respondent, Remington Electric, Inc., Vadnais
Heights, Minnesota, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Laying off and failing to recall employees in order to
discourage membership in a labor organization, or because
they file charges or give testimony under the Act.
(b) Coercively interrogating employees concerning their
union activities and sympathies, the union activities and sym-
pathies of other employees, or their reasons for filing an
NLRB charge.
(c) Creating the impression that employee union activities
are under surveillance.
(d) Threatening employees that they would all be out of
work if they chose to contact a union representative.
(e) Threatening to physically harm employees, either lit-
erally or figuratively, in order to discourage participation in
an NLRB investigation of unfair labor practice charges.
(f) Telling employees that it intends to make inaccurate
entries in its records for the purpose of covering up the lay-
off of other employees for their union activities.
(g) Telling employees that their job tenure or recall
chances could be affected by filing charges or giving testi-
mony under the Act.
(h) Telling employees to recant testimony they provided to
the NLRB in the investigation of unfair labor practice
charges.
(i) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Immediately offer in writing to reinstate Peter Barrett
to his former position and make Barrett whole for all losses
resulting from his December 14, 1993 layoff as specified in
the remedy section of the administrative law judge’s deci-
sion.
(b) Make the estate of Daniel Kees whole for all losses
resulting from his March 22, 1994 layoff as specified in the
remedy section of the administrative law judge’s decision.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at its Vadnais Heights, Minnesota office and at
its current jobsites copies of the attached notice marked
‘‘Appendix.’’15 Copies of the notice, on forms provided by
the Regional Director for Region 18, after being signed by
the Respondent’s authorized representative, shall be posted
by the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure
1242 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that the notices are not altered, defaced, or covered by any
other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that all complaint allegations not
sustained in the administrative law judge’s decision in this
case be, and the same hereby are, dismissed.