Rogers Corp.

National Labor Relations Board - Board Decisions

Apr 12, 2005

344 N.L.R.B. 504 (N.L.R.B. 2005)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
344 NLRB No. 60
504
Rogers Corporation and Jeremiah Lamothe. Case
34–CA–9117
April 12, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On January 26, 2001, Administrative Law Judge Mi-
chael A. Marcionese issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and affirms the judge’s rulings, findings,1 and con-
clusions, amends the remedy, and adopts the recom-
mended Order as modified and set forth in full below.2
As part of his proposed remedy, the judge recom-
mended that interest on the backpay owed to discrimina-
tee Jeremiah Lamothe be calculated on a daily com-
pounded basis. Having duly considered the matter, we
are not prepared at this time to deviate from our current
practice of assessing simple interest. See, e.g., Commer-
cial Erectors, Inc., 342 NLRB 940 fn.1 (2004); Accurate
Wire Harness, 335 NLRB 1096 fn.1 (2001).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, Rogers Corporation, Rogers, Connecticut,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to grant, or consider granting, job open-
ings to, discharging, or otherwise taking adverse action
against any employee for reasonably and honestly invok-
ing any actual or reasonably perceived right they have
under the collective-bargaining agreement with Oak
Lodge-Rogers Local No. 46 and United Paperworkers
International Union, AFL–CIO.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 We shall modify the judge’s recommended Order and notice to
more closely reflect the violations found. We shall also modify the
judge’s recommended Order in accordance with our decision in Fergu-
son Electric Co., 335 NLRB 142 (2001). Further, we shall substitute a
new notice in accordance with our decision in Ishikawa Gasket Amer-
ica, Inc., 337 NLRB 175 (2001), enfd. 354 F.3d 534 (6th Cir. 2004).
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Jeremiah Lamothe full reinstatement to his former job or,
if that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other
rights and privileges previously enjoyed.
(b) Within 14 days from the date of this Order, offer
Lamothe instatement to the second shift job he sought
through the contractual bidding procedure in October
1999 or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
any other rights and privileges previously enjoyed.
(c) Make Lamothe whole for any loss of earnings and
other benefits suffered as a result of the discrimination
against him, computed on a quarterly basis, less any net
interim earnings, as prescribed in F. W. Woolworth Co.,
90 NLRB 289 (1950), plus interest as computed in New
Horizons for the Retarded, 283 NLRB 1173 (1987).
(d) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharge,
and within 3 days thereafter notify the employee in writ-
ing that this has been done and that the discharge will not
be used against him in any way.
(e) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(f) Within 14 days after service by the Region, post at
its facilities in Rogers and Woodstock, Connecticut, cop-
ies of the attached notice marked “Appendix.”3 Copies
of the notice, on forms provided by the Regional Director
for Region 34, after being signed by the Respondent’s
authorized representative, shall be posted by the Respon-
dent 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 Respon-
dent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has
gone out of business or closed either of the facilities in-

3 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
ROGERS CORP. 505
volved in these proceedings, the Respondent shall dupli-
cate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed
by the Respondent at any time since October 25, 1999.
(g) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT refuse to grant, or refuse to consider
granting job openings, discharge or otherwise take ad-
verse action against any of you for reasonably and hon-
estly invoking any actual or reasonably perceived rights
you have under our collective-bargaining agreement with
Oak Lodge-Rogers Local No. 46 and United Paperwork-
ers International Union, AFL–CIO.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of your rights
guaranteed in Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer Jeremiah Lamothe full reinstatement to his
former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to his senior-
ity or any other rights and privileges previously enjoyed.
WE WILL, within 14 days from the date of the Board’s
Order, offer Jeremiah Lamothe instatement to the second
shift job he sought through the contractual bidding pro-
cedure in October 1999 or, if that job no longer exists, to
a substantially equivalent position, without prejudice to
his seniority or any other rights and privileges previously
enjoyed.
WE WILL make Jeremiah Lamothe whole for any loss
of earnings and other benefits resulting from the dis-
crimination against him, less any net interim earnings,
plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to Lamothe’s
unlawful discharge, and WE WILL, within 3 days thereaf-
ter, notify him in writing that this has been done and that
the discharge will not be used against him in any way.
ROGERS CORPORATION
Rick Concepcion, Esq. and Robert M. Cook, Esq., for the Gen-
eral Counsel.
Peter A. Janus, Esq. (Siegel, O’Connor, Schiff & Zangari,
P.C.), for the Respondent.
DECISION
STATEMENT OF THE CASE
MICHAEL A. MARCIONESE, Administrative Law Judge. This
case was tried in Hartford, Connecticut, on October 2 and 3,
2000. Jeremiah Lamothe, an individual, filed the charge on
January 6, 2000, and amended it on April 26, 2000. The com-
plaint, which issued on April 27, 2000, and was amended at the
hearing, alleges that Rogers Corporation (the Respondent),
violated Section 8(a)(1) of the Act by refusing to grant, or con-
sider granting, a permanent position to Lamothe and by termi-
nating him on October 25, 1999.1 Specifically, the complaint
alleges that the Respondent terminated Lamothe because he
exercised his right under a collective-bargaining agreement to
bid on a permanent position. The Respondent, in its answer to
the complaint filed May 10, 2000, and amended at the hearing,
admits that it rejected Lamothe’s bid for a permanent position
and terminated him, but denies that it did so for unlawful rea-
sons.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the closing ar-
gument made at the hearing by the General Counsel and the
briefs filed by the General Counsel and the Respondent, I make
the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, manufactures specialty com-
posite materials at its facilities in Rogers and Woodstock, Con-
necticut. The Respondent annually purchases and receives at
its Connecticut facilities goods valued in excess of $50,000
directly from points outside the State of Connecticut. The Re-
spondent admits and I find that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act. The Respondent admits further, and I find, that Oak
Lodge-Rogers Local No. 46 and the United Paperworkers In-
ternational Union, AFL–CIO, now known as PACE Interna-
tional Union, AFL–CIO, and referred to here as the Union, is a
labor organization within the meaning of Section 2(5) of the
Act.

1 All dates are in 1999, unless otherwise indicated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD506
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Evidence
As noted above, the complaint alleges that the Respondent
terminated Lamothe because he exercised a contractual right to
bid on a permanent position. The General Counsel relies on the
Interboro2 and City Disposal3 line of cases holding that an em-
ployee engages in protected concerted activity under Section 7
of the Act when he invokes a right contained in a collective-
bargaining agreement. An employer who takes adverse action
against an employee for exercising this right violates Section
8(a)(1) of the Act. The Respondent contends that Lamothe, as
a temporary employee, had no right to bid on a permanent job
under the collective-bargaining agreement. In addition, the
Respondent contends that it did not fire Lamothe because he
bid on a permanent job, but rather because he misled the Em-
ployer by misrepresenting his interest in the temporary job he
was hired to fill.
The Respondent has two manufacturing facilities in Con-
necticut, the composite materials division located in Rogers and
the poron materials division located in Woodstock. The Re-
spondent’s main office is located in the Rogers plant. The Un-
ion has represented the production and maintenance employees
at both plants for many years. The current collective-
bargaining agreement is effective for the period October 1,
1996, to October 1, 2001. There are about 60 unit employees at
the Rogers plant and about 70 unit employees at the Woodstock
plant. David Richardson is the division manager of the com-
posite materials division. His office is at the Rogers plant
where he spends essentially all of his time. Harry Kenworthy is
the division manager of the poron division, with his office lo-
cated at the Woodstock plant. Al Lyon is the human resources
manager for both divisions, with an office at each plant. Lyon
spends about half his time at each plant. The Respondent ad-
mits that Lyon is a supervisor and agent of the Respondent
within the meaning of the Act.4
For a number of years, the Respondent has had a summer
employment program through which college students are hired
to perform bargaining unit work at the Respondent’s plants.
These students work either in maintenance jobs, such as paint-
ing or cleaning, or fill in for absent and vacationing unit em-
ployees. Under the terms of the parties’ collective-bargaining
agreement, the hiring of such temporary employees is limited to
60 days, absent an agreement between the parties to extend the
time. A May 17, 1999 e-mail from Lyon to Richardson which
is in evidence sets forth the terms negotiated by the parties for
the 1999 summer employee program. The Union’s president,
Stewart Rivers, acknowledged that this document accurately set

2 Interboro Contractors, 157 NLRB 1295 (1966), enfd. 388 F.2d 495
(2d Cir. 1967).
3 NLRB v. City Disposal Systems, 465 U.S. 822 (1984).
4 Although the complaint did not specifically allege that Richardson
was a supervisor or agent of the Respondent, there does not appear to
be any dispute that he was. In any event, because the evidence in the
record establishes that he has the authority to hire and fire employees, I
find that Richardson was the Respondent’s supervisor and agent within
the meaning of the Act during the period relevant to these proceedings.
forth the terms of the agreement. The 1999 agreement provides
that:
1. Individual hires will not exceed 60 calendar days of
employment unless the Union and Company mutually
agree.
2. Individuals hired will be college students in the cur-
rent hiring year, and will not be eligible for continuing
employment beyond this summer program.
3. Individuals hired will be assigned as needed, and
will not be eligible to bid on any posted openings which
may occur. No special treatment will be granted for these
positions when filling shutdown openings.
4. In hiring otherwise eligible individuals, preference
will be given to daughters and sons of Rogers employees.
5. The company will collect initiation fee and dues as
prescribed by contract.
According to Lyon, this agreement essentially codified the
terms of the summer program as it had existed in past years.
Lamothe began working for the Respondent in June 1997 as
a summer employee under this program. He was rehired to
work in the summers of 1998 and 1999. Each year, he com-
pleted a job application on which he checked “summer” for the
type of employment desired. He spent all three summers work-
ing at the Respondent’s Woodstock plant under Maintenance
Supervisor John Neal. The first time he was hired, Lamothe
signed a dues-checkoff authorization and paid an initiation fee.
He was given a copy of the collective-bargaining agreement.
Lamothe paid union dues throughout his three summers of em-
ployment. When he returned for the second and third summers,
he was only required to pay $1 as an initiation fee instead of the
$25 initiation fee required of new employees. There is no dis-
pute that Lamothe was considered a good employee during his
participation in the summer program. The one written evalua-
tion he received, in 1997, rates him as excellent in most catego-
ries.
In 1999, the parties agreed to extend the summer program
beyond 60 days. Lamothe worked until August 29. Toward the
end of his employment, Lamothe began inquiring of his super-
visor about obtaining full-time permanent employment with the
Respondent. His supervisor suggested he speak to Rivers, the
union president. Lamothe spoke to Rivers during his last week
of work. He asked Rivers what his chances were of getting a
position on second or third shift at either plant. According to
Lamothe, Rivers told him his chances were good because he
had a good record and a good reputation. Rivers told Lamothe
that he didn’t know if any positions were open, but said he
would make a few phone calls to see what he could do.
Lamothe testified that Rivers also suggested he check to see if
there were any postings on the bulletin board. Lamothe testi-
fied that he did this but the postings on the board were out-
dated. He also testified that he wasn’t sure he could bid on
such postings because of the language in the summer employ-
ment program referred to above.
Rivers, who testified as a witness for the General Counsel,
corroborated Lamothe’s testimony in this regard. According to
Rivers, Lamothe approached him about a permanent job on
second shift that he heard was opening up in the Rogers plant.
ROGERS CORP. 507
Although Rivers believed this conversation occurred soon after
Lamothe finished his summer job, he was not certain of the
date. Rivers testified that Lamothe asked if he would speak to
someone at the Company on his behalf. Rivers, having worked
with Lamothe at the Woodstock plant the three previous sum-
mers, agreed to do this. Rivers testified further that, within a
day or so of his conversation with Lamothe, he telephoned
Richardson to tell him about Lamothe’s interest in permanent
employment. Rivers told Richardson that he knew Lamothe
was a good worker from having worked with him and sug-
gested that Richardson also speak to Lamothe’s supervisor in
Woodstock, John Neal. According to Rivers, Richardson said
he would take it under consideration.
Richardson, a witness for the Respondent, acknowledged
having a conversation with Rivers which he recalled as occur-
ring around the beginning of September. According to
Richardson, Rivers told him there was a young guy who had
worked in Woodstock for three summers and had a good re-
cord. Rivers told Richardson he could check this out with Neal.
Rivers told Richardson that Lamothe was now back in school
and was looking for a job. Rivers asked Richardson if he could
find something for him and said that he would vouch for him.
Richardson did not testify as to his response.
According to Lamothe, in the week following his conversa-
tion with Rivers, he received a call from Lyon. Lyon told
Lamothe that he heard that Lamothe was interested in a posi-
tion with the Company. When Lamothe confirmed that he was,
Lyon asked him if he wanted to come down to the plant to fill
out an application. Lamothe said yes. That same day, Lamothe
went to the Rogers plant and filled out an application. Accord-
ing to Lamothe, Lyon handed him the blank application, he
filled it out and returned it to Lyon. The application, which is
in evidence, is dated September 1. On this application,
Lamothe checked off “full-time” for type of employment de-
sired. He did not check either “temporary” or “part-time,”
although those options appear on the application form. After he
gave Lyons his application, Lyons asked him whether he would
be able to work full time and go to school. Lamothe testified
that he told Lyon that would not be a problem. Lyon told him
there were no open jobs at the time. He then asked Lamothe if
he would be interested in a temporary position if there were no
permanent positions. Lamothe told Lyon he would be inter-
ested, but he asked Lyon if he could bid on a permanent job if
one opened up. According to Lamothe, Lyon replied that, as
far as he knew, Lamothe would have all the rights of a regular
employee, but whether he got the job would depend on his
seniority. Lamothe also told Lyon that he was interested in
either second or third shift, but would prefer second. Lyon
denied that such a meeting ever occurred. His testimony will
be discussed later in this decision.
Lamothe then had an interview with two supervisors, Mark
Hilton and another whose name he could not recall at the hear-
ing. He did recognize Rene Hebert, who was at the hearing as a
witness for the Respondent, as the other supervisor who inter-
viewed him. According to Lamothe, this interview lasted about
10–15 minutes and the main concern of Hilton and Hebert was
Lamothe’s ability to work full time and go to school. Lamothe
told them he had scheduled his classes in such a way that he
could work full time and overtime without any conflict.
Lamothe testified that there was no discussion of any specific
job during this interview. After his interview with the two
supervisors, Lamothe was taken back to Lyon’s office. Lyon
told him that he would contact Lamothe if something came up.
He also told Lamothe that he could check in with Lyon periodi-
cally to see if anything had come up. Lamothe then left the
plant. As will be discussed further, infra, Hilton and Hebert
acknowledge interviewing Lamothe but recall the interview
occurring about a month later and contradict Lamothe regard-
ing what occurred after the interview.
Lamothe testified that, after his interview, he called Lyon
about one–two times a week to see if anything had come up.
He did not always speak to Lyon when he called. He recalled
actually speaking to Lyon at least two times during the month
of September. On one occasion, Lamothe stopped by Lyon’s
office while in the vicinity of the Rogers plant on another mat-
ter. Lamothe could not recall when this occurred. Lyon was not
in, but he ran into Richardson in the hallway by Lyon’s office.
Richardson introduced himself and asked if he could help
Lamothe with anything. Lamothe identified himself and ex-
plained why he was there. Richardson, who appeared to
Lamothe to be aware of his interest in employment, told
Lamothe that they were still discussing it, but that there might
be a temporary position opening up. Lamothe told Richardson
he would be interested in such a position.
Richardson admitted meeting Lamothe at the plant under cir-
cumstances similar to those described by Lamothe. Richardson
testified that this occurred about 3 weeks after his conversation
with Lyon. According to Richardson, he did not know who
Lamothe was when he first encountered him in the hallway.
When he asked Lamothe if he could help him, Lamothe identi-
fied himself and said he was looking for Al Lyon. Richardson
admits he recognized Lamothe’s name as the young man that
Rivers had called him about. Richardson testified that Lamothe
told him he was interested in a job and that he was going to
school. Richardson told him that there might be something
coming up in a few weeks that would last 4–6 weeks, maybe
more. Richardson testified that Lamothe said he would be in-
terested in that because it would fit into his schedule. Accord-
ing to Richardson, Lamothe told him his classes were all in the
morning this term because he had pushed some classes off until
the next semester. He told Richardson that the job Richardson
described would allow him to work and earn some extra money
for Christmas and the next semester. Richardson told Lamothe
that he would let Lyon know. Richardson testified that there
was no discussion, one way or another, about permanent em-
ployment. Richardson testified that he did tell Lyon about his
conversation with Lamothe and suggested that he consider
Lamothe for one of the temporary openings that were under
consideration at the time.
Lamothe testified further that Lyons called him on October
14 and told him that the Respondent did have a temporary posi-
tion on second shift. Lyon told Lamothe the job was for 60
days. He asked Lamothe if he was interested. Lamothe said he
was. Lyon then offered him the job and Lamothe accepted.
Lyon told him to report on Monday, October 18 at 2:30 p.m. so
he could fill out paperwork before the shift started at 3 p.m.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD508
When Lamothe reported to work on October 18, he met with
Donna St. Jean, Richardson’s secretary and the human re-
sources assistant at the Rogers plant. St. Jean gave Lamothe
the same forms to fill out that he had been given during his
previous summer employment, including the dues-checkoff
authorization. St. Jean filled out a “New Hire & Rehire Form”
for Lamothe on October 21 indicating that he was a rehire and
describing his job title as “unassigned.” In the box for regular
or temporary employee, she indicated he was a regular em-
ployee. According to Richardson, this means that he was eligi-
ble for all the benefits of a regular unit employee such as insur-
ance. Richardson testified that the “temporary” category on the
form is used only for salaried employees hired through tempo-
rary agencies.
The job Lamothe was hired for was to operate one of two
pieces of machinery normally operated by one job classifica-
tion. He was paid at the labor grade 4 rate. He was to receive 2
weeks training on the job. On his second day on the job,
Lamothe saw a job posting for a permanent position on second
shift at the Woodstock plant. The job was at a lower labor
grade than the temporary position he was on. The posting con-
tains language encouraging “all interested employees, men and
women, to bid on open positions.” Lamothe testified that he
asked the employees who were training him whether he could
bid on the job and if they thought he had a chance of getting it.
Lamothe did not know the names of theses employees, but
acknowledged that they were unit employees. These employ-
ees told him he had as much right as anyone to bid on the job.
That same day, October 19, he submitted his job bid. The job
bid card was punched in at 9:21 a.m. on October 19. Lamothe
testified that he continued with his training on the temporary
position the remainder of the first week. On Friday, Lamothe’s
supervisor, Norman Briquier, approached him while he was at
his machine and told Lamothe that he knew he had bid on the
job. He told Lamothe that supervisors are informed when pro-
duction workers bid on a job. Briquier asked Lamothe if he
was really interested in the other job. Lamothe told him he had
always been interested in a permanent position. Briquier
wished him luck and walked away. Briquier, who testified for
the Respondent, admitted learning that Lamothe had bid on a
permanent job that Friday but denied having any conversation
with Lamothe about the bid.
The following Monday, when he reported to work, Briquier
told him that Lyon wanted to see him in his office. Briquier
then escorted him to Lyon’s office and left. Lyon opened the
meeting by saying that there were rumors going around that
Lamothe was interested in a permanent position. Lamothe
replied that he had already told Lyon when he first interviewed
that he was interested in permanent employment. Lyon denied
remembering such a conversation. Lyon then told Lamothe
that management was not happy that he bid on a job after the
Respondent trained him on a temporary job. Lamothe offered
to withdraw the bid, but Lyon said that management would not
go along with that. Lyon told Lamothe he had to let him go.
On cross-examination, Lamothe acknowledged that Lyon also
accused Lamothe of not being “forthcoming” about his interest
in a permanent position and that he had “misled” the Company.
Lamothe also agreed that Lyon told him he was being fired
because the Respondent did not want to waste any more time
training him for the temporary position since he was interested
in a permanent position. After this meeting, Lamothe gathered
his belongings and left the plant.
The next day, Lamothe went to the union hall and met with
Rivers. Rivers suggested Lamothe file a grievance. The griev-
ance was filed October 26. Because it involved a termination,
it was pushed to third step. Lamothe attended the third-step
meeting on October 27 with Rivers. Richardson represented
the Respondent. Lyon was also present. The testimony of
Rivers and Richardson about this meeting is mutually corrobo-
rative. When Rivers asked why Lamothe was discharged,
Richardson said it was because he had shown an interest in a
permanent position. Rivers asked Richardson to repeat this,
which he did. Lamothe also recalled that Rivers told Richard-
son during the meeting that Lamothe had offered to withdraw
the bid. Lamothe did not recall any response. Richardson cor-
roborated Lamothe that Rivers made such a statement at the
meeting. At the end of the meeting, Richardson said this was
not a grievable matter because Lamothe was a probationary
employee. Lamothe also attended the fourth-step meeting at
which Dennis McCarthy, from the Respondent’s corporate
human resources department, represented the Respondent.
According to Lamothe, McCarthy took the same position, i.e.,
that the termination was not unjust, and that it was not griev-
able because he was a probationary employee.
Lamothe also filed for unemployment benefits, which he was
awarded after the unemployment claims examiner found that he
was discharged for reasons other than misconduct. The Re-
spondent did not appear at Lamothe’s unemployment hearing,
choosing to file a written response. In the written response,
dated November 2, Lyon wrote that the reason Lamothe was
discharged was because he “indicated he no longer wanted the
temporary position for which hired.” In response to a question
why the Respondent considered his actions “deliberate,” Lyon
wrote: “omission of this information caused training to occurr
[sic] that was wasted time and expense.”
Lyon has been the Respondent’s human resources manager
since March 1998. As noted above, he denied meeting with or
interviewing Lamothe on September 1. According to Lyon, his
involvement in the hiring of Lamothe began with Richardson
telling him about Lamothe. Although he did not initially testify
as to when this conversation occurred, he recalled on cross-
examination that it was in late September. Lyon testified that
Richardson said at that time that there might be temporary jobs
created “down the road aways” and that Lamothe would be
interested in such a job. Lyon testified that this was the first
time Richardson spoke to him about Lamothe. Lyon did not
immediately contact Lamothe after his conversation with
Richardson. He first contacted Lamothe, also in late Septem-
ber, after the decision was made to create the temporary posi-
tion on the saturent line on second shift. According to Lyon, he
called Lamothe and discussed the temporary job openings that
had been created and asked if Lamothe was interested. He also
discussed Lamothe’s availability to fill such a position. When
Lamothe said he was interested, Lyon set up an interview for
him with the two supervisors, Hilton and Hebert. Lyon denied
meeting with or speaking to Lamothe when he came in for this
ROGERS CORP. 509
interview. Lyon testified that the supervisors reported to him
that Lamothe was qualified for the job. He recalled that they
also had discussed Lamothe’s class schedule in relation to the
job. Lyon then called Lamothe, sometime during the week of
October 11 and offered him the position. Lyon testified that he
explained to Lamothe that the job was the temporary position
on second shift that he had interviewed for and that it would
last 4–6 weeks. He recalled that Lamothe accepted the job,
saying that it would not interfere with his class schedule since
he had all day classes. Lyon gave Lamothe an October 18 re-
porting date and told him to come in early to meet with St. Jean
to fill out paperwork. According to Lyon, the first time he
actually met Lamothe was when he reported to work on Octo-
ber 18.
In addition to denying generally that he met with Lamothe
on September 1, Lyon also specifically denied telling Lamothe
that the Respondent did not have any permanent openings.
According to Lyon, the Respondent in fact hired four–five peo-
ple for permanent positions in September. The September 2000
seniority list in evidence shows seven employees with seniority
dates between September 9 and October 11, 1999. The senior-
ity list does not indicate what shift or job classification they
were hired to fill. However, other documents in the record
show that there were two job postings for second shift positions
in August and September for which there were no bidders. The
“Award of Open Positions” notice indicates that the Respon-
dent would fill these jobs by hiring from the outside. The
Award posting does not indicate the labor grade or any other
requirements for these particular jobs.
The Respondent put in evidence a copy of Lyon’s calendar
for August and September to support his testimony that he did
not meet with Lamothe on September 1. Although Lyon testi-
fied that he notes appointments for interviews on his calendar,
and the calendar in fact shows such appointments on September
1 with others, there is no notation regarding an interview with
Lamothe, on September 1 or any other date in those months.
On cross-examination, Lyon acknowledged that he does not
write everything in his calendar. He also acknowledged that
many of the entries are written in pencil and can be erased. The
calendars in evidence show that Lyon wrote in entries for Sep-
tember 1 on both the August calendar and on the September
calendar. The entries are not identical. For example, on the
August calendar, in the box after August 31, Lyon wrote in “9–
1–99” and the names of three people. He testified he inter-
viewed these people that day. He also wrote “12:30 job eval
commit” (sic). He testified that this was a meeting at the
Rogers plant to go over job descriptions for an assistant opera-
tor job at that plant. Finally, he wrote “2:30 2d step, PMU” a
reference to a grievance meeting at the Woodstock plant. There
is a line through this entry. The September calendar has only
one entry on September 1, i.e., the second-step grievance meet-
ing, without any line through it. Lyon did not explain the dis-
crepancy between the two calendars for the same day.
Although Lyon denies that he interviewed Lamothe, his tes-
timony indicates that this would have been a departure from the
normal hiring process. According to Lyon, he conducts an
initial screening of all applicants and then arranges an interview
with a team of two supervisors. Lyon testified further that he
does not give out blank applications to prospective employees.
He specifically denied giving one to Lamothe. According to
Lyon, applications are only given out by the receptionist when
there are job openings. The receptionist is also the only indi-
vidual to collect completed applications because she is respon-
sible for entering applicant data in the Respondent’s computer
for EEO purposes. It is only after this has been done that he
would review an application to determine if they are qualified
for the specific openings available at the time. Lyon did not
explain how it came to be that Lamothe filled out an application
on September 1 and was not interviewed until more than a
month later.
Hilton and Hebert testified for the Respondent regarding the
interview they conducted of Lamothe. Both recalled that the
interview was in late September or early October and that they
were interviewing Lamothe for a specific job, i.e., the tempo-
rary job for which he was hired. They both denied that there
was any discussion of permanent employment during the inter-
view. They also denied seeing Lyon before or after the inter-
view. According to Hilton and Hebert, they escorted Lamothe
to the exit to the back parking lot after the interview without
stopping at Lyon’s office. With regard to the interview itself,
they testified that they explained the temporary job to Lamothe
and discussed whether he would be able to work overtime
while going to school. They testified that Lamothe told them
that the overtime would not be a problem because it would not
conflict with his class schedule. While their testimony was
mutually corroborative, there was no sequestration order in
effect and Hebert was able to hear Hilton’s testimony. Hebert
even prefaced his testimony regarding Lamothe’s interview as
follows: “Like Mr. Hilton had said, . . . .” Both witnesses were
also present throughout the testimony of Lyon and Richardson.
Hilton testified on cross-examination that he interviewed ap-
proximately 50 people during the August–October period and
that there was nothing remarkable about Lamothe. Neverthe-
less, he was able to recall in significant detail this one interview
that occurred 1 year earlier. Hebert also testified, initially, that
he had to interview a few candidates for the temporary job and
that Lamothe was one of them. Later in his testimony, he said
that Lamothe was the only one he interviewed for this tempo-
rary job. Both Hilton and Hebert acknowledged that they often
will bring an applicant back to Lyon’s office after the inter-
view. However, they testified that they were certain that this
did not occur with Lamothe. Finally, neither witness was able
to recall how or by whom they were informed that they would
be interviewing Lamothe on that particular date.
Lyon testified that he learned that Lamothe had bid on a per-
manent job at the end of his first week of employment when the
bid cards were collected. The following Monday morning,
October 25, he talked to Richardson about this. According to
Lyon, he had some difficulty with Lamothe’s bid because it
indicated his interest in permanent employment. Lyon testified
that he met with Richardson to let him know that he would not
be awarding Lamothe the permanent job. He told Richardson
that he had only discussed temporary employment with
Lamothe when he was hired. Lyon testified that Richardson
told him to meet with Lamothe and, if it appeared that he had
been dishonest, to terminate him. Lyon explained that Lamothe
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD510
had indicated to him and Richardson that he was looking for
temporary employment. His bid on the permanent job indi-
cated to Lyon that this was not the case.
Richardson did not testify specifically about this meeting
with Lyon but did testify that he directed Lyon to meet with
Lamothe about his job bid. According to Richardson, he au-
thorized Lyon to terminate Lamothe unless he had a good ex-
planation for submitting the bid. Richardson testified that the
reason for this decision was his belief that Lamothe had misled
the Respondent when he was hired for the temporary position.
Richardson’s belief was based on what Lamothe told him dur-
ing the conversation they had when Lamothe came to the
Rogers plant looking for Lyon in late September. Richardson
also relied on what Lyon had reported was said in his conversa-
tions with Lamothe before he was hired.
As directed, Lyon met with Lamothe on Monday afternoon,
October 25. According to Lyon, he opened the meeting by
telling Lamothe that he wanted to speak to him because he had
learned that Lamothe bid on a permanent job at the other plant
whereas he had been hired for the temporary job at the Rogers
plant. Lyon testified that Lamothe responded that he really
wanted a permanent job. Lyon asked if Lamothe had told his
supervisor this. Lamothe said, no. Lyon told Lamothe that he
had not been forthcoming, that he had been hired and trained
for a specific temporary position and now, he was saying he
was not interested in that job. Lamothe told Lyon that his plan
all along was to take the temporary job, join the Union and take
the first permanent job that came along. According to Lyon, he
then told Lamothe that he had misled the company and that he
had to be terminated. Lyon denied that Lamothe offered to
withdraw the bid in order to keep the temporary job.
Lyon testified that the fact that Lamothe was attempting to
use the contractual bidding procedure had no bearing on his
decision. According to Lyon, he made the decision to termi-
nate Lamothe because Lamothe had misrepresented his interest
in the temporary job during the hiring process. Lyon testified
that the Respondent would terminate any employee who mis-
represented things during the hiring process. The Respondent’s
application does contain form language indicating that “em-
ployment and continuation of employment by [Respondent] is
predicated upon the truthfulness of the information supplied” in
the application. Nowhere on Lamothe’s application did he
indicate that he was seeking only temporary employment. On
the contrary, the application in evidence shows that Lamothe
checked “permanent,” not “temporary” for “type of employ-
ment desired.” Lyon admitted that he reviewed Lamothe’s
application before calling him about the temporary job and that
he took note of this fact.
Richardson testified similarly that he authorized Lyon to
terminate Lamothe, pending the outcome of Lyon’s meeting
with Lamothe, not because Lamothe had utilized the contrac-
tual bidding procedure but because of what that action repre-
sented. As noted above, Richardson believed that Lamothe
misrepresented himself when he expressed interest in and ac-
cepted the temporary job offered by the Respondent. At the
hearing, Richardson characterized this as misconduct. Richard-
son conceded that Lamothe never told him that he was only
interested in temporary employment. Richardson did not see
Lamothe’s application, on which he had checked “permanent
employment,” until shortly before the hearing. Richardson also
conceded that he was not present when Lyon spoke to Lamothe
before he was hired and does not know what Lamothe said at
that time.
Lyon and Richardson were both present at Lamothe’s third
step grievance meeting. Richardson agreed with the General
Counsel’s witnesses that Rivers told the Respondent that
Lamothe had offered to withdraw his bid in order to keep the
temporary job. Lyon testified that he did not recall this being
said. Both Lyon and Richardson testified, however, that they
would still have terminated Lamothe even if he withdrew his
bid. This contradicts a statement contained in a position letter
submitted by the Respondent’s counsel during the investigation
of the charge. In that letter, counsel stated that “Lyon indicates
that if Lamothe had stated his interest in remaining in the tem-
porary job, Rogers would not have terminated him since the
entire purpose for hiring Lamothe in the first place had been to
fill this temporary position.” Lyon testified that this statement
was not accurate, although he admitted being consulted by
counsel before the letter was sent. Lyon also conceded that he
received a copy of the letter after it was sent and reviewed it but
never pointed out this “inaccuracy.”5
At the hearing, Richardson claimed for the first time that the
Respondent has a policy of not hiring college students for per-
manent positions. According to Richardson, the reason for this
policy is that full-time, permanent employees must be able to
work any job on any shift and overtime when required. A col-
lege student would not be able to fulfill this requirement be-
cause of conflicts with classes and might ultimately have to quit
when faced with a choice of working or going to school. The
Respondent offered no documentary evidence to support
Richardson’s testimony that such a policy exists or has been
relied upon in the past to deny employment to a college student.
There is no dispute that no one ever told Lamothe that the Re-
spondent had such a policy.
The Respondent also contended, at the hearing as well as
earlier in its position letters and in its response to Lamothe’s
claim for unemployment benefits, that Lamothe’s “sudden in-
terest” in permanent employment caused the Respondent to
waste time and expense in training him for the temporary job
for which he was hired. At the hearing, the Respondent’s wit-
nesses testified that Lamothe had completed 1 week of training
at the time of termination. He was expected to complete the
training within the following week. The Respondent made a
decision in the same week he was terminated not to replace
Lamothe with another temporary employee.6 Instead, the Re-
spondent used other employees working overtime to meet the
additional production needs that the temporary job had been

5 The Board has long held that such position letters are admissible as
evidence in unfair labor practice proceedings. Bond Press, Inc., 254
NLRB 1227 fn. 19 (1981); Steve Aloi Ford, Inc., 179 NLRB 229 fn. 2
(1969).
6 The Respondent hired one other temporary employee at the same
time as Lamothe to run the machine that Lamothe was running. That
employee failed to show up for work on October 25, the same day that
the Respondent terminated Lamothe. He was also terminated. Re-
spondent had no temporary employees to run this job after October 25.
ROGERS CORP. 511
created to address. Briquier, Lamothe’s supervisor on the tem-
porary job, testified that the Respondent actually spent more
money by doing this than it would have if it retained Lamothe.
The record reveals that there was one other bid submitted for
the job that Lamothe bid on. The employee who submitted the
other bid, a permanent employee named Leo, withdrew his bid
at about the same time that the job was to be offered to him.
Lamothe remained as the only bidder for the job. Because the
Respondent decided not to award the job to Lamothe, it had to
hire someone from the outside. Lyon testified that he hired
Craig Fiske to fill the second shift rewind job that Lamothe
sought. Fiske was hired December 1 and bid on another job
within his first month on the job.
The parties disagree whether the collective-bargaining
agreement gives temporary employees the right to bid on per-
manent jobs. The General Counsel contends, based on Rivers’
testimony, that temporary employees have the same rights as
probationary employees to bid on permanent jobs. Richardson
and Lyon both testified that the Respondent has never allowed
a temporary employee to bid on a permanent job. The Respon-
dent cites the language in the agreement for the summer em-
ployee program, that summer employees are not eligible for
continuing employment beyond the summer program, as sup-
porting this interpretation of the contract.
The bidding procedure at issue is contained in the seniority
clause of the collective-bargaining agreement. Article 10, sec-
tion 10-2 provides that “seniority rights, dating from the date of
employment, shall be acquired after the employee has actually
worked 90 days.” During the first 90 days, a new employee is
probationary and may be terminated by the Respondent. Sec-
tion 10-4 describes the procedure for filling vacancies, promo-
tions, and determining layoffs. The contract provides that the
Respondent shall take into consideration seniority and ability in
filling vacancies, but where factors constituting ability are
equal, seniority governs. There is no dispute that, in filling
production jobs, as opposed to maintenance jobs, seniority is
the deciding factor because all employees are deemed capable
of learning any production job in the plant. Section 10-4 sets
forth the following order of preference for filling open posi-
tions:
1. 90-day displacement rights.
2. Promotion from within lines if they exist.
3. Job posting on the bulletin boards.
4. Assignment by seniority and preference of unas-
signed employees to permanent positions.
5. Assignment by seniority and preference of unas-
signed employees to temporary openings with the excep-
tion of those caused by vacation or temporary crew in-
creases.
6. Recall of laid-off employees.
7. Hire.
The same provision defines “unassigned persons” for pur-
poses of the above provisions as follows:
Unassigned person . . . shall mean a person who is not the of-
ficial incumbent of a permanent job because his/her seniority
(ability) is not sufficient to entitle him/her to any one of the
current assigned jobs established by the Company. Ability as
used in the preceding sentence shall mean physical ability;
and in cases where the open job to which the employee may
be assigned is at journeyman level, ability shall also include
skill.
Section 10-4 limits the number of times in a year that an em-
ployee may successfully bid and describes the procedure for
posting of jobs and submission of bids. Under section 10-4
(10), the Respondent must use this procedure to fill all jobs that
are not filled by 90-day rights or promotion except for “tempo-
rary openings” that are caused by illness or accident or that will
last no more than 60 days.7
It is undisputed that, while the contract does not define
“temporary employees,” such employees are included in the
bargaining unit and required to comply with the union-security
provision. Employees hired under the summer employee pro-
gram are considered temporary employees. The contractual
bidding procedure described above does not specifically define
who may bid on a job posting. As previously noted, the job
postings themselves encourage “all employees” to bid on open
positions.
The undisputed evidence in the record shows that the Re-
spondent has accepted bids from employees who were still in
their 90-day probationary period and has awarded job openings
to such individuals if no one with an earlier hire date submits a
bid. The documents placed in evidence by the General Counsel
reveal that some new employees have successfully bid on jobs
within their first week of employment. While acknowledging
this evidence, the Respondent’s witnesses contended that pro-
bationary employees have no “right” under the contract to bid
on jobs. According to Richardson, the Respondent has permit-
ted such bidding and awarded jobs to probationary employees
when no other nonprobationary employee has submitted a bid.
Richardson testified that the Respondent allows probationary
employs to bid on jobs even during their training period, be-
cause it is in the Respondent’s interest that new employees find
a position they like as soon as possible so that they will remain
in the Respondent’s employ for the long term. A temporary
employee, like the summer students and Lamothe, is different
because such employees are hired to fill a specific need with no
expectation that they will remain after the 60-day period is
done.
Lyon and Richardson testified that they were not aware of
any temporary employee submitting a bid for a permanent job
before Lamothe did. Although the union president, Rivers,
testified that temporary employees have the same right that a
probationary employee has to bid on a job, he was able to recall
only one temporary employee ever having done so. Rivers
testified that his son, John Rivers, started as a summer em-
ployee while going to school. He continued as a permanent
employee and has worked for the Respondent ever since. The
seniority list in evidence shows that his hire date is July 22,
1991. This testimony is uncontradicted.

7 The contract does require postings of temporary openings caused
by illness or accident where a doctor determines that the absent em-
ployee will not return within 45 days. When temporary openings are
posted, the contract defines how those openings are to be filled.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD512
B. Factual Findings
The above recitation of the evidence reveals several signifi-
cant factual disputes requiring a credibility resolution. The first
is whether Lamothe met with Lyon on or about September 1
regarding his interest in a permanent job. As previously noted,
Lyon insists he never interviewed Lamothe. I find that
Lamothe’s recollection of events is more plausible than that of
Lyon. Although Lamothe had difficulty recalling some dates
and details of events, he generally impressed me as a more
truthful witness. In addition, Lamothe’s testimony makes more
sense in the context of other evidence in the record. There is no
dispute that Rivers spoke to Richardson in late August or early
September after Lamothe asked for his help in getting a job. It
is more than likely that it was as a result of this conversation
that Lamothe filled out the application on September 1. More-
over, based on his description of the hiring process, it is more
probable than not that Lyon would have interviewed Lamothe
around the time that he filled out his application, particularly if,
as Lyon claims, there were in fact job openings at the time. In
addition, Richardson’s encounter with Lamothe later in Sep-
tember only makes sense if Lamothe had previously met with
Lyon. As Richardson testified, he found Lamothe in the hall-
way by Lyon’s office. When he questioned Lamothe about his
presence there, Lamothe indicated he was looking for Lyon
about a job. Why would Lamothe have gone to the plant in
search of Lyon if he had never met the man or spoken to him
about a job? It makes more sense that Lamothe was at the plant
that day, looking for Lyon, because Lyon told him to check
back with him from time-to-time.
In crediting Lamothe over Lyon, I have also considered the
fact that the two supervisors, Hilton and Hebert, seem to cor-
roborate Lyon regarding the timing of the interview and Lyon’s
lack of contact with Lamothe. However, as noted previously,
this testimony was only elicited after Hilton and Hebert had
heard Lyon’s version of events and after Hebert had been influ-
enced by Hilton’s testimony regarding the interview. The de-
tailed recollection of how they encountered Lamothe, what they
talked about and what happened at the end of the interview is
suspect in light of Hilton’s admission that he had conducted 50
interviews around that time and that there was nothing about
Lamothe that stood out. I also note that their apparently clear
recollection of those facts that supported the Respondent’s case
was in contrast to their total lack of recall regarding neutral
details such as how they got the assignment to interview
Lamothe in the first place. Accordingly, I credit Lamothe’s
testimony that his interview with Hilton and Hebert occurred on
or about September 1 after he first met with Lyon.
Having found that Lamothe in fact met with Lyon on or
about September 1 regarding his job application, I also credit
him regarding what was said at that meeting. Specifically, I
find that Lamothe told Lyon that he was seeking permanent
employment, just as he had indicated on the application. In
response to Lyon’s inquiry whether Lamothe would accept a
temporary position if no permanent positions were available,
Lamothe sought assurance that doing so would not jeopardize
his chances for permanent employment. Lyon assured him that
he would have the same rights as other employees to bid on
jobs, even though he would be a temporary employee.
Lamothe’s testimony that Lyon told him there were no open-
ings at the time appears to conflict with documentary evidence
showing there were at least two openings on second shift in
early September and that several new employees were hired
around that time. I do not find this fatal to Lamothe’s credibil-
ity as the record contains no information regarding these open-
ings and whether Lamothe would have qualified for them. Nor
does the record identify what jobs people were hired to fill in
September and early October. In addition, Lyon testified that it
usually takes at least 3 weeks from his initial screening inter-
view of an applicant to the date of hire. Therefore, the process
of hiring those individuals who started work in September may
have already begun by the time Lyon met with Lamothe. Thus,
Lyon’s statement during the interview that there were no job
openings may have been accurate because at that time there
were no specific jobs for which Lamothe qualified.
Lyon and Lamothe also disagree about what was said during
his discharge interview on October 25. Lyon denies that
Lamothe offered to withdraw his bid in order to retain his tem-
porary job. I do not find this denial credible. As previously
noted, Lyon’s denial that Lamothe offered to withdraw his bid
is contradicted by Richardson, who recalled Rivers referring to
such an offer at the third step grievance meeting. In addition,
the testimony of Lyon and Richardson that the Respondent
would have terminated Lamothe even if he had withdrawn the
bid is contradicted by the position letter submitted by the Re-
spondent’s attorney during the investigation. The attorney
stated that Lyon said that the Respondent would not have ter-
minated Lamothe if he withdrew the bid. Lyon admitted being
consulted by the attorney before the position letter was submit-
ted. Thus, Lyon was compelled to deny at the hearing that such
an offer was made even though his denial was contradicted by
Richardson. In discrediting Lyon, I also note the testimony of
Rivers that Lyon had a reputation for untruthfulness in his deal-
ings with the Union.8
The undisputed and credited evidence in the record estab-
lishes that Lamothe sought permanent employment with the
Respondent after his summer job ended by enlisting the aid of
Union President Rivers, that Rivers spoke to Richardson on his
behalf and that, as a result of these communications, Lyon in-
vited Lamothe to come in and fill out an application. The
credible evidence establishes further that, on September 1,
Lamothe met with Lyon, filled out an application indicating his
desire for permanent rather than temporary employment, and
was interviewed by Lyon and two of the Respondent’s supervi-
sors. During his interview with Lyon, Lamothe was asked if he
would accept temporary employment if no permanent openings
were available. I have found that, in response, Lamothe told
Lyon that he would accept such an offer only if accepting tem-
porary employment would not jeopardize his chance for a per-
manent job. Lyon assured him that he would have the same
right to bid on openings as any other employee.
The undisputed evidence also shows that Lamothe had a con-
versation with Richardson toward the end of September in
which Richardson acknowledged that he was aware of

8 Such testimony is admissible and may be weighed in evaluating
credibility under Rule 608 (a) of the Fed.R.Evid.
ROGERS CORP. 513
Lamothe’s interest in employment and told Lamothe that there
might be some temporary openings in the near future. Al-
though Lamothe expressed interest in such a position, he did
not disavow the interest in permanent employment expressed in
his employment application. On or about October 14, when
Lyon called to offer a temporary position to Lamothe, he re-
viewed Lamothe’s application and was aware that Lamothe had
expressed interest in permanent employment. There is no dis-
pute that, in accepting the temporary position, Lamothe did not
tell Lyon that he was no longer interested in permanent em-
ployment.
There is no dispute that Lamothe submitted a bid on a per-
manent position during his first week of employment and that
the Respondent terminated him immediately upon becoming
aware that he had submitted the bid. The Respondent admits
that it rejected Lamothe’s bid even though he was the only
bidder for the job. At the time he was terminated, Lamothe was
told that he was being terminated because he had submitted a
bid for a permanent job when he had been hired for a temporary
position. Lyon told Lamothe that the Respondent believed he
had misled the Respondent when he accepted the temporary
job. Lamothe denied this, reminding Lyon that he had told him
about his interest in permanent employment at his first inter-
view. I have already found that Lamothe offered to withdraw
his bid and remain on the temporary job, but Lyon declined this
offer.
In response to a grievance filed by the Union on Lamothe’s
behalf, Richardson told the Union that it had fired Lamothe
because he had expressed interest in a permanent position. The
Respondent denied the grievance at the third and fourth steps
solely on the ground that Lamothe’s termination was not griev-
able because he was a probationary employee. In response to
his claim for unemployment benefits, the Respondent claimed
that it terminated Lamothe because he indicated that he no
longer wanted the temporary job for which he was hired and
that this caused the Respondent to waste time and money train-
ing him for this job. The Respondent took the same position in
its initial response to the unfair labor practice charge, i.e., that
his bid on a permanent job was contrary to the interest in tem-
porary employment he had expressed when hired. In response
to the charge, the Respondent also took the position that it
would not have terminated Lamothe had he expressed interest
in remaining on his temporary job. At the hearing, Richardson
and Lyon contradicted their attorney by testifying that they
would have terminated Lamothe even if he offered to withdraw
his bid because he had been dishonest during the hiring process.
Also at the hearing, Lyon and Richardson for the first time
characterized Lamothe’s actions as “misconduct” and Richard-
son added, as a further ground for his decision to terminate
Lamothe, that the Respondent has a policy of not hiring college
students for permanent jobs.
C. Legal Analysis
The Supreme Court in City Disposal Systems, supra, ap-
proved of the Board’s interpretation of Section 7 of the Act as
including, within the definition of “concerted activity,” an indi-
vidual employee’s “reasonable and honest invocation of a right
provided for in his collective-bargaining agreement.” Such
activity falls within the “mutual aid and protection” clause even
if the individual employee has his own interests most immedi-
ately in mind. 465 U.S. at 830. The Court agreed with the
Board that the employee did not have to make an explicit refer-
ence to the collective-bargaining agreement when invoking his
rights as long as it was reasonably clear that the right asserted
was one encompassed by the agreement. Id. at 839–840. The
Court also agreed with the Board that an employee’s invocation
of a perceived contractual right was protected regardless of
whether the employee turned out to have been correct in his
belief as to his rights. Id. at 840. See also Interboro Contrac-
tors, supra. Accord: Union Carbide Corp., 331 NLRB 356
(2000). In a case remarkably similar to the instant case, the
Board held that a probationary employee was engaged in pro-
tected concerted activity under the Interboro doctrine when he
bid on a job opening and later refused to withdraw his bid even
though the contract did not clearly give him the right to bid.
Anaconda Aluminum Co., 160 NLRB 35, 40–41 (1966).
I find that Lamothe’s conduct in submitting a bid for the
permanent opening at the Woodstock plant was protected con-
certed activity under Section 7 of the Act. Although the collec-
tive-bargaining agreement does not explicitly give employees
in temporary jobs the right to bid, it does not expressly prohibit
such bids. In fact, the contract is silent as to the rights of tem-
porary employees who, it is undisputed, are part of the bargain-
ing unit. The fact that the parties specifically provided in their
agreement for the summer employee program that summer
employees could not bid on permanent jobs does not establish
that temporary employees who were not working under the
summer program were likewise restricted. If this were the case,
there would have been no need to write a separate agreement
for the summer program. In any event, the issue is not whether
Lamothe in fact had the right to submit his job bid but whether,
in doing so, he “reasonably and honestly” believed he was ex-
ercising a right under the contract. In light of what he had been
told by the Union’s president and by Lyon when he first sought
permanent employment and in light of the other evidence in the
record showing that probationary employees routinely bid on
jobs soon after being hired, I find that he was acting reasonably
and honestly in seeking a permanent position under the contrac-
tual job posting procedures.
The Respondent argues that Lamothe was not terminated be-
cause he submitted a job bid under the collective-bargaining
agreement, but because his action in doing so was dishonest
because he misled the Respondent regarding his interest in
temporary employment. I do not agree. From his first contact
with the Respondent on September 1, Lamothe expressly stated
his interest in a permanent job. At no time did he tell Lyon or
Richardson that he had changed his mind. The fact that he
accepted a temporary job because no permanent job was of-
fered was not “dishonest.” Lyon and Richardson need only
have looked at his application to learn of Lamothe’s interest in
permanent employment. If anyone was “misled” it was
Lamothe. Lyon told him on September 1 that he would not be
precluded from bidding on a permanent job if he accepted tem-
porary employment only to fire him when he did so.
The Board has recently held that where the conduct for
which an employee is discharged is intertwined with protected
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD514
concerted activity, the Board’s Wright Line9 analysis does not
apply. Felix Industries, 331 NLRB 144, 146 (2000); Nor-Cal
Beverage Co., 330 NLRB 610, 611–612 (2000). Here, the
Respondent’s claim that Lamothe misled the Respondent is
inextricably intertwined with his invocation of a perceived right
under the contract to bid on a job posting. It was the job bid
that triggered the discharge. Thus, the Respondent cannot show
that it would have fired Lamothe even if he did not submit the
job bid because it was the bid that precipitated the Respon-
dent’s action. Although Richardson also asserted at the hearing
that the Respondent has a policy of not hiring college students
for permanent jobs, such a policy, assuming it exists, would not
require the discharge of a temporary employee who expressed
interest in permanent employment. In any event, the Respon-
dent never advanced this reason before the hearing and never
told Lamothe that such a policy existed. Based on the above, I
find that the Respondent discharged Lamothe in violation of
Section 8(a)(1) of the Act because he invoked a right he rea-
sonably and honestly believed he had under the Respondent’s
collective-bargaining agreement with the Union. Anaconda
Aluminum Co., supra.
The complaint also alleges that the Respondent’s refusal to
grant, or consider granting, Lamothe the permanent position he
bid on was unlawful. This is a more difficult issue. Although
the record is replete with evidence of probationary employees
being awarded jobs through the bidding procedure when no
nonprobationary employee has submitted a bid and Lamothe
was characterized as both a probationary and temporary em-
ployee, there is scant evidence of an employee in a temporary
job being awarded a job under similar circumstances. The con-
tract is silent on this issue. The only evidence of a temporary
employee getting a permanent job is Rivers’ undisputed testi-
mony that his son started as a temporary summer employee in
1991, and has worked continuously for the Respondent ever
since. It must be determined whether the Respondent’s rejec-
tion of Lamothe’s bid was because he asserted a right under the
contract to bid on the job or because the Respondent reasonably
believed that he was not eligible for the job because of his
status as a temporary employee. If it is the latter, then the Re-
spondent’s rejection of Lamothe’s bid would be lawful even
though its decision to terminate him was not.10
The collective-bargaining agreement does provide some as-
sistance in resolving this question. Under article 10, section
10-4, setting forth the order of preference for filling open posi-
tions, “assignment by seniority and preference of unassigned
employees to permanent positions” is listed fourth, after job
posting on bulletin boards. The contractual definition of “unas-
signed employees” would appear to include someone in a tem-
porary position like Lamothe. In fact, the form filled out by St.

9 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
10 The Respondent did not have to terminate Lamothe even if it rea-
sonably believed he had no right to bid on a permanent job. To act
lawfully, the Respondent merely had to reject the bid and tell Lamothe
that he was not eligible. Lamothe would have remained in the tempo-
rary job and no unfair labor practice could be found. Lamothe even
offered to withdraw his bid. The Respondent’s rejection of this offer is
further evidence of the true motive behind its decision to terminate him.
Jean when Lamothe started working on October 18 identifies
his job title as “unassigned.” Moreover, because the Respon-
dent rejected Lamothe’s bid, the award notice posted on the
bulletin board indicated that the Respondent would fill this
position by hiring from the outside, which it did. The Respon-
dent has indicated no reason why it could not have “hired”
Lamothe for this position after his temporary job was com-
pleted. After all, he did submit an application for permanent
employment. The individual hired by the Respondent to fill the
permanent position that Lamothe sought did not start until De-
cember 1. Lamothe’s temporary job, which started on October
18, was only expected to last 4–6 weeks and would have ended
around the same time. In light of these facts, I conclude that
the Respondent rejected Lamothe’s bid and refused to consider
him for the permanent second shift rewind operator job at the
Woodstock plant because he had attempted to invoke a per-
ceived right under the contract. Accordingly, I find that the
General Counsel has met his burden as to this allegation as
well.
CONCLUSION OF LAW
By refusing to grant, or consider granting, a permanent posi-
tion to Jeremiah Lamothe and by terminating him on October
25, 1999, because he reasonably and honestly invoked a right
under the Respondent’s collective-bargaining agreement with
the Union, the Respondent has engaged in unfair labor practices
affecting commerce within the meaning of Section 8(a)(1) and
Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act. The Respondent having unlawfully
discharged an employee, it must offer him reinstatement and
make him whole for any loss of earnings and other benefits,
computed on a quarterly basis from date of discharge to date of
proper offer of reinstatement, less any net interim earnings, as
prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950).
Because the Respondent unlawfully refused to grant, or con-
sider granting, Lamothe a permanent position, I shall recom-
mend that it offer such a position to Lamothe and make him
whole for any wages and benefits he lost as a result of not being
awarded the second shift rewind operator position for which he
submitted a bid.
In addition to backpay, the General Counsel seeks an award
of interest compounded on a daily basis in lieu of the simple
interest normally awarded with backpay under New Horizons
for the Retarded, 283 NLRB 1173 (1987). The General Coun-
sel argues that an assessment of simple interest rather than
compounded interest rewards tardy compliance with Board
orders and undercompensates the victims of unfair labor prac-
tices for their monetary losses. The General Counsel notes
further that the Internal Revenue Service, whose interest rate
the Board applies to its backpay awards, compounds interest on
underpayment and overpayment of taxes. According to the
General Counsel, compounding interest on Board backpay
awards would be consistent with the practice in the Federal
ROGERS CORP. 515
courts and other administrative agencies dealing with employ-
ment litigation. Having considered the arguments made by the
General Counsel and noting the Board has in the past indicated
an interest in modifying its procedures for calculating interest
on backpay awards,11 I shall recommend that the Board award
interest compounded on a daily basis in this case. Such an
award is fair, consistent with Federal practice, and advances the
Board’s policy of making individuals truly whole for any
monetary loss they suffered as a result of a respondent’s unfair
labor practices.
The General Counsel also seeks to modify the Board’s cus-
tomary order requiring a Respondent to preserve and make
available to the Board, all payroll and other records necessary
to calculate backpay by requiring that the Respondent produce

11 Alaska Pulp Corp., 300 NLRB 232 fn. 4 (1990).
such records at any office designated by the Board. The Gen-
eral Counsel also seeks to include electronic copies of such
records where they are available. The General Counsel argues
generally that imposing this additional requirement is necessary
because of problems that sometimes arise in obtaining volun-
tary compliance with the Board’s standard provision. In the
absence of any empirical evidence as to the extent of non-
compliance with the Board’s standard language and in the ab-
sence of any evidence that the Respondent is likely to attempt
to avoid its obligations to assist the Board in the calculation of
backpay, I am reluctant to impose any new requirements. The
change sought by the General Counsel would seem more ap-
propriately accomplished through the Board’s rulemaking pro-
cedures.
[Recommended Order omitted from publication.]