Schaeff Inc.

National Labor Relations Board - Board Decisions

May 16, 1996

321 N.L.R.B. 202 (N.L.R.B. 1996)

202
321 NLRB No. 34
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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 in accordance
with our decision in Indian Hills Care Center, 321 NLRB No. 23
(May 8, 1996).
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
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.’’
Schaeff Incorporated and Darren McCleary, Rich-
ard Pedersen and Tom Massey. Case 18–CA–
13341
May 16, 1996
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
On August 5, 1995, Administrative Law Judge Wil-
liam J. Pannier III issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order as modi-
fied and set forth in full below.2
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, Schaeff Incorporated, Sioux City, Iowa,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against
Tom Massey, Darren Ray McCleary, Richard A. Pe-
dersen, or any other employee because of actual or
suspected union activity, or because of any other activ-
ity protected by Section 7 of the Act.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
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
Tom Massey full reinstatement as material handler 3 in
the first-shift weldry department as it existed on Octo-
ber 12, 1994, or, if that job no longer exists, to a sub-
stantially equivalent position, without prejudice to his
seniority or any other rights or privileges previously
enjoyed.
(b) Make Massey 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 sec-
tion of the decision.
(c) Within 14 days from the date of this Order, offer
Darren Ray McCleary and Richard A. Pedersen full re-
instatement as final assembly positions on the first
shift as those positions existed on October 13, 1994,
or, if those jobs no longer exist, to substantially equiv-
alent positions, without prejudice to their seniority or
any other rights or privileges previously enjoyed.
(d) Make Darren Ray McCleary, and Richard A. Pe-
dersen whole for any loss of earnings and other bene-
fits suffered as a result of the discrimination against
them, in the manner set forth in the remedy section of
the decision.
(e) Within 14 days from the date of this Order, re-
move from Tom Massey’s, Darren Ray McCleary’s,
and Richard A. Pedersen’s files any reference to the
unlawful discharges, and within 3 days thereafter no-
tify the employees in writing that this has been done
and that the discharges will not be used against them
in any way.
(f) Within 14 days from the date of this Order, re-
move from its files any reference to the unlawful dis-
charges, and within 3 days thereafter notify the em-
ployees in writing that this has been done and that the
discharges will not be used against them in any way.
(g) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination
and copying, all payroll records, social security pay-
ment records, timecards, personnel records and reports,
and all other records necessary to analyze the amount
of backpay due under the terms of this Order.
(h) Within 14 days after service by the Region, post
at its Sioux City, Iowa facility copies of the attached
notice marked ‘‘Appendix.’’3 Copies of the notice, on
forms provided by the Regional Director for Region
10, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material. In
the event that, during the pendency of these proceed-
ings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the
Respondent shall duplicate and mail, at its own ex-
pense, a copy of the notice to all current employees
and former employees employed by the Respondent at
any time since October 20, 1994.
203SCHAEFF INC.
1 Unless stated otherwise, all dates occurred during 1994.
2 I excluded an, in effect, summary of ‘‘demographics . . . of ter-
minations’’ (R. Exh. 9), on objection of the General Counsel. Ac-
cording to a witness for Schaeff Incorporated, the summary had been
prepared ‘‘for purposes of the hearing.’’ However, the official who
had prepared it was not called as a witness, nor was she even in
the hearing room, at least so far as I could ascertain. The summary
was offered near the end of the final day of hearing, at the conclu-
sion of direct examination of the final witness for Schaeff Incor-
porated. The documents underlying the summary had not previously
been made available to the General Counsel for examination and, in-
deed, all of those documents may not have been even in the hearing
room. Fed.R.Evid. 1006 allows presentation of summaries, but only
on condition that ‘‘originals, or duplicates, shall be made available
for examination or copying, or both, by other parties at reasonable
time and place.’’ Not only was there noncompliance with that condi-
tion, but the offer of such a summary at so belated a point in a hear-
ing, and without making available the individual who compiled it,
is disruptive and unfair to other parties. Thus, I sustained the objec-
tion and excluded R. Exh. 9.
(i) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a
responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to
comply.
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.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT discharge or otherwise discriminate
against Tom Massey, Darren Ray McCleary, Richard
A. Pedersen, or any other employee because they en-
gage in union activities or because we suspect that
they are engaging in union activities, nor because they
engage in any other activity protected by Section 7 of
the Act.
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 within 14 days from the date of this
Order, offer Tom Massey full reinstatement as material
handler 3 in the first-shift weldry department as it ex-
isted on October 12, 1994, 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.
WE WILL make Massey whole for any loss of earn-
ings and other benefits suffered as a result of the dis-
crimination against him, with interest.
WE WILL within 14 days from the date of this
Order, offer Darren Ray McCleary and Richard A. Pe-
dersen full reinstatement as final assembly positions on
the first shift as those positions existed on October 13,
1994, or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their senior-
ity or any other rights or privileges previously enjoyed.
WE WILL make Darren Ray McCleary, and Richard
A. Pedersen whole for any loss of earnings and other
benefits suffered as a result of the discrimination
against them, with interest.
WE WILL within 14 days from the date of this
Order, remove from Tom Massey’s, Darren Ray
McCleary’s, and Richard A. Pedersen’s files any ref-
erence to the unlawful discharges, and within 3 days
thereafter notify the employees in writing that this has
been done and that the discharges will not be used
against them in any way.
WE WILL within 14 days from the date of this
Order, remove from its files any reference to the un-
lawful discharges, and within 3 days thereafter notify
the employees in writing that this has been done and
that the discharges will not be used against them in
any way.
SCHAEFF INCORPORATED
Florence I. Brammer, Esq., for the General Counsel.
Gerald M. Richardson (Greensfelder, Hemker & Gale), of
St. Louis, Missouri, for the Respondent.
DECISION
STATEMENT OF THE CASE
WILLIAM J. PANNIER III, Administrative Law Judge. I
heard this case in Sioux City, Iowa, on April 4 and 5, 1995.
On January 19, 1995, the Regional Director for Region 18
of the National Labor Relations Board (the Board) issued a
complaint and notice of hearing, based on an unfair labor
practice charge filed on October 20, 1994,1 alleging viola-
tions of Section 8(a)(1) and (3) of the National Labor Rela-
tions Act (the Act). All parties have been afforded full op-
portunity to appear, to introduce evidence,2 to examine and
cross-examine witnesses, and to file briefs. Based on the en-
tire record, on the briefs which were filed, and on my obser-
vation of the demeanor of the witnesses, I make the follow-
ing findings of fact.
204 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 It is admitted that, in the course and conduct of those business
operations during calendar year 1994, Respondent purchased goods
valued in excess of $50,000 which were received at its Sioux City
facility directly from points outside of Iowa and, moreover, that it
sold goods valued in excess of $50,000 which were shipped from
that facility directly to points outside of Iowa. Therefore, at all mate-
rial times, Respondent has been an employer engaged in commerce
within the meaning of Sec. 2(2), (6), and (7) of the Act.
4 For example, it lists Phillip Dyke as a ‘‘Welder 4.’’ However,
an abstract of ‘‘JOBS ELIMINATED IN 1994’’ (R. Exh. 5) recites
that Dyke is a ‘‘Material Handler 3’’ and, further, that his job had
been eliminated on ‘‘9/13/94.’’
5 In addition to being Respondent’s executive vice president and
general manager, Isaac Avitan chose to serve as its director of engi-
neering and product support. In that capacity, a number of people
in that department reported directly to Avitan, though their names
and titles are not material to the issues posed in this proceeding.
6 The record concerning painting is not altogether clear. McCleary
testified that ‘‘the body comes out of the paint house’’ to phase one
of the assembly department. Rawlings testified that painting ‘‘is
not’’ part of the assembly department: ‘‘Paint shop is under the paint
foreman.’’ Still, Respondent’s October 6 organizational chart lists no
paint foreman and, moreover, lists painter 1 and painter 2 classifica-
tions under the assembly foreman, Rawlings for first shift, and a
then unoccupied assembly foreman position for second shift.
I. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
This case presents an issue of motivation for terminations
of three employees—material handler 3, Tom Massey; and
final assembly employees, Darren Ray McCleary and Rich-
ard A. Pedersen—on October 12 and 13. When they were
terminated, each one received a letter dated October 12, the
first paragraph of which reads:
Due to restructuring in the Operations Department there
are several positions that will be eliminated at this time.
We regret to inform you that your position is one of
those being eliminated. These changes are effective im-
mediately.
Schaeff Machine Fabrik GMBH and company manufac-
tures in Germany construction loaders, lift trucks, excavators,
and scrap handlers. Its president is Carl Schaeff. It is the par-
ent company of Schaeff Incorporated (Respondent), which is
an Iowa corporation with an office and place of business in
Sioux City, Woodbury County, Iowa. There, it engages in
the manufacture and in the nonretail sale and distribution of
industrial electric forklift trucks.3 For example, Respondent
manufactures Models E3, E4, and E5 Electric Stand-up
Counterbalance Lift Trucks, Model MT50 Electric Material
Transport Vehicles, and Models TT400 and TT600 Electric
Sit-Down Tow Trucks.
In June 1992, Carl Schaeff appointed Isaac Avitan as Re-
spondent’s executive vice president and general manager.
Avitan continued to occupy those positions to the time of the
hearing in this matter.
During the hearing Respondent produced an organizational
chart (G.C. Exh. 20) effective as of October 6. It lists every-
one, employees and supervisors, employed by Respondent as
of that date. Shown on that chart are 168 names. However,
the chart is not altogether accurate.4 Nevertheless, the chart,
augmented by certain testimony and other evidence, is useful
for certain purposes, including as a basis for describing Re-
spondent’s supervisory structure during the period imme-
diately preceding the allegedly unlawful terminations.
At that time, reporting directly to Isaac Avitan had been
Respondent’s controller, vice president for sales and market-
ing, human resources manager, and operations manager, as
well as an administrative assistant.5 From August 1992
through December 1994 the human resources manager had
been Sherrie Avitan, the wife of Isaac Avitan. Thereafter, she
became assistant human resources manager, a position that
she continued to occupy at the time of the hearing, and has
been succeeded as human resources manager by Diane Gib-
son. According to the organizational chart, on October 6
Gibson had been technical publications manager.
Tom Winner became operations manager in mid-May. He
continued to occupy that position at the time of the hearing.
Reporting to him are, he estimated, 13 department super-
visors. As of October 6, two of them were First-Shift Pro-
duction Manager Leo Simsic, who left Respondent’s employ-
ment during November, and Second-Shift Production Man-
ager Steve Benson. In addition to the electronics manufactur-
ing supervisor, as of October 6 four foremen reported to
Simsic. Two were Weldry Foreman Mike Hofer Jr. and As-
sembly Foreman Brian Rawlings. During December the fab-
rication foreman’s position was combined with that of
weldry foreman. Hofer then occupied that consolidated posi-
tion and continued doing so at the time of the hearing. Not-
withstanding his title of ‘‘Asst. Foreman’’ recited on the Oc-
tober 6 organizational chart, Rawlings testified that he had
been production foreman since July 18.
Respondent admits that Isaac and Sherrie Avitan, Winner,
Hofer, and Rawlings had each been a statutory supervisor
and agent of Respondent, within the meaning of the Act, at
all material times. Those five supervisors were the only wit-
nesses called by Respondent to testify about the mid-October
terminations of Massey, McCleary, and Pedersen. To better
understand the facts of those terminations, it is necessary to
describe, at least generally, the forklift production progres-
sion at Respondent’s Sioux City facility.
According to Winner, before the mid-October termi-
nations, the steps in that process were what ‘‘we call a phase
one, phase two. At the same time we do a mast assembly.
We hang the truck together, test it. From testing it went to
final assembly, QA, and out the door.’’ So far as it goes, that
description was essentially corroborated by Rawlings. For, he
testified that, as production foreman, he supervises the as-
sembly department which includes phase one, phase two,
masting, and subassembly. Before reaching the assembly de-
partment, however, certain preliminary processes are under-
taken.
Before reaching the assembly department, electronic com-
ponents are built and, as described by Rawlings, moved to
the assembly department ‘‘for us to either preassemble or put
on the trucks.’’ In addition, certain components are fab-
ricated, by employees classified as fabricators and drilling,
by drill press, is performed in the machine shop. Certain
components are welded by employees classified as welders.
Those employees worked under the supervision of welding
foremen, such as Hofer, during October. Components are
also painted.6
Once those components reach the assembly department,
phase one employees install all major hydraulics and steering
205SCHAEFF INC.
7 There is no contention that ‘‘Workers Have Rights, Too’’ is a
labor organization within the meaning of Sec. 2(5) of the Act.
components. Employees in phase two install the major elec-
trical systems and the overheads where lights will be mount-
ed. Masting works on the fork portion of the trucks. Employ-
ees there assemble rails or forks to their carriages. Then, em-
ployees in subassembly, according to Rawlings, ‘‘assemble
the different parts or motors that go onto the truck itself.’’
Testing for pressure is conducted and, before the mid-Octo-
ber terminations, forklifts would then move to final assem-
bly.
There, as the title implies, work on forklifts was finalized.
According to Rawlings, corporate and operator’s manual
warning decals were affixed, floor pads were mounted on
floor panels, and touchup painting was performed. Rawlings
also testified that final assembly employees sometimes bolted
hose reels to the masts and, ‘‘[o]nce in a while,’’ mounted
or bolted lights on overhead brackets. McCleary and Peder-
sen testified that, when working in final assembly, they had
regularly installed all lights, according to McCleary both
safety lights and, also, rear and headlights. Moreover, both
testified, without actual contradiction by Respondent’s wit-
nesses, that they put control tops on electrical panels, in-
stalled freezer conditioning for the SER board, and installed
the backup alarms and push-pulls. In addition, testified Pe-
dersen, they did some hydraulic work and McCleary testified
that they installed relay switches, side shifters, and limit
switches. From final assembly, forklifts went to quality as-
surance and, after clearance there, were shipped to cus-
tomers.
By the time of Isaac Avitan’s appointment as vice presi-
dent and general manager, during June 1992, Respondent’s
financial situation had deteriorated as a result of dwindling
sales and losses. According to Avitan, Carl Schaeff directed
him to ‘‘[r]ebuild the company.’’ Over the course of the
suceeding 2-1/2 years, Avitan attempted to do so. Respond-
ent argues that the mid-October terminations had been noth-
ing more than one aspect of that continuing extended effort
to improve Resondent’s financial situation. In that regard,
Respondent points out that, in addition to Massey, McCleary,
and Pedersen, mid-October terminations had been effected
also of Production Inventory Control Manager Bruce Tomes,
of Manufacturing Projects Engineer Ty Miller, and of Special
Projects Coordinator Dave Wiffen. The fact that those latter
three individuals had been terminated at the same time as the
alleged discriminatees, contends Respondent, evidences that
there had been no unlawful motive for the terminations of
Massey, McCleary, and Pedersen. Still, the latter three indi-
viduals had been the only production employees of the six
whose positions were eliminated during mid-October.
McCleary began working for Respondent during early
April 1989. He worked continuously for it until his mid-Oc-
tober termination, always on the first, or the day shift. For
the first 6 months he had worked in phase one. Then, he was
transferred to final assembly. He worked there until termi-
nated. Over the course of that approximately 5-year period,
he worked temporarily, for brief periods, in subassembly, in
the machine shop, operating a drill press, and in quality as-
surance.
Pedersen began working for Respondent during late June
or early July 1993, based on information contained in the
October 6 organizational chart and on information recorded
in the only performance planning and appraisal review re-
ceived by Pedersen, during January (G.C. Exh. 8). After ‘‘a
couple of days’’ working as a painters’s helper, he had been
transferred to final assembly where he worked until he sus-
tained an injury during October 1993. Toward the end of
1993 he was assigned to work on the MT50 assembly line,
still in the assembly department. He continued to work there
during the first couple of months of 1994, in the process re-
ceiving the above-mentioned appraisal. He then returned to
final assembly where he worked until his termination. Like
McCleary, when work was slow in final assembly, Pedersen
worked temporarily elsewhere: in subassembly, in the ma-
chine shop, operating a drill press, and in quality assurance.
Apparently the effects of his 1993 injury continued to
plague him throughout 1994. By letter dated September 20,
Pedersen’s chiropractor stated that Pedersen should be as-
signed work involving no bending or twisting and, moreover,
involving lifting of no more than 10 pounds. Those restric-
tions remained in effect at the time of his termination during
the middle of the following month.
Massey had been employed by Respondent since June 21,
1993, working continuously as a material handler until his
termination. For over a year after being hired, he worked on
the first shift in the warehouse. There, he moved parts to
other departments and maintained inventory. During the sum-
mer of 1994 he was transferred to the second-shift weldry
department where he moved components to locations in that
department where they would be welded and, then, moved
welded components to the next area for continued produc-
tion. After working approximately 2 months on second shift,
Massey was transferred back to first shift, remaining in the
weldry department. He worked there for a brief period until
terminated on October 12.
B. Events Preceding the Mid-October Terminations
It was Massey’s transfer to second shift which led to pro-
tected concerted activity by the alleged discriminatees. That
transfer had been accompanied by a pay reduction. Both
upset him. During a conversation with a former employee of
Respondent, Massey learned of an organization called Work-
ers Have Rights, Too,7 headed by Richard Sturgeon. During
a telephone conversation, Sturgeon suggested that a meeting
could be arranged if Massey could persuade a few coworkers
to attend it.
Massey testified that, over the course of the next month
and a half, he spoke to a few employees: McCleary, Peder-
sen, Kendall Hopwood, and two machine shop employees
whose first names are Terry and Jason, but whose last names
Massey did not know. Pedersen testified that, after learning
about ‘‘Workers Have Rights, Too’’ from Massey, he also
spoke to other employees about meeting with Sturgeon. Al-
though he was not able to name many of those employees,
and for others was able to supply only a first name, Pedersen
did testify that he spoke with Roland and ‘‘a new guy’’ in
the masting; two employees on day-shift phase one and one
employee on day-shift phase two; four or five machine shop
employees, including Steve Cook and an employee whose
first name is Jason; Scott Gilbertson who was working in
final assembly at that time; three painters in the back area,
one of whom has the first name Rick; Dave Markowski in
quality assurance; and welding department employees, two of
206 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
whom are brothers with the last name Jackson. Respondent
has not contended that any of these identifications were of
individuals not employed by Respondent during that period.
A meeting with Richard Sturgeon was eventually arranged
for 5 p.m. on Saturday, October 8. Before it occurred, how-
ever, another series of events unfolded during the period be-
tween Massey’s initial telephone call to Sturgeon and that
Saturday meeting with him. By letters to all employees,
dated August 26, Avitan gave notice, inter alia, that Re-
spondent would ‘‘be dropping the dependent health insurance
coverage as a company paid benefit to our employees,’’ al-
though health coverage for employees, themselves, would
continue to be paid by Respondent. On August 31, 5 days
later, Avitan authored another letter to all employees, giving
notice that, instead of completely ceasing to pay for depend-
ent health insurance coverage, ‘‘I have decided to subsidize
your dependent health coverage by contributing 25% to the
cost of the dependent coverage between now and the end of
the year.’’ Avitan explained, when testifying, that this second
letter had been written because ‘‘I wanted to help the em-
ployees not take such a big hit. So I decided that I would
contribute 25 percent of that number so as to help them—
help them out with the expense.’’ Nevertheless, Avitan’s sec-
ond letter made plain that, ‘‘Starting 1995, the employee will
be responsible for 100% of dependent coverage.’’
There was a negative reaction among Respondent’s em-
ployees to the August 26 letter. Sherrie Avitan testified, ‘‘I
think people were unhappy about having to pay the depend-
ent coverage,’’ although she added that ‘‘when [it was]
pointed out the conclusion if [Respondent] continued to pay,
you know, most people understood.’’ Yet, she did not ex-
plain precisely what she meant by employees being placated
when shown the results of Respondent having to continue to
pay for dependent health insurance coverage.
Apparently, at that time, Respondent was not so certain
that ‘‘most people understood,’’ given the text of a letter,
dated September 14, which it sent to all employees:
From time to time many manufacturing companies
find that there is a small but vocal group among their
employees who seem motivated to alter employee rela-
tions with their employer, regardless of facts and cir-
cumstances. [Respondent] is no exception. It has come
to our attention that this kind of talk may be going on
here. Sometimes the talk from a few vocal individuals
tries to portray having a union as an automatic cure for
all perceived problems, whether real or not. At times,
the motivation for unionization is more self-serving to
these individuals.
Because your relationship with [Respondent] is im-
portant to you and us, we know that this subject is an
important one. We want to be sure that our employees
are well informed when this kind of talk occurs. This
way you can analyze such talk, and reach your own
conclusion based on the facts.
After referring to an attached chart, comparing Respond-
ent’s benefits package to those of other area companies, and
stating that Respondent’s medical coverage is very attractive
in comparison with that of those other companies, the letter
continues:
An attractive and very competitive package of bene-
fits has been put in place through the efforts of the ex-
isting relationship between the [Respondent] and its
employees. We observe from the information shown
above, and the comparison with other companies, that
the presence of a union does not guarantee added bene-
fits.
In conclusion, if the influence of a small but vocal
group leads to a union vote, please exercise your right
to vote. Base your decision on the facts, and your own
sound judgment. We encourage you not to let a small
group decide your future for you.
The letter is signed by Isaac Avitan.
Despite the statement, ‘‘It has come to our attention that
this kind of talk may be going on here,’’ Avitan denied that
he had actually been aware of union organizing at the time
of his September 14 letter. He testified that he had prepared
that letter,
in anticipation of a potential discomfort and certainly
turmoil it could cause and underlying activities that
could potentially arise from it I was trying to head it
off at the pass and tell people that, look, we understand
that we are taking benefits away. We understand that
this could cause activities to occur and we just want to
let you know that while we understand these, if you
look at [the attachments] this is what you have as bene-
fits. Make an informed decision and as always I always
tell my people to go out and vote. Don’t let other peo-
ple decide your future for you.
Yet if Avitan truly had anticipated ‘‘discomfort’’ and ‘‘tur-
moil’’ among employees, as a result of his late August let-
ters, he never did explain why he had waited until mid-Sep-
tember, by which time support for a meeting with Sturgeon
was being discussed among at least some of Respondent’s
employees, ‘‘to head it off at the pass’’ by sending the
above-quoted letter. Nor did Avitan explain why he had been
concerned about employees making ‘‘an informed decision’’
about unionization, and choosing to advise them to ‘‘go out
and vote,’’ if he had been unaware when he wrote the Sep-
tember 14 letter of the existence of any concerted activity
among Respondent’s employees.
The fact is that, so far as the record discloses, in over 2
years, by September 14, of serving as Respondent’s execu-
tive vice president and general manager, Avitan had only
once sent a letter to employees similar to the one of Septem-
ber 14. That had occurred during November 1993 when he
informed them, inter alia:
We understand that there is a movement to unionize
the shop. While the choice is yours we thought that you
should have more facts in order to make an informed
decision.
. . . .
Please take the time to read the comparisons on the
following pages. The information contained in these
pages has been compiled to help you make an informed
decision.
. . . .
The information attached speaks for itself.
207SCHAEFF INC.
In conclusion, if and when it comes down to a vote,
exercise your right to vote. Don’t let the vocal minority
decide your future for you.
Avitan admitted that the November 1993 letter had been
sent because ‘‘we were told that there were cards being
handed out and that the employees were going to go out and
vote on a union.’’ It also should not pass unnoticed that
Avitan apparently believed that his 1993 letter had been ef-
fective. For he testified that after it had issued, ‘‘some em-
ployees came and told me that they did have a sort of vote,
and I don’t know what that really means, but that it didn’t
fly.’’ That is, there were no formal election proceedings later
conducted under the auspices of the Act.
Isaac Avitan never did explain why he had chosen to
begin his September 14 letter by stating that it ‘‘has come
to our attention that this kind of talk may be going on here,’’
if, in fact, he had no knowledge of such activity when he
drafted the letter. Pressed during cross-examination for an
explanation of that choice of words, in light of his testimony
that he had merely anticipated that such activity might occur,
Avitan never claimed that he did not appreciate the dif-
ference between his letter’s language, asserting actual aware-
ness of such talk, and his testimony that he supposedly only
anticipated that such activity might occur. Certainly, it would
have been difficult for him to do so, given the fact, as dis-
cussed in subsection I,C, infra, that he possesses advanced
degree which presumably fitted him with awareness of the
distinction between words and phrases. Eventually, he ap-
peared to be trying to avoid any further questioning about the
difference, testifying finally that he had used that language
in the September 14 letter, ‘‘Because it is simply a letter in
anticipation of what might occur.’’ No further explanation
could be extracted from him.
Only Massey, McCleary, and Pedersen attended the Octo-
ber 8 meeting with Sturgeon. Discussed during it were em-
ployment conditions, particularly mandatory overtime, with
which the three employees were dissatisfied. They also dis-
cussed the possibility of forming an in-house organization to
deal on their behalf with Respondent, as would an outside,
established union. Before the meeting ended, Sturgeon gave
them copies of ‘‘Workers Have Rights, Too’s’’ monthly
newletters for the months of July, August, and September.
All three of those monthly publications begin with articles
pertaining to employee organizing. Thus, the one for July
starts with the heading ‘‘WHY HAVE AN EMPLOYEE OR-
GANIZATION?’’ The one for August begins with an article
entitled, ‘‘CHOSE [sic] THE RIGHT EMPLOYEE ORGA-
NIZATION.’’ The lead article in the September issue is
headed, ‘‘HOW TO FORM AN EMPLOYEE ORGANIZA-
TION.’’
In addition, Sturgeon distributed during the October 8
meeting copies of a red booklet which describes rights of
workers who suffer injury on the job. Printed on that book-
let’s cover is the following:
HURT
ON THE JOB?
KNOW
YOUR RIGHTS
PREPARED AND PUBLISHED
BY WORKERS HAVE RIGHTS, TOO
712-233-3663
SUITE 306 TERRA CENTRE
P.O. BOX 3372
SIOUX CITY, IOWA 51102
********
IN COOPERATION WITH
ATTORNEYS RUTH M. CARTER,
ROGER L. CARTER
AND ATTORNEY AL STURGEON
============================
WORKING HARD
FOR HARD WORKING
PEOPLE
It should be noted that Attorney Al Sturgeon is the brother
of Richard Sturgeon.
On returning to work on Monday, October 10, McCleary
testified that he said nothing to his coworkers about the
meeting with Sturgeon. Massey testified that he spoke about
it to Kendall Hopwood and to a welder whose first name is
Terry. However, Pedersen, who had seemingly become the
most outspoken of the three, testified that a number of em-
ployees questioned him from October 10 through 12 about
what had occurred during the October 8 meeting. Moreover,
he testified that he had ‘‘passed out some of [the Workers
newsletters] at work on our time. Our breaks or lunch peri-
ods.’’ Though his answers during cross-examination showed
that Pedersen had inflated the number of employees with
whom he had spoken, Respondent admits that he did testify
accurately about one post-October 8 incident.
Pedersen testified that, on October 11 or 12, he had taken
his copy of the red booklet to Sherrie Avitan and the two
of them referred to it, in the course of a conversation about
payments due an injured worker. He further testified, ‘‘She
asked if she could use that book to make a copy so that she
could send it to her lawyers’’ and he consented. At the time
that he had given her the booklet, testified Pedersen, written
on the inside back cover was the name and telephone number
of Richard Sturgeon.
Sherrie Avitan agreed that, during a meeting to discuss his
workers compensation claim, ‘‘several days prior . . . to Oc-
tober 12th,’’ Pedersen had produced the red booklet, refer-
ring to portions on pages 3 and 4, pertaining to payment by
employers for time and mileage for therapy. Avitan denied
that Pedersen had referred to any other portion of the book-
let. She further testified, ‘‘I did not’’ ever look at any portion
of it other than those two pages. She did concede, nonethe-
208 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
less, that ‘‘I believe that [Pedersen] stated that there was’’
Sturgeon’s name and telephone number handwritten in the
booklet. By mid-October, Sherrie Avitan acknowledged, she
had known who Richard Sturgeon was, because, ‘‘I was at
. . . an employment hearing with him’’ on June 1, involving
‘‘employee Darrel Lundquist.’’
She also acknowledged that Pedersen had left the booklet
with her and ‘‘I made two photocopies.’’ Sherrie Avitan tes-
tified, ‘‘I gave one to Isaac Avitan and I sent one to our law-
yer highlighting pages [3 and 4] . . . just checking up on
it.’’ During direct examination, when asked if she ever had
participated in any discussion about the booklet with her hus-
band, Sherrie Avitan responded flatly, ‘‘No.’’ However, she
retreated from that unequivocal negative response during
cross-examination: ‘‘I told him that Rick Pedersen had been
in my office and was discussing this issue and I told him I
made a photocopy of the book for [Isaac], and I told him the
section that we discussed.’’ According to Sherrie Avitan, her
husband had said only, ‘‘‘Put it face down on my desk.’ He
was on his way out the door.’’
Isaac Avitan acknowledged having received a photocopy
of the red booklet from his wife as he had been leaving his
office. At that point, he testified, he had not participated in
any conversation with her about the photocopy. However, as
to how the booklet came to be photocopied, Isaac Avitan tes-
tified, ‘‘I asked her to make two copies and make sure that
she faxed one to our legal counsel here in Sioux City and
then give me a copy.’’ As had his wife, Isaac Avitan denied
having read over the photocopy.
C. The October 12 and 13 Terminations
Though the termination letters are each dated October 12,
some of the six employees were terminated on that date,
while others were terminated on the following day. Thus,
Massey testified that he had been notified of his termination,
and handed his termination letter, following the afternoon
break, at 2:30 p.m. on October 12—at a time when, he testi-
fied without contradiction, ‘‘There was another hour left of’’
his shift that day. McCleary and Pedersen had been working
for over an hour on the following day when, at 7:15 a.m.,
they were summoned to an office where Winner handed each
his termination letter. It is uncontested that the two employ-
ees inquired why they could not be moved to other work lo-
cations, instead of being terminated, but were told that their
jobs were eliminated and they ‘‘were no longer needed.’’
As stated above, those terminations were but three of a
total of six October 12 and 13 terminations. And, as stated
in subsection A, Respondent argues that the jobs elimination
which led to those six terminations had been motivated by
nothing other than Isaac Avitan’s ongoing effort to restore
Respondent’s profitability.
Avitan had seemed well qualified to accomplish Carl
Schaeff’s direction to ‘‘[r]ebuild the company.’’ For 16 years
preceding 1992 his employment had involved ‘‘[p]retty
much’’ engineering functions. He possesses a bachelor’s de-
gree in mechanical engineering and master’s and doctorate
degrees in electrical engineering. Based on that experience
and education, during 1992 he formulated a business plan to
redesign the product then being manufactured at Sioux City
‘‘for manufacturability, quality, reliability and cost of manu-
facturing’’; tried to ‘‘revive the marketing and distribution of
the company, the company’s products’’; ‘‘redesign[ed] the
products in their entirety,’’ including designing ‘‘a new prod-
uct . . . referred to as Sherman’’; and ‘‘brought selected
unique pieces of machinery from my parent company[,] as
well as’’ from another division of that parent, ‘‘that we de-
termined was competitive, had the unique differentiation and
was competitive in the North American market[.]’’
Unfortunately, those measures did not succeed in restoring
a healthy financial situation for Respondent. ‘‘Since when
Mr. Avitan came to’’ Respondent, testified Operations Man-
ager Winner, it had lost money. To be sure, Winner had only
been employed by Respondent since February 1994, when he
had become eastern regional sales manager and, in mid-May,
operations manager. Still, he is an admitted agent of Re-
spondent and, further, Respondent never produced any evi-
dence contradicting that testimony by Winner. Accordingly,
that testimony is entitled to reliance, even though it encom-
passes the period before Winner began working for Respond-
ent.
In fact, Isaac Avitan acknowledged that during 1994 he
was continuing to address Respondent’s adverse financial sit-
uation ‘‘to optimize on job functions where possible, elimi-
nate waste and loss of productivity, and that could be any-
where form [sic] paper clips, recycling paper to looking at
long distance telephone calls, utilizing of vendors, to the uti-
lization of people and their job functions.’’ For approxi-
mately 6 weeks, during late 1993 and early 1994, he had re-
duced the workweek from 5 to 4 days. He chose not to con-
tinue participating in the Iowa State Consortium program,
with the result that Respondent ceased employing engineer-
ing students in temporary positions. In fact, he testified that
he chose not to fill any vacancies for temporary positions.
Respondent chose also to eliminate certain positions. Its
‘‘JOBS ELIMINATED’’ chart shows that when grinder 1,
Johnny Evans, left Respondent’s employment on July 14,
and when grinder 1, Mike Washington, also did so on Au-
gust 11, their position was eliminated. According to the
‘‘JOBS’’ chart, ‘‘Welders began doing their own
grinding[.]’’ ‘‘I think it was about the same time,’’ Winner
testified, that Respondent made a decision to have welders
do their own grinding. In fact, the October 6 organizational
chart shows no one classified as grinder in the first and sec-
ond-shift weldry department. In evaluating the reliability of
Isaac Avitan’s testimony concerning events from late August
through mid-October, the disappearance of the grinder posi-
tion by August 11 should not be overlooked.
In addition, Respondent eliminated the assistant foreman
position, transferring occupants to other positions during July
and August and, further, combined the reliability test engi-
neer and industrial engineer functions with those of two other
positions, thereby eliminating those two named positions. On
July 14 and on August 30, third-shift positions were ab-
sorbed into the second shift, thereby permitting the third
shift, and the overhead costs connected with it, to be elimi-
nated altogether. On September 13 material handler 3, Phillip
Dyke’s, position was ‘‘Absorbed by welders and shop floor
control personnel,’’ according to the ‘‘JOBS’’ chart. That
particular elimination also should not pass unnoticed in eval-
uating the below-described testimony in support of Respond-
ent’s defense.
Interestingly, after September 13 no further job elimi-
nations or consolidations occurred until those of October 12
and 13. Isaac Avitan testified that, ‘‘[i]n September. Towards
209SCHAEFF INC.
the end of September of 1994,’’ he had received audited fi-
nancial statements for the 19-month period ending July 31.
Those statements revealed a total loss of $5,672,411 for that
period, of which an assertedly unanticipated $1,490,780 was
caused by inventory adjustments which, testified Isaac
Avitan, ‘‘literally doubled the losses in 1994 for the seven—
for the first seven months of the year.’’
According to Avitan, the magnitude of the total loss did
not come as a complete surprise, since he had received pre-
liminary reports during August as to what the final audited
statements would show. Those preliminary reports included
a report concerning the inventory adjustment. And the pre-
liminary reports led Avitan, he testified, to make the decision
to eliminate—and, then, to reduce—Respondent’s contribu-
tions for dependent health insurance coverage, as described
in subsection B. Avitan also testified that he began to con-
sider, ‘‘Across the board cuts of some form or another,’’ by
Looking at expenses, looking at departmental expenses,
expenditures in marketing, sales, engineering, oper-
ations, requirements of people in different functions,
whether they can be consolidated into other functions
and either head count reduced or directed to—to pro-
ductivity.
With regard to the latter, Avitan testified, ‘‘I had hinted
to my operating staff all the way back to August that we
were in a situation that we need to restudy our business’’
and, during August, ‘‘put it to my managers [Sherrie Avitan,
Winner and Sales & Marketing Vice President Nenarella]
that I wanted them to go back and look at their functions and
tell me what they thought was productive versus what was
not productive.’’ Although Respondent provided no evidence
whatsoever as to what, if anything, Sherrie Avitan and
Nenarella reported back to Isaac Avitan concerning that sub-
ject, the latter testified that when Winner reported back dur-
ing the ‘‘September time frame,’’ the two of them discussed
eliminating ‘‘[t]he nonproductive jobs’’ of ‘‘Material han-
dling, grinding, final assembly. Those jobs specifically.’’
Inclusion of grinding among those classifications enumer-
ated by Avitan was no slip of the lip. For, he characterized
the above-enumerated jobs as ‘‘nonproductive,’’ because they
‘‘only add[] cost, not value’’ to forklifts manufactured by
Respondent. With regard to grinding specifically, he ex-
plained:
For example a pet peeve of mine was grinding and
material handling. It got to a point where welders
thought that all they needed to do was weld and not
care so much about how much they weld, and the work
then shifts over to grinding and we have a booth now
full of grinders all trying to grind down too much weld,
slag and spatter and so on, that that—that is unaccept-
able because if the individual was responsible—more
responsible for his work, in other words, if he had re-
sponsibility for the outcome and that included grinding,
he would also take more care as to how much weld he
put on a component.
As to,
[t]he other part, material handling, we talked about Just
in Time, Kanban. Move a product—move a material
once and only once from point of source to point of
use. Not into the warehouse or onto a rack and then
back and forth and back and forth. Every time we han-
dle it we add more cost.
By way of explanation of his testimony about material
handling, Avitan testified:
That is just unacceptable if we are going to be com-
petitive in a competitive environment, and so what we
look to do is to get the fabricators and the welders
which is a natural progression of material to move their
product when they finish with it to the point to which
it is going to be used or have the user go and retrieve
it and bring it back but it is only moved once, and that
in itself also results in a lot less material handling and
cost of production.
With respect to work then being performed in final assem-
bly, Isaac Avitan complained:
It’s a simple task. It’s—there is not a lot of complex-
ity to it although some would like to have you believe
that it is a lot more complex than it is, but the matter
is—the point of the matter is that tagging of decals can
be put on by painters. The electrical lights and so on
can be put on by phase two and it is not that much
more complexity because it is simply a nut and a bolt
that you run through the light. You put it through the
guard, you tighten the nut and it’s done and you have
two wires to connect.
And in the masting while we talk about push-pull,
clamps and all the fancy names, all they are is an at-
tachment that you take a chain to, you clamp it, you
hang it on a carriage that is already on the mast. Takes
maybe ten—five, ten minutes. A more complex unit
might take maybe as much as half an hour such as fork
positioners, but that’s as simple as it is. The bolts and
clamps come at the bottom of attachment and it’s done.
There is not a lot of complexity to an attachment of
that nature.
According to Avitan, when he reported back during the
‘‘September time frame,’’ Winner recommended eliminating
all three of those positions and Avitan agreed with that rec-
ommendation: ‘‘To eliminate final assembly, to absorb it in
the assembly department. To eliminate material handlers any-
where we could. To reduce or eliminate all grinding as best
we could.’’
As to which employees would be selected for termination,
Respondent argues that that determination followed naturally
from the positions that were being eliminated. Avitan testi-
fied that he and Winner discussed that subject ‘‘about a week
to ten days at the very least before we made the decision.
I think we eliminated the jobs on the 12th–13th so it would
put it at the very beginning of October.’’ In the end, Re-
spondent settles on Monday, October 3, or Tuesday, October
4, as the date on which a final decision was made as to who
would be terminated.
During that conversation with Winner, testified Isaac
Avitan, the two of them selected the six employees who
were eventually terminated on October 12 and 13. As to the
selection of Pedersen, Avitan testified, ‘‘[H]e had a restric-
210 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tion, weight restriction. He complained about—literally about
everything, didn’t really want to work.’’ Avitan testified that
McCleary had been selected because:
. . . we tried him in several other locations and all we
got from that was really grief. We put him in sub-
assembly and pretty much everything he did had to be
redone. We tried him there at a couple of slack times.
We tried him in the machine shop as a drill press oper-
ator and he complained grievously about that too.
The other part of that is that we had numerous, nu-
merous shall we say discussions with Mr. McCleary
about his productivity. In fact it was why we hired Rick
Pedersen. When we put Rick Pedersen next to Mr.
McCleary in final assembly lo[w] and behold he was
doing two times—he was doing two trucks to one of
McCleary’s in final as a general rule, sometimes three,
and we had had numerous discussions with Mr.
McCleary about the fact that he needed to do his job
a little quicker.
It was for Massey, however, that Isaac Avitan advanced
the most extreme description of supposed unsatisfactory con-
duct. For, it was Massey who Avitan blamed, along with
Dyke, for what led to a significant part of the inventory ad-
justment:
With Mr. Massey he just simply could not progress
beyond where he was. He couldn’t read blueprints as
was stated here earlier. He could not operate the com-
puter. When we had him in inventory taking we found
numerous, numerous mistakes. Part of the problem of
the [$]1.4–$1.5 million worth of inventory adjustments
were as a result of both him and Phil Dyke in the ware-
house as material handlers cycle counting where the
numbers were so far that it led one to absolutely ques-
tion whether they even knew how to count.
. . . .
We had to recount. That is why we retook the inven-
tory of July because we had to throw away the inven-
tory count of the end of the year 1993 and could not
close the books at the end of 1993 as a result—partial
result of that. We had so many deviations that by the
time we would go out the computer printout was so tall
that we would have to then go audit those places, figure
out was the count right, was the computer right, you
know, was it in the right location. By the time we start-
ed going through that and got through it it took us al-
most a month and a half at which point we couldn’t re-
construct the inventory at the end of the year situation.
We said the hell with it. Let’s plan it a little better.
Let’s make sure we know who the people are that we
are going to let count and how to give them tickets and
instruct them and so on and so forth, and then we only
took people we trusted knew how to count and we
staffed it with management and everybody rolled their
sleeves and went out there and did inventory recount.
In sum, testified Avitan, ‘‘[W]e didn’t feel we could train
Massey for another task. We tried.’’
II. DISCUSSION
In evaluating allegations of unlawful termination, the ulti-
mate ‘‘determination which the Board must make is one of
fact—what was the actual motive of the discharge?’’ Santa
Fe Drilling Co. v. NLRB, 416 F.2d 725, 729 (9th Cir. 1969).
Thus, ‘‘the pivotal factor is motive’’ (citation omitted),
NLRB v. Lipman Bros., Inc., 355 F.2d 15, 20 (1st Cir. 1966),
and ‘‘the employer’s motive becomes the focal point.’’
NLRB v. Oberle-Jodre Co., 777 F.2d 1119, 1121 (6th Cir.
1985).
Analytically, motivation is evaluated within the framework
enunciated in Wright Line, 251 NLRB 1083 (1980), enfd.
662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982), approved in NLRB v. Transportation Management
Corp., 462 U.S. 393 (1983). Doing so in the context of this
case requires that certain general principles be focused at the
outset. First, even where there is no evidence of knowledge
of actual union activity, a violation of Section 8(a)(3) of the
Act can be established by evidence of employer belief that
union activity is being conducted by its employees. That is,
‘‘the Act is violated if an employer acts against the employ-
ees in the belief that they have engaged in protected activi-
ties, whether or not they actually did so.’’ (Citations omit-
ted.) Henning & Cheadle, Inc. v. NLRB, 522 F.2d 1050,
1052 (7th Cir. 1975). ‘‘Proof of an unfair labor practice does
not require proof of actual union activity.’’ NLRB v. Ritchie
Mfg. Co., 354 F.2d 90, 98 (8th Cir. 1965).
Second, the existence of unlawful motivation is not inher-
ently negated by a showing that union activists had been
only some of a greater number of employees terminated or
laid off on a particular occasion. Even where economic con-
ditions justify a work force reduction, an employer violates
the Act if it ‘‘discriminate[s] because of union activity in the
selection of those to be terminated.’’ NLRB v. Midwest
Hanger Co., 474 F.2d 1155, 1158 (8th Cir. 1973), cert. de-
nied 414 U.S. 823 (1973). The Act does not permit an em-
ployer to ‘‘exploit[] worsening economic conditions to rid
itself of union supporters’’ (footnote omitted). NLRB v. Dan-
iel Construction Co., 731 F.2d 191, 197 (4th Cir. 1984), nor,
for that matter, of suspected union supporters. Turnbull Cone
Baking Co., 271 NLRB 1320, 1355 (1984), and cases cited
there. As a result, even though an employer shows justifiable
economic need for a reduction in work force, it violates the
Act if it selects some employees for elimination because of
their union support or, alternatively, if that employer expands
the number of employees whose jobs are to be eliminated,
so that it appears that the selection of union activists is a nat-
ural consequence of that total expanded number of jobs
eliminated.
Finally, inasmuch as motive is the ‘‘pivotal factor’’ or
‘‘focal point’’ of analysis where there are discrimination alle-
gations, of necessity analysis must center on the testimony
of the official who actually made the decision or decisions
alleged by a complaint to have been unlawfully motivated.
For, it is that individual whose ‘‘motivation was critical on
the question of Respondent’s reason for,’’ in this case, the
mid-October terminations of Massey, McCleary, and Peder-
sen. American Petrofina Co. of Texas, 247 NLRB 183, 192
(1980). Isaac Avitan admitted that he had been that individ-
ual. Accordingly, it is to his testimony that analysis turns
first.
211SCHAEFF INC.
Having observed him as he twice testified—once called by
the General Counsel and, then, called during Respondent’s
case-in-chief—it was my conclusion that Isaac Avitan was
not testifying candidly and that his testimony cannot be cred-
ited. Rather than trying to be forthright concerning the actual
reasons which led to selection of Massey, McCleary, and Pe-
dersen for termination, Avitan appeared to be tailoring his
testimony in an effort to construct legitimate reasons for
those terminations, using as vehicles for doing so Respond-
ent’s adverse financial situation, his own superior knowledge
of the production process at the Sioux City facility, the du-
ties which must be performed in that process by employees
working there, and a skewed description of those three em-
ployees’ work histories.
To be sure, his subordinates—his wife, Winner, Rawlings,
and Hofer—dutifully attempted to support that effort. Indeed,
viewed from a superficial perspective, it was an effort which
does appear to create a plausible explanation for the alleg-
edly unlawful terminations. As summarized in Respondent’s
brief:
The undisputed evidence establishes that [Respond-
ent]’s severe financial problems. [sic] In response to
such problems, it terminated six employees as one of
many remedial actions. Even if Schaeff knew of the
Charging Parties’ protected activities, it had no choice
but to eliminate Charging Parties’ positions. The duties
involved in those positions could be readily transferred
to other positions, as was done. The elimination of their
jobs both cut costs and increased efficiency, Once [Re-
spondent] determined the lack of any economic jus-
tification for the Charging Parties’ positions, its poor fi-
nancial condition dictated the elimination of their jobs
irrespective of any other considerations. In addition, the
dismissal of the Charging Parties was justified by Mr.
Massey’s poor performance record, Mr. McCleary’s
failure to adapt successfully to any work other than
final assembly work, and the incompatibility of Mr.
Pedersen’s light duty restrictions with any of [Respond-
ent]’s remaining jobs.
Yet, when the surface of that generalized defense is
pierced by a careful examination of Isaac Avitan’s testimony,
and of that given by Respondent’s other officials, numerous
inconsistencies and contradictions are disclosed, both be-
tween accounts by two or more of those officials and, also,
by objective evidence and uncontradicted testimony. Given
that situation, it is simply not possible to reach conclusions
of legitimate motivation for those terminations. I do not cred-
it the accounts of Isaac Avitan, nor those of Respondent’s
other officials, as to the Respondent’s supposed reasons for
selecting Massey, McCleary, and Pedersen for termination.
At no point was the unreliability of Respondent’s defense
perhaps more evident than with regard to Isaac Avitan’s tes-
timony about Massey and the inventory adjustment. As
quoted in subsection I,C, supra, Avitan attributed to Massey
a significant measure of blame for an inventory adjustment
amounting to $1.5 million, because of purported counting
mistakes by Massey, as well as by Phillip Dyke. There can
be no dispute about the fact of the inventory adjustment and,
also, about its amount. And there was evidence about count-
ing mistakes made by Massey during the course of his em-
ployment by Respondent. But, there is no evidence that such
mistakes were other than occasional and, certainly, not that
they rose to the magnitude which Isaac Avitan tried to por-
tray.
Furthermore, not one supervisor, nor any documentary evi-
dence, supported Isaac Avitan’s assertion about management
and trusted personnel having ‘‘rolled their sleeves and [gone]
out there and did inventory count,’’ after having to ‘‘throw
away the inventory count of the end of the year 1993[.]’’
True, supervisory and trusted personnel might not have been
made aware of the magnitude of the inventory adjustment,
nor of the reason for it. That is not necessarily the type of
information which top management might be inclined to
share. Still, supervisors and trusted personnel would surely
have been aware of, and remembered, having to retake an
entire inventory, had that actually occurred. Absence of cor-
roboration about such a seemingly significant incident tends
to undermine the reliability of Isaac Avitan’s testimony and,
moreover, tends to demonstrate a willingness to enlarge on
situations, such as Massey’s occasional miscounts, to tarnish
the reputations of the alleged discriminatees.
Any miscount of inventory by Massey during 1993 would
have occurred while he had been working in the warehouse,
before he was transferred to the weldry department during
the summer of 1994. Yet, from the time he started working
in the warehouse during June 1993, Massey had received
largely favorable comments about his work, as shown on a
series of ‘‘PAYROLL CHANGE NOTICES’’ which he re-
ceived while working there on the day shift. One dated
‘‘9/1/93’’ rates his performance as ‘‘Good’’ for ‘‘Ability,’’
‘‘Conduct,’’ and ‘‘Production.’’ That notice rates his ‘‘At-
tendance’’ as only ‘‘Fair’’ and a handwritten notation on the
notice states that Massey ‘‘has received documented counsel-
ing re: possible attendance problems.’’ Nonetheless, that no-
tation goes on to state, ‘‘He is a good consistent worker,’’
and his next such notice rates his ‘‘Attendance’’ as ‘‘Good.’’
In fact, that notice, dated ‘‘10–8–93,’’ rates his performance
as ‘‘Good’’ in all categories.
A notice dated ‘‘3/14/94’’ states, ‘‘LEO PUT TOM TO
MATERIAL HANDLER I FROM II ON FEB. 28. DONE A
GOOD JOB.’’ It is seemingly inexplicable that Massey
would have been promoted to the highest material handler
position if, in fact, he had been encountering severe mis-
counting problems in the warehouse. And Respondent made
no effort to explain that apparent inconsistency. Moreover,
15 days after that notice, Massey received another one which
rated his ‘‘Ability’’ as only ‘‘Fair,’’ but which awarded him
‘‘Good’’ ratings in all other categories. Massey acknowl-
edged that he had trouble reading blueprints and operating
the computer system. Still, those periodic mostly favorable
ratings and comments tend to show that, whatever his blue-
print reading and computer problems, they did not impair the
caliber of his overall performance.
In an effort to show subsequent declining performance,
Respondent makes much of the fact that, in a similar notice
dated ‘‘6/15/94,’’ Massey had been listed as a ‘‘(Mtl handler
2)’’ and, in a notice dated ‘‘8/1/94’’ had been classified as
a material handler 3, progressively lower skilled and lower
rated classifications. Based on that seeming downward pro-
gression, Respondent argues that Massey’s work must have
been deteriorating since March. Yet, in so doing, Respondent
relies exclusively on inference which must be drawn solely
212 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
from what is recited in those notices. For, it introduced no
direct evidence that Massey’s performance had deteriorated,
under standards ordinarily applied by Respondent to em-
ployee performance, during the last 7 months of his employ-
ment.
While in the warehouse, Massey had been supervised by
Warehouse Supervisor Ray McDonald. He is listed on the or-
ganizational chart as still occupying that position as of Octo-
ber 6. There is no evidence that he left Respondent’s em-
ployment thereafter. Even if he had, Respondent presented
no evidence, nor ever represented, that McDonald was not
available to it as a witness. But it did not call him to testify
why Massey had been listed as ‘‘(Mtl handler 2)’’ on the
‘‘6/15/94’’ notice. And it should not be overlooked that the
full handwritten ‘‘Remarks’’ on that particular notice read:
‘‘1 yr progression (Mtl handler 2) OK’’ (emphasis added),
without any ratings being shown in the printed spaces for
them. Thus, even if Massey had been demoted by June 15—
that is, even if his performance as a material handler 1 had
not proven satisfactory—so far as the evidence shows, he
had been performing ‘‘OK’’ in the material handler 2 posi-
tion.
To be sure, Massey did receive a wage reduction when
transferred to second-shift weldry department. That had been
one of the factors which led him to Sturgeon. However, Re-
spondent provided no evidence regarding why he had been
transferred there—no evidence that supervision had done so
because of unsatisfactory performance in the warehouse dur-
ing the spring and early summer—and no evidence as to why
his pay rate had been reduced. The absence of such evidence
is particularly significant in the context of Respondent’s fi-
nancial situation. For, while transfer and pay rate reduction,
of themselves, could be a basis for inferring deteriorating
performance, in the circumstances of this case they also
could reflect aspects of the ongoing effort by Respondent to
save money. That is, a pay reduction accompanying a trans-
fer could have resulted from Respondent’s ongoing effort to
reduce costs, by taking advantage of the need for a material
handler on the second shift to reduce the rate of pay which
Massey had been receiving. Beyond that ‘‘(Mtl handler 2)’’
could also reflect mere indifference by Respondent, and its
officials, to precise job classifications.
Massey’s final immediate supervisor, Mike Hofer, con-
ceded that he was not always certain whether material han-
dlers reporting to him were classified as two or three. Appar-
ently, he did not regard the distinction as a significant one.
Indeed, Hofer admitted that, prior to 1995, employees’ job
responsibilities ‘‘never used to be’’ neatly categorized by job
classification and, more specifically, that it had not been un-
usual for an employee classified as a material handler to per-
form tasks of other classifications. Perhaps that explains why
Hofer testified that Phillip Dyke was a material handler,
while Respondent’s October 6 organizational chart lists him
as a ‘‘Welder 4.’’ Perhaps that also explains why a ‘‘PAY-
ROLL CHANGE NOTICE’’ shows Gary Hansen being hired
on November 29 as a ‘‘Material Handler 3’’ in weldry, while
Respondent’s summary of hires from September 6, 1994,
through March 13, 1995 (G.C. Exh. 15), shows Hansen hav-
ing been hired as a ‘‘WELDER’’ on ‘‘11/28/94.’’
In view of the foregoing evidence, mere recitation on
‘‘PAYROLL CHANGE NOTICES’’ that Massey had been a
material handler 2 or 3 cannot, standing alone, be utilized to
conclude that his performance had deteriorated after March.
Given the imprecision in Respondent’s use of job classifica-
tions, such a conclusion would constitute speculation, not in-
ference.
Indeed, Hofer’s own efforts to match job classification and
duties resulted in testimony which contradicted Respondent’s
other evidence about changes in job duties which allowed
consolidation of positions and elimination of work which
Massey could perform. As highlighted in section I,C, supra,
Isaac Avitan testified that one position he had made a final
decision to eliminate, in early October, had been that of
Grinder—that he had made a final decision to consolidate the
duties of that position with the duties of welders, to improve
work performance of employees in the latter classification.
As discussed further below, other evidence shows that such
a decision had been made before October and, apparently,
Avitan placed it as having been made in the fall to shore up
his general assertion of ‘‘Across the board cuts’’ during the
fall.
The point here is that when asked what duties Hansen had
performed, after having been hired in late November, Hofer
answered, ‘‘Grinding, material handling. You know, what-
ever’’ and, further, denied that Hansen had been assigned to
any particular area in the weldry department. There is no evi-
dence that Hansen had ever been assigned responsibility for
welding which, of course, is the position which was sup-
posed to have become responsible for grinding work.
Furthermore, when asked what duties were being per-
formed by a welder 1, after Respondent’s jobs ‘‘got better
classified’’ as of January 1, 1995, Hofer responded, ‘‘Grind-
ing, material handling, bringing parts in and out of depart-
ments.’’ Hofer never claimed that a welder 1 actually did
any welding. That task, he testified, is performed by higher
rated welders—those classified upward from welder 2. So, if
only employees who welded performed grinding, and if a
welder 1 does no welding, then it seems to follow that weld-
ers 1 do no grinding. At least, Respondent presented no par-
ticularized evidence to contradict that conclusion. As a result,
that leaves welders 1 performing ‘‘material handling, bring-
ing parts in and out of departments,’’ work which Massey
obviously could perform, inasmuch as he had been doing so
for over a year prior to his termination.
Significantly, neither Hofer nor any other witness for Re-
spondent claimed specifically that welders 1 needed to be
able to read blueprints or to operate the computer, under the
revised ‘‘better classified’’ system introduced by Respondent.
It also should not pass without notice that, after mid-October,
warehouse work remained for employees to perform.
The October 6 organizational chart shows that Warehouse
Supervisor McDonald and five material handlers had been
employees there on first shift. Respondent adduced no evi-
dence that employees in any other classification worked in
the warehouse. According to the summary of hires, Barry
Saxon started working for Respondent in the warehouse on
November 7. Of course, as discussed above, the evidence
shows clearly that Massey had been a highly regarded ware-
house material handler. Consequently, to conclude, as Re-
spondent argues, that there was no other position for Massey,
when the material handler position in the weldry department
was eliminated, is contrary to the existence of material han-
dler positions in the warehouse and, also, to the evidence that
Respondent hired another employee to work there shortly
213SCHAEFF INC.
after terminating Massey. Moreover, there is additional evi-
dence, though somewhat sketchy, that material handling
work continued to be performed in the weldry department by
at least one other employee.
The reliability of Isaac Avitan’s testimony did not improve
when his attention was directed to McCleary and Pedersen.
Presumably, Respondent would tread carefully concerning
McCleary. By the time of his termination, it had employed
him for over 5 years. Not that many employees had been
employed by Respondent for so long a period. Nevertheless,
Avitan forged ahead, accusing McCleary of inadequate per-
formance when assigned work in other departments and,
moreover, accusing McCleary of poor productivity and of
‘‘needing to do his job a little quicker’’ in final assembly.
Indeed, Avitan went so far as to claim that Pedersen had
been hired to improve production in final assembly—an as-
sertion not supported by any other testimony or evidence.
McCleary did acknowledge that his work had been criti-
cized and, in fact, he had been issued a written warning for
‘‘Substandard Job Performance,’’ ‘‘Damage to Company
Property,’’ and ‘‘Waste of Company Time.’’ Still, that warn-
ing issued on April 15, 1993, over a year before McCleary’s
termination. Despite off and on comments about his unsatis-
factory performance, there is no evidence that McCleary’s
performance had been regarded as so deficient that Respond-
ent took any type of disciplinary action against him. That is,
he was never suspended, nor was another written warning
notice issued to him. So far as the evidence shows, McCleary
may not have been an ideal employee, but his performance
had been satisfactory between April 15, 1993, and October
13, 1994. Most significantly in that respect, Rawlings—the
last immediate supervisor of both McCleary and Pedersen
before their terminations—testified, ‘‘I had no problem with
them at all’’ and, further, ‘‘I thought they were good peo-
ple.’’ Obviously, that testimony contradicts Isaac Avitan’s
portrayal of ongoing dissatisfaction with McCleary’s per-
formance.
Rawlings did make an effort to buttress Avitan’s testimony
concerning not assigning McCleary to another position, rath-
er than terminating McCleary on October 13. According to
Rawlings, ‘‘Neither [McCleary nor Pedersen] had any hy-
draulic tooling mechanical experience at all’’ and, in con-
sequence, were not qualified for transfer to phase one. That
testimony is contradicted, however, by the undisputed testi-
mony that, while working in final assembly, both men had
performed some hydraulic work. More significantly, it is
contradicted by the uncontested testimony that McCleary had
worked for 6 months in phase one, when he initially began
working for Respondent. There is no evidence that his per-
formance there had been deficient. And there is no evidence
that there had been any significant change in the work per-
formed in phase one since McCleary had worked there. Ac-
cordingly, contrary to the testimony by Rawlings, McCleary
was not without experience in hydraulics work.
Furthermore, both McCleary and Pedersen had been as-
signed temporarily to work in other departments, when there
was no work for them in final assembly. Respondent was
critical of their performance on those occasions. Yet, inher-
ently, someone assigned temporarily, to work not ordinarily
performed, will not likely perform it as proficiently as will
an employee who performs that work, day in and day out,
on a regular basis. In effect, those considerations were ac-
knowledged by Rawlings. Although he testified that when he
had assigned McCleary to subassembly, McCleary had ‘‘put
things together incorrectly,’’ as Isaac Avitan also testified,
Rawlings went on to concede that McCleary ‘‘did a very lit-
tle bit really. I didn’t have him do too much.’’ And, more
importantly, Rawlings admitted, ‘‘[I]t’s kind of hard to say
exactly what the problems were. I don’t know whether it was
the way he was told or just being able to learn it that quickly
or what the problem was.’’ In other words, while McCleary’s
performance when working temporarily in subassembly had
been less than satisfactory, Respondent had no idea of what
the problem had been and, as a result, has no basis for attrib-
uting fault to McCleary. At no point did Rawlings corrobo-
rate Isaac Avitan’s assertion that Respondent had suffered
‘‘grief’’ because of McCleary’s performance in subassembly.
And at no point did Rawlings claim that he did not believe
that McCleary could not learn to perform the duties of sub-
assembly, if given proper training and some time to familiar-
ize himself with performing those duties.
As to the drill press work in the machine shop, Operations
Manager Winner claimed that, ‘‘[w]e tried [McCleary] on the
drill press and he made a number of errors and was very
slow.’’ But Rawlings, McCleary’s immediate assembly de-
partment supervisor, voiced no complaints about the quality
or quantity of McCleary’s drill press work. Instead, Rawlings
testified that when placed in that job ‘‘for the day,’’
McCleary ‘‘ended up quitting’’ that job ‘‘because of his
back’’ and having to sit or stand too long. Significantly,
Rawlings gave that testimony at the same time as he was tes-
tifying about drilling performed occasionally by Pedersen.
Pedersen did have a back problem during 1994, as mentioned
in subsection I,A, supra. But there is no evidence that
McCleary also had back problems and it appeared, as he tes-
tified, that Rawlings was attempting to extend to McCleary
Respondent’s defense concerning Pedersen, based on the
latter’s physical problems.
Importantly, when McCleary had been temporarily operat-
ing a drill press in the machine shop, the supervisor of that
department, at least since May 31, had been Leo Simsic, who
also served as first-shift production manager. By the time of
the hearing Simsic was no longer employed by Respondent.
Still, there is no evidence, nor representation, that Simsic had
not been available to Respondent as a witness to describe
McCleary’s most recent drill press performance. But he was
never called by Respondent to do so.
With respect to Pedersen, as set forth in subsection I,C,
supra, Isaac Avitan pointed out that Pedersen had a ‘‘weight
restriction’’ on lifting and, also, testified that Pedersen
‘‘complained about—literally about everything, didn’t really
want to work.’’ However, Avitan gave no examples of sup-
posed complaints by Pedersen. Nor did Avitan testify with
particularity about Pedersen’s supposed desire not to work.
To the contrary, when Avitan was testifying about
McCleary’s supposed deficiencies, as quoted above, he gave
a glowing description of how production purportedly im-
proved in final assembly after Pedersen had been hired. Fur-
ther, Avitan’s accusations were contradicted by the testimony
of Rawlings, Pedersen’s immediate supervisor during Sep-
tember and October, that ‘‘I had no problem’’ with Pedersen
and, both as to him and McCleary, ‘‘though they were good
people.’’
214 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Of course, by mid-October Pedersen’s doctor had notified
Respondent about a weight-lifting restriction of 10 pounds.
And Respondent utilizes that restriction, in this proceeding,
as a reason for not reassigning Pedersen to other work. Win-
ner testified, ‘‘[T]here isn’t any job in the company that he
can do—in the manufacturing part that he can do that is not
more than ten pounds.’’ Similarly, Rawlings testified that
while that weight restriction could be accomodated somewhat
before final assembly had been eliminated in mid-October,
‘‘in my assembly area I really don’t have anything that con-
stitutes five or ten pounds.’’ During cross-examination of
Isaac Avitan, however, this string to the bow of Respond-
ent’s defense came unraveled in the face of a prior inconsist-
ent position taken by Respondent in another proceeding.
During proceedings initiated by Pedersen before the Iowa
Industrial Commissioner, referred to by Isaac Avitan as ‘‘Mr.
Pedersen’s attempt to—how shall we say it gently—defraud
workman’s compensation,’’ certain interrogatories were an-
swered by Respondent’s insurance carrier. Those answers
were based on information supplied primarily by Diane Gib-
son, by then Sherrie Avitan’s successor as director of human
resources. The answer to interrogatory number 15, conceded
Isaac Avitan, was that the October work reduction and lack
of openings had nothing to do with any injuries allegedly re-
ceived by Pedersen. Although Avitan denied having ‘‘written
that statement,’’ he admitted that ‘‘as it is represented there,
yes,’’ that answer reflects his position, although he equivo-
cated before making that admission. Ultimately, as he ap-
peared to be trying to evade the implication of that interrog-
atory answer, Avitan testified that had Pedersen ‘‘been fit I
guess I would say that we would have looked to utilize his
skills elsewhere. He did show intelligence and did show, you
know, some skills but we wouldn’t have invested in him for
example in managerial training.’’
That final part of his answer should not escape notice.
Isaac Avitan did not explain what he meant by it. It is undis-
puted, however, that by mid-October Respondent already had
invested in that type of training for Pedersen. That is, it is
not contested that Respondent had already sent Pedersen to
10 courses in supervisory training, during the time that it had
employed him, and that Pedersen had received a certificate
on completion of each of those courses. In light of those un-
disputed facts, Avitan never explained why, given the train-
ing in which it had already invested, Respondent had given
no consideration to Pedersen for a supervisory position.
Certainly, the reason could not have been lack of need for
supervisors, nor lack of interest by Respondent in locating
individuals interested in filling managerial positions.
Rawlings testified, ‘‘[W]e are always looking for people that
want to move up and advance and hopefully take—take our
position so that we can move up through the company.’’
During redirect examination, Rawlings provided an ex-
tended explanation of that answer:
Well, I guess that in every company you’ve got your
people that are going to be standstills. They enjoy being
exactly where they are at and I guess for the most part
there is not harm in people like that. Then again you
want people that are going to, I think anyway, going to
want to improve themselves, want to grow with the
company, not only increase the money they make but
increase the company on a whole.
Surely, that description would appear applicable to an em-
ployee who took the time and made the effort to participate
in 10 courses of training for supervision. Yet, while not dis-
avowing that he shared that attitude expressed by Rawlings,
and that the latter’s testimony accurately reflected Respond-
ent’s overall position concerning its employees’ attitudes,
Isaac Avitan never explained why Pedersen had not been
considered in mid-October for promotion to a supervisory
position or, at least, to be tried out in one, based on training
already received and paid for by Respondent.
Instead, as they did with regard to McCleary, Respond-
ent’s officials focused on other jobs which Pedersen had per-
formed temporarily, claiming a lack of qualification for
transfer to another job. But Rawlings never actually claimed
that Pedersen had not successfully performed those tem-
porary jobs. For example, according to Rawlings, Pedersen
had said that he preferred to stay in final assembly, rather
than be assigned to be a painter. Of course, that is a pref-
erence based on existence of final assembly positions. So far
as the evidence discloses, Pedersen was never given a choice
between painting and no job whatsoever, in light of disband-
ing the final assembly.
Similarly, while Pedersen’s back may have been bothered
when he temporarily operated the drill press, that might have
been pain he would have been willing to endure if he knew
there was no final assembly job to which he could return.
However, in mid-October, he was never afforded a chance to
exercise such an election, even though, it is not contested,
Pedersen and McCleary specifically asked Winner about
being transferred to other work, instead of being terminated,
on October 13.
In sum, it was the relative informality of job classifica-
tions, and ability to shift duties among them, which has al-
lowed Respondent to construct facially logical defenses for
the selections of Massey, McCleary, and Pedersen for termi-
nation. Yet, for the reasons described above, that facial logic
evaporates on closer analysis of those defenses, in the cir-
cumstances of Respondent’s operations and the work his-
tories of those three employees. There are other aspects of
Respondent’s overall defense which further displays the
unreliability of Isaac Avitan’s testimony.
For example, if one simply reviews Isaac Avitan’s testi-
mony, it appears that consolidation and elimination of jobs
had been a course on which Respondent began to embark
only in August and September, based on the preliminary and
final financial statements which led to a supposed decision
to make, ‘‘Across the board cuts[.]’’ However, such a con-
clusion would not be accurate.
As disclosed by Respondent’s ‘‘JOBS ELIMINATED IN
1994’’ summary, position consolidation and elimination had
been in progress since at least June, for almost 4 months be-
fore the terminations of Massey, McCleary, and Pedersen.
Thus, the position of material requirements planning coordi-
nator was eliminated on June 29. Assistant foremen functions
were transferred to production positions during July and Au-
gust. The duties of reliability test engineer were consolidated
with those of quality assurance manager during July. And the
industrial engineer’s duties were consolidated with ‘‘other
manufacturing functions’’ during early August. Of course,
those eliminated positions cannot necessarily be properly
characteized as production positions. Two positions that Re-
215SCHAEFF INC.
spondent considers properly so categorized, however, are
those of grinder and material handler 3.
As quoted in subsection I,C, supra, Isaac Avitan testified
that, as a result of the financial statements, during late Au-
gust and September he raised the possibility of eliminating
classifications that were ‘‘not productive.’’ As to those,
Avitan enumerated three. One was that of grinder. Yet, its
inclusion was an obvious effort to expand his purported Au-
gust–September evaluation of production and, thereby, to for-
tify Respondent’s defense that preliminary and final financial
statements had led to a natural, very major appraisal of Re-
spondent’s overall operations. For, the ‘‘JOBS ELIMI-
NATED’’ chart recites that as early as July 14 ‘‘Welders
began doing their own grinding.’’ On that date grinder 1,
Johnny Evans’s, job was eliminated and so, too, was grinder
1, Mike Washington’s, job eliminated, when he resigned, on
August 11, because ‘‘Welders began doing their own grind-
ing.’’
The ‘‘JOBS ELIMINATED’’ chart shows no grinder posi-
tions eliminated after August 11. Respondent’s October 6 or-
ganizational chart does not show anyone then occupying the
position of grinder. As a result, it can only be inferred that
all grinder positions had been eliminated by August 11, and
the work of that position had been consolidated by then with
that of welder. That being so, there would have been no pur-
pose for initiating discussion later in August, and during Sep-
tember, about elimination of that position, and consolidation
of its duties elsewhere, when that decision had already been
made and accomplished. Indeed, Winner made no mention
whatsoever of the grinder position when he described his Au-
gust–September conversations with Isaac Avitan about elimi-
nating positions.
Equally illogical was Isaac Avitan’s inclusion, in late Sep-
tember and early October conversations and decisions, of the
material handler position. At the time of the decision to
eliminate that position, testified Hofer, there had been three
material handlers employed in the weldry department:
Massey, Ralph Wilson, and Phillip Dyke. But that testimony
is contradicted by the ‘‘JOBS ELIMINATED’’ chart. It
shows that Dyke’s material handler 3 position had been
eliminated on September 13 and, further, that the duties of
that position had been, ‘‘Absorbed by welders and shop floor
personnel[.]’’ Respondent has advanced no evidence which
would show why in early September it had been implement-
ing a decision supposedly not finalized until the very begin-
ning of the following month. Furthermore, inasmuch as
Massey continued to work after Dyke’s material handler 3
position had been eliminated, and absorbed by other person-
nel, that is some evidence that Respondent had not con-
templated eliminating Massey’s job at the time that it actu-
ally made a decision to absorb material handler duties into
other positions.
There is another timing aspect that should not escape no-
tice. Respondent claims that the final decision, regarding the
mid-October terminations, had been made on October 3 or
4. Of course, that would place that decision before much of
the alleged discriminatees’ statutorily protected activity.
However, no terminations were effected until the latter half
of the workweek following the one during which that sup-
posed final decision had been made. Assuming that Respond-
ent truly believed there was a need to achieve savings
through those terminations, presumably they would have
been effected at the earliest possible opportunity. The
delay—and its eventual implementation during the middle of
a workweek—is puzzling.
In the final analysis, that over 1-week delay was never ac-
tually explained. Sherrie Avitan gave testimony which comes
as close to an explanation for the hiatus as was provided by
Respondent. According to her, she had been informed of the
identities of the six employees to be terminated, ‘‘About
eight or nine days prior to’’ October 12 and she was made
responsible for setting up ‘‘the paper work involved.’’ That,
she acknowledged, required no more than drafting language
for the first paragraph of the termination letters, quoted in
subsection I,A, supra: ‘‘I can’t recall doing really anything
else other than restructuring that letter.’’ Her problem, she
testified, was that the mid-October letters differed from simi-
lar prior termination letters, since she had to do ‘‘more of
an explanation in those letters than the usual because it was
a restructruring[.]’’ That is the only explanation which Re-
spondent advanced for the delay between the purported final
decisions and their implementation.
On its face, that explanation is ridiculous. The first para-
graph of the termination letter consists of three straight-
forward sentences, the longest of which is but 18 words.
Like her husband, Sherrie Avitan is a degreed individual: a
bachelor’s in psychology and another in education. By the
time of the hearing she was enrolled in a program to obtain
a master’s degree in business administration. Before starting
work with Respondent, she had been ‘‘a Head Start director
of seven schools.’’ She is an intelligent, literate, and experi-
enced person. It is simply implausible that it would take such
a person of her educational and professional background al-
most a week to draft and finalize so relatively straight-
forward a message.
Furthermore, it should not be overlooked that the very cor-
nerstone of Respondent’s entire defense is not so plausible
a basis, as it now argues. According to Isaac Avitan, he
made the decision regarding the mid-October terminations as
a result of preliminary and final financial statements for the
19-month period ending July 31. Yet, when Winner testified
about conversations leading to mid-October position elimi-
nation decisions, he made no reference to financial state-
ments nor, even, to any factor before September. Rather, he
testified that his discussions, leading to those terminations,
had been bred by unsatisfactory sales during September and
October—an assertion from which he spent portions of his
remaining testimony retreating, inasmuch as Respondent is
contending that the final discharge decisions had been made
on Monday, October 3, or on Tuesday, October 4, well be-
fore any meaningful October sales figures could have been
available. The main point, however, is that while Winner
based the sequence of events, leading to the terminations, on
events during September and October, Isaac Avitan based
that sequence of events on events before then, on losses
which had occurred before July 31.
No other supervisor mentioned losses during the period
ending July 31 as even a consideration in the events leading
to the mid-October terminations. The closest any one of them
came to doing so was Sherrie Avitan. She described ‘‘ex-
treme financial pressures’’ during the summer and fall. But
she made no specific mention of abnormally high losses for
the period ending July 31.
216 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
To be sure, the final audited financial statements, for the
19-month period ending on that date, do show a multimillion
dollar loss during it. Yet, no evidence puts that loss in con-
text. Ever since 1992, at least, Respondent had been losing
money. That situation had led to Isaac Avitan’s appointment
as executive vice president and general manager. Given that
background, to say that Respondent lost $5.7 million, caused
in part by an inventory adjustment of almost $1.5 million, for
a given 19-month period is to leave unanswered the question
of how that particular loss compares to Respondent’s ongo-
ing losses. That is, the situation is a relative one. Absent fig-
ures for a more extended period, it cannot truly be said that
even so large a loss over 19 months represents a significant
difference from the period which preceded that 19-month
one. That is especially so where, as here, the testimony by
Respondent’s witnesses did not appear to advanced with can-
dor.
In sum, I do not credit the testimony underlying Respond-
ent’s defenses. Its witnesses did not appear to be testifying
credibly. The foregoing considerations, among numerous oth-
ers disclosed by examination of the record, support that con-
clusion. That conclusion, in turn, forms the background for
evaluating the unlawful discharge allegations.
As to the employee activity, Massey initially contacted
Sturgeon because of a shift transfer and a wage reduction.
Discussed during the October 8 meeting were employment
conditions, particularly mandatory overtime. Before that
meeting, Massey and Pedersen, particularly, discussed with
coworkers attending that meeting working conditions. There-
fore, the evidence does establish that, prior to their termi-
nations, the three alleged discriminatees had engaged in
‘‘concerted activities for the purpose of . . . mutual aid or
protection,’’ within the meaning of Section 7 of the Act.
The evidence also shows that those three employees had
engaged in union activities. During their meeting with Stur-
geon, all three participated in a discussion about the possibil-
ity of forming an in-house union. During the beginning of
the following week Massey and Pedersen discussed with co-
workers what had been said during the October 8 meeting.
Pedersen, at least, distributed to other employees literature
with articles about organizing a union. True, Pedersen may
have overstated the number of employees with whom he
spoke. Still, he and Massey had no reason to conceal from
their coworkers the substance of their meeting with Sturgeon.
To the contrary, if they intended to form an in-house union,
they would need to secure support from at least a majority
of the other employees.
Respondent’s supervisors acknowledged having heard from
employees about Massey, McCleary, and Pedersen’s activity.
Thus, Hofer testified that he had learned, from ‘‘talk around
the shop,’’ that those three employees had met with Stur-
geon. Hofer acknowledged that he had known since Decem-
ber 1993 who Sturgeon was. Rawlings testified that he had
been informed by employee Bill Worrell that McCleary and
Pedersen had talked about a union with Worrell. If nothing
else, the ‘‘talk’’ heard by Hofer, and Worrell’s report to
Rawlings, support the discriminatees’ testimony that, follow-
ing the meeting with Sturgeon, two of them had discussed
that meeting with their coworkers.
Hofer denied having known about Massey’s meeting with
Sturgeon at the time of the decision to eliminate Massey’s
job and to terminate him. Indeed, he testified that the ‘‘talk
around the shop’’ had not been heard by him until after the
mid-October terminations: ‘‘They were no longer with the
company when—when that was around the shop.’’ Similarly,
Rawlings testified that Worrell did not report the union dis-
cussions by McCleary and Pedersen until ‘‘Monday the week
after’’ termination of the alleged discriminatees. Yet, the reli-
ability of that testimony was diminished greatly when
Rawlings attempted to recreate the circumstances of
Worrell’s report.
According to Rawlings, Worrell said that he wanted to
quit, because ‘‘he had problems with Rick and Darren’’ who
‘‘didn’t really teach him properly’’ and ‘‘were more or less
having him do the extreme menial jobs.’’ Asked why
Worrell had said he wanted to quit because of McCleary and
Pedersen, given Rawlings’s testimony that McCleary and Pe-
dersen supposedly had already been fired by the time Worrell
made his remarks, Rawlings first answered, ‘‘Well, he had
told me that’s why he wanted to quit. He thinks he was
being abused by them. He wasn’t being treated correctly. He
wasn’t being trained correctly.’’ Asked, ‘‘So he quits after
they leave?’’ Rawlings responded: ‘‘Well, I think he had
plans to quit anyway except that I wasn’t here for most of
[the preceding] week.’’
An account of an employee wanting to quit because of
past mistreatment by already terminated coworkers, on its
face, is seemingly implausible. Worrell was never called to
corroborate that testimony by Rawlings, especially as to the
purported date of their conversation, though there was neither
evidence nor representation that Worrell was not available to
Respondent as a witness. As discussed above, I do not gen-
erally credit Respondent’s witnesses and this testimony by
Rawlings serves to reinforce the correctness of that conclu-
sion.
Another factor pertaining to knowledge is certain testi-
mony by Isaac Avitan. He acknowledged that he regularly
mingled with employees on the Sioux City facility plant
floor, ‘‘walking around and talking to every employee, ob-
serving job tasks.’’ Asked about the frequency of his trips
to production areas, Avitan testified, ‘‘I do that normally ap-
proximately anywhere between five and ten times a day. . . .
as a method of exercise too,’’ spending ‘‘anywhere between
fifteen minutes and several hours depending on the—what is
going on.’’ Given the frequency and sometimes lengthy dura-
tion of those daily trips to the plant, it is not unlikely that
Isaac Avitan would have overheard ‘‘talk around the shop,’’
as Hofer characterized it, about Massey, McCleary, and
Pedersen’s contacts with Richard Sturgeon. Nor is it beyond
the realm of possibility that Avitan could have seen one or
more of the pieces of literature being distributed on behalf
of Workers Have Rights, Too.
As set forth at the beginning of this section, ‘‘belief that
[employees] have engaged in protected activities,’’ Henning
& Cheadle, Inc. v. NLRB, supra, suffices under the Act to
establish unlawful motivation, obviously other requirements
being satisfied. As described in subsection I,B, supra, as
early as September 14 Isaac Avitan had suspected that union
activity might be occurring. To be sure, he appeared to be
testifying about his letter in a manner that would preclude
such a conclusion. But, that testimony was not advanced
with seeming candor and, moreover, the September 14 letter
contains language strikingly similar to his November 1993
217SCHAEFF INC.
letter, issued at a time when he admittedly had received re-
ports of organizing activity.
A conclusion of, at least, suspicion about union activity is
further supported by the pretermination incident involving
the red booklet which Pedersen submitted to Sherrie Avitan.
Concededly, that was brought to her husband’s attention.
Concededly, Sherrie Avitan was made aware that Sturgeon’s
name and telephone number were handwritten in the booklet.
Concedly, photocopies of it were made and one was left with
Isaac Avitan. The front cover of the booklet contains the
name of Workers Have Rights, Too, the same organization
whose literature, with articles about union organizing, was
then being distributed in Respondent’s facility.
In sum, there is considerable evidence from it which it can
be inferred that, as of October 12, Respondent suspected that
union activity was occurring and, further, of knowledge suf-
ficient for it to conclude, or at least suspect, that Massey,
McCleary, and Pedersen were involved in it. Inded, so far as
the record shows, there were no other employees who were
ever involved in the union-related activities which Isaac
Avitan’s September 14 letter shows that he suspected. Ac-
cordingly, while Respondent may not have possessed suffi-
cient knowledge to be aware of all details of Massey’s,
McCleary’s, and Pedersen’s statutorily protected activities,
the evidence shows that it possessed sufficient knowledge to,
at least, suspect them of union-related activities and to take
action to ‘‘scotch the lawful measures of the employees be-
fore they progressed too far toward fruition.’’ NLRB v.
Jamestown Sterling Corp., 211 F.2d 725, 726 (2d Cir.
1954)—to ‘‘so extinguish seeds, it would have no need to
uproot sprouts.’’ Ethan Allen, Inc. v. NLRB, 513 F.2d 706,
708 (1st Cir. 1975).
To be sure, as Respondent points out in its brief, there is
no evidence of unlawful antiunion statements by Respond-
ent’s officials. Nevertheless, even where animus is not ex-
pressed, it can be inferred from the circumstances. See, e.g.,
Douglas Aircraft Co., 308 NLRB 1217, 1220 (1992), and
cases cited there. Here, there is ample objective indicia from
which not only animus, but unlawful motivation, as well, can
be inferred.
All three employees who had met with Sturgeon were ter-
minated, a factor which, of itself, tends to ‘‘give rise to an
inference of violative discrimination.’’ NLRB v. First Na-
tional Bank of Pueblo, 623 F.2d 686, 692 (10th Cir. 1980).
See also NLRB v. Des Moines Foods, 296 F.2d 285, 289 (8th
Cir. 1961). In fact, of approximately 160 employees working
for Respondent during mid-October, the three employees
who met with Sturgeon represented half of the total number
terminated on October 12 and 13.
Massey, McCleary, and Pedersen were terminated within
days of meeting with Sturgeon, and within even less time
after two of them began reporting about that meeting to their
coworkers, began distributing copies of Workers Have
Rights, Too’s newsletters, and, in the case of Pedersen, sub-
mitted a copy of the Workers’ red booklet to Sherrie Avitan.
That close relationship between those events and the termi-
nations tends to show that their proximity ‘‘was really no co-
incidence at all.’’ NLRB v. Jamestown Sterling Corp., supra.
‘‘Timing alone may suggest antiunion animus as a motivat-
ing factor in an employer’s action.’’ (Citations omitted.)
NLRB v. Rain-Ware, Inc., 732 F.2d 1349, 1354 (7th Cir.
1984).
The terminations occurred abruptly, in the middle of a
workweek and, in Massey’s case, before the workday on Oc-
tober 12 had even ended. ‘‘[A]bruptness of a discharge and
its timing are persuasive evidence as to motivation.’’ NLRB
v. Montgomery Ward & Co., 242 F.2d 497, 502 (2d Cir.
1957), cert. denied 355 U.S. 829 (1957). Accord: NLRB v.
Sutherland Lumber Co., 452 F.2d 67, 69 (7th Cir. 1971), and
United Dairy Farmers Coop. Assn. v. NLRB, 633 F.2d 1054,
1062 (3d Cir. 1980).
To be sure, lest there be doubt, no one of the foregoing
objective factors dictates a conclusion of unlawful motiva-
tion. Yet, collectively—and considered in conjunction with
the evidence of statutorily protected activity, of knowledge
about at least some of that activity and of belief that union
activity was occurring, and of unreliable defenses—they do
serve to establish a prima facie showing of unlawful motiva-
tion. As I do not credit the testimony advanced in support
of those defenses, Respondent has failed to meet its burden
of going forward with credible evidence showing that the job
classifications of Massey, McCleary, and Pedersen would
have been eliminated, and they would have been selected for
termination, absent their statutorily protected and suspected
union activity. Therefore, viewing the evidence in its en-
tirety, I conclude that a preponderance of the credible evi-
dence establishes that Respondent terminated Massey,
McCleary, and Pedersen for an unlawful motive, thereby vio-
lating Section 8(a)(3) and (1) of the Act.
CONCLUSION OF LAW
Schaeff Incorporated has committed unfair labor practices
affecting commerce by terminating Tom Massey, Darren Ray
McCleary, and Richard A. Pedersen because of their union,
or suspected union activities in violation of Section 8(a)(1)
and (3) of the Act.
REMEDY
Having concluded that Schaeff Incorporated engaged in
unfair labor practices, I shall recommend that it be ordered
to cease and desist therefrom and, further, that it be ordered
to take certain affirmative action to effectuate the policies of
the Act. With respect to the latter, it shall be ordered to offer
immediate and full reinstatement to Tom Massey, Darren
Ray McCleary, and Richard A. Pedersen, by restoring the job
classifications from which each of them was unlawfully ter-
minated on October 12 and 13, 1994, and by reinstating each
of them to the restored job classification from which he had
been terminated on those dates. In addition, it shall be or-
dered to expunge from its files any reference to the unlawful
discharges of Massey, McCleary, and Pedersen, notifying
each one in writing that it has done so, and, further, shall
be ordered to make Massey, McCleary, and Pedersen whole
for any loss of pay and benefits suffered because of their un-
lawful terminations, with backpay to be computed on a quar-
terly basis, making deductions for interim earnings, F. W.
Woolworth Co., 90 NLRB 289 (1950), and with interest to
be paid on amounts owing, as computed in New Horizons for
the Retarded, 283 NLRB 1173 (1987).
[Recommended Order omitted from publication.]