Thermal Masters, Inc.

National Labor Relations Board - Board Decisions

Jul 31, 1995

318 N.L.R.B. 43 (N.L.R.B. 1995)

43
318 NLRB No. 2
THERMAL MASTERS, INC.
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 to include the
Board’s traditional mandate to remove from the Respondent’s files
any references to the unlawful layoffs. We shall also substitute a
new notice so that it conforms to the Order as modified.
1 All dates are in 1994 unless otherwise indicated.
Thermal Masters, Inc. and Milwaukee & Southern
Wisconsin District Council of Carpenters, af-
filiated with the United Brotherhood of Car-
penters and Joiners of America, AFL–CIO.
Cases 30–CA–12432 and 30–RC–5561
July 31, 1995
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
On May 12, 1995, Administrative Law Judge Rich-
ard A. Scully issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the General Counsel filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order as
modified.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Ther-
mal Masters, Inc., Milwaukee, Wisconsin, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order as modified.
1. Add the following as paragraph 2(b) and reletter
the subsequent paragraphs.
‘‘(b) Remove from its files any reference to the un-
lawful layoffs and notify the employees in writing that
this has been done and that the layoffs will not be used
against them in any way.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
[Direction of Second Election omitted from publica-
tion.]
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT threaten our employees with business
closure or loss of benefits because of their support for
the Milwaukee & Southern Wisconsin District Council
of Carpenters, affiliated with the United Brotherhood
of Carpenters and Joiners of America, AFL–CIO or
any other labor organization.
WE WILL NOT tell our employees that they were laid
off because of their support for the Union or any other
labor organization.
WE WILL NOT offer our employees benefits if the
Union or any other labor organization loses a represen-
tation election or if unfair labor practice charges are
dropped.
WE WILL NOT discriminatorily lay off our employees
because of their support for the Union or any other
labor organization.
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 make whole Tim Sutter, Paul Weyker,
Robert Kuhn, Todd Larkee, Richard Wilcox, Ronald
Dixon, and Robert Czajkowski for any loss of earnings
or benefits suffered as the result of their discriminatory
layoffs, with interest.
WE WILL notify each of them that we have removed
from our files any reference to their layoffs and that
the layoffs will not be used against them in any way.
THERMAL MASTERS, INC.
Joyce Ann Seiser, Esq., for the General Counsel.
Alan M. Levy, Esq., of Milwaukee, Wisconsin, for the Re-
spondent.
Thomas R. Doleschy, of Milwaukee, Wisconsin, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
RICHARD A. SCULLY, Administrative Law Judge. On a
charge filed on February 17, 1994,1 by Milwaukee & South-
ern Wisconsin District Council of Carpenters, affiliated with
the United Brotherhood of Carpenters and Joiners of Amer-
ica, AFL–CIO (the Union), the Regional Director for Region
44 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Hereinafter, these nonunion employees are referred to as the
EIFS employees.
30 of the National Labor Relations Board (the Board) issued
a complaint on March 31, alleging that Thermal Masters, Inc.
(the Respondent) had committed certain violations of Section
8(a)(1) and (3) of the National Labor Relations Act (the
Act). The Respondent filed a timely answer denying that it
has committed any violation of the Act. On May 12, the Re-
gional Director issued an order consolidating this unfair labor
practice proceeding with Case 30–RC–5561, after concluding
that the issues raised by the Petitioner Union’s objections in
that representation proceeding involve substantial questions
of fact and credibility that can best be resolved by a hearing,
that those questions are similar to those raised by the afore-
mentioned complaint, and that the cases should be consoli-
dated for hearing, ruling, and decision.
A hearing was held in Milwaukee, Wisconsin, on January
17, 18, and 19, at which all parties were given a full oppor-
tunity to participate, to examine and cross-examine wit-
nesses, and to present other evidence and argument. Briefs
submitted on behalf of the General Counsel and the Re-
spondent have been given due consideration. On the entire
record and from my observation of the demeanor of the wit-
nesses, I make the following
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
At all times material, the Respondent was a corporation
with an office and facilities in Milwaukee, Wisconsin, en-
gaged in the business of installing insulation.
During the calendar year 1993, the Respondent, in con-
ducting its business operations, purchased and received prod-
ucts, goods, and materials at its Milwaukee facilities valued
in excess of $50,000 directly from points located outside the
State of Wisconsin. The Respondent admits, and I find, that
at all times material it has been an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Respondent admits, and I find, that at all times mate-
rial the Union was a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Respondent is a building contractor specializing in in-
sulation installation. It was formed approximately 3 years
ago to be the contracting division of a group of insulation
distributing companies with which it is associated. Its em-
ployees do interior work, including drywalling, fireproofing,
and batt, blown, and foam insulation, and exterior work, in-
volving the application of exterior insulation finish systems,
known as ‘‘EIFS.’’ The Union represents approximately 10
of the Respondent’s employees who perform batt interior
work within Milwaukee and seven adjoining counties in
southeastern Wisconsin. The EIFS work and the interior in-
sulation work it has done outside of that geographical area
have been performed by nonunion employees.2
Beginning in December 1993, EIFS employees Tim Sutter
and Paul Weyker began discussing the possibility of rep-
resentation by the Union among themselves and others.
Weyker contacted Union Representative Thomas Doleschy
and a meeting was eventually held on January 26, which
about five employees attended. They discussed the benefits
of representation by the Union and signed authorization
cards. A second meeting was held on February 18 at which
two additional employees signed cards. Pursuant to a petition
filed by the Union on February 22, the Board conducted an
election among the EIFS employees on April 7, which the
Union lost. Thereafter, it filed objections to the Respondent’s
conduct.
B. The 8(a)(1) Allegations
1. The February 2 meeting
The complaint alleges that on February 2, at a jobsite in
Mequon, Wisconsin, Company Vice President Lloyd Gleason
threatened employees with business closure, loss of benefits,
and discharge because of their union activities and support.
Sutter testified that Gleason came to the jobsite and held a
meeting with the employees working there, including Super-
visor Howard Cleary. Gleason said that he had heard that
they were ‘‘talking about organizing a union’’ and they told
him that they had checked into union benefits and wages.
Gleason responded that his wages and benefits were better.
He got upset after a remark by employee Ronald Dixon and
said that if they went union he could shut his doors and fire
them and that he did not want a union telling him how to
run his business. He also told Sutter and employee Kevin
Sagmo that they had ‘‘a lot to lose in profit sharing.’’ Dixon
testified that Gleason stated that he would not have a union
company or a union person telling him how to run his Com-
pany and would not have anything to do with a union. Dixon
asked if he was saying that if they tried to get a union in
they would be fired. Gleason did not say yes or no, but said
it was his Company and he could do whatever he wanted.
Their discussion began to get more heated and Gleason told
him that if the Company went union there would be no work
because he would have to charge more to pay them and there
was too much competition out there.
Cleary testified that several of his employees had told him
they were considering union representation. He told Gleason
about this and what they had said the Union told them about
wages and benefits. He suggested that Gleason speak to them
and he came to the Mequon job the following day. Cleary
testified that Gleason told them that he had heard about the
promises the Union was making and he wanted to be sure
they knew what the Company had to offer. He told them to
get the facts on both sides and suggested that they talk to
some of the Company’s union employees. He testified that
he was present throughout the meeting and that Gleason did
not say that he would close the business or fire anybody and
did not say the Company could not compete if the employees
went union. He did say that if they voted for a union the
Company and the Union would have to sit down and nego-
tiate a contract. Gleason testified that he visited the Mequon
jobsite and talked to the employees about the Union. He told
them they should get all the facts before they made a deci-
sion and told them they could get information from the Com-
45THERMAL MASTERS, INC.
3 With the exception of his saying that Gleason said he could fire
them for going union, Sutter’s testimony generally corroborated that
of Dixon about the meeting.
4 I found their testimony as to what occurred at the meeting so
limited and similar as to suggest collusion. I do not consider their
negative answers to leading questions by the Respondent’s counsel
sufficient to contradict Dixon’s specific and detailed testimony about
what Gleason said at the meeting.
5 Although Dixon did not mention this threat, he did say that at
one point Sutter and Gleason ‘‘kind of went at it,’’ but that he was
not paying attention to all that was said.
6 The legality of this and other layoffs is discussed below.
7 I do not find the fact that Weyker failed to recall a second truck
accident in September 1993, while testifying about his driving record
on direct, undermines his otherwise credible testimony. On cross-ex-
amination, he volunteered that he had had the second accident.
pany’s union employees. He said he did not tell them that
he would close the Company or that they could be fired.
Analysis and conclusions
I found Dixon to be a believable witness and credit his
testimony as to what Gleason said to the employees on Feb-
ruary 2. He appeared to have the best recollection of the
meeting. His testimony establishes that, while Gleason did
not specifically threaten to fire the employees because of
their union support, he did say that he would not continue
in business if the Union were to represent them and that he
could not pay union wages and remain competitive.3 I do not
credit the testimony of Cleary or Gleason about the meeting.
Although both offered general testimony that Gleason sought
to explain what the Company had to offer, neither attempted
to describe what was actually said during the course of the
meeting which Dixon estimated lasted approximately 20 min-
utes.4 By telling the employees that the Respondent would
not be a union company and would not have anything to do
with a union, Gleason in effect said that the business would
close if they selected the Union as their bargaining represent-
ative. Similarly, his statement that if they went union there
would be no work because the Respondent could not pay
union wages and be competitive was an unlawful threat of
business closure. There is no evidence that this conclusion
was ‘‘carefully phrased on the basis of objective fact,’’ that
it conveyed the ‘‘employer’s belief as to demonstrably prob-
able consequences beyond his control’’ or that it was ‘‘a rea-
sonable prediction based on available facts.’’ NLRB v. Gissel
Packing Co., 395 U.S. 575, 618 (1969). I find that these
statements constituted unlawful threats of business closure
and violated Section 8(a)(1) of the Act. Pincus Elevator &
Electric Co., 308 NLRB 684, 691 (1992); Somerset Welding
& Steel, 304 NLRB 32, 45 (1991). I credit Sutter’s testimony
that Gleason told him and another employee that they had a
lot to lose in profit sharing if the Union came in.5 Again,
I do not consider the general denials of Gleason and Cleary
sufficient to contradict Sutter’s specific testimony about this
subject. I find that Gleason’s statement implied a probability
that the Employer would act differently with respect to profit
sharing if the Union was voted in and constituted a threat of
loss of a benefit in violation of Section 8(a)(1). Monfort of
Colorado, 298 NLRB 73, 85 (1990).
2. February 16 telephone conversation
During February, several employees were laid off, includ-
ing Sutter and Weyker.6 Sutter testified that on February 16,
he placed a telephone call to Gleason and asked why the em-
ployees on his crew had been laid off. Weyker was present
at his home and listened to the conversation on an extension
phone without Gleason’s knowledge. In response to Sutter’s
inquiry, Gleason said that by going to the Union and trying
to organize a union at the Company, it showed him that Sut-
ter and others, whom he identified as Weyker, Rich Wilcox,
Rob Kuhn, and Todd Larkee, did not care about their jobs.
When Sutter said that Wilcox was still working, Gleason said
that he was working in La Crosse, but when he got back he
would be laid off. Sutter testified that Gleason told him that
if he had not gone to the Union, he would still be working.
He also said that Sutter was permanently laid off and should
turn in his tools. Weyker testified that he listened to part of
the telephone conversation between Sutter and Gleason. He
said that, while he was listening, he heard Sutter ask why he
had been laid off and Gleason say that by going down to the
Union the guys showed him that they didn’t care about the
Company, and that they had turned their backs on him and
had showed that they wouldn’t mind being laid off.
Gleason testified that he was telephoned at the office by
Sutter who asked him about being laid off. Gleason told him
that he was permanently laid off but that he was not fired.
He did not give Sutter any reason why he had been selected
for layoff. He testified that he did not tell Sutter that he and
others were laid off because they turned their backs on the
Company or say anything similar during this telephone con-
versation.
Analysis and conclusions
Resolution of this issue depends solely on a determination
of credibility. Although I found that Sutter was less than
forthright in his testimony about his transportation problems
while employed by the Respondent, it was unrelated to this
issue and I do not find that it rendered the balance of his
testimony unworthy of belief. This is particularly true in this
instance when his testimony is corroborated by that of
Weyker, whom I found to be a credible and persuasive wit-
ness.7 I credit the detailed testimony of Sutter and that of
Weyker concerning this conversation and find that Gleason
said that Sutter and the others were laid off because they had
gone to the Union. It is Gleason’s version of the conversa-
tion that is incredible. Although the Respondent contends
Sutter made the call with Weyker secretly listening in on an
extension in order to lead him into committing an unfair
labor practice, according to Gleason’s version the employees’
activities and support for the Union was not mentioned by
either Sutter or Gleason. This is in contrast to his testimony
about two or three subsequent telephone conversations he
claims to have had with Weyker in which Weyker contin-
ually asked if his union activity was involved in his layoff
and Gleason assured him that it was not. This struck me as
an attempt to divert attention from his conversation with Sut-
ter by claiming that he did not make unlawful statements to
Weyker. I find that his testimony establishes only that if
there were any such subsequent conversations with Weyker,
by that time, Gleason had become more circumspect. The
Respondent’s telling Sutter that he and other employees were
laid off because of their union activity and support was coer-
46 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 Kuhn’s and Gleason’s conflicting versions of the restaurant meet-
ing cannot be reconciled. I find that there is no reasonable basis to
conclude that Kuhn may have merely misunderstood what Gleason
said.
cive and violated Section 8(a)(1). Jay Metals, 308 NLRB
167, 171 (1992); Uptilt, Inc., 276 NLRB (1985).
3. The restaurant meeting
The complaint alleges that during late March the Respond-
ent unlawfully offered employees benefits in the event the
Union lost the election. Robert Kuhn testified that while he
was on layoff he had several telephone conversations with
Gleason about the upcoming union election and his unhappi-
ness with the wage he was receiving. Eventually, Gleason
proposed that they meet at a restaurant to discuss things. At
Kuhn’s request, Sutter was also invited and attended this
meeting. At the meeting, Kuhn expressed his dissatisfaction
with the 50-cent-per-hour wage increase he had received in
January and Gleason responded that the reason he had not
gotten a better raise was that he and Sutter ‘‘were not talking
at the time.’’ Gleason said that after the election he would
be able to give him a better raise than he had gotten in the
past, that he could not give him a precise figure, but that it
‘‘would not be a $5.00 raise.’’ During the conversation Glea-
son said that ‘‘it was not right’’ that Sutter and Weyker had
been laid off and that Kuhn ‘‘was a victim of that cir-
cumstance.’’ Gleason did not say anything about what would
happen if the Union won the election and only ‘‘discussed
what would happen if the Union was voted down.’’ Sutter
testified that around the end of March Gleason called and in-
vited him out to lunch. At that meeting, which Kuhn also at-
tended, Gleason told them that he could show them that his
benefits were better than the Union’s. Kuhn complained
about his wage rate and Gleason agreed that he should be
making more money per hour and that it was something they
would talk about after the election.
Gleason testified that he arranged the meeting to explain
the Company’s benefits to Kuhn who, along with Sutter and
Weyker, had walked out of another meeting held to explain
them. Sutter was invited to the restaurant meeting at Kuhn’s
request. As he was explaining the benefits, Kuhn asked why
he was not making more money. Gleason responded that he
could not talk about that and that the meeting was being held
to discuss benefits. Sutter said very little except about how
he would like to have the crews structured. He did not offer
either any kind of raise.
Analysis and conclusions
Although he was obviously very nervous and anxious dur-
ing parts of his testimony, based on my observation of his
demeanor, I conclude that Kuhn was making a sincere effort
to testify truthfully about the restaurant meeting. Although
somewhat disjointed, his testimony struck me as being the
result of an sincere effort to recall the meeting, which was
held 10 months before, rather than as a fabrication.8 It was
clear that Kuhn’s main concern at the time was his wage rate
and the fact that he had not received a raise of the magnitude
he had expected and felt he deserved. He had raised this with
Gleason several times before, along with his concerns that he
could not purchase a house and otherwise provide for his
family as he wanted unless he got a wage increase. I find
that the meeting was set up to address those concerns and
not merely to explain the Respondent’s existing benefits. I
credit Kuhn’s testimony and find that Gleason promised him
a wage increase of an unspecified amount after the election
so long as the Union was defeated. This was an unlawful
promise of a benefit and violated Section 8(a)(1). Pembrook
Management, 296 NLRB 1226, 1240 (1989); Churchill’s Su-
permarkets, 285 NLRB 138, 140 (1987).
4. Benefits in return for dropping unfair labor
practice charges
Weyker testified that about a week after the union election
he attended a meeting at the Company for all employees who
had been or were to be lead people on jobs. After the meet-
ing ended, Gleason asked Weyker and Sutter, who were con-
sidering taking other employment, to come into his office
where they discussed what it would take to keep them work-
ing for the Respondent. They discussed some figures and
Gleason said that he could give them $16.50 an hour by the
end of September and that they would be given a truck al-
lowance. He also said that they ‘‘would have to do some-
thing about this National Labor Board thing’’ and that they
could talk to his lawyer about dropping it if they stayed on.
Weyker said he would get back to him and spoke to him
again a week later. Gleason repeated that, if he stayed,
Weyker would get $16.50 an hour in September and a truck
allowance. Sutter testified that he and Weyker had met with
Gleason after an employee meeting but said it was during the
week of the election or the week before. He testified that
Gleason said that the union issue had gone far enough and
it was time to talk about the future. He told them that there
were foremen positions opening up that they could move into
and that they could be making $16.50 an hour in 3 months.
Gleason also said that he wanted the unfair labor practice
charges dropped. They had a subsequent telephone conversa-
tion in which Sutter informed Gleason he was quitting and
gave a week’s notice. During his last week, Gleason came
to the jobsite where Sutter was working and again asked him
what he wanted in order to stay on. Sutter said he wanted
$16.50 an hour and a company truck. Gleason said they
could talk about it but that he also wanted to talk about get-
ting the charges dropped. They had no further discussion
about it before Sutter left the Respondent’s employ.
Gleason testified that he had a meeting with Sutter and
Weyker about a week after the union election at their re-
quest. They asked for the opportunity to have their own
crews and to run their own jobs and both requested wage in-
creases and truck allowances. He did not offer them a wage
increase or say they could get $16.50 an hour. He discussed
their requests with his superiors and talked again with each
of them separately. He told them the Company would offer
an incentive program during a 3-month trial period whereby
if the jobs they ran turned out well they could receive a
bonus. He did not attempt to calculate what the bonus would
be worth to them. He denied that he ever told either of them
that the bonus program was contingent on the unfair labor
practice charges being dropped.
47THERMAL MASTERS, INC.
9 Although Sutter erroneously placed the first of these conversa-
tions as occurring before the election, Gleason does not deny having
the conversations and confirmed Weyker’s testimony that the first
conversation was a week or 10 days after the election.
10 All of the alleged discriminatees were eventually recalled by the
Respondent. Some declined and others returned to work, but by the
date of the hearing all had left the Respondent’s employ.
Analysis and conclusions
I credit the consistent and mutually corroborative testi-
mony of Weyker and Sutter9 about Gleason’s offers of im-
proved wages and benefits following the Union’s election de-
feat that were accompanied by his suggestion that the
charges filed with the Board should be dropped. They had
nothing to gain by fabricating such a story, which was con-
sistent with the fact that the conversations occurred at a time
when they and several other employees were considering
leaving for new employment and that the Respondent was in-
terested in keeping them. Gleason’s elaborate and self-serv-
ing attempt to explain away these conversations by claiming
he was merely informing them about a new trial program in
which they could earn bonuses for running jobs was neither
credible nor corroborated by an other evidence that such a
program ever existed. Although Gleason may not have spe-
cifically made the increases in wages and benefits contingent
on the dropping of the charges or explained how it would
be done, he clearly implied that dropping the charges was a
quid pro quo for these improvements. By promising benefits
to employees in order to induce them to withdraw charges
filed with the Board, the Respondent violated Section
8(a)(1). A.P.R.A. Fuel Oil, 309 NLRB 480 (1992).
C. The 8(a)(3) Allegations
The complaint alleges that several employees who were
involved in or supported the Union’s organizing campaign
were discriminatorily laid off in late January and early Feb-
ruary in violation of Section 8(a)(3) and (1) of the Act.10
The Respondent contends that these layoffs were not dis-
criminatory and were consequences of the lack of work that
resulted from the unusually severe winter weather conditions
existing at that time. In cases where the employer’s motiva-
tion for taking certain actions is in issue, those actions must
be analyzed in accordance with the test outlined by the
Board in Wright Line, 251 NLRB 1083 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982),
approved in NLRB v. Transportation Management Corp., 462
U.S. 393 (1983). Under Wright Line, the General Counsel
must make a prima facie showing sufficient to support the
inference that protected conduct was a motivating factor in
the employer’s decision. Once that has been done, the burden
shifts to the respondent to demonstrate that it would have
taken the same action even in the absence of protected activ-
ity on the part of its employees.
Although counsel for the General Counsel contends that
the layoffs were based on a pretextual claim of lack of work,
I do not agree. There is no evidence to contradict the testi-
mony of Cleary, which I found credible, that the weather
during the period coinciding with the layoffs was unusually
severe, delayed several projects the Respondent was working
on, and made it impossible to work on EIFS projects. The
evidence shows that the total number hours worked by all
employees was down sharply in February and more so in
March and that almost all of the employees, not only the al-
leged discriminatees, were laid off due to lack of work for
some time. I, however, do find that the General Counsel has
made a prima facie case that the selection of employees for
layoff was discriminatory. In almost every case, the alleged
discriminatees were laid off sooner and were off longer than
some of the other employees. There can hardly be stronger
evidence than the statements of Gleason, as established by
the credited testimony of Sutter and Weyker discussed above,
that they along with Kuhn, Wilcox, and Larkee had been laid
off because they had gone to the Union. Similarly, the cred-
ited testimony of Kuhn concerning the meeting at the res-
taurant was that Gleason admitted that laying off Sutter and
Weyker was ‘‘wrong’’ and that Kuhn, who regularly worked
with Sutter, was ‘‘a victim of that circumstance.’’ There is
evidence that each of these employees had worked on the
jobsite in Mequon, Wisconsin, during January, when contact-
ing the Union was being discussed and that the Respondent,
through its supervisor Cleary, was aware of those discus-
sions. The evidence also shows that the Respondent was
aware of Dixon’s support for the Union since he openly ex-
pressed it to Gleason when he came to the Mequon site and
tried to dissuade the employees from seeking representation.
There is evidence that the Respondent had reason to suspect
that employee Robert Czajkowski was a union supporter
based on his credible and uncontradicted testimony that he
had discussed and expressed his interest in the Union during
a conversation with Weyker at a jobsite in Green Lake, Wis-
consin, while in the presence of Supervisor Steve Disterhaft.
There is ample evidence of the Respondent’s union animus
in the violations of Section 8(a)(1) found here and its opposi-
tion to the Union’s organizing campaign. Accordingly, I find
that there is sufficient evidence to support the inference that
Sutter, Weyker, Kuhn, Wilcox, Larkee, Dixon, and Czajkow-
ski were selected for layoff because of their activity and sup-
port for the Union.
I find that the Respondent has not established that it would
have taken the same action with respect to the named
discriminatees in the absence of protected activity on their
part. It relies primarily on the testimony of Cleary who said
that he made the decisions as to when and whom to lay off
and recall. He said that he made his decisions based on the
employees’ skills, training, and experience and willingness to
travel. He, however, offered little beyond ‘‘lack of work’’ to
explain the reasoning underlying his decisions to lay off indi-
vidual employees while others continued to work. The few
specific reasons he did offer cannot withstand scrutiny and
were pretextual. To begin with, during January, Cleary had
been involved in the preparation of written employee evalua-
tions on which annual wage increases were based. These
would presumably have provided an up-to-date indication
and comparison of each employee’s ‘‘ability and how he’s
performing on the job,’’ yet, none were produced in support
of Cleary’s layoff and recall decisions. I infer that they
would not have supported the Respondent’s position as to
why certain employees were laid off while others were not.
Cleary testified that Sutter and Weyker were laid off be-
cause they were unwilling to travel and, in Sutter’s case, he
lacked reliable transportation. The evidence shows that dur-
ing his employment Weyker had worked outside of Milwau-
kee and even outside of Wisconsin on several occasions and
that his December 1993 request to be assigned to jobs in the
48 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 When asked by the Respondent’s counsel why employee Steve
Straka, who was hired more than a year and a half after Sutter, was
recalled to work before Sutter, Cleary’s only explanation was that
Sutter was unwilling to travel to the jobs on which Straka worked.
He, however, gave no explanation as to why Straka, before he was
laid off, worked on the Kohn jobsite for all or parts of 4 weeks dur-
ing February and March while Sutter was on layoff.
12 Allegations that the Respondent unlawfully interrogated an em-
ployee at the Von Schledorn jobsite during early February 1994 and
at a Madison jobsite during the last 2 weeks of February were volun-
tarily dismissed at the hearing. The Union withdrew the objection
corresponding to the allegation concerning interrogation at the Von
Schledorn jobsite.
13 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
Milwaukee area was based on the fact that his wife was due
to deliver a baby in early 1994. In fact, the baby arrived on
February 9 while Weyker was assigned to a job in Green
Lake, Wisconsin, which is 60 to 70 miles northwest of Mil-
waukee. Weyker was informed that he was laid off that same
day. Although his reason for wanting to work in the Milwau-
kee area was over, he was not recalled until the week of
April 16, to a job in Wausau, Wisconsin, some 200 miles
from Milwaukee. While Sutter was on layoff, at least four
other employees were working at least some of the time at
a jobsite in West Bend, a mile and a half from Sutter’s resi-
dence. The Respondent has provided no reason why there
was no work for Sutter on this job where neither distance nor
transportation was a problem.11 In fact, that was the job to
which Sutter was assigned when he was recalled in April.
Both Sutter and Weyker were relatively senior employees
whose skills and experience the Respondent obviously valued
considering Gleason’s attempt to keep them on as project
leaders once the election was over and the Union had lost,
yet they were among the first laid off and last recalled. The
evidence does not support a finding that the Respondent
would have taken the same actions in laying off and delaying
the recall of the alleged discriminatees in the absence of their
support for the Union. On the contrary, I find that the evi-
dence as a whole supports a finding that the Respondent took
these actions in order to retaliate against them for, and un-
dermine, that support. In so doing it violated Section 8(a)(3)
and (1) of the Act. Alson Knitting, 301 NLRB 758, 762
(1991); Reno Hilton, 282 NLRB 819, 841–842 (1987).
IV. THE ELECTION OBJECTIONS
The Union’s objections to the election were based on cer-
tain of the incidents alleged in the complaint to have violated
Section 8(a)(1) and (3) of the Act.12 Although most of these
objections involved conduct occurring before the critical pe-
riod commenced, having found that the Respondent unlaw-
fully informed employees that they and others had been laid
off because of their support for the Union and that, on Feb-
ruary 28, the Respondent unlawfully laid off another em-
ployee, Ronald Dixon, in retaliation for that support, which
occurred during the critical period between the filing of the
petition on February 22 and the election on April 7, I find
that the Union’s objection based on that action has been sus-
tained, that this coercive and discriminatory conduct pre-
vented the holding of a fair and free representation election
in Case 30–RC–5561, and that the election should be set
aside.
CONCLUSIONS OF LAW
1. The Respondent, Thermal Masters, Inc., is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(1) of the Act by
(a) Threatening employees with business closure and loss
of benefits because of their support for the Union.
(b) Telling employees that they and other employees had
been laid off because of their support for the Union.
(c) Offering employees benefits if the Union lost the rep-
resentation election.
(d) Offering employees benefits if unfair labor practice
charges were dropped.
4. The Respondent violated Section 8(a)(1) and (3) of the
Act by laying off employees Sutter, Weyker, Kuhn, Larkee,
Wilcox, Dixon, and Czajkowski because of their support for
the Union.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
6. The Respondent’s coercive and discriminatory conduct
in laying off an employee during the critical period prior to
the election because of his support for the Union prevented
the holding of a fair and free election in Case 30–RC–5561;
therefore, the Union’s objection is sustained and the election
held on April 7, 1994, is set aside.
THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I shall recommend that it be ordered
to cease and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act.
Having found that the Respondent discriminatorily laid off
employees Tim Sutter, Paul Weyker, Robert Kuhn, Todd
Larkee, Richard Wilcox, Ronald Dixon, and Robert
Czajkowski, it must make them whole for any loss of earn-
ings or other benefits suffered by reason of that discrimina-
tion, as prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest, computed as prescribed in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987). The election
held in Case 30–RC–5561 will be set aside and the Regional
Director will conduct a new election when he deems the cir-
cumstances will permit the fair and free choice of a bargain-
ing representative.
On the foregoing findings of fact and conclusions of law
and on the entire record, I issue the following rec-
ommended13
ORDER
The Respondent, Thermal Masters, Inc., Milwaukee, Wis-
consin, its officers, agents, successors, and assigns, shall
1. Cease and desist from
49THERMAL MASTERS, INC.
14 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.’’
(a) Threatening employees with business closure or loss of
benefits because of their support for the Union or any other
labor organization.
(b) Telling employees they were laid off because of their
support for the Union or any other labor organization.
(c) Offering employees benefits if the Union loses a rep-
resentation election.
(d) Offering employees benefits if unfair labor practice
charges are dropped.
(e) Discriminatorily laying off employees because of their
support for the Union or any other labor organization.
(f) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Make whole Tim Sutter, Paul Weyker, Robert Kuhn,
Todd Larkee, Richard Wilcox, Ronald Dixon, and Robert
Czajkowski for any loss of earnings or other benefits suf-
fered as a result of their discriminatory layoffs. Backpay and
interest due hereunder shall be computed in the manner pre-
scribed in the remedy section of this decision.
(b) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(c) Post at its facility in Milwaukee, Wisconsin, copies of
the attached notice marked ‘‘Appendix.’’14 Copies of the no-
tice, on forms provided by the Regional Director for Region
30, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees 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.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.