Tlt-Babcock, Inc

National Labor Relations Board - Board Decisions

Mar 13, 1989

293 N.L.R.B. 163 (N.L.R.B. 1989)

TLT BABCOCK INC 163
TLT-Babcock , Inc and Glenn A Heyburn and
Joseph P Marangoni Cases 8-CA-20075 and
8-CA-20076
March 13, 1989
DECISION AND ORDER
BY MEMBERS CRACRAFT, HIGGINS, AND
DEVANEY
On August 18, 1988, Administrative Law Judge
Irwin Kaplan issued the attached decision The Re-
spondent filed exceptions and a supporting bnef,
and the General Counsel filed a reply bnef to the
Respondent's exceptions
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, I and
conclusions2 and to adopt the recommended
Order
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, TLT-Bab-
cock, Inc, Medina, Ohio, its officers, agents, suc
cessors, and assigns, shall take the action set forth
in the Order
I The Respondent has excepted to some of the judge s credibility find
rags The Board s established policy is not to overrule an administrative
law judge s credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings In sec II B 1 par 2 of his decision the judge inadvertently
referred to the date of the January 1986 reorganization as 1988
2 We agree with the judges findings that Glenn A Heyburn and
Joseph P Marangoni were selected for layoff for discriminatory reasons
and that the Respondent s alleged reasons for selecting them are pretex
tual Because of this finding we find it unnecessary to pass on the judge s
finding that the record does not support the Respondent s assertion that
legitimate business conditions dictated the November 6 1986 layoffs
Mark Carissimi Esq, for the General Counsel
William A Ziegler Esq (Sullivan & Cromwell), of New
York, New York for the Respondent
DECISION
STATEMENT OF THE CASE
IRWIN KAPLAN, Administrative Law Judge These
consolidated cases were heard in Cleveland, Ohio, on
October 14 and 15 1987 The underlying charges in Case
8-CA-20075 were filed by Glenn A Heyburn on May 4
1987, and in Case 8-CA-20076 by Joseph P Marangoni
on that same date These charges gave rise to an order
consolidating cases , consolidated complaint, and notice
of heanng dated June 18, 1987 (slightly amended at the
heanng)
The essence of the consolidated complaint is that
TLT Babcock, Inc (the Respondent), permanently laid
off employees Heyburn and Marangoni because it be
lieved that they would support or favor the unioniza
tion of Respondents employees' and because they en
gaged in concerted activities for their mutual aid or pro
tection regarding working conditions and that the Re
spondent thereby violated Section 8(a)(3) and (1) of the
National Labor Relations Act (the Act)
The Respondent filed an answer (amended at the hear
ing) conceding, inter alia, jurisdictional facts and the su
pervisory status of certain individuals, but denying that it
committed any unfair labor practices
Based on the entire record, including my observations
of the demeanor of the witnesses as they testified, and
after careful consideration of the posttnal briefs, I make
the following
FINDINGS OF FACT
I JURISDICTION
The Respondent , TLT Babcock, Inc, is a Delaware
corporation engaged in the manufacture of industrial fans
for the power generation industry The Respondent
maintains its administrative headquarters in Fairlawn,
Ohio , and its production facility in Medina , Ohio It is
alleged the Respondent admits , and I find, regarding the
aforenoted business operations, that the Respondent an
nually sells and ships products , goods , and materials
valued in excess of $50,000 from its Ohio facilities direct
ly to points outside the State of Ohio It is alleged, the
record supports , and I find that the Respondent is an em
ployer engaged in commerce within the meaning of Sec
tion 2(2), (6), and (7) of the Act
II THE ALLEGED UNFAIR LABOR PRACTICES
A Background and Sequence of Events
The Respondent is engaged in the business of manufac
turing and repairing industrial exhaust fans used pnman
ly for the power generation industry It has had its ad
ministrative headquarters in Fairlawn Ohio, since the
early 1970s and a production facility in Medina Ohio
since 1977 The facilities are approximately 17 miles
apart There are approximately 70 employees employed
at the Fairlawn location and 13 and 15 employees at the
production facility in Medina None of Respondents em
ployees have been represented for collective bargaining
purposes, no representation petition has ever been filed,
and there is no evidence of any union organizing for any
of these employees
Early in 1983 some of the employees at Medina ex
pressed their displeasure to each other concerning man
datory overtime and, to a lesser extent, safety conditions
In the spring of 1983, employee Joseph Marangoni (one
of two alleged discriminatees) wrote a letter to then
president of Respondent Joseph Dziewisz, outlining em
ployee dissatisfaction over working conditions The letter
was signed A concerned employee, ' and did not other
293 NLRB No 23
164 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
wise identify its author Marangont had Glenn Heyburn
(the other alleged discriminatee) deposited the letter in
the interoffice mail at Fairlawn for delivery to Dzlewisz
at that time, Heyburn was employed at Fairlawn, but
was soon after to be transferred to Medina (for nondis
criminatory reasons)
Still, during the spring of 1983 and approximately 1
week after Heyburn transferred to Medina, Dziewisz
convened a meeting of all production employees in the
cafeteria at the Medina plant and excluded all managerial
and/or supervisory personnel The plant manager at that
time was Mike Hug and he too was excluded from the
meeting Dziewisz told those assembled about the letter
he had received from a concerned employee (ACE) re
garding employee displeasure over working conditions
Further, Dziewisz indicated that he was upset and stated
that he had called this meeting to learn about and discuss
the working conditions that triggered the letter He also
invited employees to feel free to discuss any of their
problems with him
According to Marangoni, without contradiction, after
the aforenoted meeting, he was told by Ed Johnson, his
immediate supervisor that Plant Manager Mike Hug was
out to get the person who wrote the ACE letter A short
time later, as testified by Marangoni , Hug summoned
Marangont to his office and there stated that he under
stood that he (Marangoni) wrote the ACE letter Maran
govt denied writing the letter to which Hug assertedly
responded, I still think you did (Hug did not testify
and was still employed by Respondent at the time of the
hearing )
Marangont and Heyburn testified that the months fol
lowing Dziewisz meeting with employees had not
shown any significant change in working conditions
Thus in the fall of 1983 they collaborated in composing
a leaflet under the acronym A C E which posed a
number of questions highly critical of management The
leaflet also advised employees that a union representative
would be coming out shortly (G C Exh 2) Maran
gone and Heyburn posted a copy of the leaflet on the
bulletin board in the Respondents cafeteria and spread
other copies around employee toolboxes That same
morning the leaflet was removed from the bulletin board
as well as most of the other copies at the facility by one
or more unidentified individuals
In August 1983 Daniel Goodrow replaced Ed John
son as plant foreman at the Medina facility (Goodrow
later became plant manager) According to Goodrow he
recalled that he made the following rhetorical comment
at that time 'I wonder who would have wrote [sic] such
a thing [the ACE leaflet] He also recalled that Maran
govt was in the area when he made that comment Mar
angoni testified that Plant Manager Hug and Goodrow
often referred to him as ACE Although Goodrow ad
mitted as much, he asserted that from time to time
[e]verybody was calling each other ACE He also ac
knowledged that the reference was inspired by the ACE
leaflets However, Goodrow denied any knowledge of
either Marangoni s or Heyburn s involvement in the
ACE leaflets However Goodrow denied any knowl
edge of either Marangoni's or Heyburn s involvement in
the ACE leaflets or other written material
In early January 1984 Marangont and Heyburn, still
unhappy over certain working conditions, wrote to Dave
Brown, an official of Babcock and Wilcox, Respondent s
corporate parent, wherein they traced their anonymous
efforts to get mangement to take steps to improve work
ing conditions to no avail (G C Exh 9) The letter
dated January 9, 1984 and composed mostly by Hey
burn, again under the acronym ACE and highly critical
of Plant Manager Hug, in its entirety states as follows
January 9, 1984
Dear Mr Dave Brown
I am a TLT Babcock Medina employee Before I
go any further I'd like to tell you why I in jumping
the Chain of Command Several months ago an
anonymous letter was sent to Mr Dziewisz telling
him of problems at the Medina facility, this letter
was very specific at times As a result of this letter
Mr Dziewisz came out to Medina and had a meet
ing with all the shop personnel He asked what the
problems were Only a couple people answered
since they were not sure that what was said
wouldn t get back to Mike Hug The problems that
were brought out, we were promised would be
taken care of The next day Mike Hug knew every
thing that was said so he had plenty of time to
make excuses, before he was called in to see Mr
Dziewisz Two days later Mike Hug commented to
several different people that if whoever wrote that
letter had given him a couple weeks he would have
handled it This left people wondering what he
meant About a week later our foreman Ed Johnson
was put on probation The sad part about it was
that letter was 100% about Mike Hug, but he was
able to turn it around on someone else
Two times since then we have went [sic] to Mr
Dziewisz about Mike Hug Both times we failed
It's to the point now that all this dust straightens
[sic] Mike Hug's position with upper management
Recently, we were asked if we wanted to sit
down and have a gripe session we asked to have
Carl Bako there We were told that would be fine if
we gave Mike Hug two days with our gripes so he
has time to come up with excuses Then we de
clined This is why I m writing straight to you,
we re tired of excuses
Right now if a vote was taken I in sure we could
vote a union in Medina We don t really want one
but it seems like the only way Now I could write
for the next three pages about Mike Hug and why
he shouldn t have his job but that can wait There
are three problems that I d like to bring up If we
could at least see a little hope in these three areas
we could avoid what no one wants to happen
I Progression verses promotion we were told no
one at Medina can be promoted inside Medina any
more except, to a supervisory position Now it s a
progression (which has no monetary compensation)
They tell us that s the way its always been It
seems funny that we have different pay scales and
responsibilities and abilities in different jobs and
TLT BABCOCK INC
now their [sic] not promotions That gives little in
centive to learn more We don't have a problem
with the 3-7% raise just the fact we cant be pro
moted
II Overtime, Most weeks we work 58 hours
This is a lot of overtime For the most part no one
really minds working overtime in fact a lot of
people depend upon it The problem is though over
time is supposingly not mandatory, but we're not
even asked anymore if we want to work ten hours a
day, we are just scheduled Were still asked to
work Saturday though Schedules change so often
you can t even make day to day plans, and if you
turn down ovetime it's a federal offense
III Safety, This is a joke in Medina, Mike Hug is
proud of his lost time record, but doesn't do much
to keep it We have a monthly safety meeting which
is a joke What it turns out all they want is the
product out fast and cheap Especially in radial as
sembly OSIA [sic] would have something to say
In fact, just last week if Mr Dziewisz wasn't in
Medina either someone would have been fired or
hurt When people get hurt either they are written
up or even put on probation Even outside contrac
tors on the test stand have said Mike Hug is going
to kill someone
I hope you will look into these statements Thank
you for your time
ACE
A Concerned Employee
cc D E Heyburn i
Heyburn testified that approximately 1 week later,
Goodrow asked him if he knew who wrote the aforenot
ed letter, to which Heyburn replied in the negative At
that time, Heyburn had already transferred back from
Fairlawn to the production floor at the Medina facility
and Goodrow was his immediate supervisor The next
day, as testified to by Heyburn without contradiction,
Hug called him into his office and also asked whether he
knew who wrote the most recent ACE letter When
Heyburn indicated that he was not sure, Hug asked him
to find out Within a few weeks Hug was transferred to
Respondents Fairlawn facility in what was called a lat
eral move (Hug was still employed by the Respondent
at that location in a marketing position at the time of the
instant hearing) Terry Speck became the new plant man
ager According to Marangoni and Heyburn, during the
period in which Speck served as plant manager, from
early 1984 to early November 1986, a much better work
ing relationship existed between employees and Speck
than had existed with Hug Marangoni characterized
Speck as being more people oriented ' As explained by
Marangoni You could go to him [Speck] with a prob
lem and he would attempt to rectify it if it was within
his power Marangoni and Heyburn did not compose or
disseminate any written material critical of management
or working conditions during this period
i D E Heyburn is Glenn Heybu n s father and at the time of the letter
was a vice president and member of Respondent s board of directors
165
In October 1984, Marangoni transferred from the pro
duction floor to the quality control department, where
he remained until a reorganization occurred in January
1986 Along with the reorganization, Marangoni returned
to his former position as an assembler on the production
floor There, Marangoni was again under the immediate
supervision of Goodrow, who told Marangoni that he
was happy to have him back
According to Robert Smith, while employed by Re
spondent in January 1986, he overheard Goodrow say in
the locker room area at the Medina plant that I don t
want a union to come to TLT because we would go out
of business Smith testified that employee Patrick Kelly
was in the locker area at the time Goodrow denied that
any such conversation took place (At the time Smith
testified he was a college student and no longer em
ployed by Respondent) Marangoni testified that in the
spring of 1986, he had a generally friendly conversation
with Goodrow in the latter s office, in which Goodrow
stated that he knew that he (Marangoni) had been in
volved in writing the letters that led to Hug s departure
as plant manager 2 Further, Goodrow assertedly told
Marangoni that he (Goodrow) believed that he could
rectify any of the problems on the production floor and
that it was unnecessary for the employees to be repre
sented by a union Marangoni asserted that regardng
these comments made by Goodrow, he, Marangoni did
not respond Goodrow could not recall any such conver
sation and denied telling Marangoni that he knew that he
wrote the letters to Dziewisz or Brown (the ACE let
ters)
In June or July 1986, Goodrow left the Medina plant
to become section manager of materials and operations
There Goodrow, inter alia, supervised activities relative
to purchasing inventory, and production control
In November 1986,3 Respondents president was John
Finn Goodrow testified that on or about November 1,
Finn informed him of another reorganization and, due to
a drop in business, there would have to be a reduction in
force Finn offered Goodrow one of three choices (1)
plant manager at Medina (2) manager of purchasing or
(3) a position in project management Goodrow elected
to become plant manager at Medina, replacing Terry
Speck The latter transferred to Fairlawn where he as
sumed many of the same functions previously performed
by Goodrow at that location Finn also informed Goo
drow that, in line with the reorganization, as plant man
ager, he would be reporting to a new operations manag
er who would also be housed at the Medina plant
Within a few days, Terry McEntee, the new oper
ations manager, told Goodrow that a staff meeting had
been held and that it was decided to lay off four employ
ees two from each of the facilities McEntee had been
manager of customer parts and services with no previous
knowledge of the employees at the Medina plant Thus
2 Although Marangoni was cross-examined he placed this conversation
in the fall of 1986 However as Goodrow was then employed at the Fair
lawn location and as I found Marangonr otherwise to be a credible and
reliable witnesss I find that this conversation occurred in the spring of
1986 as Marangoni first testified
3 All dates refer to 1986 unless otherwise indicated
166 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(as testified to by Goodrow), McEntee asked Goodrow
to select the two employees to be laid off at the Medina
plant The next day, November 5, Goodrow informed
McEntee that he decided to lay off Marangoni and Hey
burn
According to Goodrow , in arriving at his decision he
assessed all 13 production employees then employed at
the Medina location in terms of cost to the company
[relative to ] benefits received from [employees] Goo
drow testified that he knew almost immediately that
Heyburn would be selected Thus Goodrow noted inter
alia, that Heyburn had already been out of work a good
portion of that year due to an accident and the Compa
ny would suffer least by his departure (Heyburn had suf
fered a work related injury in early 1986 whereby he suf
fered torn cartilage to his knee ) Goodrow also noted
that Heyburn had suffered a number of other accidents
that had diminished his capacity to work and that
he had a history of horseplay ' for which he received a
written warning in January 1986 (R Exh 5 ) Heyburn
was also the third highest paid production employee
Goodrow assertedly evaluated this salary factor relative
to his performance and determined that as there were
other employees who could do Heyburn's work, that the
latter was a logical person [for the Company] to do
without '
According to Goodrow , he followed the same value
analysis" in selecting Marangont for layoff as he had
with Heyburn In Goodrow s words, TLT was not get
ting the best value for their dollars spent Marangont
was the highest paid production employee and had also
served frequently as a leadperson Although Goodrow
acknowledged that Marangont had proven ability, the
former also asserted that Marangont had become moody
and had ignored him (Goodrow) and other employees
ever since the reoganization back in January 1986 which
resulted in Marangont leaving the quality control depart
ment and returning to production Goodrow did not say
anything to Marangont in 1986 about his changed atti
tude or more paticularly about his so called moodiness
Nor did Goodrow issue any warning in writing to Mar
angoni in 1986
On November 6 Goodrow and McEntee notified
Marangont at the Medina facility that he had been select
ed for layoff They noted that other lower paid employ
ees were qualified to perform his duties and that cost re
ductions dictated that he, as the highest paid production
employee , had to go Heyburn was not at work that day
and was notified of the layoff by letter
Marangoni testified without contradiction, that on the
day of the layoff as he was getting into his car to
depart , Speck came over and stated that he was "very
sorry and that he had no explanation for what had
happened Speck also offered assistance to Marangoni, if
needed Marangont asked for a letter of recommendation
for another job, which Speck provided about 2 weeks
later on company letterhead under Speck s new title,
manager , materials and operations (G C Exh 10) By
letter dated December 11, 1986 Speck , at Heyburn s re
quest , also provided him a letter of recommendation
(G C Exh 12)
Goodrow testified that he selected Marangont and
Heyburn without consulting his predecessor , Plant Man
ager Speck, or with input from anyone else According
to Goodrow , he drew entirely on his own experiences
with production employees at Medina Goodrow also
testified that Speck told him after the aforenoted decision
was made that he (Speck ) would not have selected Mar
angoni for layoff
B Discussion and Conclusions
1 Credibility
This case in large part turns on credibility resoultions
If the General Counsels witnesses are credited , it would
directly establish certain key elements necessary to sup
port a prima facie case For example, former employee
Robert Smith testified that he overheard Goodrow say
the he opposed a union because [the Company] would
go out of business According to Marangoni , Goodrow
told him that he knew that he was involved in writing
the ACE letters, which led to former Plant Manager
Hug s departure Further , Goodrow assertedly told Mar
angoni that a union was not needed because he, Goo
drow , could handle production problems Goodrow on
the other hand denied making such statements and also
denied that he had any knowledge or that he even sus
pected that Marangont and Heyburn were involved in
union or other concerted activities regarding terms and
conditions of employment (Tr 356-357)
In assessing Goodrow s credibility , I found him to be
largely conclusionary and at times inconsistent , elusive,
unresponsive and implausible For example , Goodrow
testified that after the reorganization of January 1988,
which resulted in Marangont s return to the production
floor, the latter had become moody and noncommunica
tive to him (Goodrow) and other employees According
to Goodrow this impacted adversely on Marangont s
ability to serve as a leadperson and was a factor in se
lecting him for layoff In rejecting Goodrow s unsubstan
bated assessment it is noted , inter alia that Goodrow ad
mittedly said nothing to Marangont about his attitude nor
did he issue anything in writing
As noted above Goodrow denied knowledge of any
role by Marangoni and Heyburn in union and/or ACE
activities I find , however that his testimony in this criti
cal area was elusive , inconsistent unresponsive and less
than forthright Thus it is noted that Goodrow first
denied tht he ever called Marangont or Heyburn ACE
(Tr 357) However after the next question was put to
Goodrow he asked to go back to his previous answer to
be able to respond in my own words Thus instead of
responding with a yes or no, Goodrow testified that he
never referred to Mr Marangont or Mr Heyburn any
more or less than [other employees] (Tr 358) When
the same question was again put to Goodrow, this time
he finally responded in the affirmative When asked
about the circumstances, Goodrow testified as follows
It was common in the shop that , when somebody
did something the least bit off color you know
from time to time, somebody would go up and say,
Better watch it Ace (Tr 358 )
TLT BABCOCK INC 167
Goodrow noted that the term ACE had come from
the form [ACE letter] that talked about the Union
(Tr 360) At another point he asserted that "[e]verybody
was calling each other ACE (Tr 361 )
There was no corroborative evidence however, and I
reject Goodrow s assertion that employees other than
Marangoni and Heyburn were called ACE Noting that
Goodrow acknowledged that his reference to ACE was
inspired by the ACE letters (Tr 359-360), that he admit
tedly called Marangoni and Heyburn ACE , that the
subject was common in the shop and that only a rela
tively few number of employees (approximately 13 pro
duction employees) were employed at the Medina plant,
I find it highly unlikely and reject Goodrow' s denials
that he had any knowledge of Marangoni and Heyburn
vis a vis ACE activities 4
As for the credibility of Marangoni and Heyburn, I
found him to be generally consistent, responsive and
mutually corroborative, I also found their testimony was
otherwise largely supported by record evidence, i e, let
ters of recommendation by former Plant Manager Speck
Further, it is noted that their testimony was uncontra
dicted in critical areas by former Plant Managers Hug
and Speck Neither Hug nor Speck testified although
they were still employed at the time of the hearing Hug
was employed in marketing Speck was the manager of
purchasing
Because of the foregoing and on consideration of de
meanor factors, I find that Marangoni and Heyburn are
credible and reliable and credit them over Goodrow in
all material areas in conflict
2 The alleged unlawful layoffs
Under the Board's causation test,' in 8(a)(3) cases or
protected activity under Section 8(a)(1) the General
Counsel has the initial burden to make a puma facie
showing that the union or other protected activity was a
`motivating factor in the employer's disputed action
Once accomplished, the burden then shifts to the em
ployer to demonstrate that the same action would have
taken place notwithstanding the union or other protected
activity Wright Line 251 NLRB 1083, 1089 (1980)
Here, it is beyond dispute that the ACE material setting
forth various employee complaints over working condi
tions, which was composed and disseminated by Maran
gone and Heyburn, constituted protected concerted ac
tivities See generally Meyers Industries, 268 NLRB 493
(1984) (Meyer), adhered to Meyers II, 281 NLRB 1882
(1986) affd sub nom Prill v NLRB, 835 F 2d 1481
(D C Cir 1987) see also Harris Corp, 269 NLRB 733
(1984) It is also noted that this same material raised the
potential for employees to turn to a union if the Compa
4In rejecting Goodrow s denials I do not rely on the testimony of
former employee Jimmy Piggott According to Piggott in early 1987 Goo-
drow told him just in passing that he knew that Heyburn and Marangoni
were behind ACE Piggott demonstrated poor recall was not responsive
and expressed resentment toward Respondent as a result of his own
layoff In these circumstances and on demeanor considerations I reject
Piggotts vague account of the conversation in question On the other
hand I credit the testimony of former employee Robert Smith who vol
untanly left Respondent to attend school I did not detect any bias or
hostility on the part of to attend school I did not detect any bias or hos
tility on the part of Smith and found him to be responsive and forthright
ny failed to adequately address these employee concerns
Thus, the ACE letter to Respondent dated January 9,
1984, stated in pertinent part Right now if a vote was
taken I in sure we could vote a union in Medina We
don t really want one but it seems like the only way
(G C Exh 9, par 4 )
The Respondent does not dispute that ACE activities
constituted protected action but rather that it did not
have knowledge that Marangoni and Heyburn were in
volved in such activities Moreover, the Respondent con
tends that even with knowledge and a finding a prima
facie case, the Company s decision would have been the
same on the basis of legitimate nondiscriminatory busi
ness reasons
I find that the weight of the credible evidence clearly
justifies an inference that the protected action in question
was a motivating factor in Goodrow s decision in select
ing Marangoni and Heyburn for layoffs Thus, I find that
the General Counsel has established all the elements nec
essary to support a prima facie violation activity, knowl
edge, timing and animus
First, for reasons stated previously, the credited evi
dence disclosed that Marangoni and Heyburn were the
principals behind ACE and that Goodrow had knowl
edge thereof (See sec 1, Credibility, supra )
With regard to timing, while it is noted that the last
ACE letter was written in January 1984 (G C Exh 9),
approximately 2 years and 10 months before the layoffs,
this hiatus was due largely to the departure of Plant
Manager Hug, who was the cause of much of the discon
tent In any event, the credited testimony disclosed that
then Foreman Goodrow continued to refer to Marangoni
and Heyburn as ACE long after their last letter to Re
spondent Further Marangoni credibly testified that in
the spring of 1986 Goodrow told him that he knew that
he (Marangoni) participated in writing the ACE letter,
which caused the removal of Hug as the plant manager
In these circumstances I view the timing of Goodrow s
first official act as the new plant manager to wit, the dis
puted layoffs in November 1986 as highly suspicious and
a factor tending to support the General Counsels prima
facie case
As for animus the remaining element, the credited tes
timony disclosed inter alia, that Goodrow opposed the
union concept and related ACE activities As noted pre
viously Smith credibly testified that he overheard Goo
drow state that he opposed a union because the Compa
ny would go out of business Further Marangoni credi
bly testified that during a conversation in which Goo
drow had ascribed to Marangoni some responsibility for
ACE, Goodrow also told Marangoni that employees did
not need a union because he Goodrow could rectify
any production problems However even in the absence
of such direct testimony reflecting an antiunion animus I
find that the total surrounding circumstances justify an
inference of unlawful motivation noting particularly that
the various reasons given by Goodrow for simultaneous
ly selecting Marangoni and Heyburn for layoffs do not
stand scrutiny and are pretextual As the Board has ob
served A pretextual reason , of course supports an in
ference of an unlawful one' Keller Mfg Co 237 NLRB
168 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
712, 717 (1978) See also Shattuck Denn Mining Corp v
NLRB, 362 F 2d 466 470 (9th Cir 1966), Abbeys Trans
portauon Services, 284 NLRB 696 (1987)
Having found that the General Counsel has satisfied
his initial prima facie burden as required under Wright
Line, I turn now to consider whether the Respondent
met its burden under the same causation test to wit
whether it would have taken the same disputed action
absent the protected ACE activities
First, I find that the record falls far short of establish
ing that business conditions were such that a reorganiza
tion or layoff would have occurred absent Goodrow s
desire to rid himself of all traces of ACE The only
record evidence in support thereof is Goodrow s uncor
roborated testimony that a decision was made by senior
management for a reduction in force (RIF) Admittedly,
Goodrow did not attend any such meetings and had no
personal knowledge" (Tr 283) Goodrow also made
some vague reference to having seen inter corporate
documents on the subject of RIF s that are of a confi
dential nature' (Tr 381-382) According to Goodrow,
again without any supporting documentation business in
general had been declining since 1983 5 In these circum
stances, noting particularly a dearth of probative docu
mentary evidence and corroborative testimony and as I
otherwise did not find Goodrow to be a reliable or cred
ible witness, I find that the record does not support his
assertion that legitimate business conditions dictated the
disputed layoffs in November 6
Assuming arguendo legitimate conditions justified the
RIF s in question I find that the Respondent failed to
meet its burden of showing that Marangoni and Heyburn
were selected apart from their protected activities
According to Goodrow he selected Marangoni and
Heyburn after a value analysis covering each of the 13
production employees and concluded that the Company
would suffer least with their departure Regarding Mar
angoni Goodrow noted that he was the highest paid
production employee and concluded that [the Compa
ny] was not getting the best value for their dollars
spent (Tr 72) Goodrow acknowledged that Maran
gone was promoted to quality control in 1984 because he
was a very good employee and had served in lead ca
pacities However Goodrow also asserted that Maran
gone became moody and/or noncommunicative to him
and to fellow employees and his effectiveness thereby
suffered after the reorganization in January 1986 That
5 The Respondent placed in evidence a document indicating that since
May 1 1983 through November 7 1986 it had laid off nine employees
including Marangoni and Heyburn from the Medina location (R Exh 1)
However I find that this document without more is of little probative
value For example the record is devoid of any corroborative testimony
or supporting documents linking these layoffs to any downturn in busi
ness or even to any reorganization
8 Goodrow acknowledged that after he laid off Marangoni and Heyburn
he hired some temporary employees who to some degree performed
the same tasks as the laid-off employees (Tr 79) The record also dis
closed that the Company had long used temporary labor from outside
manpower agencies On the other hand I find that Goodrow s testimony
explaining the circumstances of such use both before and after the disput
ed layoffs was elusive and conclusionary In these circumstances and in
the absence of any supporting business records on this subject I find that
Goodrow had not adequately explained the hiring of temporary employees
after the layoffs
change resulted in Marangoni s transfer from quality
control back to the production floor
The total record persuades me and I find that Goo
drow merely seized on this unsubstantiated assessment as
a pretext to shield his discriminatory motive Thus it is
noted that Goodrow (admittedly) did not communicate
his observations to Marangoni orally or in writing al
though he was his immediate supervisor from January
1986 until June or July 1986 7 In June or July 1986 and
for the next 5 months Goodrow was section manager of
materials and operations at the Fairlawn facility where
he spent the great majority of his time During that
period he no longer possessed any supervisory responsi
bilities over the production employees at the Medina
plant Yet, notwithstanding this 5 month hiatus, Goo
drow made the decision on his own without consulting
Plant Manager Speck or seeking input from any other
managerial or supervisory official at Medina In the cir
cumstances of this case I find Goodrow s failure to do
so tends to militate against the legitimacy of his action
Indeed, Goodrow acknowledged that, subsequently,
Speck told him that he would not have laid off Maran
gone In fact Speck volunteered assistance to Marangoni
and provided him a highly favorable letter of recommen
dation (G C Exh 10) There, Speck, Goodrow s succes
sor as manager, materials and operations, wrote, inter
alia, as follows
[Marangoni] has also shown us the willingness to go
the extra mile to complete a particularly difficult as
signment It has been a pleasure to work with Joe
and I am sure he would provide a positive contribu
tion to your organization
Marangoni had been employed by Respondent since
1980 On Marangoni s return to the production floor in
1986 he resumed his lead responsibilities and at times in
the absence of the plant manager he and one or two
other leadmen assumed charge of the Medina facility
Yet no warning or notice was provided Marangoni that
he was to be permanently laid off until so informed by
Goodrow on November 6, 1986, Marangoni s last day at
work
In the total circumstances of this case noting particu
larly a complete absence of corroborative testimony or
supporting documentary evidence in any probative sense
I find that Goodrow would not have selected Marangoni
for layoff absent his ACE activities As the Respondent
has failed to satisfy its Wright Line burden I find that
Marangoni was laid off in violation of Section 8(a)(3)
and (1) as alleged
For reasons stated previously, I have also found that
the General Counsel has established a prima facie case
regarding Heyburn As to Heyburn, I also find that the
Respondent has failed to demonstrate that it would have
selected him for layoff absent his ACE activities
' Goodrow last evaluated Marangoni back in 1984 before the latter was
promoted to quality control There Goodrow noted in an otherwise
highly favorable evaluation that Marangoni could be moody However
Goodrow also indicated that Marangoni gets along well with his peers and
that his overall performance is very good (G C Exh 5 )
TLT BABCOCK INC
As noted previously, Goodrow testified that he knew
almost immediately that Heyburn would be one of the
two production employees selected Goodrow was cog
nizant of the fact that Heyburn had not been at work
since October and that over the past 3 years he had the
poorest attendance of all production employees In sup
port thereof the Respondent produced summary docu
ments showing that Heyburn missed far more days at
work than employees Piggott and Rodriguez, both of
whom also had poor attendance records The documents
show the hours lost for Heyburn, Piggott, and Rodriguez
for the years 1984 1985, and 1986 (R Exhs 3 and 4)
I find that the aforenoted exhibits, without more, are
of little probative value Thus, it is noted that no records
were offered comparing Heyburn s attendance with the
remaining 10 production employees for the same period
Admittedly, these documents were not relied on by Goo
drow and were not in existence when he made his so
called value analysis In fact, Goodrow had not seen
these documents until some 2 days before the instant
hearing Moreover it is noted, inter alia, that both Pig
gott and Rodriguez missed approximately three and four
times as many hours respectively than had Heyburn in
1985 (Piggott missed 371 hours, Rodriguez 478 hours,
and Heyburn 124 hours)
Heyburn had been employed by Respondent since July
18, 1977 in a variety of tasks at both locations and was
the third highest paid production employee at the time of
the disputed layoff According to Goodrow Heyburn s
skills most approximated employees Askew and Ward,
but they were more reliable I find Goodrow s unsub
stantiated assessment of Ward as essentially self serving
and incredible It is noted that Ward commenced work
ing for Respondent on May 2 1986 Thus I find little
reason to lend credence to Goodrow s description of
Ward as a much more reliable employee when he had
only been employed by Respondent for approximately 6
months In this connection, it is noted that for the bulk
of that period Goodrow had no supervisory responsibil
ities at the Medina plant and spent most of his time at
the Fairlawn location In these circumstances and as
Goodrow, admittedly, did not seek nor obtain any input
from other Medina plant officials regarding Ward or
other production employees, I reject the reliability factor
as not supported by the record
Another reason cited by Goodrow for selecting Hey
burn was his history of horseplay The record dis
closed that on January 22, 1986, Heyburn received his
only written warning regarding such conduct (R Exh
5) The warning form provides a notice sequence for a
second and final written warning which Heyburn never
received Goodrow testified about a horseplay incident
involving Heyburn and employee Zarbo in the spring of
1986 Then, according to Goodrow s limited and conclu
sionary testimony, he observed Heyburn toss Zarbo
through the shop door into the office area Although
Goodrow noted that Zarbo had an injury to his shoulder
soon after this incident he did not know whether the
injury was related to the horseplay It does not appear
that Goodrow questioned either employee about that in
cident Moreover, there is no evidence tending to show
that Goodrow reprimanded Heyburn either orally or in
169
writing, although he was still his immediate supervisor at
that time In short, I am unpersuaded that horseplay
was a factor in the selection process as contended by
Goodrow
Although Heyburn s employment history8 is somewhat
checkered (from very good to acceptable), I am persuad
ed that his ACE activities were factored into his selec
tion and that the Respondent has not met its burden of
showing that Heyburn would have been laid off notwith
standing such activities Accordingly, I find that Hey
burn was also permanently laid off in violation of Sec
tion 8(a)(3) and ( 1) as alleged
CONCLUSIONS OF LAW
1 TLT Babcock, Inc, Respondent is an employer en
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act
2 By laying off its employees Joseph Marangoni and
Glenn Heyburn because they supported or favored, or
Respondent believed that they would support or favor
the unionization of Respondents employees or because
they engaged in other concerted activities regarding
terms and conditions of employment, the Respondent
thereby violated Section 8(a)(3) and (1) of the Act
3 The above described unfair labor practices are
unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act
THE REMEDY
Having found that the Respondent has engaged in cer
tarn unfair labor practices, I shall recommend that it be
required to cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of
the Act
As I have found that Respondent unlawfully laid off
Joseph Marangoni (Marangoni) and Glenn Heyburn
(Heyburn) in violation of Section 8(a)(3) and (1) of the
Act I shall recommend that the Respondent be ordered
to offer Marangoni and Heyburn immediate and full rein
statement to their former positions or if those positions
no longer exist to substantially equivalent jobs without
prejudice to their seniority and other rights and privi
leges and to make them whole for any loss of earnings
as a result of the discrimination against them with back
pay to be computed in the manner prescribed in F W
Woolworth Co 90 NLRB 289 (1950), with interest to be
computed in the manner prescribed in New Horizons for
the Retarded 9
8 After Heyburn was laid off he asked former plant manager Speck for
a letter of recommendation Speck as manager materials and operations
at Respondent s Fairlawn location provided such a letter (dated Decem
ber 11 1986) in which he stated inter alia that Heyburn was a strong
asset and that [h]is experience in the assembly and shipping areas was a
valuable resource of our Medina Assembly Plant (G C Exh 12 )
8 In accordance with the Board s decision in New Horizons for the Re
Larded 283 NLRB 1173 (1987) interest on and after January 1 1987
shall be computed at the short term Federal rate for the underpayment
of taxes as set out in the 1986 amendment to 26 U S C § 6621 Interest
on amounts accrued prior to January 1 1987 (the effective date of the
1986 amendment to 26 US C § 6621) shall be computed in accordance
with Florida Steel Corp 231 NLRB 651 (1977)
170 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
I shall also recommend that any reference to Maran
goni's or Heyburn s discriminatory layoffs be removed
from their employment records
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend
edio
ORDER
The Respondent, TLT Babcock, Inc, Medina, Ohio,
its officers, agents, successors, and assigns, shall
1 Cease and desist from
(a) Laying off or otherwise discriminating against em
ployees because they support or favor, or because Re
spondent believes that they would support or favor, the
unionization of its employees or because they engage in
other concerted activities regarding terms and conditions
of employment
(b) In any like or related manner interfering with, re
straining or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Offer Joseph Marangoni and Glenn Heyburn imme
diate and full reinstatement to their former jobs or, if
those jobs no longer exist to substantially equivalent po
sitions, without prejudice to their seniority or any other
rights or privileges previously enjoyed, and make them
whole for any loss of earnings and other benefits suffered
as a result of the discrimination against them in the
manner set forth in the remedy section of the decision
(b) Remove from its files any reference to the unlawful
discharges and notify the employees in writing that this
has been done and that the discharges will not be used
against them in any way
(c) Preserve and on request, make available to the
Board or its agents for examination and copying, all pay
roll records social security payment records timecards
personnel records and reports, and all other records nec
essary to analyze the amount of backpay due under the
terms of this Order
(d) Post at its Medina Ohio plant facility copies of
the attached notice marked Appendix i t Copies of the
10 If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations the findings conclusions and recommended
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 pur
poses
i i If this Order is enforced by a judgment of a United States court of
appeals the words in the notice reading Posted by Order of the Nation
al Labor Relations Board shall read Posted Pursuant to a Judgment of
notice, on forms provided by the Regional Director for
Region 8, after being signed by the Respondents author
ized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecu
tive days in conspicuous places including all places
where notices to employees are customarily posted Rea
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered defaced, or covered by
any other material
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re
spondent has taken to comply
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or
dered us to post and abide by this notice
WE WILL NOT lay off or otherwise discriminate against
employees because they support or favor, or because we
believe they support or favor the unionization of our
employees or because they engage in other concerted
activities regarding terms and conditions of employment
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act
WE WILL offer Joseph Marangoni and Glenn Heyburn
immediate and full reinstatement to their former jobs or
if those jobs no longer exist to substantially equivalent
positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed and WE
WILL make them whole for any loss of earnings and
other benefits resulting from their discharges less any
net interim earnings plus interest
WE WILL notify each of them, that we have removed
from our files any reference to his discharge and that the
discharge will not be used against him in any way
TLT BABCOCK, INC