Tri-Tech Services

National Labor Relations Board - Board Decisions

Sep 30, 2003

340 N.L.R.B. 894 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 894
Tri-Tech Services, Inc. and United Steelworkers of
America, AFL–CIO. Case 15–CA–16177–1, 15–
CA–16196, and 15–CA–16289
September 30, 2003
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS
LIEBMAN AND SCHAUMBER
On August 8, 2002, Administrative Law Judge Jane
Vandeventer issued the attached decision. The Respon-
dent filed exceptions and a supporting brief. Counsel for
the General Counsel filed an answering brief, and the
Respondent filed a reply 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 decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order as modified and set
forth in full below.
The judge found that the Respondent violated the Act
by laying off 24 employees in retaliation for selecting the
Union as their bargaining representative, and by imple-
menting the layoff without providing the Union with an
opportunity to bargain about it. The Respondent denies
that the layoff was motivated by antiunion animus and
asserts that it was under no obligation to bargain with the
Union over the layoff. For reasons discussed below, we
affirm the judge’s finding that the Respondent violated
Section 8(a)(5) and (1) by unilaterally implementing the
layoff. We find it unnecessary to pass on her finding that
the Respondent violated Section 8(a)(3) by using the
layoff to retaliate against employees’ selection of the
Union.2
I.
The Respondent is a manufacturer of various metal
products, including rotary container transporters (RCTs),
which are used in the airline industry to move containers
between the aircraft and the baggage room. Although the
Respondent generally manufactures only those items for
which it has received advance orders, between January

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 There were no exceptions to the judge’s finding that the Respon-
dent violated the Act by interrogating and threatening employees who
engaged in protected activity, and by disciplining employee Eddie
Shepherd because of his union activities.
and May 20013 the Respondent manufactured RCTs in
anticipation of future orders from Delta Airlines, relying
on predictions of future orders by Delta representative,
Tim Wix. According to Respondent President Larry
Whitehead, Wix told him in January that if the Respon-
dent manufactured eight RCTs per day, things would be
“good through June.”
The Respondent received orders for RCTs from Delta
in January and March. On April 17 sales manager Cal-
vin Bowie e-mailed Wix to inform him that the Respon-
dent had built up an inventory of RCTs and to inquire
when Delta might place another order. Wix did not re-
spond to the e-mail. Several weeks later Whitehead in-
quired about future orders in an e-mail to Wix. Wix re-
plied that orders were still in the approval process. The
Respondent continued to manufacture RCTs throughout
this period.
The Union began its organizing activity at the Respon-
dent’s plant in late March. A representation petition was
filed on April 9, and an election was held on May 17.
The Union won the election by a vote of 26–16. There
were no objections to the election. The Board issued a
certification of representative on May 30.
The Respondent’s witnesses testified that on May 22,
Wix met with Whitehead, Bowie, and Production Con-
trol Manager William Hill and informed them that there
would be no more orders from Delta for the foreseeable
future.4 The next day Whitehead decided to shut down
the RCT line and lay off employees who worked primar-
ily on that product. He then instructed Hill to select em-
ployees for the layoff. On May 24, the Respondent laid
off 25 employees, 24 of whom were in the unit repre-
sented by the Union.5 It is undisputed that the Respon-
dent did not notify or bargain with the Union about the
layoff, and that the Union did not request bargaining af-
ter the layoff was implemented.
II.
We agree with the judge that the Respondent had an
obligation to notify and bargain with the Union prior to
the layoff, and that the Respondent violated Section
8(a)(5) and (1) by failing to provide the Union with an
opportunity to bargain about the layoff before it was im-
plemented. It is well established that the layoff of unit
employees is a change in terms and conditions of em-
ployment over which an employer must bargain. See
3 All dates are in 2001 unless otherwise noted.
4 According to the Respondent’s witnesses, Wix did not provide any
specific information concerning future orders. Delta placed orders for
RCTs in June, August, and September, which were filled from existing
inventories.
5 The judge found that employee Willie Grant, who was alleged as a
discriminatee in the complaint, was a statutory supervisor.
340 NLRB No. 97
TRI-TECH SERVICES 895
Taino Paper, Co. 290 NLRB 975, 977–978 (1988); Peat
Mfg. Co., 261 NLRB 240 (1982). It is also established
that “an employer’s obligation . . . to refrain from mak-
ing unilateral changes in working conditions commences
at the time of an apparent ballot victory for a labor or-
ganization rather than at the time of its official certifica-
tion.” Consolidated Printers, Inc., 305 NLRB 1061,
1067 (1992). See also Ebenezer Rail Car Services, 333
NLRB 167, 172 (2001); Lawrence Textile Shrinking Co.,
235 NLRB 1178 (1978). Because the Union was chosen
as the bargaining representative of the Respondent’s em-
ployees on May 17, approximately a week before the
Respondent made the decision to shut down the RCT
line, the Respondent was not privileged to unilaterally
lay off employees without bargaining with the Union.6
The Respondent argues that the May 24 layoff was not
a unilateral change over which it was required to bargain
because the layoff was consistent with its past practice of
employee layoffs. We find no merit in this argument.
The evidence demonstrates that the Respondent had only
three layoffs since it began operating its facility in 1987.
In an October 1987 layoff, the Respondent retained em-
ployees based on their ability to perform specialized
work. In a May 1992 layoff, the Respondent retained
employees based on their general merit. In an October
1995 layoff, the Respondent retained employees based on
their product line assignments. Accordingly, there is rela-
tively little past practice evidence regarding layoffs; fur-
ther, what evidence has been proffered by the Respondent
does not demonstrate a consistent past practice.7
We also find no merit in the Respondent’s argument
that the Union waived its right to bargain about the layoff
by not making a demand for bargaining once the Union
learned that the layoff had occurred. The Union was

6 We agree with the judge that there were no compelling economic
circumstances here that would excuse the Respondent from having to
bargain over the layoff. Although the production of RCTs for Delta
was apparently a significant part of the Respondent’s business in the
spring of 2002, in the absence of a dire financial emergency, the loss of
that account does not constitute a compelling economic consideration
that would excuse the Respondent’s failure to bargain with the Union.
See Angelica Healthcare Services 284 NLRB 844, 852–853 (1987).
We find no evidence that such an emergency existed at the time of the
layoff.
7 Because the Respondent failed to prove its past practice defense,
Chairman Battista and Member Schaumber find it unnecessary to reach
the issue of whether a well-established, consistent past practice regard-
ing layoffs prior to the election would have excused the Respondent’s
obligation to bargain with the Union regarding the layoff here.
Member Liebman would find that, because of the intervention of the
bargaining representative, the Respondent could no longer continue to
unilaterally exercise its discretion with respect to layoffs. See, e.g.,
Adair Standish Corp., 292 NLRB 890 fn. 1 (1989), enfd. in relevant
part 912 F.2d 854 (6th Cir. 1990); see also Falcon Wheel Division
L.L.C., 338 NLRB 576, 577 (2002).
given no notice of the layoff or opportunity to bargain
over the issue prior to its implementation. In these cir-
cumstances, we agree with the judge that the Respon-
dent’s unilateral implementation of the layoff was pre-
sented to the Union as a fait accompli, making any de-
mand for bargaining futile. See, e.g., Pontiac Osteo-
pathic Hospital, 336 NLRB 1021, 1023–1024 (2001)
(union’s failure to request bargaining over changes to
employee benefits did not constitute waiver where union
did not receive notice of changes until after they were
implemented).8
III.
Having found that the Respondent violated Section
8(a)(5) and (1) by unilaterally laying off employees, we
shall order the Respondent to bargain with the Union
over the layoff, to reinstate the laid-off employees, and to
make those employees whole for any loss of earnings
they may have suffered as a result of the layoff. See
Adair Standish Corp., 292 NLRB at fn. 1; Lapeer Foun-
dry & Machine, Inc., 289 NLRB 952, 955–956 (1988).9
Consequently, we find it unnecessary to decide
whether the Respondent violated Section 8(a)(3) by us-
ing the layoff to retaliate against employees, because any
remedy we would order if we were to find a violation
would merely be cumulative and would not affect the
8 In American Diamond Tool, Inc., 306 NLRB 570 (1992), relied on
by the Respondent, the Board found that the union waived its right to
bargain over layoffs by inexplicably failing to request bargaining when
provided with the opportunity, and by expressly signaling its acquies-
cence to similar conduct by the employer in the future.
In that case, however, the Board found that an initial layoff prior to
any bargaining violated the Act; subsequent layoffs, which occurred
during the course of bargaining, were not unlawful. The situation here
is comparable to the initial layoff in American Diamond, not the subse-
quent layoffs.
9 Member Schaumber is of the view that, although reinstatement and
make whole relief are appropriate remedies, since the evidence supports
a conclusion that the layoffs would not have been averted even if the
Respondent had bargained with the Union, all employees who were laid
off “are not ipso facto entitled to payments of some kind.” Schuykill
Contracting Co., 271 NLRB 71, 73 (1984), enf. 770 F.2d 1075 (3d Cir.
1985). Rather, only those employees who would not have been laid off
following proper bargaining—but who were unlawfully laid off—are
entitled to reinstatement and back pay. Which particular employees are
entitled to such relief, if any, should be resolved at the compliance
stage, if the parties are unable to reach agreement on those issues. Id.
at 73. See Dawson Carbide Industries, 273 NLRB 382 fn. 3. (1984)
(leaving for compliance stage issue of whether certain unlawfully laid
off employees should not receive back pay, because they would have
been laid off due to economic difficulties regardless of their union
activity), enf. 782 F.2d 64 (6th Cir. 1986). Of course, any ambiguity
would be resolved in favor of the laid-off employees.
With respect to those employees who would have been laid off any-
way, and therefore would not be entitled to reinstatement and backpay,
Member Schaumber would require the parties to bargain over the ef-
fects of those layoffs, and for the Respondent to implement the results
of effects bargaining.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 896
remedy provided. See, e.g., Sygma Network Corp., 317
NLRB 411 fn. 1 (1995); Pennsylvania Energy Corp., 274
NLRB 1153 fn. 1 (1985).
IV.
The Respondent has raised a number of exceptions that
it did not address in its supporting brief. Instead, the
Respondent has set forth its arguments in support of
those exceptions in the exceptions document itself. Al-
though we find that these exceptions have been properly
raised, we find that the arguments contained within the
exceptions document are to be disregarded, because they
do not comply with Rule 102.46(b)(1) of the Board’s
Rules and Regulations10 and are therefore not properly
before the Board. In any event, we find no merit in those
exceptions.11
ORDER
The National Labor Relations Board orders that the
Respondent, Tri-Tech Services, Inc., Selma, Alabama, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening employees with discharge because
they engage in protected concerted or union activities.
(b) Threatening employees with discharge if they se-
lect the Union to represent them.
(c) Interrogating employees about their union sympa-
thies and activities and about the union activities of other
employees.
(d) Issuing warnings and suspensions to employees be-
cause of their union activities.
(e) Failing or refusing to notify the Union of changes
in wages, hours, or working conditions, including the
May 24, 2001 layoff of 24 employees.
(f) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of 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
the following employees full reinstatement to their for-

10 Rule 102.46(b)(1) of the Board’s Rules and Regulations provides
that:
If a supporting brief is filed the exceptions document shall not contain
any argument or citation of authority in support of the exceptions, but
such matter shall be set forth only in the brief.
11 Member Liebman would find the exceptions deficient. The Re-
spondent has expressly chosen not to argue the exceptions in its sup-
porting brief, while asserting that they are nevertheless preserved. The
Board’s rules, however, demand that exceptions be argued in (and only
in) the brief, if one is filed. Failure to do so amounts to a waiver of the
exception and the argument. Assuming arguendo that the exceptions
and the supporting arguments were properly before the Board, she also
would find them lacking in merit.
mer 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
make them whole for any losses of earning, with interest,
in the manner set forth in the remedy section of the
judge’s decision:

Joe Acoff Robert Dragg Jr. Chadwick Nelson
Willis Alexander John Ford Steve Sewell
Mark Allen Kenneth Hoover Eddie Shepherd
Jimmy Brooks Odell Jackson Lemont Sigler
Richard Clibrey Alex Lane Andre Sigmon
Y. C. Coleman Roosevelt Lee Kelvin Threatt
Kevin Day Kurt Marks Roosevelt Towns
Charles Dixon Michael Marshal Willie Williams

(b) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful warnings and
suspension of Eddie Shepherd, and the layoffs of the
above-named employees, and within 3 days thereafter
notify them in writing that this has been done and that
the warnings, suspension, and layoff will not be used
against them in any way.
(c) Upon request, bargain in good faith with the Union.
(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its Selma, Alabama, location copies of the attached no-
tice marked “Appendix.”12 Copies of the notice, on
forms provided by the Regional Director for Region 15,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily 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 proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
12 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
TRI-TECH SERVICES 897
to all current employees and former employees employed
by the Respondent at any time since March 26, 2001.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on your
behalf
Act together with other employees for your benefit
and protection
Choose not to engage in any of these protected ac-
tivities.

WE WILL NOT threaten you with discharge if you se-
lect a union to represent you.
WE WILL NOT threaten you with discharge if you
engage in protected concerted activities or union activi-
ties.
WE WILL NOT interrogate you about your union
sympathies or activities or the union activities of other
employees.
WE WILL NOT issue warnings to you or suspend you
because of your union activities.
WE WILL NOT refuse to bargain in good faith by fail-
ing to notify the United Steelworkers of America, AFL–
CIO of a layoff of unit employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of rights
guaranteed you by Section 7 of the Act.
WE WILL reinstate the following employees to their
former jobs, and WE WILL make them whole for any
loss of pay or other benefits they may have suffered be-
cause of our unlawful layoffs of them:

Joe Acoff Robert Dragg Jr. Chadwick Nelson
Willis Alexander John Ford Steve Sewell
Mark Allen Kenneth Hoover Eddie Shepherd
Jimmy Brooks Odell Jackson Lemont Sigler
Richard Clibrey Alex Lane Andre Sigmon
Y. C. Coleman Roosevelt Lee Kelvin Threatt
Kevin Day Kurt Marks Roosevelt Towns
Charles Dixon Michael Marshal Willie Williams

WE WILL remove from our files any reference to the
unlawful warnings and suspension of Eddie Shepherd,
and the unlawful layoffs of the employees named in the
above paragraph, and notify them in writing that this has
been done and that the warnings, suspension, and layoffs
will not be used against them in any way.
WE WILL, upon request, bargain in good faith with
the United Steelworkers of America.
TRI-TECH SERVICES, INC.

Kevin McClue and Beauford D. Pines, Esqs., for the General
Counsel.
William F. Gardner, Esq., for the Respondent.
Samuel H. Penn Sr., for the Charging Party.
DECISION
STATEMENT OF THE CASE
JANE VANDEVENTER, Administrative Law Judge. This
case was tried on December 12, 13, and 14, 2001, in Selma,
Alabama.1 The consolidated complaint alleges Respondent
violated Section 8(a)(1) of the Act by threatening employees
with discharge if they selected the Charging Party Union to
represent them, by threatening them with discharge for engag-
ing in union activities, and by interrogating employees about
their union membership, activities, and sympathies. The com-
plaint, as amended, also alleges Respondent violated Section
8(a)(3) of the Act by issuing two disciplinary warnings and a 1-
day suspension to employee Eddie Shepherd, and by laying off
25 employees because of their union activities or sympathies.
Further, the complaint alleges that Respondent violated Section
8(a)(5) of the Act by laying off the employees on May 24,
2001, without notice to the Union and without affording the
Union an opportunity to bargain concerning any aspect of the
layoff. The Respondent filed an answer denying the essential
allegations in the complaint. After the conclusion of the hear-
ing, the parties filed briefs, which I have read.2
Based on the testimony of the witnesses, including particu-
larly my observation of their demeanor while testifying, the
documentary evidence, and the entire record, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
Respondent is an Alabama corporation with an office and
place of business in Selma, Alabama, where it is engaged in the
manufacture of metal baggage carts, postal carts, and other
metal carts. During a representative 1-year period, Respondent
sold and shipped from its Selma, Alabama facility goods valued
in excess of $50,000 directly to points outside the State of Ala-

1 At the hearing, the name of the Respondent was corrected to add
“Inc.,” as reflected in the caption.
2 The Respondent also filed an unopposed motion to correct the tran-
script which is granted.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 898
bama. Accordingly, I find, as Respondent admits, that it is an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
The Charging Party (the Union) is a labor organization
within the meaning of Section 2(5) of the Act.
II. UNFAIR LABOR PRACTICES
A. The Facts
1. Background and organizing campaign
Respondent has operated its Selma, Alabama facility since
1987, and in April 2001, employed approximately 50 people at
that facility. Respondent manufactures metal baggage carts for
the airline industry and postal carts, called “mail dumpsters” in
the record, among other metal products.
In March 2001, employee Eddie Shepherd contacted the Un-
ion. After several employee meetings with Samuel Penn Sr., an
organizer, the Union filed a petition for an election on April 9.3
The petition listed Organizing Coordinator Clarence Brown as
the Union’s representative, and set forth an address and tele-
phone number in Fairfield, Alabama. A representation election
was held on May 17, in which a majority of the employees
casting ballots voted for the Union to represent them. There
were 26 votes for the Union. At the preelection conference,
Penn handed his business card, which listed his address and
telephone number, to Company Officials Aaron Grimes and
Larry Whitehead. No objections were filed, and on May 30, a
certification of representative was issued.
2. Allegations of 8(a)(1) violations
On about April 3, employee Eddie Shepherd discussed Re-
spondent’s profit sharing plan with other employees. None of
them had heard anything about the plan for several years.
Shepherd was designated by the employees to ask an official of
Respondent about the profit sharing. He spoke to the president,
Larry Whitehead, in Whitehead’s office, and asked Whitehead
what had happened to the profit-sharing plan. He told White-
head that he had been selected by the employees to ask about
the profit sharing. After making inquiries, Whitehead informed
Shepherd that there had been a one-time contribution some 10
years earlier, but none since that time. Whitehead also told
Shepherd that if he was the front man, the front man was the
one who gets hurt, the one who stands out. Shepherd testified
to these facts. Whitehead did not address this incident in his
testimony.
On about April 16 Shepherd testified, Whitehead called
Shepherd to his office and talked to him about the Union.
Whitehead told Shepherd that Respondent was “no place for the
Union.” Whitehead also asked Shepherd why he was support-
ing the Union and how he had gotten the cards signed. White-
head did not testify about this incident.
During the early part of May, before the election on May 17,
Aaron Grimes, Respondent’s plant manager, approached Shep-
herd before work and asked him what he knew about the Union.
Shepherd said that he didn’t know what Grimes was talking
about. Grimes responded that if Shepherd knew anything about

3 All dates hereafter are in 2001 unless otherwise specified.
organizing the Union at Respondent, he would not have a job
there. Grimes did not address this incident in his testimony.
In late March, soon after employee Roosevelt Lee4 had at-
tended his first union meeting, he went to Respondent’s facility
after working hours to pick up his check. Aaron Grimes ap-
proached Lee and asked him if he had heard anything about
somebody trying to get the Union started around here. Lee
denied having heard anything. Grimes contradicted Lee’s de-
nial, saying, “yes, you have,” and went on to tell Lee that who-
ever was trying to get the Union started should stop because
they were going to “get their asses in trouble.” Grimes did not
testify about this incident.5
3. Allegations of 8(a)(3) violations
a. Eddie Shepherd warnings and suspension
Eddie Shepherd was the employee who initially contacted
the Union. He was the employee who communicated news of
union meetings to other employees. He represented employees
in asking Respondent’s president about their profit-sharing
money in early April. He handbilled along with the union or-
ganizer in plain view in front of Respondent’s premises on
April 30, and he served as the Union’s observer at the represen-
tation election on May 17. On that day, Whitehead and Grimes
initially stated that they did not want Shepherd to be the ob-
server, accusing him of making threats to employees. Shepherd
also wore a union button at work for about a week before the
election and for the 1 week he worked after the election.
Respondent was aware of Shepherd acting as spokesperson
for the employees in asking about the profit-sharing money.
After the representation petition had been filed, Respondent
held several meetings for employees at which they communi-
cated their opposition to the Union. At one of these meetings in
April, Whitehead, after stating his views that employees did not
need a union, asked employees if they really wanted Eddie
Shepherd to be their representative, or if they wanted him,
Whitehead. Shepherd attempted to speak at this point, but
Whitehead told him to shut up. Whitehead’s remarks at the
Respondent-called meeting indicated that by the third week in
April, Respondent was aware that Shepherd was a leading em-
ployee organizer for the Union.
Thereafter, on April 23, Shepherd was absent from work due
to car trouble. The following day, near the end of the day,
Shepherd was told by Supervisor Bobby Jones that he was to go
see Aaron Grimes in his office. Being in the middle of setting
up his machine, Shepherd said that he needed to finish the set-
up, and would be there in 5 minutes. Shepherd testified that he
understood that he was requested to go to the office at some
time before leaving the plant, not that he was to go immediately
to the office. Jones did not contradict Shepherd, but a few
minutes later, returned and told Shepherd he was to report to
the office immediately, which he did. Shepherd was given a
written warning for having an unexcused absence on April 23.
4 Roosevelt Lee testified at the hearing. Another employee of the
same name will be referred to as Roosevelt I. Lee.
5 The employees’ testimony concerning these incidents was uncon-
tradicted. In addition, I find that the testimony of these two employees
was credible and worthy of belief.
TRI-TECH SERVICES 899
In addition, the following day he was given another written
warning for “insubordination” because of having said he
wanted to complete the setup he was in the middle of before
reporting to the office. Shepherd was suspended for most of
April 25, but with no loss of pay.
b. Layoff of 25 employees on May 24
As has been described, Respondent was aware of Eddie
Shepherd’s union activities. In addition, other employees en-
gaged in union activities by wearing union buttons on their
work clothes for various periods of time. There was evidence
introduced that on election day, May 24, approximately 19
employees wore buttons reading:

Work with Dignity!
Steelworkers
USWA AFL–CIO CLC.6

Some employees testified that they also wore their union
buttons for a week before the election and some that they
wore their union buttons for a week following the election,
until being laid off. It is undisputed that managers such as
Aaron Grimes, as well as other supervisors, spent hours in
the employees’ working areas daily, and they did so on May
17. Several employees testified that Grimes looked directly
at employees’ union buttons on May 17. I credit their testi-
mony. I find that Respondent’s supervisors had ample op-
portunity to observe employees’ union buttons, did in fact
observe these buttons, and that they had knowledge of these
19 employees’ prounion sympathies.
In addition, it is uncontroverted that Don Perry attended one
of the union organizing meetings in April. Perry’s name ap-
pears on the April 20 meeting roster, which was signed by at-
tendees and kept by Union Organizer Penn. At that meeting
were 18 other employees.7 Although Perry disclaimed being a
supervisor on that night, saying to another employee that he had
been demoted, I find that this was not true, and that he re-
mained a supervisor. There is record evidence that he signed
employee absentee reports as “supervisor” only 3 days prior to
this meeting, and that his pay did not change during this period.
Perry continued to wear a supervisor’s light blue uniform shirt.
Employees wear dark blue shirts. No document shows any
demotion of Perry at this time. I therefore find that Don Perry
and Bobby Jones were supervisors of Respondent during April.
Don Perry’s knowledge of the 18 employees attending the un-
ion meeting on April 20 is attributable to Respondent.

6 These employees were: Willis Alexander, Mark Allen, Robert
Bennett, Doug Braxton, Jimmy Brooks, Y. C. Coleman, Charles Dixon,
Robert Dragg, John Ford, Roosevelt Lee, Odell Jackson, Kurt Marks,
Michael Marshall, Chad Nelson, Eddie Shepherd, Lemont Sigler, An-
dre Sigmon, Willie Sullivan, and Roosevelt Towns.
7 The other employees at the meeting Don Perry attended were
Willis Alexander, Mark Allen, Robert Bennett, Richard Clibrey, Y. C.
Coleman, Charles Dixon, Robert Dragg Jr., John A. Ford Sr., Kenneth
Hoover, Odell Jackson, Homer L. King, Roosevelt Lee, Kurt Marks,
Michael Marshall, Tracy Pettway, Mathew Richardson, Eddie Shep-
herd, and Andre Sigmon.
Respondent held meetings for employees for several weeks
before the election. It is undisputed that Respondent’s supervi-
sors and managers who spoke at these meetings urged employ-
ees to vote against the Union. Respondent also issued literature
espousing this point of view. Several instances of threats and
coercive interrogation concerning the Union by Respondent’s
supervisors have been described in the previous section.
Although Respondent employed approximately 50 to 54 em-
ployees in early April, by May 24, the number of employees had
grown to 62. On May 24, exactly 1 week after the election at
which the employees selected the Union to represent them by a
vote of 26 to 16, Respondent laid off 25 employees. Whitehead
testified that he made the decision to lay off employees because
of a lack of orders for RCT carts, or airline baggage carts. Ac-
cording to Respondent’s witnesses, it had continued to manufac-
ture the RCT carts for several months without having actual
orders in the expectation that orders for the carts would be forth-
coming. According to Whitehead, he told Will Hill, production
control manager, to choose which employees to lay off, and to
lay off those working on RCT carts. Hill testified that he was
not familiar in every case with what jobs employees performed,
and was also unfamiliar with the jobs employees were able to
perform.
Respondent’s employee handbook states that “Length of ser-
vice is applied in determing [sic] eligibility for the following
employee benefits or policy procedures:

1. Vacation
2. Group Insurance
3. Holiday Pay
4. Layoffs
5. Recalls”

The handbook also states that probationary employees (those
employed for less than 90 days) and temporary employees
“have no service rights.” In addition, Respondent employed
three inmate employees on May 24. These employees were on
a work release program from Alabama prisons. The agreement
under which inmates were employed by Respondent specified,
among other things, that “employment of inmate [sic] shall not
displace any employed workers.” Whitehead testified that there
were some temporary employees working at Respondent’s
facility at the time of the layoff, but he does not know how
many. No temporary employees and no inmates were among
the employees laid off.
The workers selected for layoff are listed below, along with
their continuous length of service (second column), and the
number of employees who were not laid off and who had less
seniority than the named employee (last column). Of the laid-
off employees, one was a supervisor. Sixteen of the laid-off
employees had worn union buttons at work (fourth column).
Fourteen of the laid-off employees had attended the same union
meeting which Supervisor Don Perry attended (third column).
Eighteen of the laid-off employees had done at least one of
these two activities in support of the Union.

Names Seniority 4/20
mtg.
attendee
Wore
button
Jr.
emp
kept
Joe Acoff 0 yrs., 1 mo. 5
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 900
Willis Alexander 0 yrs., 2 mo. Yes Yes 19
Mark Allen 11 yrs. Yes Yes 33
Jimmy Brooks 0 yrs., 2 mo. Yes 18
Richard Clibrey 0 yrs., 3 mo. Yes 21
Y. C. Coleman 0 yrs., 6 mo. Yes Yes 22
Kevin Day 0 yrs., 2 mo. 18
Charles Dixon 5 yrs., 2
mos.
Yes Yes 33
Robert Dragg Jr. 2 yrs., Yes Yes 29
John Ford 0 yrs., 6 mo. Yes Yes 22
Willie Grant8
Kenneth Hoover 0 yrs., 2 mo. Yes 14
Odell Jackson 11 yrs., 1
mo. (2d)
Yes Yes 36
Alex Lane 1 yr., 1 mo. 19
Roosevelt Lee 3 yrs. 11
mos.
Yes Yes 23
Kurt Marks 0 yrs., 7 mo. Yes Yes 25
Michael Marshall 0 yrs., 3 mo. Yes Yes 21
Chad Nelson 0 yrs., 2 mo. Yes 12
Steve Sewell 0 yrs., 1 mo. 4
Eddie Shepherd 10 yrs, 11
mo.(5th)
Yes Yes 34
Lemont Sigler 0 yrs., 3 mo. Yes 21
Andre Sigmon 0 yrs., 7 mo. Yes Yes 25
Kelvin Threatt 0 yrs., 2 mo. 6
Roosevelt Towns 0 yrs., 2 mo. Yes 10
Willie Williams 0 yrs., 1 mo. 7

Respondent asserted lack of orders as the reason for the lay-
off and has asserted that it chose the 24 employees for layoff
based on their work on RCT carts. Respondent had continued
to manufacture RCT carts throughout March, April, and May,
even adding 28 employees to its work force during those
months, despite the lack of written orders for the product. On
May 24, these 28 employees were still in the 90-day probation-
ary period described in Respondent’s handbook. Respondent
anticipated an order from one customer, Delta Air Lines, and
hoped to sell other RCT carts as well. Whitehead testified that
the week preceding May 24 was the time at which he aban-
doned these hopes.
Respondent’s handbook included a policy quoted above
which accorded weight to an employee’s seniority in layoff and
recall. Calvin Bowie, sales manager of Respondent (and for-
mer owner), testified that although he had drafted the hand-
book, in a previous layoff when he was still the owner of Re-
spondent, he had ignored the policy in the handbook and had
instead selected employees for layoff based on their job tasks,
and used seniority only as a tie-breaker. Whitehead testified
that he instructed Will Hill to select employees who worked on
RCT carts as those to be laid off. Will Hill testified as to the
reasons he selected certain individuals and not others for layoff.
Despite the fact that he was unfamiliar with the experience of

8 It was stipulated at the hearing that Willie Grant was a supervisor.
Although the General Counsel alleged that Grant’s layoff, along with
the remaining layoffs, was a violation of the Act, I find that his supervi-
sory status removes him from the protection of the Act as to both the
8(a)(3) and (5) allegations.
most of the longer term employees, and with the job duties and
even the identities of all the employees (such as C. Harris, who
was a new employee), he was supposed to select the employees
for layoff on this basis. According to his testimony, he gave
seniority as the reason for choosing certain employees, gave
“worked on RCT carts” as the reason he selected other employ-
ees for layoff. Hill acknowledged that many employees
worked on both RCT carts and other products. He retained one
employee who worked on RCT carts because there was still an
after-market for RCT parts. He did not explain why that RCT
employee was retained instead of more senior employees. One
employee who worked on RCT carts was not selected, but was
transferred to B & C carts, a different product, because he had
past experience on B & C carts. Hill said that in general, how-
ever, he did not consider the past experience of employees,
because he did not know it. About eight fairly senior employ-
ees who were union supporters and were laid off testified that
they had experience on B & C carts, but they were not given
the opportunity to transfer to that product. Again, no explana-
tion was given for not giving this privilege to more senior em-
ployees. Hill had no explanation at all for his selection of some
of the laid-off employees, for example Richard Clibrey. Hill’s
testimony was given mostly in response to leading questions.
Hill gave no reasons for his failure to lay off the three inmate
employees, nor for his failure to select temporary employees,
nor for his failure to select employees still in their 90-day pro-
bationary period for layoff before choosing more senior em-
ployees.
3. Allegation of 8(a)(5) violation—May 24 layoff
It is undisputed that Respondent did not notify the Union or
any union representative of the layoff in advance. At the end of
the workday on May 24, Eddie Shepherd, one of the laid-off
employees, notified Penn by telephone after he received his
lay-off notice.
B. Discussion and Analysis
1. The 8(a)(1) allegations
When Eddie Shepherd went to talk to Respondent president
Larry Whitehead on April 3, he was representing employees
and inquiring about the profit sharing plan. This was clearly
protected concerted activity. Whitehead’s remarks to Shepherd
were in direct response to Shepherd’s appearing as an employee
representative, and implied that he was going to get “hurt” be-
cause of that representation. I find that Whitehead threatened
Shepherd with unspecified harm because of his protected con-
certed activities.
Whitehead’s later questions on April 16 to Shepherd con-
cerning why he supported the Union and how he had gotten
cards signed were coercive interrogation and violated Section
8(a)(1) of the Act. At the time, in mid-April, Shepherd had not
yet openly shown his support for the Union by wearing buttons
or other actions. In addition, he was alone with the highest
ranking Respondent official, the president, in that manager’s
office. All these factors are ones which indicate the coercive
nature of the interrogation. Rossmore House, 269 NLRB 1176
(1984).
TRI-TECH SERVICES 901
Aaron Grimes’ threats to employees, both in March to Roo-
sevelt Lee that employees supporting the Union would get into
trouble, and in May to Eddie Shepherd that union supporters
would not have jobs at Respondent, were clear violations of
Section 8(a)(1). In addition, his questioning of Lee concerning
what he had heard about the Union and who was trying to get
the Union started was coercive interrogation, and violated Sec-
tion 8(a)(1). At this time, Lee had not openly shown his sup-
port for the Union, and he denied any knowledge of it to
Grimes. The conversation was one-on-one, was accompanied
by an inquiry about the union activities of other employees, and
included a threat of “trouble” to any employees who engaged in
organizing. All these factors underscore the coercive nature of
the incident.
2. 8(a)(3) allegations
a. Eddie Shepherd’s warnings and suspension
Eddie Shepherd’s union activities were extensive and the
evidence, including Whitehead’s meeting with Shepherd in his
office and Whitehead’s reference to Shepherd’s leadership in
Respondent’s meeting with employees, shows that Respondent
was well aware of his activities and of his leadership role in the
union organizing effort. In addition, Respondent’s animus
towards the Union and towards employees’ organizing activi-
ties was repeatedly shown by its coercive conduct in threaten-
ing and interrogating employees, as found above. I find that the
General Counsel has decidedly proven the first three elements
of a prima facie case: union activities, Respondent’s knowledge
thereof, and its antiunion animus.
Shepherd’s warnings were given on April 23 and 24, about a
week after he had been coercively interrogated by Whitehead
about his union activities. The first warning, for absenteeism,
was given to Shepherd because of an absence for car trouble. It
is undisputed that this was an unexcused absence. The com-
pany’s handbook, however, states that a warning will be given
after two unexcused absences. The record is barren of any
recent absences by Shepherd, although Respondent introduced
a record of a 1998 absence by Shepherd. The April 24 warn-
ing, nevertheless, recites that Shepherd was “notorious” for
absences. One absence in 1998 and one in 2001 is hardly “no-
torious.” There was no showing that Respondent applied its
absence policy consistently. The record includes documenta-
tion of other employees’ repeated absences without any disci-
pline being accorded them.
With regard to the second warning and suspension given to
Shepherd, the evidence shows that he was requested to go to
Grimes’ office, that he said he would be there in a few minutes,
after he finished his set-up of his machine, and there was no
response from the supervisor that he was to go immediately.
Despite the fact that Shepherd was not told he was to see Grimes
without delay, he was given a warning for insubordination for
this few minutes delay. Normally, insubordination is under-
stood to refer to refusals to perform assigned work tasks. The
only record evidence of discipline of other employees for insub-
ordination shows that Respondent normally used this definition.
In Shepherd’s case, however, it was applied to a nonwork task,
Shepherd’s failure to interrupt his work task and proceed imme-
diately to Grimes’ office. Shepherd was also suspended, with-
out loss of pay, for the same conduct on the following day. I
find that the timing of both warnings, the disparity in application
of the discipline, the fact that Respondent did not apply its ab-
sence policy consistently to Shepherd, the gratuitous and inaccu-
rate use of “notorious” on the first warning, and the lack of clar-
ity of the instruction to go see Grimes, and the use of the word
“insubordination” to describe a misunderstanding, all point to an
unlawful motive on the part of Respondent for this discipline of
Shepherd. I find that the two warnings and the suspension of
Shepherd were violative of Section 8(a)(3) of the Act.
b. The May 24 layoff
The union activities of Eddie Shepherd, of 18 other employ-
ees who wore union buttons, and of 18 employees who attended
a union meeting which Supervisor Perry attended, have been
set forth above, as has the fact that Respondent had knowledge
of these activities. Also, as found in the preceding section,
Respondent displayed considerable animus against employees’
union activities, and acted on it by its discipline of Shepherd.
Its layoff of 24 employees, including Eddie Shepherd, occurred
on May 24, just 1 week after the day of the election in which
the employees selected the Union to represent them. Grimes
and Whitehead had several times threatened that employees
who supported the Union would lose their jobs or face “trou-
ble.” Despite the printed policy in Respondent’s handbook that
employees’ seniority would govern their selection for layoff,
Respondent ignored this policy and chose a mixture of employ-
ees with seniority varying from 11 years to 1 month.
An analysis of the employees selected for layoff reveals that
16 of the 19 employees who openly wore union buttons (84
percent) were among those selected for layoff. Fourteen of the
18 employees who attended the April 20 union meeting at
which Don Perry was present (78 percent) were selected for
layoff. Of approximately 22 employees proven to be known to
Respondent as union supporters, either because of their wearing
a union button or because of their attendance at the April 20
meeting, 18 were selected for layoff (81 percent). Of the six
other employees included in the layoff, five of the six had sen-
iority of only 1 or 2 months.
After the layoff, Respondent was left with a work force of
approximately 38, of whom only about 6 or 7 were known to be
union supporters. By the layoff, Respondent had reduced the
Union’s May 17 election majority to a mere 16 percent. The
effect of Respondent’s choices of employees for layoff was to
dilute the Union’s strength significantly.
The General Counsel has carried its burden of proving a
nexus between the layoff of these employees and Respondent’s
antiunion animus. Some of the facts which show this connec-
tion are the timing of the layoff, only 1 week after the election,
the deviation from its printed layoff policy in the handbook, the
extremely high proportion of union supporters, the fact that it
gave inconsistent reasons for choosing certain employees for
layoff, the retention of probationary, temporary and inmate
employees while laying off very senior employees, and the
realization of its threats of job loss and other “trouble” to union
supporters in the previous 2 months. I find that it was Respon-
dent’s intention to retaliate against union supporters and reduce
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 902
the Union’s strength by its layoff and by its choice of employ-
ees for layoff.
The burden now shifts to Respondent to show that it would
have laid-off employees, and those specific employees it chose,
in any case. Respondent has defended its layoff by saying that it
did not have written orders for RCT carts in March, April, or
May. Respondent, however, continued to build these carts, and
in fact continued to hire employees in March, April, and May,
despite the dearth of orders. Respondent hired 16 employees in
March, five more in April, and seven more in May, for a total of
28 employees hired in the 2 months immediately preceding the
layoff of 24 employees. Respondent engaged in this significant
increase in its work force at a time when, according to its claim
at the trial, it was fully aware that it had no actual orders for
RCT carts, but only a verbal assurance from one customer and a
hope that they could be sold. Respondent’s conduct during this
period is inconsistent with its contentions in this case. If indeed
Respondent had been so concerned that it had might have to lay
off employees in just a few weeks, it would not have continued
to hire employees. Respondent gave no explanation for this
continued build-up of its work force in the face of insufficient
orders for RCT carts. It is possible that Respondent hired 28
employees during this period in order to have enough employees
left in its work force when it laid-off employees who supported
the Union. The number of employees in its work force after the
May 24 layoff was not very different from the number of em-
ployees it had 60 days before the layoff.
Respondent’s only asserted reason for the May 24 layoff was
that it finally abandoned its hope that new orders would be
immediately forthcoming. There was no convincing evidence
that Respondent should not have given up this hope several
weeks earlier, or on the other hand that Respondent should not
have continued to hope for several weeks more. The sole ex-
planation for the timing of the layoff was Whitehead’s own
estimate of the “right” time to give up its hope for new orders.
I find that Respondent has not shown it would have laid off 24
employees on May 24 absent its antiunion motivation.
Regarding the selection of employees for layoff, Respondent
completely ignored its written policy in its handbook of apply-
ing “length of service” to determine who should be laid off and
who retained in a layoff. This policy does not state that senior-
ity is only a tiebreaker, and I specifically discredit Calvin
Bowie that Respondent’s policy limits seniority to a tie-
breaking role in layoffs. Hill cited “seniority” as reasons for
the retention of only a few employees, and never in regard to
union supporters. While he asserted that “working on RCT
carts” was the reason for the selection of many of the laid-off
employees, there were several exceptions to this reason. No
explanation was given for the exceptions, and no reason was
given that these same exceptions had not been applied to any
senior union supporters among the employees.
The failure of Respondent to follow its own policies, the lay-
off of very senior and experienced employees in favor of retain-
ing employees with only 1 or 2 months’ experience, the high
proportion of the laid-off employees who supported the Union,
and the high proportion of union supporters who were chosen
for the layoff, the inconsistent reasons given for many of the
selections, Respondent’s inflation of its work force in the pre-
vious 60 days by nearly the exact number of employees laid
off, the timing of the layoff, and Respondent’s several threats
of job loss and trouble for union supporters, all are factors
which belie the assertions of Respondent that it chose the em-
ployees for layoff without regard for their union sympathies or
activities. I find that Respondent selected employees for layoff
in retaliation for employees having chosen the Union to repre-
sent them and selected union supporters disproportionately. I
find that the selection of employees for layoff on May 24 was
motivated by Respondent’s antiunion animus, and violated
Section 8(a)(3) of the Act.
3. 8(a)(5) allegations
The Respondent’s obligation to refrain from making unilat-
eral changes in wages, hours, and working conditions began at
the time the employees selected the Union to represent them on
May 17. Respondent’s contention that its obligation did not
begin until the certification of representative was issued by the
Regional Director on May 30 is without merit. The Board has
long held that an employer who makes changes in terms and
conditions of employment after an election, but before the Un-
ion is certified, does so at its peril. Taino Paper Co., 290
NLRB 975, 977 (1988). In cases where “compelling economic
considerations” force an employer to act with such speed that
there is no opportunity to give the union advance notice, there
may be exceptions made. Here, however, Respondent knew for
several months that it had no certain orders for its RCT carts,
yet continued to hire new employees and to manufacture the
product. Respondent cannot claim that its own inexplicable,
even risky, actions created “compelling economic considera-
tions” which would permit it to bypass the employees’ repre-
sentative with impunity. I find such an argument completely
without factual support and without merit. Casa San Miguel,
320 NLRB 534 fn. 2 (1995).
There is no dispute that Respondent did not inform any un-
ion representative of the layoff on May 24 before it occurred.
The record evidence reflects that Respondent was on notice of
the names, addresses and telephone numbers of two different
union representatives: Samuel Penn and Clarence Brown. In
fact, after the layoff occurred, it was an employee who in-
formed the union representative. Respondent never did so.
Further, there is no dispute that a layoff is a mandatory subject
of bargaining. Respondent does contend, however, that its
layoff was not a unilateral change because it was consistent
with past layoffs. This presupposes that the parties had estab-
lished a past practice in bargaining concerning layoffs, and that
the May 24 layoff was not a deviation from this past practice.
Given that the parties had not yet established any practices at
all, since they had not even begun to bargain, this argument is
entirely without merit. In addition, I have found above that
Respondent did not establish that it had a past practice of laying
off employees in the manner it contends it did on May 24, since
its May 24 layoff appears to be inconsistent with its written
policies concerning seniority and probationary employees, as
well as its agreement regarding inmate employees.
Respondent also contends that there was no point in bargain-
ing about the layoff, since the Union could not have suggested
any alternatives that Respondent would have accepted. The
TRI-TECH SERVICES 903
opportunity of a certified representative to address employees’
interests and needs from their perspective is an essential part of
the collective-bargaining process. No respondent should be
privileged decide on its own what proposals employees may or
may not advance through their bargaining representative. A
respondent’s failure to notify a union in advance of so signifi-
cant a change as a layoff is not excused by its anticipation of
the union’s objections to the plan. Rock-Tenn Co. v. NLRB,
101 F.3d 1441 (D.C. Cir. 1996). The subjects which could be
the subject of negotiations concerning a layoff are many. In
addition to the need for the layoff, the timing of the layoff,
selection criteria, recall rights, and retention of benefits during
a layoff, just to name a few, there are numerous other aspects of
a large layoff which could be negotiated.
Respondent further argues that the Union waived its right to
bargain over the layoff by not requesting bargaining over the
layoff after it was already a fait accompli. The Board has held,
with court approval, that a union does not waive its right to
bargain over unilateral changes by failing to engage in the futile
act of trying to turn back the clock and bargain over an action
the employer has already taken. Gulf States Mfg. v. NLRB, 704
F.2d 1390 (5th Cir. 1983). I find that Respondent violated Sec-
tion 8(a)(5) of the Act by laying off 24 unit employees without
notice to the Union and without affording the Union an oppor-
tunity to bargain concerning the layoff.
CONCLUSIONS OF LAW
1. By threatening employees with discharge if they selected
the Union and threatening employees because of their union or
protected concerted activities, and by interrogating employees
about their union sympathies and activities, and about the union
activities of other employees, Respondent has violated Section
8(a)(1) of the Act.
2. By issuing warnings and a suspension to Eddie Shepherd
because of his union activities, and by laying off 24 employees
because employees selected the Union to represent them, Re-
spondent has violated Section 8(a)(3) and (1) of the Act.
3. By refusing to provide the Union with notice of its May
24 layoff, and thereby depriving the Union of the opportunity to
bargain concerning the layoff, Respondent has violated Section
8(a)(5) and (1) of the Act.
4. The violations set forth above are unfair labor practices
affecting commerce within the meaning of the Act.
REMEDY
Having found that Respondent has engaged in certain unfair
labor practices, I shall recommend that it be required to cease
and desist therefrom and to take certain affirmative action nec-
essary to effectuate the policies of the Act.
I shall also recommend that Respondent be ordered to re-
move from the employment records of Eddie Shepherd and all
the below-listed laid-off employees any notations relating to the
unlawful actions taken against them and to make them whole
for any loss of earnings or benefits they may have suffered due
to the unlawful actions taken against them, in accordance with
F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as
computed in accordance with New Horizons for the Retarded,
283 NLRB 1173 (1987).
[Recommended Order omitted from publication.]