276 N.L.R.B. 583 (N.L.R.B. 1985)

Uptilt, Inc.

National Labor Relations Board - Board DecisionsSep 25, 1985

276 N.L.R.B. 583 (N.L.R.B. 1985)

UPTILT, INC Uptilt, Inc. and International Union, United Auto- mobile, Aerospace and Agricultural Implement Workers of America (UAW).,Case 7-CA-23271 25 September 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND JOHANSEN On 30 January 1985 Administrative Law Judge Michael O. Miller issued the attached decision. The Respondent filed exceptions and a supporting brief. 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 as modified. ORDER The National Labor Relations Board adopts the - recommended Order of the administrative law judge as modified below, and orders that the Re- spondent, Uptilt, Inc., Lansing, Michigan, its offi- cers, agents, successors, and assigns, shall take the action set forth in the recommended Order, as so modified. The Respondent has excepted to some of the judge's credibility find- ings 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 The Respondent has excepted to certain factual errors made by the judge We have reviewed the record carefully-and agree with the Re- spondent in certain respects For example, as the Respondent correctly note` , it appears that employee Gary Ellsworth was told he was being laid off by Supervisor Moore and not Supervisor Evans The judge'also attributed the following statement to, Supervisor Moore based on employ- ee testimony "that if they were going to organize successfully ,, they had to do it quickly " The Respondent correctly notes that this'statement is not contained anywhere in the transcript However, the judge did not purport to quote the employee who testified as to the conversation In this respect , the judge paraphrased certain of the employee 's -testimony, and his summary thereof as reflected in the decision is not contrary to the record evidence We find that other matters to which the Respondent has excepted are supported by the record The errors of fact found herein do not affect the overall results of the decision In agreeing with the judge's conclusion that the Respondent violated Sec 8(a)(1) and (3) of the Act, we find it unnecessary to rely upon his discussion in fn 12 as to whether the questioning of job applicants to de- termine whether they would be troubled by the absence of a union or by the payment of wages below union rates is evidence of animus 2 Contrary to the judge, ' we do not find that Supervisor Moore en- gaged in 8(a )( 1) conduct by telling employees that they could be disci- plined if they mentioned his name in connection with their discussions of union organizational activities While this statement was made in the con- text of a conversation which contained other statements violative of the Act, including 8(a)(1) threats , we find that the statement itself does not interfere with, restrain , or coerce the legitimate union activities of em- ployees Rather, the reference to discipline is clearly limited to those ac- tivities wherein supervisory involvement is attempted. 583 1. Substitute the following for paragraph 1(a). "(a) Threatening employees with layoff, disci- pline, or discharge, for talking about unions, or en- gaging iii other -union and protectedt t concerted ac tivities." 2. Add the following as paragraph 2(b) and relet- ter the remaining paragraphs. "(b) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order." 3. Substitute the attached notice for that of the administrative law judge. 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 ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection ' - - To choose not to engage in any of these protected concerted activities. WE WILL NOT' threaten employees with dis- charge.or other discipline for talking about unions or engaging in other union activity. WE WILL NOT tell employees- that they or other employees have been laid off because they engaged in union activity. WE WILL NOT discriminatorily remove prounion notices posted in our plant. WE WILL NOT lay off or discharge employees be- cause they engage in union activities or in order to discourage employees in such activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. ' WE WILL offer Gary Ellsworth, James Ells- worth, and Carl Fezatte immediate and full rein- statement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, 276 NLRB No. 65 584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD without prejudice to their seniority or any other rights or privileges previously enjoyed and WE WILL make them and Christopher Docking and Kelly Graham whole for any loss of earnings and other benefits resulting from their discharge, less any net interim earnings, plus interest. - ; WE WILL expunge from our files any references to the . discharges or layoffs of Gary Ellsworth, James Ellsworth, Christopher . Docking, Kelly Graham, and Carl Fezatte and WE WILL notify them in writing that this has been done and that evidence of the unlawful layoffs or_ discharges-will not- be used as a basis for future personnel actions concerning them. - UPTILT, INC. J. P. Stevens, Esq., of Detroit, Michigan, for the General Counsel. J. R. Buckley, Esq.-,-of Flint, Michigan, for the Respond- ent ' - - DECISION STATEMENT OF THE CASE MICHAEL 0 MILLER, Administrative Law Judge. This case was heard on November 28, 1984, in Lansing, Michigan, based on an unfair labor practice charge filed by International Union, United' Automobile, Aerospace and Agricultural Implement Workers --of America (UAW) (the Union), on-March 29, 1984, and a complaint issued by the Regional Director for Region 7 of the Na- tional Labor Relations Board (the Board),' on May 2, 1984 The complaint alleges that Uptilt, Inc. (Respond- ent), violated Section 8(a)(3) and (1) of the Act by discri- minatorily laying off employees and by otherwise inter- fering with, restraining, or coercing employees in the ex- ercise of their statutory 'rights. Respondent's timely filed answer denies the commission of any unfair labor prac- tices. - ' All-parties were afforded full opportunity to appear, to examine and to cross-examine witnesses, -and' tor' argue orally. Briefs, which have been carefully considered, were filed on behalf of the General Counsel and the Re- spondent. - - Based upon the entire record, including my, observa- tion of the witnesses and their demeanor, I make the fol- lowing - . . - - FINDINGS OF FACT 1. RESPONDENT'S BUSINESS AND THE UNION'S LABOR ORGANIZATION STATUS-PRELIMINARY CONCLUSIONS OF LAW;- employer engaged in commerce within the meaning of' Section 2(2), (6), and (7) of the Act. The complaint alleges, Respondent admits, and F find and conclude that the Union is a labor organization within the meaning of Section 2(5) of the Act. II THE UNFAIR LABOR PRACTICES A. The Facts All of the,events described took place between ap- proximately July 1983 and March 1984. During the criti- cal months, Respondent was operating its factory on Washington Street in Lansing, Michigan, where all of the relevant events occurred, and had acquired a new plant, on Sunset Street in Lansing, to - which it was gradually moving its production facilities -In order to make this move, Respondent was producing some prod- uct for inventory, contrary to its usual practice of-only producing and shipping on. short notice to existing - orders, and was moving one press at a time as produc- tion on' that press was completed. Respondent's business was described as auto dependent, i.e., it fluctuated with the fortunes of the automobile industry Over the course of the last several years, Respondent's employee comple- ment has fluctuated from a low of 20 to a high of more than 200. At the time of the hearing, it employed ap- proximately 130; no evidence was offered concerning the employee complement in February when the layoffs oc- curred. - Respondent's employees are not represented by any labor organization. There had been, it appears, a union representing the employees of the prior owner of the Susnset Street plant and 'some minimal union activity among Respondent's employees by that union (not the - Charging - Party) during the fall Second-Shift Foreman Dick Moore told Donald St. Pierre, Respondent's gener- al- manger, t of this union activity. The only evidence ,of employer action to counter that early union activity con- cerned meetings with the employees of each shift. In those -meetings, held about December, St Pierre told the employees that Respondent "would prefer that you con- tinue to represent yourself. We have gotten- along fine with your, personal • representation." He told individual 'employees that the union had a right to contact them. The evidence also. indicates that'- when Moore . inter- viewed job applicants, he would ask them if Respond- ent's nonunion status, the long hours of work expected,' and the absence of union scale wages caused them any concern.. ' Respondent's second-shift employees began to talk about the possibility of unionization around November and December 2 The discussions took place in Respond- ent's lunchroom and at a nearby bar. On occasion, Dick Moore, their foreman, participated in these discussions. Moore was on a first-name basis with his employees, so- Respondent is a Michigan corporation engaged at Lan- sing, Michigan, in the manufacture, sale, and distribution of metal stampings for the automobile industry. Jurisdic- tion is not in dispute. The complaint alleges, Respondent admits, and I find and conclude that Respondent is an ' Respondent admitted that both St Pierre and Moore were statutory supervisors and its agents Respondent's secretary-treasurer Gustafson, testified that its foremen bear the responsibility for discharging employ- ees- - - - 2 The record does not indicate whether or not employees on the first shift were similarly engaged - UPTILT, INC cialized after work with-some of them, and was consid- ered by them as their "advisor," at least with respect to union activity. In the course of their conversations, Moore told the employees that he had favored unioniza- tion when he was a unit employee and that he was now on the Company's side On one occasion, in response to an employee's question, he suggested that the way to go about organizing was to contact either the Labor Board or an international union , another employee testified, without contradiction, that Moore had said that if they were going to organize successfully they had to do it quickly Employee Carl Fezatte recalled that Moore told the employees that if they were going to talk about a union they should do so "out of the business area . away from the company, off the grounds," and that, if they did talk about the Union, they should not mention his name because it could mean his job. Fezatte recalled that Moore told them that he "had orders to lay off anybody who . . . spoke - union . .. ." Moore did not say from whom such orders stemmed. On another occasion, which followed some union discussion between the employees and Moore at the bar, Moore angrily told employees that "if there's any more talk about this union that' s mention- ing my name , or any more rumors, I'm going to come down hard on people." Fezatte's testimony was essential -ly corroborated by. Michael Howard, Dean Orweller, Christopher Docking, Gary Ellsworth, and James Ells- worth. Other than 'generally denying that he ever told employees that they would lose their jobs if they became involved in union activities, Moore did not contradict the specific threats attributed to him. He acknowledged telling employees that he would make it difficult for them, "come down hard" on them, if they continued to involve him in their union discussions.3 I find, based on all of the circumstances including my observation of the witness, that Moore did in fact tell employees: that they should confine their union discussions to "away from the company, off the grounds", that he had orders to lay off employees who spoke about the Union; and that employ- ees should keep his. name out of • the union . activities under penalty of unspecified reprisals. The union activity never got beyond- its initial stages. A meeting with a representative of the Charging Party was scheduled .by Fezatte for early February but, follow- ing the layoffs discussed infra, was never held No union authorization cards or other union literature were ever distributed in the plant and no employees wore any union insignia. Gary and James Ellsworth, brothers, were hired by Respondent in April and May 1983,' respectively. They both worked on the night shift under Dick Moore. On Monday, February 6, - - Gary Ellsworth prepared and brought five handwritten signs to work. The signs, ex- pressing employee desires for better working- conditions, carried such- statements as "Uptilians Unite" and "It's 3 Moore explained -that by "come down hard " he only meant that he would take the offending employee to the office and explain why he, as a supervisor , could not be involved in the employees ' union activity This explanation is patently implausible , in any event, there in no evidence that Moore ever told the employees what he meant by "come down hard " , 585- Time For A ,Union." Included on at least some of the signs were the words, "See Gary, Night Shift Worker "4 Gary Ellsworth posted the signs at various points in-the plant, including near the coffee machine and near -the timeclock At least one sign was posted by the general manager 's office - After putting up the signs, Gary went to the lunch- room. A supervisor, Mat Evans,5 who had observed Gary putting up one of the signs, came into the lunch- room and angrily summoned him to the office There, Evans told Gary that he was being laid off for "lack of work." ' - On the following evening, James Ellsworth, who had not worked on Monday (discussed infra), brought five new signs similarly prepared by his brother. These signs carried legends similar to the first set and, in addition, re- ferred by name to both Gary and James Ellsworth. James posted these in similar places to where his brother had posted the signs on the prior evening and he, too, was observed doing so by Matt Evans. Evans walked toward the back of the shop; James walked to the front and saw that the signs had already been removed. James then went to the lunchroom where he observed Evans and Moore walk by the door; Evans pointed James out to Moore. The two supervisors called to James to come with them. Evans told James to take his coat, stating'that he `would need it. He was taken to the office and, after a brief wait, Moore told him, "At this time now we have no more work for you." When specifically asked by James, Moore denied that the layoff had been occasioned by-his posting of the signs. Evans escorted James from the plant The signs which Gary and James had posted were re- moved, almost immediately; by St. Pierre. St. Pierre re- moved them, he said, because at least two of them con- tained what he deemed to be threats written diagonally across the corners of those posters: These alleged threats were: "We're going to get you, Bob and Gus" (referring to Bob Bildey and Elden Gustafson, co-owners of Re- spondent) and "Your turn is coming, Tom" (referring to Tom - Linhart, a maintenance supervisor). While St. Pierre described these threats as having been written in the same handwriting which wrote the remainder of the signs, Gary Ellsworth denied placing any such phrases on the signs. His denials were corroborated by other em- ployees. The signs, which had been removed and de- stroyed by Respondent, were not available to corrobo- rated St. Pierre or to contradict those denials.6 4 Gary Ellsworth's testimony as corroborated by Christopher Docking I note that while Michael Howard did not see any employee's name on the posters on February 6, he did not see all of the posters put up that night - 5 While Respondent contended in its answer that Evans was not a su- pervisor within the structure of Respondent but only within a related company the evidence indicates that Respondent's employees were in- structed to take orders from Evans, that Evans issued written reprimands to Uptilt employees (Fezatte, November-22), and that he had the author- ity to terminate them I therefore find him to be a statutory supervisor and agent on behalf of Respondent B Respondent did not question either of the Ellsworths about these threats and did not contend that they, had been discharged for.posting threatening signs . . - - 586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent adduced no evidence of. plant rules pro- hibiting or regulating the posting of signs in the plant. Employees credibly testified that other signs and notices- were posted about the plant, including personal notices advertising items and services for sale by Moore and by employees. Those notices and advertisements had been posted in some of the same places as the Ellsworths' posters were hung. After the Ellsworths' layoffs, in a conversation in the lunchroom, Moore told employee Dean Orweller that they had been laid off "for trying to organize [ a] union, and get people together to organize," that they had been caught putting up posters; he referred to a list of em- ployees seeking to organize and to a meeting.' Moore also told Orweller "something to the effect that we have to stop talking union, or the same thing would happen to the rest of us if we were caught talking." On Wednesday, February 8, prior to the start of their shift, Kelly Graham and Christopher Docking were ob- served in conversation by both St. Pierre and Evans. During the shift, Graham asked Moore whether he was also going to be laid off. Moore replied that both he and Docking were going to be laid off that day. Graham tes- tified (in generally vague and unspecific terms) that Moore acknowledged that the layoffs were occasioned by the union activities. Graham told Docking of their impending layoff and Docking, went to check with Moore. Docking asked if they were being laid off and, upon receiving an affirmative answer, asked why. He was told that it was for lack of work, a reply he disput- ed. He was then asked by Moore, "Well, were you talk- ing union?" He told Moore that he had not been but Moore told him, "Well, that's probably the reason why you're getting laid off . . . something to do with the union." Subsequent to Graham's layoff, Orweller asked Moore where Graham was. Moore told Orweller "that Kelly and Chris had both gotten laid off because they were overheard talking, about union procedures, or some- thing like that."8 Graham and Docking were laid off on Wednesday, February 8. On Friday, February 10, Docking returned to the plant where he asked St. Pierre why he had been laid off. St. Pierre replied that it was lack of work. How- ever, on his way, out of the plant, Moore told Docking to return to work on February 13. Fezatte, an employee since April 1983, had been absent from work due to a work-related injury since about January 24. He returned to the plant on February 13, with a release from his doctor. On his return, Moore ° It is not clear whether Moore was referring to a list which the em- ployees had circulated and then destroyed in hopes of preventing it from coming to management 's attention or to some other list As previously noted , a union meeting had been scheduled for early February but was never held ' - 8 Moore, while denying that he told any employees they were being laid off because of their union activities , did not specifically testify about his conversations with Orweller , Graham , and Docking Noting the mu- tually corroborative nature of the employees' testimony, the absence of specific denials of such conversations by Moore, Orweller's relative disin- terest in the outcome of these proceedings and his particularly- credible demeanor , and the overall demeanor of all four witnesses, I credit Or- weller, Graham , and Docking with respect to these statements told him that he was being laid off for lack of work but would definitely be called back later. Graham was recalled to work approximately 2 weeks later . Fezatte and the Ellsworth brothers were not re- called St. Pierre testified that when Respondent is faced with the need for a layoff, it determines 'the number of em- ployees to be laid off and then selects, in consultation with the foreman, those employees according to their job performance and attendance. Seniority, he testified, is not a factor and, inasmuch as the jobs were all relatively un- skilled, with short training periods required, employees are not always recalled from "layoffs." Other than to adduce some testimony indicating that Respondent was moving from its Washington Street plant to its Sunset Street plant between December and April, and was pro- ducing some parts for inventory in order that machines might be moved from one plant to another during this period, Respondent offered no evidence of its need for layoffs at the time that the employees involved herein were laid off. Respondent did not contend that the ma- chines these employees had been working on were moved in early to mid-February or, indeed, that any ma- chines were moved during that period. Moore testified that other employees were laid off in January and Febru- ary because of the movement of equipment to the other plant; some of these layoffs "probably" occurred before the layoff of the Ellsworths, he- claimed. However, he had no recall of.layoffs other than those specifically. in- volved ,herein and Respondent adduced no written records of any such layoffs, notwithstanding that it claimed to possess such records and could have conven- iently secured them. According to the employee witnesses , at, the time of these layoffs, Respondent had work for all of the em- ployees as evidenced by the stockpiling of raw materials and the hiring of new employees. Thus, Fezatte'testified, without contradiction, that he had been told by Moore, about mid-January, that new jobs were coming in, that there was plenty of work, and that there was no chance of layoffs On the last day he worked, about January 24, he saw sufficient raw material on hand to meet incoming orders. Similarly, both Gary and James Ellsworth noted stocks of raw material sufficient for anywhere from sev- eral days to a month's worth of work on hand when they were laid off. At least into December, they had all been working -extensive overtime with workweeks of perhaps as many as 66 hours. Finally, in this respect, it is uncontradicted that new employees were hired immedi- ately after the subject layoffs. Fezatte, in testimony cor- roborated by Howard and Docking, observed about' five new employees working on the presses when he returned to the plant on February 13. Gary Ellsworth observed some new employees when he went to the plant on Feb- ruary 22 and he commented on their presence to Moore. Similarly, when James Ellsworth went back to the plant in March, he saw employees he had never seen before. Respondent offered no evidence concerning whether or not new employees were hired in the Washington Street plant or who the employees observed by Fezatte, Howard, Docking, or the Ellsworths might have been. I UPTILT, INC. 587 must conclude that the observation of these employees that three to five new employees were hired by Febru- ary 13 is correct. I must also conclude, in the'absence of any contradictory evidence, that Moore told' employees that there was ample work to avoid layoffs and that Re- spondent had raw materials on hand sufficient to keep the employees working without layoff. As noted, Respondent implied that the subject employ- ees were chosen for layoff because'they had the worst attendance records among Respondent's employees. The record discloses that Moore.had spoken to Fezatte about his absenteeism on two occasions,, both times following excused absences. Additionally, in late November, Matt Evans had given Fezatte a written reprimand which had stated that if there was no improvement in his attend- ance, he could be "discharged immediately." The record indicates that Fezatte was absent, due to a work-related injury, between January 24 and February 13.- Gary Ells- worth had received three written reprimands during his tenure.9 He had received one on June.28 for failing to return to work after his lunchbreak, without permission. He had received another, for failing to call in with-re- spect to an absence, on. January 23. He received a third, on January 30, for breaking a die. On Thursday, Febru- ary 2, he had worked half a shift and had been allowed to go home because he was ill. He returned to -work at the start of his shift on Friday,, February 3, but was not permitted to work because the medication he was taking for pain precluded him from operating heavy equipment. Moore told him to report ,for work on Monday. On Feb- ruary 1 or 2, James Ellsworth left work at his lunch- break, without permission, allegedly because his machine was malfunctioning and squirting oil into his face. He re- turned to the plant at the start of his shift on Friday and was given a 3-day disciplinary layoff, with orders to report back to work at the start of his shft on Tuesday evening. He had received a written reprimand for simi- larly leaving work without permission in June. No evidence was introduced concerning any similar attendance or disciplinary problems involving Kelly Graham or Chris Docking. Respondent testified that these employees were recalled, while the Ellsworths and Fezatte were not, because they were better employees. Respondent offered no evidence concerning the attend- ance or,disciplinary records of any other employees who were either laid off or retained at any relevant time.. St. Pierre testified that. the decision to lay off the sub- ject employees would have been made in consultation with their foreman sometime prior to the Friday before their layoffs and that employees were generally laid dff on Fridays at the end of their work-shift. Moore did -not testify concerning any involvement in the selection of these employees for layoff. Moreover, these, employees were not laid off at the end of their work shifts on a Friday; rather, they were laid off on a Monday, Tues- day, or a Wednesday, at' the start of their shifts, after having been told to report to work on those dates. The evidence, at least with- respect to Gary Ellsworth, indi- 9 It would appear from , the credible testimony of St Pierre , as cor- roborated by Moore , that Gary Ellsworth had been,terminated in July 1983 and had been reinstated in' November cates that he was laid off by Matt Evans, not by his own foreman, Dick Moore. - ' D. Analysis and Conclusions 1. Interference, restraint, and coercion - The- General Counsel's complaint alleges that Re- spondent.interfered with, restrained, and coerced its,em- ployees in the exercise of their Section 7 rights, in viola- tion of Section 8(a)(1),- by threatening employees with layoff should they be caught talking about unions, threat- ening -them with discipline should they mention Moore's name in connection with' their discussions of union orga- nizational - activities, attributing an employee's layoff- to the fact that he had discussed union representation, 10 and by discriminatorily removing prounion literature which- had been posted in the plant. The facts, as found above, amply support these allegations. Thus, I have credited the testimony of both Fezatte and Orweller, each of whom testified to having been told by Moore that those-who talked about the Union would be laid off. These are threats clearly in violation of Section 8(a)(1); Moore's relationship with.his employees does nothing to mitigate the seriousness of such threats. Indeed, inasmuch as they considered Moore to be some sort of an advisor to -them,` particularly with respect to union matters, Moore's admonitions would take on greater, rather than lesser weight. As the,Board stated in Hedstrom Co., 223 NLRB 1409 (1976): "It is well settled that threats from friendly supervisors can be no less coercive to employees than threats by a hostile supervisor and can carry 'a greater aura of reliability and truthfulness." Rust- Craft Broadcasting-Co., 214 NLRB 29 (1974); Caster Mold & Machine Co., 148 NLRB 1614, 1621 (1964). Similarly, while it is understandable that Moore would not want his,involvement in the employees' union activi- ties to be brought to the Employer' s attention , the record is clear that Moore allowed himself to be made a part of- that activity. It is also clear that he went beyond simply requesting that he not be further involved or that the employees refrain from mentioning his name. He threat- ened them with unspecified reprisals if they further in- volved him in their union activities. This he could not do without restraining and coercing them in, those union ac- tivities. Neither could he tell, employees that they (or others) had been laid off because of their union activities without unlawfully inhibiting the union activities of all of the employees. See General Felt Industries, 269 NLRB 475 (1984); Central Transport, 247 NLRB' 1482 (1980). Accordingly, I find that by, all of the above-described conduct, Moore has threatened employees with layoffs 10 The complaint, while specifically including this conduct among those acts which interfered with, restrained , or coerced employees in the exercise of their statutory rights, and specifically setting forth the name of the Respondent 's agent involved, the date and the place the statement was made, characterized the violation as "implied futility in the employ- ees' seeking to be'represented by a union " While I would find the con- duct to be more ' in the nature of a threat than one of an implication of futility, I deemed the complaint sufficiently specific as to both the factual and legal bases of the violation to warrant full consideration and resolu- tion of the issue , 588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and other reprisals if they engaged in union activities, in violation- of Section 8(a)(1) of the Act. -- I also find that , by the conduct of St . Pierre in imme- diately removing the proorganizational notices posted by Gary and James Ellsworth , Respondent has violated Sec- tion 8(a)(1) of the Act. In so holding , I note that even crediting St. Pierre 's testimony concerning the alleged threats on some of the notices, other notices were re- moved notwithstanding the absence - of any threats. I note, too, the absence of any plant rules concerning the posting of such notices and the disparate treatment ac- corded these notices as compared to the permitted post- ing of notices offering goods and services by employees and at least one supervisor , Moore . See R . H. Macy & Co., 267 NLRB 177, 181 (1983), where the employer, pursuant to what was , at . best , an unwritten rule, re- moved a notice of .a union meeting immediately after it had been posted This action was found violative of Sec- tion 8(a)(1) where other evidence established that the employer had - tolerated the posting of "a variety of non- employer or nonbusiness -related notices ," including at least one advertising the sale of an automobile , which had remained on the bulletin board for 10 days. See also Union Carbide Corp. v. NLRB, 714 F.2d 657 . (6th Cir. 1983), enfg. ' in relevant part 259 NLRB 974. (1982), where the court , finding no evidence to support ' the em- ployer ' s contention "that the bulletin boards were be- coming 'a battleground between rival employee fac- tions,"' upheld the Board 's finding of an 8 (a)(1) violation in the removal of a union's "open house" notices. The court stated. - The Labor Management Relations Act does not afford employees a protectable interest in the use of employer's bulletin board. National Labor Relations Board v. Container Corp. of Am., 649 F.2d 1213 (6th Cir. 1981) (per curiam) See also Nugent Service, Inc., 207 NLRB 158.(1974) Nevertheless, where, by policy or practice, the company permits- employee access to bulletin boards for any purpose, section 7 of the Act, 29 U.S.C. section 157, secures the em- ployees' right to post union materials. National Labor Relations -Board v. Challenge-Cook, Bros. of Ohio, Inc., 374 F.2d 147 (6th Cir. '1967). Cf. NLRB v Container Corp;, supra (enforcing N.L.R.B. deci- sion which held that although there was no statuto- ry right to use the bulletin board, once an employer permitted access to. a company board, it could not thereafter remove notices or discriminate against an employee who posted union notices). The content pf such notices is protected by the Act even if abu- sive and insulting. Old Dominion Branch No. 496, National Assn of Letter . Carriers,, AFL-CIO v. Austin, 418 U.S. 264, 94 S.Ct. 2770, 41 L. Ed. 2d 745 (1974); N.L.R.B. v. Container Corp., 649 F.2d at 1215. Finally, - see Roadway Express, 268 NLRB 982 (1984), where the Board found the employer's elimination of bulletin boards to be motivated by' a desire to prevent the posting of union-related materials, and thus violative of Section 8(a)(1), notwithstanding its contention that the boards were removed to prevent the posting of obscene and threatening messages. 2.' Discrimination In Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert denied 455 U.S. 989 (1982), the Board held that the General Counsel bears the initial burden of making "a prima facie showing suffi- cient to support the inference that protected conduct was a 'motivating factor' in the employer's decision" to ter- minate or lay off employees. Once that prima facie show- ing is established, the Board held, "the burden will shift to the employer to demonstrate that the same action would have taken place even in the absence of the pro- tected conduct."1 i Here, the record compels the conclu- sion that the General Counsel has presented the requisite prima facie showing of discriminatory motivation in the temporary layoffs and permanent layoffs (i.e., discharges) of the five employees named in the complaint, it further compels the conclusion that Respondent has failed to sustain its burden of establishing that the layoffs would have taken place even in the absence of the conduct. Thus, with respect to the General Counsel's prima facie case , I note the following: The employees were engaged in, or were suspected of engaging in, union activities; the activities were known to-at least one member of supervi- sion , Moore, at their earliest and quietest stages, and became known to other supervisors, Evans and St. Pierre, when they blossomed forth with the posting of prounion notices; Respondent bore animus toward the exercise of such protected rights as evidenced - by the threatening statements made by Moore to the employees who worked under him;12 and, when the'union activities became open and notorious on February '6 and 7, they were immediately followed by layoffs. Gary Ellsworth was immediately laid off by the supervisor who observed him post the prounion signs rather than by his own su. pervisor. The layoffs, occurring at the beginning through the middle of the workweek, were contrary to Respond- ent's usual practice of laying employees off on Fridays, at the conclusion of the workweek. Gary and James Ells- worth were laid off on Monday and Tuesday, respective-' ly, days on which each of them had, on Friday, Febru- ary 3, been specifically directed to return to work; the timing of their layoffs negates St . Pierre's testimony that the decision to lay them off would' have been made sometime prior to Friday, February'3. Moreover, there was work for the laid-off employees to perform and they were quickly replaced with new hires.-13 I note, too, that i 1 _The Board's Wright Line test was expressly approved by the Su- preme Court in NLRB v Transportation Management Corp., 462 U S 393 (1983) • ' 12 Contrary to Respondent 's argument , the absence of specific threats with respect to union activities in preemployment interviews does not es- tablish an absence of animus The questioning of job applicants to deter- mine whether they would be troubled by the absence of a union, or by the payment of wages below union' rates, on the other hand, is some evi- dence of animus See Service Master All Cleaning Services, 267 NLRB 875 (1983) (Member Hunter dissenting) Is It is essentially immaterial whether this evidence is deemed part of the General Counsel's prima facie case or as evidence rebutting Respond- ent's defense and establishing its pretextual nature. UPTILT, INC none of the laid-off employees were told that they had been selected for layoff because of attendance problems or other work deficiencies. Finally, the General Coun- sel's case is concluded by credited evidence of Moore's statements acknowledging that at least four of the em- ployees were laid off because of their union activities. All of the foregoing makes out a strong prima facie case. See Bill Fox Chevrolet, 270 NLRB 568 (1984), where the General Counsel's prima facie case was established by substantially identical evidence In its defense, Respondent alluded to the movement of its plant equipment from one building to another, its pro- duction for inventory contrary to its usual practice, and its alleged practice of selecting employees for layoff ac- cording to their work performance, including attendance. It showed the deficiencies in work performance of some but not all of the alleged discriminatees. Entirely lacking from Respondent's defense was any specific evidence that a • layoff of any number of employees was required on and after February 6, that any machines were moved from the Washington Street plant to the Sunset Street plant during that period, that any machines were then idle, that Respondent had produced for inventory the parts which otherwise would have been made by the al- leged discriminatees, any refutation or explanation con- cerning the hire of new employees, or any evidence es- tablishing that any of the discriminatees (some of whom were admittedly far from being outstanding employees) had work or attendance records inferior to any of the employees who were not laid off. Neither did Respond- ent prove that it laid off other employees although it af- firmatively pleaded, in its answer, "that numerous other employees were also laid off at- that time for the sole reason that there was a lack of work." Respondent bore the burden of producing admittedly available records to support its contentions. Bill Fox Chevrolet, supra. In no manner can the evidence presented by Respondent be deemed sufficient to establish that Gary Ellsworth, James Ellsworth, Christopher Docking, Kelly Graham, or Carl Fezatte would have been laid off or discharged in the absence of any protected conduct 14 Based on all of the foregoing , I must conclude that Respondent discriminatorily discharged Gary Ellsworth, James Ellsworth, and Carl Fezatte on February 6, 7, and 12, and 1984, respectively, and discriminatorily laid off Christopher Docking and Kelly Graham, on February 8, 1984, because of their union activity, in violation of Sec- tion 8(a)(3) of the Act. THE REMEDY It having been found that Respondent , Uptilt, Inc., has engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of the Act, it will be recommended that Respondent be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. i4 Respondent 's failure to discharge all the known union supporters and its recall of two of them does not establish that its discharges or lay- offs of these employees were not discriminatory See Burgess Mining & Construction Corp, 250 NLRB 211 (1980), American Greeting Corp, 233 NLRB 1279 (1977), Broyhill Co., 210 NLRB 288 (1974) 589 It having been found that Respondent discriminatorily discharged Gary Ellsworth, James Ellsworth, and Carl Fezatte and discriminatorily laid off Christopher. Dock- ing and Kelly Graham, 'I shall direct that Respondent offer Gary Ellsworth, James Ellsworth, and Carl Fezatte immediate and full reinstatement to their former or sub- stantially equivalent positions without prejudice to their seniority or other rights and privileges. I shall further direct that Respondent make Gary Ellsworth, James Ellsworth, Christopher Docking, Kelly Graham, and Carl Fezatte whole for any loss of earnings they may have suffered by reason of the discrimination practiced against them, such earnings to be computed in accord- ance with the formula set forth in F. W. Woolworth Co., 90 NLRB 298 (1950), with interest to be computed in the manner prescribed in Florida Steel Corp., 231 NLRB 651 (1977). See -generally, Isis Plumbing Co., 138 NLRB 716 (1962). Further, I shall direct that, all, references to their discharges and/or layoffs be expunged from Respond- ent's files and that Respondent notify them, in writing, that this has been done and that evidence of the unlawful discharges or layoffs will. not be used as a basis for fur- ther personnel -actions against them. CONCLUSIONS OF LAW 1. By threatening employees with discharge or other reprisals if-they engage in union activities or mention a supervisor' s name in connection with their union activi- ties, by telling employees that employees had been laid off because of their union activities, and by discrimina- torily removing prounion literature posted at its Wash- ington Street plant, Respondent has interfered with, re- strained , and coerced employees in the exercise of their Section 7 rights in violation of Section 8(a)(1) of the Act. 2. By discharging, laying off, and failing to-recall em- ployees because they engaged in union activities, Re- spondent has violated Section 8(a)(3) and (1) of the Act. 3. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(2), (6), and (7) of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- edis - ORDER The Respondent, Uptilt, Inc., Denver, Colorado, its officers, agents , successors, and assigns, shall 1. Cease and desist from (a) Threatening employees with layoff, discipline, or discharge, for talking about unions, mentioning a supervi- sor's name in connection with union organizational activ- ity, or engaging in other union and protected concerted activities. _ (b) Telling employees that employees had been laid off because they engaged in union activities: 15 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 590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Discriminatorily removing prounion literature posted in the plant. (d) Discharging, laying off, or failing to reinstate laid- off employees because they had engaged in union activi- ties. (e) 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 Gary Ellsworth, James Ellsworth, and Carl Fezatte 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 other rights and privileges and make them and Chris- topher Docking and Kelly Graham whole for any loss of earnings they may have suffered by reason of discrimina- tion against them in the manner set forth in the section of this decision entitled "The Remedy." (b) Remove from Respondent's files all references to the terminations and layoffs of Gary Ellsworth, James Ellsworth, Christopher Docking, Kelly Graham, and Carl Fezatte and notify them in writing that this has been done and that evidence of their unlawful termina- tions or layoffs will not be used as a basis for future per- sonnel action against them. (c) Post at Lansing, Michigan plant, copies of the at- tached notice marked "Appendix."' r, Copies of the notice, on forms provided by the Regional Director for Region 7, after being signed by the Respondent's 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. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 16 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 Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board."