Bituma Corp.

National Labor Relations Board - Board Decisions

Jun 15, 1994

314 N.L.R.B. 36 (N.L.R.B. 1994)

36
314 NLRB No. 7
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
2 The Respondent excepts to the judge’s finding that employee
Lester Olson admitted that his testimony about the July 14, 1992
union meeting was a summary interpretation of Daniel Teynor’s
more extended remarks. Although Olson did not make this admis-
sion, we agree with the judge that the accounts that employees gave
Personnel Manager Denning about Teynor’s remarks were summary
in nature.
3 In finding that the Respondent violated Sec. 8(a)(1) by deter-
mining that Daniel Teynor was ineligible for recall, the judge relied
on the Respondent’s lack of a good-faith belief that Teynor had ma-
liciously lied about his insurance claim, and on the fact that
Teynor’s statements were protected. We find it unnecessary to pass
on the judge’s finding that the Respondent lacked an honest belief
that Teynor had maliciously, deliberately, or recklessly lied about his
insurance claim. Rather, assuming arguendo that the Respondent had
such a belief, the General Counsel established that Teynor did not
engage in such misconduct. For this reason, and because Teynor’s
comments about insurance coverage were made in the course of pro-
tected activity, we agree that the Respondent unlawfully excluded
Teynor from recall. See NLRB v. Burnup & Sims, 379 U.S. 21
(1964).
In finding that the General Counsel established a prima facie case
that the Respondent discriminatorily refused to consider Walter
DuCharme for recall, the judge relied on antiunion animus the Re-
spondent assertedly exhibited in its decision not to recall Teynor.
Because the judge found it unnecessary to decide whether the Re-
spondent’s decision to exclude Teynor from recall violated Sec.
8(a)(3), we do not rely on the judge’s antiunion animus finding. We
agree, however, for the reasons stated by the judge, that the Re-
spondent’s proffered reasons for declaring DuCharme ineligible for
recall were pretextual. Thus, we infer from all the surrounding cir-
cumstances that the Respondent’s action was motivated by antiunion
animus. Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466 (9th
Cir. 1966). Accordingly, we agree with the judge that the Respond-
ent violated Sec. 8(a)(3) and (1) of the Act by declaring DuCharme
ineligible for recall.
1 The Union’s charge—and the Regional Director’s complaint—
identified the Respondent as ‘‘Gencor Bituma Corporation.’’ At the
trial, the parties stipulated, for purposes of this case, that ‘‘Bituma
Corporation’’ is the correct corporate styling for the Respondent.
The parties also stipulated that Bituma Corporation is a Washington
corporation, and is itself wholly owned by Gencor Industries, Inc.
based in Orlando, Florida.
2 All dates below are in 1992 unless I specify otherwise.
3 The hearing on challenges and objections was conducted on Au-
gust 11–13. The hearing officer’s October 2 report recommended
that the challenges be sustained because the record contained insuffi-
cient evidence that any of the challengees had a reasonable expect-
ancy of recall when they cast their ballots.
4 Gencor Bituma Corp., Case 18–RC–15244.
Bituma Corporation and International Association
of Machinists and Aerospace Workers, AFL–
CIO. Case 18–CA–12467
June 15, 1994
DECISION AND ORDER
BY MEMBERS DEVANEY, BROWNING, AND COHEN
On September 30, 1993, Administrative Law Judge
Timothy D. Nelson issued the attached decision. The
Respondent filed limited exceptions and a supporting
brief, and the General Counsel filed an answering
brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings,1 findings,2 and con-
clusions3 and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Bituma Corporation, Prai-
rie du Chien, Wisconsin, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Order.
Joseph H. Bornong, Esq., for the General Counsel.
Robert W. Rasch, Esq. (Subin, Shams, Rosenbluth & Moran),
of Orlando, Florida, for the Respondent.
Roger N. Nauyalis, of Des Plaines, Illinois, for the Charging
Party.
DECISION
STATEMENT OF THE CASE; RELATED CASES; AND
CURRENT ISSUES
TIMOTHY D. NELSON, Administrative Law Judge. On Jan-
uary 23, 1993, after investigating an unfair labor practice
charge filed by the International Association of Machinists
and Aerospace Workers, AFL–CIO (the Union) on Novem-
ber 20, 1992, the Regional Director for Region 18 issued a
complaint by the Board’s General Counsel against the Re-
spondent (Bituma Corporation), the nominal owner and oper-
ator of a plant in Marquette, Iowa.1 Pursuant to a notice of
hearing accompanying the complaint, I heard the case in trial
at Prairie du Chien, Wisconsin, on March 23–26, 1993.
Factually, the charge and the complaint focus on events in
and around the Marquette plant in late spring to midsummer
1992.2 During this period, the Union conducted an orga-
nizing campaign among the production and maintenance em-
ployees at the plant, leading to a Board-sponsored election
held on July 16, during a summer layoff period. As of July
16, the Union had received a two-vote majority of the un-
challenged ballots (61:59), but 35 challenged ballots—all of
them cast by persons laid off on or about May 29—remained
uncounted and in need of resolution. In addition, the Re-
spondent had filed objections to the election for various rea-
sons. Following postelection hearings on challenges and ob-
jections, a Region 18 hearing officer issued a report recom-
mending that the challenges be sustained,3 that the Respond-
ent’s objections be overruled as meritless, and that the Union
be certified based on its July 16 majority showing. On Janu-
ary 5, 1993, in an unpublished decision, the Board adopted
the hearing officer’s recommendations and certified the
Union.4 The Respondent is currently challenging this cer-
37BITUMA CORP.
5 Following the Board’s certification of the Union in the represen-
tation case, the Respondent refused to recognize or bargain collec-
tively with the Union. On April 8, 1993, the Board granted summary
judgment for the General Counsel in an 8(a)(5) prosecution over the
Respondent’s refusals. Gencor Bituma Corp., 310 NLRB No. 167
(not printed in Board volumes). In his brief, counsel for the General
Counsel advises that this ‘‘certification-testing’’ 8(a)(5) case is now
pending before the United States Court of Appeals for the Eighth
Circuit on the Respondent’s petition for review, filed April 13, 1993,
docketed as No. 93–1901.
6 In this case, as in the related cases noted above, the Respondent
admits, and I find, that its operations at Marquette meet pertinent
statutory and discretionary tests for the assertion of the Board’s ju-
risdiction. Moreover, as part of the trial stipulation that the Respond-
ent’s correct name for present purposes is ‘‘Bituma Corporation,’’
the Respondent conceded that service of the charge and the com-
plaint (naming ‘‘Gencor Bituma Corporation’’) was proper.
7 The Respondent’s admitted decision to declare each of these
three employees ‘‘not-eligible-for-recall’’ was tantamount to firing
them, and therefore I will use that term or similar ones below when
describing the Respondent’s actions against them.
tification in the United States Court of Appeals for the
Eighth Circuit by the device of a ‘‘technical’’ refusal to bar-
gain.5
In substance, the complaint in this case alleges that the
Respondent violated the Act by spying on the Union’s orga-
nizing meetings on several occasions between May 29 and
July 16, by later ‘‘discharg[ing]’’ three employees then on
layoff—Merlin Mabb, Walter DuCharme, and Daniel
Teynor—because of their union activities, and by telling one
of these employees (Mabb) in or around the second week in
June that his involvement with the Union was why he was
‘‘being discharged.’’ The Respondent’s answer admits that
this case is properly before the Board,6 but it denies all such
alleged wrongdoing. It admits that it laid off the three al-
leged discriminatees on or about May 29. In Mabb’s case,
it avers that a company agent told Mabb when he was laid
off on May 29 that he ‘‘would not be eligible for recall.’’
As to DuCharme and Teynor, the Respondent avers that it
‘‘subsequently determined’’ that those two were ‘‘not eligi-
ble for recall’’ either.7 Finally, the Respondent avers that it
took these actions in each case for ‘‘legitimate business rea-
sons.’’ (The Respondent invokes Mabb’s and DuCharme’s
allegedly unacceptable previous work histories as the reason
it fired them, and justifies Teynor’s discharge on the ground
that he made a maliciously false statement about his recent
insurance claim in a union meeting held just before the July
16 election, more than a month after he had been laid off.)
In reaching my findings and conclusions below, I have
studied the entire record, the briefs filed by the General
Counsel and the Respondent, and the legal authorities they
have cited. In situations where the facts are in material dis-
pute, I have considered the demeanor of the disputing wit-
nesses, and have tested their competing versions against my
assessment of the probabilities inhering in the undisputed
surrounding circumstances. In the end, based on my findings
and reasoning below, I will conclude that the Respondent
violated Section 8(a)(1) by discharging Teynor, and violated
Section 8(a)(3) and (1) by firing DuCharme, but did not
commit any of the other violations alleged in the complaint.
FINDINGS AND CONCLUSIONS
I. BACKGROUND
A. Marquette Plant Operations
The Respondent, Bituma Corporation, manufactures port-
able and stationary asphalt mix plants used by road building
contractors. Its manufacturing site is on the outskirts of Mar-
quette, a small, semirural community on Iowa’s eastern bor-
der, located directly across the Mississippi River from Prairie
du Chien, Wisconsin, itself a small town (population about
6800), but nevertheless the largest urban center within a 50-
mile radius of the Marquette plant. Gencor Industries, Inc.,
the Respondent’s parent corporation, also owns a plant in Or-
lando, Florida, where it makes at least some of the same as-
phalt plant components also manufactured at the Marquette
plant, and another plant in Youngstown, Ohio, where it fab-
ricates hot oil tanks, which are likewise components used in
the finished asphalt plant systems made at Marquette.
The Respondent’s contractor-customers typically place or-
ders in the period October through December, anticipating
the coming road construction season. Because of this, the
Marquette plant expands its production and maintenance
work force in this period, commonly reaching a peak com-
plement of 200 or more by January or February. (In 1992
the complement peaked at about 216 in February.) It lays off
many of these workers later in the spring (in 1992 it laid off
89 workers on May 28–29), when most of the orders have
been filled. The laid-off workers, residents of Marquette,
Prairie du Chien, and other nearby communities, become the
main pool from which the plant draws to replenish its com-
plement when new orders begin to arrive in October.
B. The Union’s Campaign; Undisputed Areas of
Company Knowledge
The Union began its organizational contacts with employ-
ees at the Marquette plant on an uncertain date in late April
or the first week in May. Alleged discriminatees Mabb,
DuCharme, and Teynor were among many workers who at-
tended the Union’s first organizing meeting, held at the
Brisbois Lodge in Prairie du Chien, and these three and sev-
eral others volunteered to become members of the Union’s
in-plant organizing committee, a committee that eventually
included about 20 employees. Mabb, DuCharme, and Teynor
attended additional union meetings held almost weekly dur-
ing the campaign, all held at another motel in Prairie du
Chien, the Best Western-Quiet House (Quiet House).
The Union’s presence was clearly known to the Respond-
ent by no later than on or shortly after May 11, when the
Union filed its election petition. The prounion stance of the
three alleged discriminatees was clearly known to the Re-
spondent by no later than July 16. Mabb and DuCharme
were admittedly seen by company agents participating in
prounion demonstrations and handbilling efforts at the plant
gates on the day of the election. Teynor’s involvement with
the Union was clearly known to the Respondent by no later
than July 15, when several employees raised questions that
day with Personnel Manager Denning concerning certain al-
leged statements made by Teynor at a union meeting held the
previous evening.
38 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 See Joseph’s Landscaping Service, 154 NLRB 1384 fn. 1 (1965).
9 From harmonious elements in the testimony of Teynor’s,
Denning’s, and Teynor’s supervisor, McDonald, I find that Teynor
had been regularly complaining about low pay in the months before
the Union’s arrival to begin organizing. Most of his discussions were
with McDonald, who would urge patience, and who assured Teynor
that he was himself advocating higher pay for his department’s
workers in ongoing discussions with higher level company officials.
10 Although admitting that he was ‘‘upset’’ during this conversa-
tion, Teynor seemed in his descriptions to be downplaying just how
upset he really was. Thus, on direct examination, he blandly recalled
that at one point he had ‘‘asked [Denning] virtually [sic] what it was
going to take to get higher wages.’’ On cross-examination, however,
he acknowledged that he had said to Denning, apparently in this
same connection, ‘‘[I]f it takes having your kneepads wearing thin
and having your lips greased exactly right [then] I guess I’ll never
get a raise.’’ As a worker upset enough to say this to the personnel
manager, Teynor was probably likewise too upset to pay much atten-
tion to what Denning was saying. Moreover, as a witness who edited
his testimony on direct examination to delete reference to these viv-
idly memorable remarks, Teynor may be suspected of having tried
to shape his testimony for ulterior purposes.
C. Evidence of ‘‘Animus’’ Outside the
Limitations Period
Because the Union’s charge in this case was not filed until
November 20, any unfair labor practice committed by the
Respondent before May 20 would be barred from prosecu-
tion by the 6-month limitation rule prescribed in Section
10(b) of the Act. Nevertheless, proof of company statements
or conduct betraying antiunion ‘‘animus’’ occurring in the
‘‘pre-10(b)’’ period is commonly received—and was in this
case—for its ‘‘background’’ value, because it might illu-
minate an understanding of the Respondent’s motives in tak-
ing the three discharge actions occurring within the 10(b) pe-
riod which are challenged by the complaint.8
It was with the latter announced purpose that the General
Counsel invited alleged discriminatee Teynor and another
one-time employee, Bradley Winters, to testify concerning
pre-May 20 statements allegedly made by two admitted com-
pany agents—Personnel Manager Denning in one instance
described by Teynor, and Electrical Department Manager
Robert McDonald in up to four instances described variously
by Teynor and Winters. Denning and McDonald denied hav-
ing made any of the statements in question. I doubt that it
would influence my judgment about the merits of the dis-
charges in this case even if I credited Teynor and Winters
over Denning and McDonald. But witness credibility is the
threshold issue, and for reasons noted below, I am
unpersuaded that either Teynor or Winters offered reliable
testimony about the pre-May 22 transactions in question.
1. Denning-Teynor encounter in early April
Teynor sometimes appeared to be venturing beyond what
he actually recalled. His testimony seemed especially un-
sure—and artificially reconstructed—when he purported to
describe a conversation about pay rates with Personnel Man-
ager Denning in ‘‘early April,’’ before the Union appeared
on the scene. This was a conversation that Teynor says he
started after confronting Denning as Denning was walking
through Teynor’s work area in the electrical department. This
is how Teynor recalled the exchanges that followed: Admit-
tedly ‘‘upset,’’ Teynor opened by complaining about the
higher pay being given to a recently hired worker,
Nebendahl, and added that ‘‘qualified people in the depart-
ment . . . were at a substantially lower wage . . . and need-
ed to be compensated for their knowledge and experience.’’
Denning replied that he was ‘‘working on it[,] trying to get
people higher wages.’’ Unmollified, Teynor replied, ‘‘[W]e
as older employees may have to form a union and walk out
the door and let him and his new people run the plant for
a while.’’ Denning replied, said Teynor in his first version,
that such a walkout ‘‘wouldn’t help anything; it would prob-
ably just jeopardize your job.’’ Repeating this story on cross-
examination, however, Teynor quoted Denning instead as
saying that a walkout ‘‘would probably just hinder our job.’’
But then Teynor hastily added the phrase, ‘‘probably make
us lose it.’’ Then, pressed on this, Teynor defensively pro-
tested that he could not recall the ‘‘exact words’’ Denning
used. Pressed further, Teynor stated finally that his ‘‘best
recollection’’ was that Denning had said, ‘‘you would prob-
ably lose your job.’’
Denning testified credibly that in this period he had many
conversations with Teynor in which Teynor would complain
about low pay.9 He does not specifically recall Teynor mak-
ing any reference to employees forming a union, but he in-
sists in any case, that he never made remarks like those de-
scribed by Teynor about the consequences of an employee
walkout. I found Denning’s latter denial demeanorally more
convincing than Teynor’s varying assertions. I recognize that
variances such as those exhibited by Teynor are not inher-
ently fatal to credibility, and might easily be dismissed as
products of mere frailty of memory if displayed by a dif-
ferent witness. But I suspected as I watched Teynor waffle
and embellish on the words supposedly used by Denning that
Teynor’s difficulties traced from the fact that he had no gen-
uine memory whatsoever of Denning’s reaction, if any, to his
own supposed threat of a walkout. Indeed, given Teynor’s
apparent state of agitation during this encounter, I doubt the
reliability of any of his post facto versions of the episode.10
2. Various alleged shutdown threats by McDonald
McDonald supervised the electrical work—component wir-
ing, assembly, and installation—done by a number of em-
ployees, including Teynor and Winters. He had been on va-
cation when the Union began its organizing campaign, but
admittedly learned of it at an uncertain point after he re-
turned from vacation in early May. By this point, McDonald
had already made firm plans to take a new job with a Prairie
du Chien company, Design Homes, where he started on June
1. He admittedly participated in several conversations with
employees concerning the Union—and his own plans to
leave—during his final weeks at the Marquette plant. He tes-
tified credibly and without specific contradiction by any
prosecution witness that he had no personal stake in the out-
come of the union campaign, and that he repeatedly advised
workers who brought up the subject with him—Teynor being
‘‘primarily’’ the one who would bring up the issue—that he
intended to remain ‘‘neutral.’’
Teynor described two union related conversations involv-
ing himself, McDonald, and other employees, both occurring
after May 11, when the Union filed the election petition. In
the first one, Teynor said McDonald came into a control van
where Teynor was working with another employee, believed
39BITUMA CORP.
11 The record elsewhere shows that several members of the Elliott
family hold top executive positions in Gencor, the Respondent’s par-
ent corporation.
12 Of these latter, only Winters was called to testify, and as I
elaborate below, his testimony does not fit well with Teynor’s
version.
13 Not content with this, counsel for the General Counsel asked
Teynor a leading question, ‘‘Did he say anything about what he
would rather—rather spend the ten to fifteen million dollars than?’’
Teynor obliged by revising his testimony, now purporting to quote
McDonald as saying that ‘‘[h]e [Elliott, apparently] would rather
spend the ten or fifteen million dollars on moving the place to an-
other locality than to let a union come in.’’
14 McDonald recalled having been involved in ‘‘March’’ in some
kind of telephone conference with company representatives in Flor-
ida other than the Elliotts. But he was certain that this happened well
before the Union came to town, and that this conference dealt with
business matters that were entirely unrelated to the Union.
15 Personnel Manager Denning likewise testified that as far as he
knew the Youngstown plant had never been shut down, much less
relocated to Marquette, and was indeed still running, continuing to
make hot oil tanks used in the Marquette manufacturing operation.
by Teynor to have been Dave Young, who was not called
to testify. After a period of work related chit-chat, Teynor
states that McDonald mentioned having been in a ‘‘con-
ference call’’ with a ‘‘Mr. Elliott’’ in ‘‘Florida,’’ during
which Elliott said that ‘‘he would rather close the plant than
to let the union organize there.’’11 Teynor recalled that he
scoffed at this, and argued that ‘‘[i]t doesn’t stand to reason.
The man is making money at the facility we are at and it
wouldn’t be feasible for him to go and close the plant.’’
Some days later, Teynor said McDonald entered a control
van where Teynor was working with employees Troy Meena,
Dave Young, and Brad Winters.12 Here, Teynor recalls that
McDonald again asked some work related questions, but then
changed the subject somehow, saying, ‘‘We should all think
about joining a union quite strongly—or not joining quite
strongly—That the repercussions of it could be detrimental.’’
Then, according to Teynor, McDonald ‘‘pointed out a cir-
cumstance where Mr. Elliott had bought a plant in I believe
it was Youngstown, Ohio that was a unionized plant, and
shortly after purchasing that plant he closed the place down
and moved the equipment to the Marquette facility. . . . He
said he went and broke the union by closing the place down
and moving it to Marquette, Iowa.’’ Teynor said he again ar-
gued that it would not ‘‘make sense’’ for Elliott to do this
at Marquette, but that McDonald rejoined that ‘‘it would not
be anything out of the ordinary for him [‘‘Mr. Elliott’’] to
go and spend ten to 15 million dollars to go and pay off
whatever loans he might have against the plant, take the
equipment out of here and move it to another place.’’13
Winters, said by Teynor to have been present during the
second episode just described, did not corroborate Teynor,
but rather described ‘‘a couple of different conversations’’
with McDonald where he was ‘‘sure’’ Teynor was not
present. In the first of these, in a control van where Winters
and Dave Young were working, Winters recalled that the
conversation turned to ‘‘rumors’’ about McDonald’s plans to
go to work at Design Homes. McDonald did not then di-
rectly confirm that these were his plans, says Winters, but
made some statement to the effect that ‘‘with the union com-
ing in—his position would be threatened,’’ and that ‘‘he
thought it would be a favorable move on his part to do
that[,]’’ i.e., to take the job at Design Homes. Pressed by the
General Counsel whether McDonald had more specifically
stated what it was that would ‘‘threaten’’ his ‘‘position,’’
Winters then recalled that McDonald had said that ‘‘[h]e felt
that if the union came that the gates would close.’’ But Win-
ters immediately volunteered that this may have been ‘‘spec-
ulation on [McDonald’s] part.’’ In the second conversation,
without remembering the timing or the location, Winters said
that he was alone with McDonald, and asked him what he
‘‘really [thought] of this union issue . . . what is going to
happen.’’ To this, McDonald replied, says Winters, that ‘‘he
thought that it would take Bituma . . . approximately $10 to
12 million to close down and move, and that if the union
was accepted that it [would] cost them more to bring the
union in than to close the gates and move it to Florida, or
I actually think that Kentucky or Tennessee were also
brought into that conversation.’’ Winters conceded on cross-
examination that all of his conversations with McDonald
were ‘‘friendly’’ in tone, and that he viewed McDonald’s re-
marks about the possible consequences of unionization as his
own ‘‘opinion.’’ Winters further confirmed that McDonald
never claimed to have any ‘‘inside information as to what the
company in fact would do.’’
McDonald’s testimony contradicted Teynor’s at every turn;
neither can it easily be harmonized with Winters’ accounts.
McDonald emphatically denied having in any way predicted,
much less threatened, that the Company would shut down the
plant if the Union came in. With equal conviction, he denied
that he told Teynor or anyone else that he had been involved
in any ‘‘conference call’’ with any member of the ‘‘Elliott’’
family, much less one in which the Union was discussed. In-
deed, he testified that he had never been involved in any
conference call in that period concerning union related sub-
jects, not with any of the Elliotts nor anyone else.14 More-
over, he denied making any reference to any closing of the
Youngstown plant in any conversation with employees; in-
deed, he stated that as far as he knew, Gencor was still oper-
ating the Youngstown plant, and he had never been given
any reason to believe that it had been shut down, much less
that it had been closed to avoid a union presence there.15
McDonald acknowleged, however, that employees would
sometimes express anxiety to him about the Company’s pos-
sible reaction to the Union’s drive, and would themselves
voice fears about a possible plant shutdown. But McDonald
states that he sought to assuage these concerns by telling em-
ployees that his own ‘‘personal feeling’’ was that he ‘‘didn’t
see how they could . . . close the doors because of the fact
that we built so much equipment up here [in Marquette] that
they just couldn’t feasibly do down in Florida or anywhere
else.’’ In short, McDonald left the clear impression that he
effectively made the same predictions about the unlikelihood
of a plant shutdown that Teynor claims he made, responding
to McDonald’s predictions of a possible shutdown at Mar-
quette.
3. Conclusions
I have already explained my reasons for rejecting Teynor’s
testimony concerning his encounter with Denning. As to his
assertions about McDonald’s statements, Teynor’s de-
meanor—and the similarly malleable quality of his testimony
here—left me dubious of his reliability even before McDon-
40 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
16 Winters, like McDonald, was no longer working for the Re-
spondent when he testified. He surfaced as a witness for the General
Counsel only about a week before the trial, after being contacted by
the Union’s representative, Nauyalis. His memories of the events oc-
curring almost a year earlier at the plant were clearly impressionistic.
Moreover, Winters’ testimony, even if credited, would not persuade
me that McDonald, in voicing his own personal fears about the con-
sequences of unionization, betrayed ‘‘antiunion animus’’ on the Re-
spondent’s part.
17 DuCharme recalled that he attended ‘‘numerous’’ union meet-
ings at the Quiet House during the campaign, perhaps as often as
‘‘one a week.’’ He ‘‘guessed’’ that the one in question was ‘‘prob-
ably in June,’’ but he was so admittedly unsure even of this that the
incident he described could as easily have occurred at any time prior
to July 14, the last of the Union’s meetings before the election.
18 DuCharme’s memory of other salient details is far less certain.
At one point, he claimed that he had driven his own pickup truck
to the meeting, one that Prindle ‘‘would have’’ recognized, and that
he had parked the pickup ‘‘in front of’’ the Quiet House. But
DuCharme owns several vehicles, including a Cadillac, and he was
not sure when later pressed on these points which one he drove to
the particular meeting in question. Similarly, when pressed, he ad-
mitted that he had often parked his pickup in the Wal-Mart lot
across the highway, and was now unsure where he had parked on
the day in question.
ald came to the witness stand. Moreover, Teynor was never
corroborated by other witnesses supposed to have been
present, and, indeed, he was implicitly contradicted by Win-
ters on several points. McDonald’s denials were uttered with
convincing force, and I am more persuaded by his denials
than by Teynor’s assertions. Winters’ recollections were ut-
tered with greater apparent sincerity than Teynor’s, but he
was again uncorroborated concerning the control van inci-
dent, and I remain doubtful about the overall accuracy of
Winters’ memory, in the light of McDonald’s own equally
plausible and credibly delivered versions of these events.16
With these doubts, I find that the General Counsel has not
carried his ultimate burden of persuasion on the question
presently at issue: Did either Denning or McDonald say
something in the early stages of the Union’s campaign that
may be taken as establishing that the Respondent harbored
antiunion ‘‘animus?’’
II. ALLEGED UNFAIR LABOR PRACTICES
A. Surveillance of Union Meetings at the Quiet
House Motel
1. Introductory summary; the local setting
At the core of the several complaint counts in question is
the charge that two conceded agents of the Respondent, Gen-
eral Foreman Duane Prindle and Division Controller Richard
Harris, ‘‘engaged in surveillance of employees’ Union activi-
ties.’’ Specifically, the complaint charges that Prindle spied
on union meetings at the Quiet House Motel ‘‘on a couple
of occasions between May 29 . . . and July 16[,]’’ and that
Harris did this once, on ‘‘about July 16.’’ Tacked on to these
charges are the additional claims that this ‘‘surveillance’’
was (my emphasis), ‘‘part of [the Respondent’s] pattern in
seeking to gain knowledge of its employees’ involvement
with the Union, and resulted in the discharges of [Mabb,
DuCharme, and Teynor].’’ The General Counsel’s proof was
rather more modest, showing, at most, that Prindle and Har-
ris were each seen once—on different occasions—driving in
the vicinity of the Quiet House while the Union was con-
ducting meetings there.
It helps to understand the local setting a little better: The
Quiet House is on the southern outskirts of Prairie du Chien,
fronting on U.S. Highway 18. That highway, the main thor-
oughfare in the immediate region, continues roughly north
through Prairie du Chien, and then crosses the Mississippi to
Marquette, some 8–10 miles on the far side of Prairie du
Chien from the Quiet House. Despite its name, evoking rural
tranquillity and solitude, the Quiet House sits within a nearly
continuous strip of typical edge-of-town businesses—other
motels, fast-food restaurants, auto and farm equipment sales
and supply outlets, gas stations, truck stops, and so on. Di-
rectly in front of the Quiet House is a parking area for the
motel. Directly across the highway from the Quiet House is
a major shopping complex in the area, which is locally called
the ‘‘Wal-Mart Shopping Center,’’ taking its name from the
apparent anchor tenant. The Wal-Mart complex consists of
two single-story building wings, arranged together to de-
scribe an L-shape, but divided by a drive-through lane at
their imagined junction. The Wal-Mart store, a supermarket,
and a small bank branch outlet occupy the longest of the two
wings, positioned parallel to the highway, but about 300 feet
from it. A sandwich shop, a dress shop, a video rental store,
and an insurance agency occupy the other wing, which runs
perpendicular to the highway, extending toward it from the
face of the longer building. All of these businesses are com-
monly served by a vast parking lot, exceeding 180,000
square feet in area, which fronts on Highway 18.
2. Prindle’s circuit of the Wal-Mart lot
DuCharme’s testimony concerns a union meeting he at-
tended on an uncertain date, sometime after his May 29 lay-
off.17 The meeting was held in a large room on the second
floor of the Quiet House, a room with a window overlooking
Highway 18 and the Wal-Mart complex across the highway.
DuCharme didn’t know when the meeting had started, but
‘‘guessed’’ that he arrived there around 3:30 or 4 p.m., be-
cause that was when he ‘‘usually’’ arrived at these meetings.
He says he took a seat by the window to provide some dis-
traction, because ‘‘[s]ometimes it would get boring’’ at the
meetings. At some point after thus positioning himself,
DuCharme says he ‘‘glanced’’ out the window, and then saw
General Foreman Prindle enter the Wal-Mart lot, driving his
distinctive two-tone pickup, having come up the highway
from the north. DuCharme reports that Prindle then drove
down a traffic lane through the parking lot towards the Wal-
Mart store, then turned left, traversing the store fronts of the
long building, then turned left again, back toward Highway
18, driving past the businesses in the shorter building. With-
out once stopping during this circuit, says DuCharme,
Prindle then exited the parking lot, and turned back north on
Highway 18, where he had come from initially, passing in
front of the Quiet House as he did so. DuCharme recalled
further that the Wal-Mart parking lot, which he estimated
was capable of holding 500 or more parked cars, was about
half full as Prindle made his circuit.18
Prindle, who resides on the north side of Prairie du Chien,
denied ever being on a spying errand for the company. He
stated credibly that he received specific instructions from the
41BITUMA CORP.
19 DuCharme’s vagueness leaves open the possibility that the inci-
dent occurred on a weekend, or at some time before 3:30 p.m. Con-
founding the General Counsel’s theory further is Prindle’s
uncontradicted testimony that his normal work schedule usually
leaves him with a day off during the week, and that, in the week
before he left on his vacation trip, he had been given additional
‘‘time off’’ by Plant Manager Conrad Baughman, so that he could
run various prevacation errands.
20 But neither would I embrace the General Counsel’s glib attempt
on brief to dismiss this misidentification with the statement, ‘‘A gold
Mercury is not necessarily that far off from a green Ford.
21 In this regard, I again note that the immediate vicinity of the
motel was a heavy traffic area, where someone wishing to reverse
highway directions—not itself an inherently suspicious thing to do—
might find it simplest to do what Teynor claims he saw Harris do.
Respondent’s attorney not to do anything that might be con-
strued as surveillance of union activities. He admittedly vis-
ited stores in or around the Wal-Mart complex regularly, as
often as four or five times a week for various purposes. He
specifically recalled that in the week before July 18, when
his summer vacation was to start, he made even more fre-
quent visits, stocking-up at Wal-Mart and the supermarket
for a planned fishing trip in Canada with his sons. He could
not recall ever having made a circuit of the parking lot at
the complex without stopping, but he speculated that if he
had ever done so, it might have been to look for one of his
sons, or something like that. Possibly suggesting another ex-
planation for what DuCharme claims to have seen, Prindle
said that he would sometimes make a circuit of the parking
lot to drop off a rented video movie through the door slot
at the video store, and when doing so, he would stop in a
‘‘fire lane’’ in front of the store, only for about ‘‘10 to 15
seconds,’’ just long enough to run to the storefront and back.
He admittedly recognizes one of the vehicles DuCharme
drives—a pickup truck—and states that he has seen
DuCharme in that truck on many occasions in the Wal-Mart
lot, without ever knowing DuCharme’s purpose for being
there. (DuCharme likewise acknowledged having seen
Prindle in the Wal-Mart complex on many other occasions,
and concedes that it is a ‘‘popular’’ shopping location for the
residents of the area.)
Despite some doubts about how continuously attentive
DuCharme may have been while observing Prindle’s sup-
posedly unbroken cruise through the Wal-Mart lot, I assume,
without deciding, that his account was essentially accurate.
The General Counsel reasons that ‘‘[i]f DuCharme is cred-
ited, the incident he spoke of was not one of [Prindle’s] be-
nign trips.’’ Why? The General Counsel cites two cir-
cumstances: First, the incident ‘‘occurred after 3:30 p.m.,
when Prindle should normally have been at work.’’ Second,
‘‘Prindle did not stop during his circle of the . . . parking
lot.’’ As to the first point, Prindle conceded that he super-
vises the second shift at the plant, which starts at 4:30 p.m.,
and that he normally arrives for work about 3:30 p.m., be-
cause he needs the additional hour before the shift starts to
review the status of things with Day-Shift General Foreman
Randy Thornton and with the various crew foremen. But the
General Counsel’s reasoning assumes that Prindle should
have been at work on the day and at the time described by
DuCharme, an assumption flawed by DuCharme’s inability
to recall even the day of the week—much less the date or
the precise time—when the incident occurred. Therefore, I
have no substantial basis for supposing that Prindle ‘‘should
have’’ been at work when DuCharme observed him at the
Wal-Mart lot.19 As to the second point, I observe that it is
not inherently unusual or suspicious for someone to make a
circuit of a large regional shopping center without stopping.
Prindle himself offered at least one explanation why he
might have done so, and anyone might envision a variety of
equally plausible and innocent explanations for such behav-
ior.
Thus, I conclude that what DuCharme claims he saw is
not enough to support even a threshold inference that Prindle
was on a surveillance mission for the Respondent. In any
case, given the ambiguity of the situation, I have no basis
for discrediting Prindle when he insists that he never went
to the vicinity of the Quiet House to spy on any union meet-
ings.
3. Harris’ drive through the Quiet House lot
Teynor’s testimony invites roughly similar conclusions. He
claims that in a union meeting held at the Quiet House about
2 weeks before the election (i.e., not on or about ‘‘July 16,’’
as alleged in the complaint) he found himself positioned near
the same window DuCharme had described, which over-
looked the Quiet House parking lot in front. Teynor says that
he saw a ‘‘green Ford’’ driven by Division Controller Harris
(whose face Teynor says was clearly visible from his win-
dow perch) enter the Quiet House lot at its south end, even
though Harris had approached the lot on Highway 18 from
the north. Teynor says he then observed Harris drive the
length of the motel parking lot without stopping, then exit
on the north end, then proceed back north on Highway 18.
Harris, who resides south of Prairie du Chien, and com-
mutes to work via Highway 18, testified without contradic-
tion that he drives a ‘‘gold Mercury’’ and a ‘‘red’’ Chevrolet
S-10, but never a green Ford. I will not dwell on Teynor’s
apparent misidentification of the vehicle’s color and make,
because I will assume, without deciding, that Teynor was
truthful when he stated that in any case he recognized Harris
as the driver.20 Harris, too, denied ever having been on a spy
mission, echoing Prindle in claiming that he was under in-
structions from company counsel not to do such things.
Again, given Teynor’s inability to identify the date of the in-
cident, Harris, like Prindle, was hard-pressed to recall what
he might have been doing on the day in question. But he
said he had no memory of having ever driven into the motel
parking lot during the summer of 1992. More generally,
however, Harris acknowledged that he is a friend of one of
the owners of the Quiet House, a fellow member of the local
Rotary Club, and occasionally stops by to chat with him at
the motel. Moreover, he said that he is normally the com-
pany official who drives out-of-town plant visitors to stay at
the Quiet House, or makes lodging arrangements there for
them, and on occasion he has visited the motel to make sure
that such visitors have arrived.
Here, too, the General Counsel, relying on Teynor’s de-
scription, argues that ‘‘the fact that Harris did not stop belies
any innocent explanation for the trip.’’ I am not persuaded.
Even assuming the literal accuracy of Teynor’s description,
I would not infer unlawful motivation on Harris’ part merely
because he drove through the motel parking lot in the course
of reversing highway directions.21 Neither could Harris be
42 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
22 Cf. Mangurian’s, Inc., 227 NLRB 113, 114 (1976).
23 The only other argument made by the General Counsel to sup-
port a darker interpretation of Prindle’s and Harris’ actions is a
facially speculative one, that ‘‘[s]urveillance would be consistent
with the Employer’s plans to resist the Union, by unlawful means
if necessary.’’ Moreover, this speculation itself is based on a specu-
lative assumption—that the Respondent operated at all times in ac-
cordance with supposed overarching ‘‘plans to defeat the Union by
unlawful means.’’
24 In fact, when Denning laid Teynor off for plant work on May
29, he offered Teynor an additional brief stint of jobsite work at a
construction project in Montreal, Canada, which Teynor accepted,
keeping Teynor employed into the first week of June. Denning fur-
ther admits that he made the decision not to recall Teynor sometime
in the week after the election, when he began to formulate ‘‘posi-
tions’’ concerning the likely expectancy of recall of each of the 35
challenged voters.
25 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982). See also NLRB v.
Transportation Management Corp., 462 U.S. 393 (1983), affg.
Wright Line tests.
26 Teynor’s and Denning’s essentially harmonious testimony about
background matters is a principal source of findings in this section.
(As to the number of encounters Denning and Teynor had over the
insurance claim, infra, I rely on Teynor’s more specific memory.)
Debby Lessard’s testimony and certain exhibits of record contain
harmonious supplemental detail. I have also considered Denning’s
testimony in the postelection hearing insofar as it contains non-
hearsay admissions of a party under Fed.R.Evid. 801(d)(2) (D).
27 Payroll accounting for all of Gencor’s operations, including the
Marquette plant, was handled by a computer section at Gencor’s Or-
lando headquarters. The deductions were made in Orlando and it was
from Orlando that Colonial was to receive premium payments from
Gencor for covered employees at all of its plants.
faulted for not explaining these actions where he seemed
genuinely not to recall ever having done any such thing. If
his motivation were innocent, it is not surprising that he
would not recall such a maneuver. In any case, I again have
no basis for discrediting Harris when he stated with apparent
sincerity that he did not, in fact, ever drive in the vicinity
of the Quiet House for the purpose of surveilling union ac-
tivities.
4. Conclusions
The General Counsel’s evidence, if credited, establishes a
coincidence in timing between two of many union meetings
at the Quiet House and the brief, drive-by appearance of a
company agent during those two meetings. Whether this is
to be seen as ‘‘mere’’ coincidence22 depends largely on
one’s view of the likelihoods presented by the undisputed
surrounding circumstances. Considering the specifics of the
local setting, I judge that DuCharme’s and Teynor’s accounts
do not provide grounds for suspecting the company agents’
behavior. The record invites endless opportunities for specu-
lation, but nothing substantial enough to create, prima facie,
the inference that Prindle or Harris were acting as company
spies on the days in question. And even if I granted such a
threshold inference for argument’s sake, I would find that
Prindle’s and Harris’ credible denials adequately rebutted it.
Accordingly, I would dismiss the complaint counts insofar
as they allege unlawful surveillance. I would also dismiss the
other claims argumentatively inserted in these counts. The
General Counsel never introduced any independent proof
suggesting that Prindle’s and Harris’ actions formed ‘‘part’’
of some larger ‘‘pattern’’ of ‘‘seeking’’ knowledge of em-
ployees’ ‘‘involvement with the Union.’’23 And for reasons
that will become more clear in due course, it would involve
both undue and entirely unnecessary speculation to suppose
that Prindle’s and Harris’ appearance in the vicinity of the
Quiet House ‘‘resulted in’’ the discharges of any of the three
alleged discriminatees.
B. The Discharges
1. Teynor
a. Introduction; immediate background
I address Teynor’s discharge first because it is doubly
unique among the three terminations challenged by the com-
plaint. First, Denning, the central actor, admittedly had given
no thought to declaring Teynor ‘‘ineligible for recall’’ at the
time he was laid off.24 (By contrast, Denning claimed in this
trial he had already decided not to recall Mabb and
DuCharme when he laid them off.) Second, the Respondent’s
defense to Teynor’s allegedly unlawful dismissal—that
Denning believed that Teynor had made a maliciously false
statement about his insurance claim at a union meeting short-
ly before the election—triggers a quite different legal anal-
ysis than the one the Board prescribed in Wright Line25 for
more typical cases alleging wrongful discrimination, such as
those presented here by the terminations of Mabb and
DuCharme.
Teynor admits that he spoke up in the July 14 union meet-
ing to describe problems he had encountered while pursuing
an insurance claim. In substance, he testified that all he did
was to recount accurately his own experiences, as detailed
next, and to urge fellow workers to check to see if they
might be having similar problems. Teynor’s account is argu-
ably at variance with the testimonial versions offered sum-
marily by two other attendees at the meeting, Lester Olson
and Shane Hubanks. However, for reasons explained below,
the proper starting point for analysis of the legality of
Teynor’s discharge is not what Teynor said at the union
meeting; rather, our initial inquiry must focus on what
Denning claims he believed Teynor said. And to understand
what Denning might have believed about this requires first
a familiarity with the essentially undisputed recent back-
ground,26 known to Denning, relating to Teynor’s problems.
Teynor had been enrolled since March in an employer-
sponsored health insurance plan with Colonial Life and Cas-
ualty Insurance Company. Under the plan, enrolled employ-
ees paid the premium through a wage deduction. Respond-
ent’s parent, Gencor, had been deducting premium payments
from Teynor’s and other enrollees’ paychecks, and Gencor
was supposed to be transmitting these payments to Colo-
nial.27
In early April, Teynor’s son was injured during a baseball
game. Teynor submitted Colonial Life claim forms to the
son’s treating physician. On May 5, Colonial wrote to
Teynor, saying, in pertinent part:
Since your coverage with Colonial is fairly new, we
have not yet received your premiums. Please have your
bookkeeper attach documentation that deductions have
been made and return it to us.
43BITUMA CORP.
28 These quotes are from the transcript of Denning’s testimony in
the postelection hearing, at p. 383.
29 Denning conceded in the postelection hearing that the Lessard
claim was not paid by Colonial until August 6. (Hearing Tr. 394:
23–25.)
30 On brief, the Respondent makes it clear that its present focus
is on Teynor’s supposed statement that he had not been paid on his
insurance claim. (See R. Br. 39–40, under the heading, ‘‘Did Teynor
Lie About Not Receiving his Claim Check.’’) In the postelection
proceedings, the Respondent was not quite so narrowly focused.
There, elaborating an objection to the election grounded on Teynor’s
alleged falsehoods at the July 14 meeting, the Respondent averred
that Teynor had not only said that his claim had not been paid, but
had stated in the same breath that this was ‘‘because the company
had not been paying the premiums that had been withheld from his
pay.’’ And when Denning testified in the postelection hearing, he
likewise described having heard reports from employees that Teynor
had made the latter claim, as well. In this proceeding, however,
Denning denied under examination by the General Counsel that any-
one had ever told him that Teynor had stated that the Company had
not been making such premium payments. But as I show below, this
latter denial is seemingly contradicted by the employees Denning
claims to have gotten his information from.
31 Setting aside the question of Teynor’s truthfulness, no one dis-
putes that when Teynor voiced complaints about his insurance expe-
riences to fellow employees in a union meeting, he was engaging
in conduct classically protected by Sec. 7 of the Act—‘‘concerted
activity . . . for mutual aid and protection.’’ See generally Eastex,
Inc. v. NLRB, 437 U.S. 556, 563–568 (1978), discussing reach of
Sec. 7’s ‘‘mutual aid and protection’’ clause.
32 Burnup & Sims, supra, 379 U.S. at 23. See also, e.g., Keco In-
dustries, 306 NLRB 15, 17 (1992); Ideal Dyeing & Finishing Co.,
300 NLRB 303 (1990); and Wilshire Foam Products, 282 NLRB
1137, 1157–1158 (1987).
33 379 U.S. at 23. See also Ideal Dyeing, supra at 303, echoing
and reaffirming this rationale, and further holding that the Court’s
reasoning ‘‘extends to all cases in which employees are erroneously
disciplined or discharged because of alleged misconduct arising out
of protected activities that are known to the employer.’’
The day after he got this letter, Teynor took it to Denning,
who said he would take care of it. When Teynor still had
not received payment on his claim in approximately the sec-
ond week of June, he called Colonial and was again told by
an agent that Colonial had not received any premium pay-
ments. Teynor again went to Denning, who opined that there
must be some mistake, but again promised to take care of
it. Shortly thereafter, Colonial sent Teynor another copy of
the May 5 letter, supra, stamped with Colonial’s notation,
‘‘SECOND REQUEST JUNE 15 1992.’’ On the same day
he got this letter, Teynor went to the plant and gave a copy
of it to Denning’s payroll clerk and assistant, Terry Panka.
Denning joined them at this point and took over. In Teynor’s
presence, Denning placed a phone call to Colonial’s agent,
and learned that Colonial would begin ‘‘processing’’
Teynor’s claim if Denning would fax a copy of Teynor’s pay
stubs to Colonial, showing that insurance premiums were
being deducted. Denning did this. Within 2 weeks, i.e., by
the end of June, Teynor finally received and cashed a Colo-
nial check, satisfying his claim.
Denning admittedly knew that Teynor was not the only
employee who had gotten ‘‘We have not yet received your
premiums’’ letters from Colonial. Apparently in mid-June,
Denning had called Colonial’s agent about a similar problem
with another employee. The Colonial agent told Denning that
employees at all three of Gencor’s plants had been eligible
to ‘‘sign-up’’ during the recent open-season period in March,
and that this had resulted in a lot of new enrollees from each
of these plants. As Denning recalled it, the Colonial agent
went on to explain that:
All those names were entered into one master [list]
on the [Orlando headquarters] computer and they
weren’t differentiated between corporations. So when
our employees did call or did send in claims they didn’t
show up as having coverage or that the premium had
been paid.28
Also, on July 15, when he fielded a number of employee in-
quiries apparently stimulated by Teynor’s remarks at the
union meeting the evening before, Denning learned that em-
ployee Kevin Lessard, too, had gotten a ‘‘We have not yet
received your premiums’’ letter from Colonial (indeed, a
‘‘SECOND REQUEST’’ letter), which Lessard’s wife,
Debby, produced on July 15 for Denning’s inspection. And
once more, Denning was obliged to call Colonial’s agent and
fax him a copy of Kevin Lessard’s pay stubs.29
b. The Respondent’s position; unique legal setting;
and burdens
Specifically, the Respondent’s position in this case, echoed
by Denning’s testimony, is that Denning decided to fire
Teynor because he honestly believed, based on a flurry of
employee questions brought to him on the morning of July
15, that Teynor had falsely told participants in the union
meeting that he had not received payment on his claim from
Colonial.30 Teynor denies having made this statement, and
obviously it would not have been a true one, for Teynor ad-
mittedly had received the insurance payment in question by
the end of June.
The foregoing features establish, prima facie, that it was
Teynor’s supposed misconduct ‘‘in the course of’’ speaking
out in a union meeting about an issue of common employee
concern—insurance—that caused the Respondent to act
against him.31 And where these facts are established, the em-
ployer’s claimed motive—good-faith belief of misconduct—
is not a perfect defense, even if it is established to the satis-
faction of the trier-of-fact. Thus, under the analytical scheme
long ago advanced by the Board in Rubin Bros. Footwear,
99 NLRB 610, 611 (1952), and approved by the Supreme
Court in NLRB v. Burnup & Sims, 379 U.S. 21, 23 (1964),
the disciplining or discharge of an employee for supposed
misconduct ‘‘in the course of’’ engaging in statutorily pro-
tected activity will be found to violate Section 8(a)(1), with-
out regard to the honesty of the employer’s belief of mis-
conduct, if the General Counsel establishes that the employee
‘‘was not, in fact, guilty of that misconduct.’’32 As explained
by the Court in Burnup & Sims, the reason for not giving
conclusive weight to the employer’s good-faith belief of mis-
conduct in such cases is that ‘‘[a] protected activity acquires
a precarious status if innocent employees can be discharged
while engaging in it, even though the employer acts in good
faith.’’33
The allocation of burdens in such cases is likewise pre-
scribed in Rubin Bros., approved in Burnup & Sims, and reg-
ularly applied in later cases: The General Counsel makes a
44 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
34 Champion International Corp., 303 NLRB 102, 108 (1991), cit-
ing Magnolia Manor Nursing Home, 284 NLRB 825, 829 (1987).
By contrast, in cases, involving alleged misconduct ‘‘wholly disasso-
ciated from activities protected by Section 7,’’ the Board seems to
accept that the employer’s honest belief of such misconduct will per-
fect a defense, without regard to the accuracy of that belief. Ideal
Dyeing, supra at fn. 5.
35 Old Dominion Branch, Letter Carriers v. Austin, 418 U.S. 264,
277–778 (1973) (untrue public assertions made in a labor dispute are
protected, ‘‘even if they are defamatory and prove to be erroneous,
unless made with knowledge of their falsity’’); see also Linn v. Plant
Guard Workers, 383 U.S. 53, 58 (1966).
36 Mitchell Manuals, Inc., 280 NLRB 230, 231 (1986). See also
Caterpillar Tractor Co., 276 NLRB 1323, 1331 (1985).
37 See, e.g., Sacramento Union, 291 NLRB 540, 547, 549 (1988),
enfd. 889 F.2d 210 (9th Cir. 1989); Emarco, Inc., 284 NLRB 832,
834 (1987); Allied Aviation Service Co., 248 NLRB 229, 230 (1980),
enfd. (mem.) 636 F.2d 1210 (3d Cir. 1980); Richboro Community
Mental Health Hospital, 242 NLRB 1267, 1268 (1979).
38 Emarco, supra at 834.
39 See, e.g., Veeder-Root Co., 237 NLRB 1175, 1177 (1978),
quoting El Mundo Broadcasting Corp., 108 NLRB 1270 (1954):
[It is] immaterial to a determination that an employer has unlaw-
fully discharged an employee for giving currency to inaccurate
information . . . that the employer acted upon a good faith be-
lief that the information was deliberately or maliciously false[,]
if such were not the case.
40 Here, my findings blend the testimony of Denning and three
employee witnesses called by the Respondent, Lester Olson, Shane
Hubanks, and Kim Pickett. Moreover, I have again considered
Denning’s testimony in the postelection hearing, where he elaborated
on certain circumstances which he more summarily referred to in
this proceeding.
41 I note that neither of these summaries is necessarily inconsistent
with the reality of Teynor’s experience. At most, they suggest that
Teynor might have failed to mention the capping episode of that ex-
perience—that Teynor finally got paid on his claim.
42 In the postelection hearing, Denning said that Pickett had called
him on the telephone shortly after 7 a.m. In this trial, Pickett re-
called that he had gone personally to Denning’s office.
43 In this proceeding, neither Denning nor Pickett identified what
it was that Pickett reported to Denning. In the postelection hearing,
however, Denning recalled summarily that Pickett had told him that
Teynor had said that ‘‘Bituma was not paying the premium for the
Colonial Life and he had a claim that had not been taken care of
yet.’’ On cross-examination in that hearing, however, Denning fur-
ther admitted that Pickett had told him that ‘‘Teynor had said . . .
his premiums weren’t paid for Colonial Life[,]’’ and that Pickett had
prima facie showing of unlawful interference with employ-
ees’ Section 7 rights simply by demonstrating that the em-
ployer took action against an employee for behavior occur-
ring in the course of the employee’s statutorily protected ac-
tivity. But this threshold indication of unlawful interference
may be rebutted by the employer if it can establish that it
acted based on an honest belief that the employee committed
‘‘misconduct,’’ i.e., engaged in behavior that is not protected
by the Act. And this showing, if made credibly, will be suffi-
cient defense, and will justify dismissal of the complaint, un-
less the General Counsel, in turn, comes forward with
enough evidence to persuade the trier-of-fact that the em-
ployer’s belief of misconduct was, in fact, a mistaken one.34
Applying these principles here, I find that the Respond-
ent’s defense as to Teynor carries within it the elements of
the General Counsel’s prima facie case, and therefore, it fell
to the Respondent to establish that it had an honest belief
that Teynor engaged in unprotected misconduct. But there is
yet one more unique wrinkle to Teynor’s situation, one
which adds to the Respondent’s burden: We are dealing here
with the especially sensitive area of employee speech—in-
deed, speech uttered by an employee to fellow employees
within the cloisters of the union meeting hall, virtually on the
eve of a critical election. And where employee speech to oth-
ers is concerned, the Supreme Court has made it clear that
even false statements will be covered by the protective man-
tle of the Act, so long as they bear a reasonable relationship
to a current labor controversy, and they are not knowingly
false.35 The Board has been similarly zealous in allowing for
wide breathing room for employee speech, recognizing as
‘‘well settled . . . that the falsity of a communication does
not necessarily deprive it of its protected character.’’36 Simi-
larly, the Board has made clear that employee statements evi-
dencing mere ‘‘bias or hyperbole’’ do not lose their protec-
tion, not even when such statements are made to ‘‘third par-
ties,’’ e.g., to their employer’s customers or suppliers or
funding sources, and not even when those statements might
tend to impair their employer’s business reputation.37 Rather,
even in the latter context, where special issues of employee
‘‘loyalty’’ are implicated, so long as the statement relates to
a pending labor relations issue, the Board will require that
even a false statement be shown to have been ‘‘reckless[ly]
or maliciously untrue[,]’’38 or ‘‘deliberately and maliciously
false,’’39 before it will be found to fall beyond the protection
of Section 7.
I take it as axiomatic that an employee’s statements to his
fellow workers in a union meeting about a subject of com-
mon concern on the job—insurance in this case—enjoy at
least as much protection as that the Board has accorded to
employee communications made to third-parties in the course
of a labor dispute. I therefore deem it part of the Respond-
ent’s burden to establish not just an honest belief that Teynor
made a false statement, but an honest belief that his sup-
posed statement was deliberately or recklessly or maliciously
false. For reasons I elaborate next, the Respondent did not
persuade me on this level. In the alternative, for the reasons
I will discuss thereafter, I would find that Teynor was not,
in fact, guilty of the offense that the Respondent fired him
for supposedly committing.
c. Honest belief
This is what the Respondent’s evidence shows:40 Employ-
ees Lester Olson and Shane Hubanks were among about 20
employees at the union meeting where Teynor discussed the
insurance matter. At the start of the work shift the next
morning, July 15, Olson told fellow workers Kim Pickett and
Butch Wayne (neither of whom had been at the meeting) that
Teynor had said that ‘‘they were taking premiums out of his
check but he hadn’t received any payments on bills that he
turned in.’’ (Olson admits that this reflected only his sum-
mary interpretation of more extended remarks Teynor had
made.) Pickett, also a witness for the Respondent, recalled
that Olson told him that ‘‘Dan Teynor had made the com-
ment that he had an insurance claim that had not been paid
because the company had not paid the premium.’’41 Pickett
somehow made contact with Denning soon after hearing this
news from Olson,42 and somehow passed on to Denning
what Olson had told him about Teynor’s remarks.43 Pickett
45BITUMA CORP.
further reported that Teynor had trouble getting his claims paid.’’
(Emphasis added.)
44 This brings me back to the matter of employer ‘‘credibility’’
mentioned by Denning: I find it plausible—but not particularly help-
ful to the Respondent—that the inquiries Denning received from em-
ployees on July 15 were alarming to the Respondent insofar as they
reflected that the Company’s ‘‘credibility’’ was being tested at a
critical preelection time. However, I must question which of
Teynor’s reported statements was really more likely to have aroused
the Respondent’s concern about its credibility. It is hard to believe
that Teynor’s supposed statement that he had not been paid on his
claim, in itself, would have caused the Respondent much anxiety
from a credibility standpoint, because claim payments were Colo-
nial’s responsibility, not the Respondent’s. It is much easier to be-
lieve that the embarrassment to the Respondent’s credibility came
from reports that Teynor had said that Colonial wasn’t getting the
premium payments that the Respondent had been taking from em-
ployees’ paychecks. I think the Respondent’s actions are better un-
derstood in the latter light, and so understood, they clearly make the
Respondent more legally vulnerable. For if all that were at issue was
whether Teynor said that the company wasn’t getting the withheld
premium payments to Colonial, this would be a nonissue; such a
statement would be, at most, an example of protected ‘‘hyperbole,’’
given the undisputed facts narrated earlier. And I think this latter
legal reality explains Denning’s and the Respondent’s strained at-
tempts in this trial to rationalize Teynor’s discharge solely in terms
of his supposed statement that he had not received payment on his
claim.
further recalled that he asked Denning if ‘‘this was true, if
the company had been paying the premiums or not.’’
Denning replied, says Pickett, that he was sure that this was
not true, and promised to get a fax from Colonial showing
that Teynor’s claim had been paid.
In the next few hours, Denning received similar inquiries
from a handful of other employees, including from Hubanks,
who was apparently the only one of all who talked to
Denning who had actually witnessed Teynor’s statements at
the meeting. Denning did not testify as to the specifics of
Hubanks’ report, and Hubanks’ testimony contains no clear
indication that he even attempted to report to Denning what
he had heard Teynor say. Rather, Hubanks testified that he
simply asked Denning, ‘‘[is] the company taking money out
of our checks and then not paying the premiums and then
our claims [are] not being paid?’’ And Hubanks recalls that
Denning merely replied that he would ‘‘check into it.’’
At some point while receiving these inquiries, Denning
called Colonial’s agent and arranged for him immediately to
fax over a copy of Teynor’s canceled claim payment check,
as well as a letter certifying that the Company was (in
Denning’s words) ‘‘in good graces with Colonial.’’ Denning
then made multiple copies of these documents and distrib-
uted them to several employees who had inquired earlier that
day, asking them to pass on these facts to other employees.
Explaining these latter actions, Denning stated in this trial
and in the postelection proceedings that the reports he thus
received about Teynor’s statements were especially dis-
tressing to the Company because such statements would have
the foreseeable effect of damaging the Company’s ‘‘credi-
bility’’ at a critical time—shortly before the election. Indeed,
on brief, the Respondent’s counsel urges me to find not just
that Teynor made the false statement that his claim had not
been paid, but that he did so precisely because he knew that
this would create a ‘‘firestorm’’ of controversy and confu-
sion among the employees who would soon cast their ballots
for or against the Union.
I find it hard to square these claims with the available evi-
dence. It is easy to accept that Teynor’s remarks concerning
the history of his insurance claim may have created genuine
confusion in the minds of some of his listeners, for it was
not a simple story, and Teynor was recounting it in a
charged, partisan setting, where the Union’s organizer and
other employees were likewise speaking and making last-
minute exhortations and preparations for the election. But
with this in mind, I find it decidedly implausible that the
spare information about Teynor’s statements Denning re-
ceived from employees in summary form on July 15 was
enough to cause him to believe, in good faith, that Teynor
had falsely claimed that he had never been paid on his insur-
ance claim.
Denning was himself familiar with Teynor’s experience,
and knew that Teynor’s problems were not isolated ones.
Thus, he knew by July 15 that Teynor and Lessard had got-
ten repeated letters from Colonial stating that Colonial had
received no premium payments, and that Teynor’s and
Lessard’s claims would not be processed until Colonial got
proof that premiums were being deducted from their pay-
checks. Indeed, Denning knew by July 15, through his earlier
conversations with Colonial’s agent, that Gencor’s Orlando
payroll center was at least in part responsible for the snafu
that had caused delays in the processing of Teynor’s and oth-
ers’ claims. Denning knew, too, that he had gotten only the
most summary accounts of Teynor’s supposed remarks,
mostly from employees who weren’t at the meeting. And
strikingly, the only first-hand report he got was from
Hubanks, who apparently focused in his inquiry to Denning
on the question whether it was true that the company had not
been forwarding premium payments to Colonial, after de-
ducting them from workers’ paychecks. This inquiry alone
should have put Denning on notice that perhaps Teynor had
merely related to other workers, consistent with what
Denning already knew to be true, that he had been told by
Colonial that his claim could not be processed because Colo-
nial had not received premiums on his behalf.44
Because of all this, Denning must have recognized the
possibility—if not the probability—that the reports he was
getting about Teynor’s statements might have traced from a
misunderstanding on the reporting employees’ part, and not
necessarily from a nakedly false statement by Teynor. Be-
cause Denning otherwise struck me as a rational man, I can-
not believe him when he claims that, fueled only by these
employees’ summary reports, he nevertheless arrived at the
conclusion that Teynor must have told a malicious lie. More-
over, it adds to my doubts about Denning’s bona fides that
he claims to have reached this conclusion without even trou-
bling, apparently, to press the reporting employees for details
regarding Teynor’s statements. I therefore find that Denning
did not entertain an honest belief that Teynor had lied, much
less maliciously so. And it therefore follows that the Re-
spondent did not meet its burden of coming forward to rebut
the General Counsel’s prima facie case.
The inquiry properly ends here with a finding of violation.
However, to avoid a time-eating remand should a reviewing
body disagree with this rationale, I will make additional find-
ings below about what happened, in fact, at the July 14
union meeting.
46 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
45 Cf. Emarco, supra, 284 NLRB at 532–534. There, the Board ac-
cepted that two former strikers awaiting recall had told their employ-
er’s general contractor that their employer had been delinquent for
5 or 6 months on its payments into the negotiated health and welfare
trust fund, and that this had caused their recent strike. (In fact, the
employer had recently become current on those contributions, a main
factor in the settling of the strike, although the employees apparently
did not mention this to the general contractor.) In addition, the em-
ployees had told the general contractor that their employer’s presi-
dent was ‘‘a sonofabitch,’’ that ‘‘these people never pay their bills,’’
that the company ‘‘can’t finish the job,’’ and is ‘‘no damn good,’’
and that ‘‘this job is too damn big for them. . . . It will take a cou-
ple of years to finish the job.’’ Id. at 832; see also 834 fn. 14.) The
Board found that the employees’ remarks were made without malice,
noting that the employer’s prior history of ‘‘chronic’’ health and
welfare payment delinquencies made it reasonable for the employees
to question their employer’s ability to live up to its financial obliga-
tions in the future. Id. at 833–834.
46 Because it would not affect the remedy or the scope of the re-
medial Order, I do not decide whether Teynor’s discharge con-
stituted an independent violation of Sec. 8(a)(3). Emarco, supra, 284
NLRB at 835 fn. 18, citing Burnup & Sims, supra, 379 U.S. at 21.
47 ‘‘[W]e shall henceforth employ the following causation test in
all cases alleging violations of Section 8(a)(3) or violations of Sec-
tion 8(a)(1) turning on employer motivation.’’ 251 NLRB at 1089;
emphasis added. See also Chicago Tribune Co., 300 NLRB 1055 fn.
3 (1990), emphasizing the latter passage in holding that the Wright
Line causation test applies not just to ‘‘dual motivation’’ cases, but
to ‘‘pretext’’ cases, as well.
48 Wright Line, supra at 1089.
49 In the three exceptional cases (employees Moser, Champion,
and Rodenberg), Denning had not completed the ‘‘Rehire?’’ portion
of the form. He said this was because those employees had in one
way or another told him they were not interested in being considered
for further work.
d. What did Teynor actually say
Testifying about his remarks at the meeting, Teynor said
that he accurately recapitulated his experiences with his in-
surance claim from start to finish, including the fact that he
finally got paid on his claim. As part of his testimonial
version, he recalled that he mentioned the letters he had re-
ceived from Colonial indicating that his premiums had not
been received, even though the Company had been deducting
premiums from his paycheck, and then warned his fellow
workers that they should check with Colonial to see if they
were being credited with premium payments taken from their
paychecks.
Viewed uncritically, Olson’s and Hubanks’ versions could
support a finding that Teynor had said something leading
them to believe that his claim had never been paid. But their
testimony was again more summary in character than
Teynor’s, and admittedly reflected their subjective interpreta-
tions of Teynor’s statements. This summary quality of their
testimony cannot be dismissed, contrary to the Respondent’s
arguments on brief, merely as the products of evaporation of
memory over the passage of time. For when Olson testified
in the postelection hearing about the same matters, when his
memory of events was less than a month old, his account
was even more vague and summary in tone. Thus, Olson
conceded in the postelection hearing that he had arrived late
at the meeting, as Teynor was in the process of recounting
his experience with the insurance claim. And Olson could
only recall that Teynor had said ‘‘Something to the fact [sic]
that the company hadn’t paid an insurance premium,’’ and
talked about ‘‘[s]ome claims that hadn’t been paid, or some-
thing.’’ Later, however, he acknowledged that Teynor had
mentioned having gotten ‘‘a letter from the insurance com-
pany that said the company did not pay its premium.’’ This
latter acknowledgment makes me wonder whether Olson had
earlier confused the distinct subjects of premium payments
and claim payments. And Hubanks, testifying in this trial,
seemed to show a similar semantic confusion.
The impressionistic and confused accounts given by Olson
and Hubanks are harmonizable with Teynor’s own version,
especially if one allows for Olson’s and Hubanks’ seeming
difficulty in keeping straight the distinction between pre-
miums not being paid and claims not being paid. In any case,
I found Teynor’s version the more credibly uttered one, and
the more inherently probable one on critical points. Thus,
crediting Teynor this far, I find, despite Olson’s and
Hubanks’ possible impressions to the contrary, that Teynor
never explicitly asserted that his insurance claim had not
been paid. (At most, there is ground for doubt only about
whether Teynor specifically said that his claim had been paid
eventually, a doubt that is unnecessary to resolve because the
company has not charged Teynor merely with telling less
than the whole truth, but with telling a bald-faced lie.45) I
therefore find that Teynor was not, in fact, guilty of doing
what the Respondent fired him for having supposedly done.
It follows that the Respondent violated Section 8(a)(1) when
it discharged him.46
2. Mabb and DuCharme
a. Common features; preliminary discussion
Unlike Teynor’s case, supra, the legality of Mabb’s and
DuCharme’s terminations ‘‘turn on’’ the Respondent’s ‘‘mo-
tivation,’’ and therefore, they must be analyzed within the
framework of Wright Line, supra.47 Under that case, the
General Counsel’s burden is to show that Mabb’s and
DuCharme’s protected activities—here, their support for the
Union—was a ‘‘motivating factor’’ in the Respondent’s deci-
sion to terminate them, and it is only after such a showing
is established that the burden shifts to the Respondent to
‘‘demonstrate that the same action would have taken place
even in the absence of the protected conduct.’’48 Mabb’s and
DuCharme’s terminations also share some relevant back-
ground facts in common, which I will narrate before turning
to the unique details associated with each one:
Most of the 216 employees on hand by February were still
at work when the Union filed its election petition on May
11. On May 28–29, the Respondent laid off 89 employees,
including Mabb and DuCharme. (These layoff actions are not
themselves challenged by the complaint.) Personnel Manager
Denning met with the employees targeted for layoff; (usually
in small group sessions, but individually in Mabb’s case),
and gave each a company form ‘‘termination report,’’ which
Denning had completed and signed. The form contained
spaces for an ‘‘employee evaluation,’’ but in all 89 cases,
these were left blank. The form also contained boxes to
check indicating Denning’s ‘‘recommendation’’ concerning
the ‘‘rehire’’ of the worker in question. In all cases except
three irrelevant ones, Denning had checked the ‘‘Yes’’ box
next to the question ‘‘Rehire?’’49 And in all pertinent cases
save Mabb’s, Denning had checked the ‘‘Without Reserva-
47BITUMA CORP.
50 The form also invited a third possible box to check, labeled
‘‘Would not Recommend.’’
51 The challenges were not cast by the Respondent’s election ob-
server; rather, they were leveled by the Board agent conducting the
election, because the challengees’ names were not on the employer-
furnished voter eligibility list, a list containing only names of work-
ers still on the payroll as of the June 12 ‘‘eligibility cutoff’’ date.
52 H.O. Report, p. 6.
53 Id. at 5.
54 Id. at 6.
55 Id. at 8 and 10, last sentence. Regarding the ‘‘expectancy of re-
call’’ issue, it is not within my province to rationalize or harmonize
the hearing officer’s findings, made on a different record, with find-
ings I make herein. However, I think it worth noting that the hearing
officer’s report, adopted by the Board, used a ‘‘reasonable expect-
ancy of employment in the near future’’ standard in deciding that
none of the challenged voters had an expectancy of recall when they
cast their ballots. (Id. at 6; my emphasis, cites omitted.) Moreover,
the hearing officer noted Plant Manager Baughman’s testimony that,
‘‘although the employer has a history of layoffs, this [1992] layoff
differed from the others because employees were notified that their
layoff was of a permanent nature. (Id. at 4; emphasis added.)
tion’’ box, on the line asking for the degree of conviction
with which this rehire recommendation was being made. (On
Mabb’s form, Denning had instead checked the ‘‘With Some
Reservation’’ box.50) Finally, in all cases that concern us, in-
cluding Mabb’s, the Termination Report Denning gave to the
laid off employees contained the following rubber-stamped
notation in the space calling for ‘‘Additional Comments’’:
YOU ARE SUBJECT TO REHIRE UNDER THE
FOLLOWING REQUIREMENTS:
A. Availability of work.
B. Work and safety record meets the approval of the
rehire committee.
C. Employee’s qualifications meet current require-
ments.
One inference to be drawn from the preceding summary
is that, with the possible exception of Mabb, Denning in-
tended to convey to the laid-off employees by these Termi-
nation Reports that they would be welcome to return to work
when and if plant needs justified it. Consistent with this in-
ference, Denning acknowledged that the plant preferred hir-
ing experienced employees when it came time in the fall and
winter to beef up the work force. And he conceded that it
was his normal practice to instruct employees being laid off
to stay in touch with the Company about their interest in re-
call. And when he began his annual fall and winter recruit-
ment efforts, he admittedly used a ‘‘recall list’’ drawn up
after every spring layoff (containing the names of the re-
cently laid-off workers known to have continuing interest in
working at the plant) as ‘‘one of the first things I reference.’’
Thus, we might suppose from the foregoing alone that
DuCharme, at least—and possibly Mabb, too—were among
the many laid-off workers who could reasonably anticipate
being recalled for work at some point in the next seasonal
surge in the plant’s complement.
But Denning also testified, in substance, that the termi-
nation reports did not necessarily mean what they said; in-
deed, that he did not necessarily mean what he said when
he unreservedly recommended the rehire of all the laid-off
employees except Mabb. Thus, speaking in historical gener-
alities, Denning testified that when it came time for spring
layoffs, some of the people whom the company had already
found to be undesirable workers would nevertheless be given
‘‘rehire-without-reservation’’ recommendations. Denning ex-
plained that he did this because he didn’t want to impair
their eligibility for unemployment compensation, or their op-
portunities for work elsewhere. He explained further that it
was rare for the Company to fire someone, especially when
they were still working, and just as rare for him to advise
an undesirable worker even at the time of layoff that he or
she would not be recalled. Rather, adopting a phrase sug-
gested earlier by other company witnesses, he said he and
the plant supervisors had followed a less ‘‘confront[ational]
. . . philosophy,’’ meaning, in practice, that even bad work-
ers were allowed to work until the spring layoff, and then
were ‘‘weeded-out’’ by the simple devices of laying them off
and not recalling them in the future. And Denning also said,
consistent with the foregoing, that he ‘‘generally’’ did not
even make a ‘‘decision’’ at layoff time as to the eligibility-
for-recall of employees being laid off; rather he said that
such decisions would normally be deferred until ‘‘recall
time,’’ when, after consulting with supervisors, he could
evaluate the suitability for recall of a given worker in the
light of plant requirements as they then stood.
It was within this testimonial matrix that Denning ex-
plained, finally, that events associated with the July 16 elec-
tion made it necessary for the first time for him to ‘‘con-
front’’ the question of certain employees’ eligibility-for-re-
hire sooner than he might have done in previous years. Thus,
as summarized earlier, when 35 of the employees laid off on
May 28–29—including Mabb, Du Charme, and Teynor—
showed up to vote at the July 16 election, they voted under
a challenge, and their ballots were sealed.51 After the elec-
tion, but in anticipation of the hearing on challenges and ob-
jections held on August 11–13, Denning and the Respond-
ent’s attorneys were required to develop together a series of
‘‘positions’’ concerning the 35 challenges. As summarized
by the hearing officer in her October 2 report and rec-
ommendations, the Respondent ‘‘took no position with re-
spect to whether or not . . . 29 [of the challenged voters]
had an expectancy of recall when they cast their challenged
ballots.’’52 However, the Respondent contended that the
challenges to the ballots cast by Mabb and DuCharme (and
three others, Sather, Scherf, and Weisenstein) should be sus-
tained because ‘‘their unacceptable work performance dis-
qualified them from recall.’’53 (During the hearing, however,
the Respondent changed its position with respect to Scherf
and Weisenstein, withdrawing the claim that they were ‘‘dis-
qualified for recall,’’ and instead took a ‘‘no-position’’ posi-
tion as to their ‘‘expectancy of recall.’’54) The hearing offi-
cer found it ‘‘unnecessary’’ to decide the more specific ‘‘dis-
qualification-for-recall’’ questions raised by the Respondent
as to Mabb, DuCharme, and Sather (and Teynor) because, as
noted earlier, she found ultimately that none of the 35 chal-
lenged voters were ‘‘given any expectancy of recall’’ in the
period from their layoff to the date they cast ballots under
challenge.55
It might appear from these descriptions that Denning did
not ‘‘confront’’ the question of Mabb’s or DuCharme’s (or
Sather’s, or Scherf’s, or Weisenstein’s) eligibility for recall
when he laid them off, but did so only after a close election
48 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
56 Walz did not testify; Prindle’s testimony is that this rating was,
if anything, lenient, but that he acquiesced in it because he knew that
Mabb was soon to be laid off in any case. Moreover, said Prindle,
Denning had promised that he would not recall Mabb after Prindle
had complained about him earlier. Denning corroborates this.
57 According to Mabb’s perfunctory account of the episode,
Denning ‘‘[j]ust told me it was layoff time and I was laid off[,]’’
and then simply handed Mabb ‘‘a layoff paper,’’ i.e., his termination
report.
58 Mabb admitted on cross-examination that he had noticed that
Denning had checked the ‘‘with some reservation’’ box on his termi-
nation report. However, Mabb said that he did not question Denning
about this because he ‘‘really didn’t understand what it meant.’’
59 Denning claimed that it was a simple ‘‘mistake’’ on his part that
he checked the ‘‘with some reservation’’ box on Mabb’s termination
report; he said that he had actually intended to check the ‘‘would
not recommend’’ box. I find it unnecessary to my analysis to decide
whether Denning’s claim of mistake in this respect was truthful. The
more important facts as I have found them are that Denning had de-
cided before May 29 not to recall Mabb, and told Mabb on May
29 that he would not be recalled.
outcome required the Respondent to take a ‘‘position’’ about
their eligibility to vote. But this is not entirely true, accord-
ing to Denning. Rather, Denning now says that he had al-
ready decided when he laid off Mabb and DuCharme that he
would not recall them. Obviously, given the history and
practices already described, these claims by Denning imply
at the least that he acted unusually by making such decisions
at or before the time of layoff. For the reasons I will lay out
in the following sections, I will nevertheless find that
Denning, in fact, had determined by May 29 that Mabb
would not be recalled, but had not done so in DuCharme’s
case.
b. Mabb’s discharge
(1) Work history; May 29 layoff meeting with Denning
This much is undisputed: Mabb, unlike DuCharme, was in
his first season of work at the Marquette plant when he was
laid off on May 29. He had started on February 27 and
worked continuously thereafter in a second-shift ‘‘labor’’
classification, under the immediate supervision of Foreman
Dave Walz, who reported in turn to General Foreman
Prindle, who ran the second shift. On May 21, Walz, had
completed a ‘‘Job Performance Review’’ on Mabb, which
Prindle had countersigned on May 22. The evaluation sheet
identified six areas of performance, and invited the rating of-
ficial to enter a number from 1 to 5—with ‘‘1’’ being the
highest rating—in each area. Walz had given Mabb mediocre
ratings (a ‘‘3’’) in five categories, and a ‘‘4’’ when it came
to ‘‘Dependability.’’ (According to the evaluation form, a
‘‘4’’ in this instance denoted that Mabb ‘‘Needs Close Check
for Dependability on Regular Duties—Requires Follow-Up—
Requires Some Checking on Quitting Early and Loitering[.]’’
And in a space for additional narrative remarks on the back
of the rating form, Walz had written that Mabb ‘‘Requires
some follow-up to see if duties are completed correctly. At-
tendance could be better.’’)56
On May 29, Denning called Mabb alone into his office to
advise him he was being laid off, and gave him the termi-
nation report previously described, containing the ‘‘Rehire-
with-some-reservation’’ notation. Denning testified that he
departed in Mabb’s case from his normal practice of calling
employees in groups to receive news of their layoffs because
he intended to tell Mabb that he would not be recalled in the
future, based on complaints he had earlier received from
Walz and Prindle, and especially based on an earlier commit-
ment he had made to Prindle to make it clear to Mabb that
he would not be recalled. That such an agreement had been
reached between Denning and Prindle before May 29 is well
established by the apparently sincere and mutually harmo-
nious testimony of those company agents.
A critical question is whether Denning did what he said
he intended to do in his meeting with Mabb—advise Mabb
that he would not be recalled. Mabb’s description suggests
that Denning made no such statement.57 But Denning testi-
fied that Mabb asked why Denning had marked the ‘‘with
some reservation’’ box, and that he then told Mabb ‘‘that he
would not be placed on the recall list because of his work
abilities here at Bituma.’’58 On this point, I credit Denning,
not just because his demeanor impressed me more than
Mabb’s, but also because Denning is substantially corrobo-
rated by credible testimony from Prindle concerning the rel-
evant background, especially that Prindle had virtually ex-
tracted a promise from Denning earlier that Mabb would not
be recalled, and that Denning would so advise Mabb at the
time of his layoff.59
Denning and Prindle denied knowing as of May 29 that
Mabb was prounion. Indeed, Mabb himself admitted that he
kept his sympathies ‘‘confidential’’ until the day of the elec-
tion, when he donned a hat and T-shirt with union emblems
on them and joined a group of fellow union supporters to
distribute handbills outside the plant gates. If it is true that
the Company did not know of Mabb’s prounion stance on
May 29, then my finding that Denning told Mabb on May
29 that he would not be recalled is virtually dispositive of
the merits of the complaint as to Mabb. For it would show
that Mabb’s union sympathies or activities could not have
been a ‘‘motivating factor’’ in Denning’s decision not to re-
call Mabb. This analysis might therefore properly close here,
were it not for a later incident described by Mabb during
which Prindle supposedly confessed that Mabb’s ‘‘union in-
volvement’’ was why he had been discharged.
(2) Mabb’s later encounter with Prindle
Mabb and Prindle agree that they had a discussion at the
plant on an uncertain date after Mabb’s layoff (in late June
or early July, according to Mabb). They agree further that
Prindle intercepted Mabb as he was about to enter one of the
plant buildings. (Mabb declared vaguely that his purpose was
to ‘‘visit with’’ fellow employees; Prindle more specifically
recalled that Mabb said he wanted to talk to employee Jeff
Harbaugh.) They disagree fundamentally about what hap-
pened thereafter.
In Mabb’s first version, he described the ensuing conversa-
tion this way: Prindle told him, ‘‘You are no longer sup-
posed to be on the property because you was fired.’’ To this,
Mabb replied, ‘‘I heard I wasn’t fired. My layoff paper says
I was laid off and subject to rehire.’’ To this, Prindle re-
joined, ‘‘Well, I heard you was fired and we don’t want you
on the property no more because you are union involved.’’
This gratuitous admission by Prindle ended the exchange, ac-
cording to Mabb. On cross-examination, however, Mabb im-
plicitly conceded that Prindle had not really declared him
49BITUMA CORP.
60 If, indeed, Prindle had told Mabb that he could only visit with
employees on their ‘‘break time,’’ this would contradict Mabb’s ini-
tial claim that he was banned from ‘‘the property.’’ And if Prindle
did not tell Mabb that he was banned from the property, then how,
exactly, might Prindle have interjected a reference to Mabb’s ‘‘union
involve[ment]?’’
61 E.g., American Postal Workers, 278 NLRB 751, 752–753
(1986).
62 E.g., Silver State Disposal Co., 271 NLRB 486, 491 (1984). But
compare, e.g., American Postal Workers, supra at 753, citing
Albritton Communications, 271 NLRB 201, 204 (‘‘suspicious coinci-
dence’’ between layoffs and union organizing campaign insufficient
to show employer’s unlawful motive), enfd. 766 F.2d 812, 821–822
(3d Cir. 1985).
63 E.g., Dr. Frederic Davidowitz, 277 NLRB 1046, 1049 (1985).
See also Shattuck Denn Mining Co. v. NLRB, 362 F.2d 466, 470 (9th
Cir. 1966).
persona non grata on plant ‘‘property,’’ but had merely told
him that he could not visit with employees unless they were
on their ‘‘break time.’’ This concession was so out of keep-
ing with the tenor of Mabb’s initial account that I began to
doubt the reliability of other elements in that account even
before Prindle took the stand.60
Prindle’s version is that he stopped Mabb, learned that
Mabb wanted to talk to employee Harbaugh, then asked
Mabb, ‘‘Could it wait to another time? . . . we’re during
working hours here Merlin, and I would appreciate if you
could do it at another time.’’ Mabb then turned and walked
back towards his car, appearing ‘‘ticked off’’ to Prindle.
Prindle followed him part of the way, then himself turned
away to return to the plant. As he did so, Mabb asked, ‘‘Am
I going to get called back?’’ Prindle turned to face Mabb,
and said, ‘‘No,’’ and then returned to a plant building.
Prindle denied having mentioned anything to Mabb about
‘‘union activity,’’ and stated that he was unaware at that time
that Mabb was involved in any union activity. But he says
he was ‘‘surprised’’ enough by Mabb’s query (‘‘Am I going
to get called back?’’) that he confronted Denning the ‘‘very
next night’’ and asked him if he had told Mabb that ‘‘he
wasn’t going to be invited back here.’’ In this meeting, as
Prindle and Denning harmoniously recalled it, Denning as-
sured Prindle that he had given that message to Mabb on the
day he laid him off.
I found Prindle more demeanorally impressive than Mabb,
and his account of the episode seemed more inherently prob-
able than Mabb’s. (Where Mabb admittedly had kept his own
union affiliation a secret until he joined a prounion
handbilling effort outside the plant on July 16, it seems cir-
cumstantially unlikely that Prindle would have had any rea-
son to make any reference to Mabb’s union involvement on
the day in question, which Mabb conceded fell well before
he publicly surfaced as a union supporter.) Therefore, I find
that Prindle made no mention of Mabb’s supposed union in-
volvement during this encounter.
Conclusions
It is axiomatic that an employee’s union activities and
sympathies could not have been a ‘‘motivating factor’’ in an
employer’s decision to discipline or discharge him or her
where the employer did not know of the employee’s pro-
union stance at the time it took action against the employee.
And proving the existence of such knowledge is part of the
General Counsel’s traditional prima facie burden.61 Here, ig-
noring Mabb’s discredited testimony about his postlayoff en-
counter with Prindle, the record affirmatively suggests that
the Respondent did not know of Mabb’s prounion role when
Denning told him at layoff that he would not be recalled.
Concededly, however, these suggestions would not be con-
clusive on the point if the ‘‘circumstances’’ otherwise tended
to support an inference that Mabb’s prounion role was
known to the company by May 29.62 And one circumstance
sometimes cited by the Board as tending to establish the req-
uisite knowledge is the employer’s proffering of clearly
pretextual reasons for having acted against a prounion em-
ployee shortly after more general knowledge of union activi-
ties had been acquired by the employer.63 It is apparently
with this in mind that the General Counsel argues that the
reasons invoked by Denning and Prindle for agreeing, before
May 29, not to recall Mabb were merely pretextual. I don’t
find it necessary to explore these reasons; it suffices for me
to find, contrary to the General Counsel, that the reasons
given by Denning were substantially and credibly supported
by Prindle’s testimony, and even by the ‘‘lenient’’ (but nev-
ertheless unflattering) evaluation that Foreman Walz wrote
concerning Mabb on May 21. Moreover, the General Coun-
sel did not seek in any way to rebut the reasons cited by
Prindle or Denning for arriving at the conclusion that Mabb
should not be recalled. In these circumstances, I find that the
reasons cited by Prindle were not merely pretextual, and
therefore they cannot be invoked to supply the otherwise
missing prima facie element of knowledge.
Accordingly, without a credible showing by the General
Counsel that the Respondent knew of Mabb’s prounion role
as of May 29, the complaint as to Mabb is doomed, and I
will recommend dismissing it without further examination
into the underlying reasons advanced by the Respondent for
declaring Mabb ineligible for recall.
c. DuCharme’s discharge
DuCharme’s situation invites the same kind of analysis
used in Mabb’s case, but for the reasons cited below, I reach
an opposite result.
I begin by summarizing DuCharme’s employment history
at the Marquette plant. Unlike Mabb, DuCharme was no
newcomer, and unlike Mabb, who had no appreciable skills,
DuCharme knew welding and mechanical and electrical
maintenance. Thus, DuCharme started at the plant in January
1985 as a welder and was transferred to the service depart-
ment in June 1985, where he worked continuously in various
maintenance positions until he was laid off in August 1986.
Only 3 months later, in November 1986, he was recalled as
a welder, and then did electrical and mechanical maintenance
in a variety of departments for another 23 months, until he
was laid off in October 1988. Three weeks later, however,
in early November 1988, he was again recalled, to a mainte-
nance position, and he again worked continuously for about
another 20 months, until being laid off in August 1990. He
was again recalled in November 1991, and worked for 3
weeks as a welder on the baghouse crew, but then transferred
in early December 1991 to a maintenance position, where he
worked continuously until his May 29 layoff. As I have al-
ready found, unlike Mabb, Denning had presented DuCharme
with a termination report declaring him to be eligible for re-
50 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
64 More specifically, if the decision had actually been made in
February, the decision would clearly not have implicated the Act be-
cause the Union did not even appear until late April. And even if
the decision was not made until nearer to the point when DuCharme
was laid off on May 29, the decision still would not create an infer-
ence of unlawful discrimination where there is no substantial evi-
dence that the Company knew of DuCharme’s prounion position as
early as May 29. (The only evidence of prelayoff knowledge comes
from General Foreman Thornton’s vague admission that he had
heard ‘‘just rumors’’ of union activity on DuCharme’s part ‘‘before’’
his layoff.) In any case, I will find that no decision was made not
to recall DuCharme until after the election, at which point
DuCharme’s prounion stance was well known to company super-
visors and to Denning, based on DuCharme’s participation in plant-
gate electioneering, including holding the Union’s flag.
65 DuCharme further explained that during this period, he was
working as a roving maintenance man and was confronted daily with
many conflicting demands on his time. He speculated that if he had
done what Gillitzer described, it was probably because the clamp
needed new parts, which only the toolroom attendant could provide.
Gillitzer tends to confirm this latter; he recalled that the problem
with the clamp was that it was missing a locking bolt, and that
someone had jury-rigged a temporary ‘‘fix’’ by using a cotter pin
to lock the clamp. And after being rebuffed by DuCharme, Gillitzer
agrees that he went to the toolroom, where an attendant fixed the
clamp with a new bolt from his supply of stores.
66 Tr. 328:4–5. Moments later, however, Denning waffled on this,
now claiming, ‘‘Well, the determination on DuCharme had been
made prior to layoff.’’ And moments later, Denning added yet a
third name—Sather—to the list of persons he had supposedly de-
cided ‘‘at the time of layoff’’ not to recall in the future. I was
unpersuaded by these latter emendations, uttered uncomfortably by
Denning, using the bureaucratic passive voice (‘‘a determination was
made’’). I think his first statement, that Mabb was ‘‘the only one
I thought of at the time,’’ was his most candid and revealing one.
It is also the one that fits most closely with the Respondent’s answer
(that DuCharme’s ineligibility for recall was ‘‘subsequently deter-
mined’’).
67 Indeed, as I discuss elsewhere below, Denning emphasized the
same point in explaining why he rebuffed General Foremen Glass-
maker’s and Thornton’s recommendations in previous years not to
recall DuCharme.
call ‘‘without reservation.’’ Moreover, unlike Mabb, Denning
admittedly gave DuCharme no hint at the time of his layoff
that he would not be recalled in the future, and it was not
until after the election that the Respondent first announced
the ‘‘position’’ that Mabb was ‘‘ineligible for recall.’’
The first question to be resolved is whether the General
Counsel made out a prima facie case that DuCharme’s
prounion role was a motivating factor in the Respondent’s
decision to declare him ineligible for recall. And critical to
this issue is the question, When did the Respondent make
this decision? Denning now claims that he had already de-
cided when he laid off DuCharme on May 29 that he would
not be called back; indeed he now claims that he had arrived
at this decision in ‘‘February.’’ Although it involves a certain
leapfrogging over other evidence introduced by the Respond-
ent against DuCharme, I will focus first on what Denning
said concerning the supposed ‘‘February’’ decision, for obvi-
ously, if I were to believe that the decision not to recall
DuCharme was made at this early date, then I would be re-
quired to conclude that the decision did not implicate the
Act, for the decision would have been made at a time when
there is no evidence that the Respondent knew of
DuCharme’s prounion role.64
Denning testified that in February, he learned from Gen-
eral Foreman Thornton and from employee John Gillitzer
that DuCharme had gruffly refused Gillitzer’s request to re-
pair a defective clamp, used in hoisting sheet steel. (Gillitzer
testified that DuCharme waved him away with a remark to
the effect, ‘‘I don’t work on that junk.’’ And DuCharme, al-
though not recalling the incident, candidly conceded that this
sounded like something he might have said.65) Denning
claims that he then went to Plant Manager Conrad Baughman
(Denning’s own superior) and ‘‘relayed what had happened,
and gave [Baughman] my recommendation that Dewey
[DuCharme’s nickname] should not be recalled next time.’’
Asked by the Respondent’s counsel whether Baughman had
‘‘any comment,’’ Denning replied, seemingly evading the
question, that ‘‘Conrad didn’t disagree.’’
Denning was at his least believable from a demeanoral
standpoint when he presented this testimony. Independently,
I could not believe him on this point for the following rea-
sons: First, his claim of a pre-May 29 decision not to recall
DuCharme in the future is inconsistent with the Respondent’s
answer to the complaint. Thus, as I have already noted in the
Statement of the Case, in answering the complaint as to
DuCharme, the Respondent averred that DuCharme was laid
off on May 29, and that the Respondent ‘‘subsequently deter-
mined that he was not eligible for recall.’’ Second,
Denning’s own testimony on the point is internally incon-
sistent. Thus, discussing his decision not to recall Mabb,
Denning first unguardedly admitted that, ‘‘He [Mabb] is the
only one I thought of at the time of layoff.’’66 Third, the Re-
spondent did not call Baughman to testify about the sup-
posed ‘‘February determination.’’ Fourth, Denning’s claim of
an advance ‘‘determination’’ not to recall DuCharme is ex-
tremely difficult to square with other known facts and with
the balance of his testimonial descriptions of layoff and re-
call practices. In this latter regard, three facts are particularly
significant: (1) Denning wrote on DuCharme’s termination
report that he was eligible for recall ‘‘without reservation.’’
(2) Denning admittedly did not normally make ‘‘no-recall’’
decisions at the time of layoff, much less more than 4
months before a layoff, but preferred to wait and see what
future plant needs might be before deciding whether a par-
ticular worker might be recalled.67 (3) Denning admitted
more generally that he did not begin formulating ‘‘positions’’
concerning the eligibility for recall of the laid-off workers
(save Mabb) until after the election, and it was not until that
point that the Respondent made an affirmative, public dec-
laration that DuCharme would not be recalled.
With the latter point foremost in mind, and rejecting
Denning’s claim of a pre-May 29 ‘‘determination’’ not to re-
call DuCharme, I find that no ‘‘determination’’ was made by
the Respondent not to recall DuCharme until after the elec-
tion, by which point DuCharme’s prounion role was admit-
tedly known to Denning. Moreover, by that point, the Re-
spondent had likewise declared, unlawfully as I have found,
that Teynor was ‘‘disqualified’’ from recall. This set of find-
ings (specific company ‘‘knowledge’’ of DuCharme’s
prounion position when the decision to discharge him was
made, linked to antiunion ‘‘animus’’ revealed in the dis-
charge of Teynor) establishes the key elements of a plausible
prima facie case that DuCharme’s union sympathies were a
51BITUMA CORP.
68 The only appraisal on DuCharme introduced by the Respondent
(R. Exh. 8) was signed by General Foreman Glassmaker on February
26, 1990, and countersigned by Plant Manager Baughman on March
8, 1990. It reveals that DuCharme got top ratings (a ‘‘1’’) in ‘‘Qual-
ity’’ and ‘‘Job Knowledge,’’ and superior ratings (‘‘2’’) in ‘‘De-
pendability’’ and ‘‘Adaptability,’’ and mediocre ratings (‘‘3’’) in the
areas of ‘‘Quantity’’ and ‘‘Cooperation.’’ (In the latter two cases,
‘‘3’’ denoted, respectively, ‘‘Competent worker—Accomplishes sat-
isfactory amount of work,’’ and ‘‘Generally Cooperative in Regular
Duties—Conservative in Dealing With Others—Generally Considers
Suggestions.’’)
69 The Respondent would apparently seek to explain its historical
failure to document these supposedly chronic problems with
DuCharme—or even to counsel with him about them—in terms of
its much-touted ‘‘non-confrontive’’ approach to dealing with unde-
sirable employees. But I recall that Denning, in adopting this line
of explanation, also said that, rather than thus ‘‘confronting’’ bad
employees with their shortcomings, he would simply not recall them
in the future. Obviously, however, DuCharme was recalled year after
year. Therefore, I can only conclude that the Respondent’s attempts
now to portray DuCharme as a chronically undesirable employee
were exaggerated and insincere.
70 Thornton testified that people on the baghouse crew ‘‘didn’t
want to work with’’ DuCharme. He offered no specifics; nor did
anyone else.
71 Although it is not necessary to my ultimate conclusions, I would
credit DuCharme as to the matter of his transfer from the baghouse
crew. DuCharme testified with convincing clarity that when he was
recalled to work in November 1991, Denning told him that he would
be used as a welder ‘‘for two or three weeks, and then I could go
back to my old job [i.e., maintenance] again.’’ Similarly, DuCharme
recalled that General Foreman Glassmaker came to him 2 to 3 weeks
later and offered him the choice of either staying on as a welder in
the baghouse or returning to maintenance work, and that he opted
for the latter.
motivating factor in the Respondent’s decision to discharge
him. It therefore fell to the Respondent to ‘‘demonstrate’’
that it would have decided not to recall DuCharme even if
he had never become involved with the Union’s representa-
tional effort. For the reasons I discuss next, I judge that the
Respondent failed to make such a demonstration; indeed, I
judge that in the process of trying to make that demonstra-
tion, the Respondent merely tended to reinforce the prima
facie indications that DuCharme was the victim of unlawful
discrimination.
The Respondent sought to meet its Wright Line burden
primarily through testimony from Denning and from General
Foremen Glassmaker and Thornton. In substance, these wit-
nesses related a longstanding history of difficulties with
DuCharme, mostly that he was irascible, uncooperative, or
slow to respond to supervisory direction and tended to have
a know-it-all attitude, making him generally unpopular with
his fellow workers and with his immediate ‘‘working fore-
men.’’ To the extent this testimony addressed DuCharme’s
work history in years prior to his final stint at the plant (i.e.,
prior to the period November 1991 through May 29, 1992)
it was entirely generalized in tone and not illustrated with
any specific examples. In any case, in attempting to depict
DuCharme as a chronically undesirable employee, the Re-
spondent proved too much. Thus, Denning, to some extent
echoed by Glassmaker and Thornton, testified that when
DuCharme was laid off in 1990 and 1991, the general fore-
men had indicated that they did not want DuCharme recalled
in the next peak seasons, yet Denning admittedly rebuffed
these suggestions in those years, telling those supervisors, in
substance, that such decisions were not normally made at the
time of layoff. And significantly, despite this background of
opposition by the general foremen to the recalling of
DuCharme, Denning nevertheless found reason—after each
of those layoffs—to recall DuCharme to work. Moreover,
considering the Respondent’s attempts to show that
DuCharme had always been a ‘‘problem’’ worker, I find it
striking that only one of DuCharme’s performance appraisals
(spring 1990) was introduced by the Respondent, and it is
generally quite favorable to DuCharme, and nowhere damn-
ing.68 In addition, there is not a shred of evidence that any
of DuCharme’s supervisors ever remonstrated or counseled
with DuCharme over these supposedly chronic short-
comings.69
The only conclusion I can draw from all of this is that
Denning had long ago judged that, for all of his perceived
faults, DuCharme was, on balance, an asset to the Com-
pany’s operation. At least this was Denning’s admitted judg-
ment when he recalled DuCharme to work in November
1991. And in the end, dispute Denning’s claims to the con-
trary, it seems equally to have been Denning’s judgment as
late as May 29 that DuCharme was still an asset to the com-
pany, for on that date, Denning wrote on DuCharme’s termi-
nation report that he was ‘‘recommended’’ for recall ‘‘with-
out reservation.’’ And it was not until after the election, as
I have found, when DuCharme had surfaced publicly as a
Union adherent, that Denning saw fit to reverse this ‘‘rec-
ommendation.’’
This latter fact speaks louder than any others in my judg-
ment. However, I have not yet addressed certain evidence in-
troduced by the Respondent intended to show that DuCharme
became even more of a ‘‘problem’’ during his final stint of
employment. I will deal with this evidence only summarily,
because again, I think, it proves too much.
Denning states that when he recalled DuCharme in No-
vember 1991, it was only because DuCharme had welding
skills that might be usable, and he therefore assigned him to
the baghouse crew, where he would work with other welders.
However, says Denning, even this recourse proved useless
when he got a report from General Foreman Thornton that
others on the baghouse crew ‘‘didn’t want to work with’’
DuCharme. Significantly, however, this report did not cause
Denning to fire DuCharme; rather, Denning says that it
merely caused him to authorize DuCharme’s transfer back to
a roving maintenance job, where, supposedly, he would be
less likely to collide with fellow workers. (Thornton agrees
that he brought such a summary report to Denning in De-
cember 1991,70 but claims he did not ask Denning to transfer
DuCharme, but rather mentioned this to Denning as an addi-
tional example of why he and Glassmaker had in previous
years asked Denning not to recall DuCharme.) I note again
that the Respondent offered no evidence that DuCharme was
told that his transfer back to maintenance had anything to do
with his alleged unpopularity with persons on the baghouse
crew. And in fact, I am not persuaded that Thornton’s gener-
alized and second-hand claims about the preferences of the
baghouse crew had anything to do with the transfer deci-
sion.71 Seemingly, by this transfer action, Denning was once
again displaying a by now characteristic pattern of tolerating
52 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
72 Company records show that this transfer occurred on December
2, 1991. It may be merely ironic that only about 3 weeks later, back
in the parent corporation’s headquarters in Florida, Gencor’s presi-
dent, E. J. Elliott, signed a fancy ‘‘Certificate of Appreciation to
Walter DuCharme, in recognition to a Loyal Employee for Ten
Years [sic] of Continuous [sic] Service.’’ The certificate, dated De-
cember 20, 1991, stated further:
Your Contribution and Efforts are Greatly Appreciated. It is
Employees Such as Yourself that Set the Pace for Others to Fol-
low. Congratulations on Your Fine Achievement.
73 Here I refer to attempts to suggest that DuCharme was
unaggressive in fixing problems with a ‘‘do-all’’ saw, and a com-
pressor. DuCharme’s explanations, which are highly technical, are
not worth repeating. I find, simply, that DuCharme neither ignored
these machines nor did he resist suggested ways to fix them. Rather,
each one of these machines, for different reasons, defied easy fixes,
and required continuous experimentation, and, in the end, assistance
from the manufacturer in one form or another.
74 Like DuCharme, Scherf received a ‘‘3’’ in the area of ‘‘Co-
operation.’’ After that, however, DuCharme looks like a star com-
pared to Scherf, who received the lowest mark (‘‘5’’) when it came
to ‘‘Job Knowledge,’’ and received a ‘‘4’’ in all other areas.
75 The date when Teynor or DuCharme would have been recalled
absent the Respondent’s unlawful discrimination against them, and
DuCharme’s alleged shortcomings, apparently because he
still saw DuCharme as an asset to the operation.72
The next incident cited by Denning was DuCharme’s gruff
treatment of Gillitzer when Gillitzer asked DuCharme to fix
a broken clamp. It is clear that not even this incident caused
Denning to decide to fire DuCharme, and I have already dis-
credited Denning’s claim that the incident caused him to
‘‘recommend’’ to Baughman that DuCharme not be recalled
in future seasons. Moreover, at most, all that this incident
showed is something that Denning claims he knew for years
about DuCharme—that he was irascible and ‘‘difficult.’’
Other accusations against DuCharme came only from Gen-
eral Foremen Glassmaker and Thornton and from employee
Hubanks. These were not specifically cited by Denning as
grounds for his decision to discharge DuCharme. Glass-
maker’s and Thornton’s charges were again suspiciously gen-
eralized in character, and when pressed for specifics, more
often than not, they could cite none. In general, their testi-
mony suggested more than anything else a clumsy, post facto
attempt by the Respondent to dig up dirt on DuCharme.
Thus, for example, Glassmaker initially attacked DuCharme
for failing to perform preventative maintenance work accord-
ing to a company prescribed schedule; yet Glassmaker even-
tually conceded that he was in no position to know whether
DuCharme had regularly failed to do this. And still later, he
conceded that DuCharme had, if anything, ‘‘improved some’’
on this score in his most recent period of employment. In an
even more embarrassingly clumsy attempt to demonstrate
DuCharme’s failings, Hubanks was called to testify that he
complained to DuCharme in ‘‘early ’92’’ about a ‘‘kink’’
and some fraying in a crane cable, which, to Hubanks,
seemed to be dangerous. He says that DuCharme inspected
it and observed that it would take about 300 feet of replace-
ment cable to fix the problem, and he questioned whether the
Company would pay for it. This was hardly damning, how-
ever, because Hubanks soon admitted that he had likewise
mentioned the same problem to his foreman, who suggested
that it be brought to Denning’s attention, in Denning’s capac-
ity as the plant ‘‘safety officer.’’ And after DuCharme’s, lay-
off, Hubanks told Denning about the kinked cable, and
Denning promised to ‘‘have Randy Thornton and Kim Pick-
ett look into it.’’ Most significantly, however, Hubanks even-
tually conceded that the cable was never replaced nor fixed
thereafter, and that it was now in even worse condition than
when he had originally questioned DuCharme about it. Other
specific complaints made by Thornton or Glassmaker about
DuCharme can be dismissed as attempts to blame DuCharme
for failing to fix certain machines which suffered from an
ongoing series of problems, and which no one else in the
plant knew how to fix either.73
That DuCharme’s shortcomings appear to have been gross-
ly exaggerated by the Respondent’s witnesses is likewise in-
ferable by comparing DuCharme’s appraisal, supra, with a
manifestly less favorable one given to employee Scherf in
February 1992.74 (Recall that Scherf, like DuCharme, was
one of the laid-off employees who voted under challenge on
July 16, and was one of those whom the Respondent initially
contended immediately after the election was ineligible for
recall because of ‘‘unacceptable work performance.’’ How-
ever, the Respondent had withdrawn this ‘‘position’’ as to
Scherf, only shortly thereafter—and indeed, had returned him
to work on August 10—the day before the postelection hear-
ing began.) Denning testified that the Company changed its
position as to Scherf because company lawyers reviewed
Scherf’s personnel file and did not find enough evidence in
it to justify the claim that his work performance was unac-
ceptable. Clearly, if an analysis of performance appraisals
caused the Respondent to reverse its position as to Scherf,
one might have expected a similar analysis to have caused
the Respondent even more quickly to have reversed its posi-
tion as to DuCharme. The only obvious difference is that
DuCharme was by then known to be prounion, whereas, ac-
cording to Denning, Scherf’s sympathies were unknown to
the Company.
I thus reject the Respondent’s attempt to meet its Wright
Line burden. I find instead that when the Respondent de-
clared DuCharme ineligible for recall, it violated Section
8(a)(3), and derivatively, Section 8(a)(1), substantially as al-
leged in the complaint.
REMEDY
Because the Respondent unlawfully declared employees
Teynor and DuCharme to be ineligible for recall while they
were in layoff status, it effectively discharged them, and pre-
cluded their recall from layoff in due course. Thus my rec-
ommended order requires that the Respondent restore the sta-
tus quo ante its unlawful actions by immediately reclassi-
fying them as eligible for recall and by purging from its
records any references to their unlawfully declared ineligi-
bility for recall. In addition, my order requires that the Re-
spondent recall them to work at such time as it would have
done—and to positions they would have been assigned—but
for its unlawful actions, and make them whole for any loss
of earnings and other benefits, computed on a quarterly basis
from the date they would otherwise have been recalled to the
date of their actual recall, less any net interim earnings, as
prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950),
plus interest as computed in New Horizons for the Retarded,
283 NLRB 1173 (1987).75
53BITUMA CORP.
thus the triggering date for backpay purposes, is to be determined
at the compliance stage.
76 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
77 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended76
ORDER
The Respondent, Bituma Corporation, Marquette, Iowa, its
officers, agents, successors, and assigns, shall,
1. Cease and desist from discharging, declaring ineligible
for recall, or otherwise discriminating against any employee
for supporting International Association of Machinists and
Aerospace Workers, AFL–CIO, or any other union, or for
engaging in other activities protected by Section 7 of the
Act, or 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 ef-
fectuate the policies of the Act.
(a) Reclassify Daniel Teynor and Walter DuCharme as eli-
gible for recall, and offer them immediate and full reinstate-
ment to the positions they would have been assigned at such
time as they would have been recalled absent its unlawful
discrimination against them, without prejudice to their senior-
ity or any other rights or privileges previously enjoyed, and
make them whole for any loss of earnings and other benefits
suffered as a result of the discrimination against them, in the
manner set forth in the remedy section of the decision.
(b) Remove from its files any reference to its unlawful
declarations that Teynor and DuCharme were ineligible for
recall, and notify them in writing that this has been done and
that the previous declarations of their ineligibility for recall
will not be used against them in any way.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all 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.
(d) Post at its Marquette, Iowa plant copies of the attached
notice marked ‘‘Appendix.’’77 Copies of the notice, on forms
provided by the Regional Director for Region 18, after being
signed by the Respondent’s authorized representative, shall
be posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places in-
cluding all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or cov-
ered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
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 vio-
lated 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 representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT discharge you, or declare you ineligible for
recall from layoff, or otherwise discriminate against any of
you for supporting International Association of Machinists
and Aerospace Workers, AFL–CIO, or any other union, or
for engaging in other activities protected by Section 7 of the
Act.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL reclassify Daniel Teynor and Walter DuCharme
as eligible for recall from layoff.
WE WILL offer Daniel Teynor and Walter DuCharme im-
mediate and full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent posi-
tions, at such time as they would have been otherwise re-
called but for our declaration in the summer of 1992 that
they were ineligible for recall, without prejudice to their se-
niority or any other rights or privileges previously enjoyed
and WE WILL make them whole for any loss of earnings and
other benefits resulting from our declaring them to be ineli-
gible for recall, less any net interim earnings, plus interest.
WE WILL notify Daniel Teynor and Walter DuCharme that
we have removed from our files any reference to their being
declared ineligible for recall, and that these previous declara-
tions of ineligibility will not be used against them in any
way.
BITUMA CORPORATION