Loudon Steel, Inc.

National Labor Relations Board - Board Decisions

Sep 26, 2003

340 N.L.R.B. 307 (N.L.R.B. 2003)

LOUDON STEEL, INC. 307
Loudon Steel, Inc. and Sheet Metal Workers Interna-
tional Association, Local 7, AFL–CIO. Cases 7–
CA–44080–1, 7–CA–44080–2, and 7–CA–44270
September 26, 2003
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS
LIEBMAN
AND SCHAUMBER
On April 12, 2002, Administrative Law Judge Arthur
J. Amchan issued the attached decision. The Respondent
filed exceptions. The General Counsel filed a motion to
strike the Respondent’s exceptions, an answering brief to
the Respondent’s exceptions, and conditional cross-
exceptions and a supporting 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 exceptions1 and briefs and has decided to
adopt the judge’s rulings, findings,2 and conclusions and
to adopt the recommended Order as modified and set
forth in full below.3

1 The General Counsel moves to strike the Respondent’s exceptions
on the ground that they do not satisfy Sec. 102.46(b)(1) of the Board’s
Rules and Regulations. The exceptions do, however, cite transcript
testimony, record exhibits, and pages of the judge’s decision. In these
circumstances, we deny the General Counsel’s motion because the
Respondent’s exceptions substantially, if not fully, comply with the
Board’s requirements. Brown & Root U.S.A., Inc., 319 NLRB 1009 fn.
1 (1995); Days Hotel of Southfield, 311 NLRB 856 fn. 2 (1993); United
Merchants Mfrs. 284 NLRB 135 fn. 1 (1987), denied enf. on other
grounds, Clothing Textile Workers v. NLRB, No. 87-2649 (4th Cir.
1988) (unpublished).
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
The judge found that the Respondent unlawfully interrogated em-
ployee Daniel Hurren about his union activity. No exceptions were
filed to this finding. We agree with the judge that the Respondent
unlawfully interrogated employee Donald Davis regarding his union
sympathies when the Respondent’s foreman, Aaron Burrows, asked
Davis to sign an antiunion petition. In view of these findings, we find it
unnecessary to pass on the judge’s additional finding that the Respon-
dent’s second shift supervisor, Emory Close, also unlawfully interro-
gated employee Davis when Close asked Davis if Davis and Hurren
were friends. Any violation in this regard would be cumulative and
would not affect the remedy or Order.
3 The General Counsel noted in conditional cross-exceptions that the
judge failed to conform the recommended Order and notice with the
conclusions of law. The judge found that the Respondent violated Sec.
8(a)(1) of the Act by promulgating and maintaining a no-solicitation
rule that is overly broad. However, the judge failed to include the
requisite provisions in his recommended Order and notice. We grant
AMENDED CONCLUSIONS OF LAW
1. The Respondent, Loudon Steel, Inc., violated Sec-
tion 8(a)(1) of the Act by
(a) Coercively interrogating employees about their un-
ion activities or sympathies;
(b) Telling employees orally and in writing to report
harassment by union adherents to management;
(c) Telling Daniel Hurren that he could only speak to
other employees at breaks, lunch, and before and after
work;
(d) Threatening to place Daniel Hurren’s union activi-
ties under surveillance and doing so;
(e) Threatening Daniel Hurren with physical harm and
property damage;
(f) Threatening Daniel Hurren with discharge if he
failed to achieve an unrealistic production quota;
(g) Engaging in surveillance of employees’ union ac-
tivities by approaching their vehicles as the Union at-
tempted to distribute handbills; and
(h) Promulgating and maintaining a no-solicitation rule
that is overbroad.
Respondent violated Section 8(a)(3) and (1) of the Act
by
(i) Laying off Donald Davis on May 31, 2001, and
failing to recall him;
(j) Creating an unrealistic production quota for Daniel
Hurren and imposing this unrealistic production quota on
him on May 29, 2001; and
(k) Constructively discharging Daniel Hurren on May
29, 2001.

the General Counsel’s conditional cross-exceptions in this respect and
shall appropriately modify the recommended Order and notice.
We also note that, although the judge found that the Respondent vio-
lated Sec. 8(a)(1) of the Act by telling employees orally and in writing
to report harassment by union adherents to management, he failed to
provide in his recommended Order that the Respondent shall cease and
desist from such conduct. Accordingly, we shall modify the recom-
mended Order in this regard.
We also find merit in the General Counsel’s conditional cross-
exceptions and find that the Respondent violated Sec. 8(a)(1) of the Act
by threatening to discharge employee Daniel Hurren if he did not meet
an unrealistic production quota, and Sec. 8(a)(3) and (1) of the Act by
imposing the unrealistic production quota on Hurren. In so finding, we
note that these violations are alleged in the complaint and were fully
litigated. These findings support the judge’s conclusion that the Re-
spondent constructively discharged Hurren in violation of Sec. 8(a)(3)
and (1) of the Act. See Bolivar Tee’s Mfg. Co., 334 NLRB 1145, 1157–
1158 (2001), enfd. Bolivar Tee’s Mfg. Co. v. NLRB, No. 01–1478 (D.C.
Cir. 2003) (unpublished). Accordingly, we shall modify the judge’s
recommended Order and notice to reflect these additional violations.
Finally, the Respondent has filed no exceptions to the judge’s grant
of a broad order. In these circumstances, and on this record, we shall
grant that order.
340 NLRB No. 40
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 308
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below, and orders that the
Respondent Loudon Steel, Inc., Millington, Michigan, its
officers, agents, successors, and assigns shall take the
action set forth in the Order as modified and set forth in
full below.
1. Cease and desist from
(a) Coercively interrogating employees about their un-
ion activities or sympathies.
(b) Telling employees orally and in writing to report
harassment by union adherents to management.
(c) Telling employees that they can only speak to other
employees at breaks, lunch, and before and after work.
(d) Threatening to place employees’ union activities
under surveillance and doing so.
(e) Threatening employees with physical harm and/or
property damage.
(f) Threatening employees with discharge if they failed
to achieve an unrealistic production quota.
(g) Engaging in surveillance of employees’ union ac-
tivities by approaching their vehicles as the Union at-
tempted to distribute handbills.
(h) Promulgating and maintaining a no-solicitation rule
that is overbroad.
(i) Laying off and failing to recall employees because
they engage in union activities.
(j) Creating unrealistic production quotas for employ-
ees and imposing these unrealistic production quotas on
employees because they engage in union activities.
(k) Constructively discharging employees because they
engage in union activities.
(l) In any other manner interfering with, restraining, or
coercing employees in the exercise of rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Daniel Hurren and Donald Davis full reinstatement to
their former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to their
seniority or any other rights or privileges previously en-
joyed.
(b) Make Daniel Hurren and Donald Davis whole for
any loss of earnings and other benefits suffered as a re-
sult of the discrimination against them in the manner set
forth in the remedy section of the decision.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharge of
Daniel Hurren and unlawful layoff of Donald Davis, and
within 3 days thereafter notify them in writing that this
has been done and that Daniel Hurren’s discharge and
Donald Davis’ layoff will not be used against them in
any way.
(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its Millington, Michigan facility copies of the attached
notice marked “Appendix.”4 Copies of the notice, on
forms provided by the Regional Director for Region 7,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former
employees employed by the Respondent at any time
since May 29, 2001.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
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 Federal labor law and has ordered us to post and obey
this notice.

4 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
LOUDON STEEL, INC. 309
FEDERAL LAW GIVES YOU THE RIGHT TO

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

WE WILL NOT coercively interrogate employees
about their union activities or sympathies.
WE WILL NOT tell employees orally and in writing to
report harassment by union adherents to management.
WE WILL NOT tell employees that they can only
speak to other employees at breaks, lunch, and before
and after work.
WE WILL NOT threaten employees with physical
harm and/or property damage.
WE WILL NOT threaten employees with discharge if
they fail to achieve an unrealistic production quota.
WE WILL NOT engage in surveillance of employees’
union activities by approaching their vehicles as the Un-
ion attempted to distribute handbills.
WE WILL NOT promulgate and maintain a no-
solicitation rule that is overbroad.
WE WILL NOT lay off and fail to recall employees
because they engage in union activities.
WE WILL NOT create unrealistic production quotas
for employees and impose these unrealistic production
quotas on employees because they engage in union ac-
tivities.
WE WILL NOT in any other manner interfere with,
restrain, or coerce you in the exercise of the rights guar-
anteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the
Board’s Order, offer Daniel Hurren and Donald Davis
full reinstatement to their former jobs or, if that job no
longer exists, to a substantially equivalent position, with-
out prejudice to their seniority or any other rights or
privileges previously enjoyed.
WE WILL make Daniel Hurren and Donald Davis
whole for any loss of earnings and other benefits result-
ing from their discharge and layoff, less any net interim
earnings, plus interest.
WE WILL, within 14 days from the date of the
Board’s Order, remove from our files any reference to
the unlawful discharge of Daniel Hurren and the unlaw-
ful layoff of Donald Davis, and WE WILL, within 3 days
thereafter, notify them in writing that this has been done
and that the discharge and lay-off will not be used
against them in any way.
LOUDON STEEL, INC.
Patricia Fedewa, Esq., for the General Counsel.
William R. Leser, Esq. (Lambert, Leser, Cook, Giunti & Smith,
P.C.), of Bay City, Michigan, for the Respondent.
DECISION
STATEMENT OF THE CASE
ARTHUR J. AMCHAN, Administrative Law Judge. This
case was tried before the late Judge Jerry M. Hermele in Flint,
Michigan, on October 23, 2001. Since Judge Hermele had not
issued a decision in this case prior to his untimely death, Chief
Administrative Law Judge Robert A. Giannasi reassigned the
case to me on March 1, 2002, pursuant to Section 102.36 of
the Board’s Rules and Regulations. As the parties have agreed
not to try the case de novo, I am issuing this decision based on
the record made before Judge Hermele and the briefs filed by
the General Counsel and Respondent. The charges in these
cases were filed on June 1, June 11, and August 8, 2001, and
the complaint was issued August 9, 2001, and amended on
October 3, 2001.
The General Counsel alleges that Respondent, Loudon Steel,
Inc., committed a number of 8(a)(1) violations immediately
upon learning of an organizing drive by the Union, Sheet Metal
Workers International Association, Local 7. It also alleges that
Respondent violated Section 8(a)(3) and (1) in constructively
discharging Daniel Hurren and laying off Donald Davis.
FINDINGS OF FACT
I. JURISDICTION
Respondent, Loudon Steel, Inc., a corporation, manufactures
shipping containers for the automotive industry at its facility in
Millington, Michigan, where it annually earns gross revenue in
excess of $500,000 and sells and ships goods valued in excess
of $50,000 to points outside of the State of Michigan. Respon-
dent admits and I find that it is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act and that the Union, Sheet Metal Workers International
Association, Local 7, is a labor organization within the meaning
of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The events of May 29, 2001
On May 29, 2001, at about 2 p.m., Matthew Gekeler, an or-
ganizer for the Union, hand-delivered a letter to Respondent
informing Loudon Steel that Daniel Hurren was a volunteer
organizer for Local 7. Gekeler informed the police that the
Union would be passing out handbills at Respondent’s plant
and then went with other union members to a pizza parlor.
Gerry “Gib” Loudon, Respondent’s vice president and plant
manager, went to this restaurant to talk to Gekeler. Gekeler
informed him verbally that Daniel Hurren was a volunteer un-
ion organizer.
Later, when the union representatives parked and prepared to
distribute their handbills, Gib Loudon and Emory Close, Re-
spondent’s second shift supervisor, asked them to move. A
police officer named Davenport, whose son works for Respon-
dent, informed the union representatives that they were tres-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 310
passing on Respondent’s property and would have to move; the
union representatives left.
Daniel Hurren reported for work on time for his shift that
began at 4 p.m. Foremen Al Volino and Larry Detgen took
Hurren to a work location where Hurren was to perform his
usual task in assembling part of the shipping containers. How-
ever, on May 29, Emory Close, who was already aware that
Hurren was a volunteer union organizer, came over to Hurren’s
workstation and told Volino and Detgen to assign another em-
ployee to Hurren’s job. Close instructed Hurren to walk out-
side the building, where he told him that he knew Hurren was a
union organizer and that the only time he was to talk to em-
ployees was on breaks, at lunch, and after work. I find for rea-
sons more fully discussed below that Close also threatened
Hurren with physical harm and suggested that his vehicle might
be vandalized due to his union activities.1
Close assigned Hurren to produce side plates.2 This was the
first time Close had ever personally assigned work to Hurren.
Close instructed Hurren to produce 80 parts in his scheduled
10-hour shift. He told Hurren that he would be terminated if he
did not produce that many parts. An employee doing the same
task on the first shift produced 30 parts in an 8-hour shift.
Close told Detgen to stay away from Hurren and told welding
foreman Jason Enos to let Close know if he saw anyone talking
to Hurren. A few hours later, Hurren punched out on Respon-
dent’s timeclock and left the plant.3
The events of May 31, 2001
The Union returned to Respondent’s plant on the afternoon
of March 31, to hand out flyers. Several management represen-
tatives, including Gib Loudon and Emory Close, stood in the
company’s parking lot, while union representatives attempted
to pass out the handbills. Local policemen were also present.
As employees drove up to the entrance where the handbillers
were standing, Emory Close approached 8–10 of their cars,
coming as close as 2–3 feet to the vehicles.
Gib Loudon called all second shift employees into the lunch-
room at the beginning of the shift and distributed and read to
them a 4-page memorandum from his brother, Gregg Loudon,
Respondent’s president. The memo generally advised employ-
ees why Respondent thought it was not in their best interests to
join the Union. Additionally, at the bottom of the third page,
the memo stated

1 Hurren and Close had just walked back into the plant when Close
made this threat. They then went back outside where Close said it was
too bad Hurren didn’t have any witnesses. Later in the evening, Close
stopped by Hurren’s workstation and said cars like Hurren’s get vandal-
ized all the time.
2 The side plates are parts that are incorporated into the shipping
containers.
3 I credit the testimony of Larry Detgen as to the production quota
imposed on Hurren and the number of parts produced on the first shift.
So far as this record stands, Detgen is a neutral witness and Respondent
made no attempt to attack his credibility. Detgen’s testimony at Tr. 151
stands for the proposition that there were production records that indi-
cated the number of side plates produced on the first shift on May 29.
Respondent offered no testimony that such records did not exist.
Close did not contradict Hurren’s testimony that he threatened to
terminate Hurren if he did not meet his production quota.
Fact: The company also will not condone harassment or un-
due pressure on any of you. If you receive any threats or do
not want to be harassed, please let us know and the Company
will see that it is stopped. Remember, it is illegal for a union
to restrain or coerce anyone in the exercise of their right not to
join a union or sign a union card.

GC Exh. 11.
After the second shift lunchbreak, Emory Close approached
Donald Davis and moved him from the welding shop to the
laborer’s shop. Close asked Davis if Davis and Daniel Hurren
were friends. Davis replied, “I guess so.” Close started talking
about the Union with Davis. Davis mentioned that there had
been a union meeting in Frankenmuth, Michigan, the prior
Friday, but that Davis did not attend.4
Davis went to work drilling tubes. While he was working,
Aaron Burrows, the foreman or team leader in the laborer’s
shop, drove up in a ‘hi-low” vehicle. On the back of the vehi-
cle was a 4 x 8 piece of plywood, which proclaimed, “we don’t
want your union” and contained the signatures of employees.
Burrows asked Davis to sign the plywood and Davis refused.
Burrows said, “don’t worry about it if you don’t sign it, you
won’t get laid off or fired.” Davis replied that he wasn’t going
to worry about it and that Burrows should “get out of my face.”
Burrows drove off. In part because the entire plant is visible
from a window in Emory Close’s office, I infer that he was
aware of Burrows’ solicitation of employees to sign the plac-
ard.
As Davis was punching out to leave the plant a few hours
later, Emory Close approached him and employee Jason Fox
and informed them that they were being laid off.5 Close also
told them that they would be recalled soon. Davis, who began
working with Respondent in June 1993 was one of the most
senior welders in the plant. He had never been involuntarily
laid off prior to May 31, 2001. Indeed, in February 2001, when
some second shift employees were laid off, Davis was allowed
to transfer temporarily to the first shift for a few weeks.
Fox was recalled at some unspecified time in the summer of
2001. Davis was never recalled and Respondent has hired a
number of employees, including welders and jig builders since
Davis was laid off.6 Respondent rehired an employee named
Mark Evans on June 6, 2001.7 Respondent has offered no ex-
planation for its failure to recall Davis. Moreover, the only
explanation Close offered for selecting Davis for layoff is,
4 Although Davis did not testify that Close asked him about union
meetings, I infer that this is the case. There would be no reason for
Davis to mention the meeting without prompting from Close.
5 Close also testified that he laid off a long-time employee named
Wright. I decline to either credit or discredit this testimony. I note that
the only Wright working for Respondent in May was Robert J. Wright,
who was hired on September 5, 1998. Assuming that this is the same
“Joe Wright” referred to elsewhere in the transcript, a leadman or in-
structor for welders, this individual was working for Respondent in
September and October 2001 (Exh. R-1).
6 Davis built jigs (a big table on which the shipping containers are
constructed) as well as welded.
7 The record does not indicate the position for which Evans was
hired or how he compared to Davis in seniority.
LOUDON STEEL, INC. 311
“Don always wanted to take a day off now and then and it was
more than I thought and this was the result.”
In addition to implicitly indicating support for the Union by
refusing to sign the antiunion placard on May 31, Davis had
signed an authorization card for the Teamsters Union in April
and May 2001 and talked to other employees on behalf of the
Teamsters. He had discussed joining the Sheetmetal Workers
Union with Hurren sometime later. He also attended a meeting
at employee Larry Detgen’s house to discuss organizing a un-
ion at Loudon Steel sometime in the spring of 2001. A few
days after May 31, Close told Detgen that he had heard some-
thing about Detgen, Donald Davis, and Daniel Hurren getting
together for a union meeting at a bar.
ANALYSIS
On May 31, 2001, Respondent violated the Act in coercively
interrogating Donald Davis regarding his union sympathies
(complaint pars. 14 and 15).
Whether an employer’s questioning of an employee about
union activities violates Section 8(a)(1) of the Act depends on
the circumstances surrounding the questioning, Westwood
Health Care Center, 330 NLRB 935 (2000); Rossmore House,
269 NLRB 1176, 1177 (1984), affd. 760 F.2d 1006 (9th Cir.
1985). In this case, Emory Close’s questioning of Donald
Davis was coercive. Close approached Davis immediately after
employees had a meeting with Gib Loudon, who read a state-
ment demonstrating Respondent’s hostility towards the Union.
Close immediately asked Davis whether he was a friend of
Daniel Hurren, known by both of them to be a leader of the
organization drive within the plant. Close’s question in this
context could only have been posed in order to determine
Davis’ sympathy for the Union. Just to insure that Davis didn’t
miss the point, Close then engaged him in conversation about
the Union.
Soon afterwards, Aaron Burrows, a team leader/foreman,
asked Davis to sign an antiunion placard. I need not decide
whether Burrows was a statutory supervisor, because he was
clearly an agent of Respondent. Burrows has the authority to
assign work to employees and to issue written discipline to
employees, with the approval of Emory Close. A person is an
agent under Board law if employees would reasonably believe
that the individual was reflecting company policy and speaking
and acting for management, Community Cash Stores, 238
NLRB 265 (1978). This was certainly true for Burrows.
Additionally, I infer that Close, whose office overlooks the
entire plant was aware that Burrows was riding around in a
high-low during worktime soliciting signatures for an antiunion
petition. I infer he also learned who signed the petition and
who did not. When an agent of the employer, such as Burrows,
solicits employees for an indication of opposition to the Union,
the agent is obviously interrogating the employee about his or
her union sympathies. Moreover, that interrogation is inher-
ently coercive. The Board has long and consistently held that
an employer may not put employees in a position in which they
reasonably would feel pressured to make an observable choice
that demonstrates their support for, or opposition to the union,
Kurz Kasch, Inc., 239 NLRB 1044 (1978); Allegheny Ludlum
Corp., 333 NLRB 734, 740 (2001).
Respondent Violated Section 8(a)(3) and (1) of the Act in Lay-
ing off Donald Davis (complaint par. 16)
In order to prove a violation of Section 8(a)(3) and (1), the
General Counsel must show that union activity has been a sub-
stantial factor in the employer’s adverse personnel decision. To
establish discriminatory motivation, the General Counsel must
show union or protected concerted activity, employer knowl-
edge of that activity, animus or hostility towards that activity
and an adverse personnel action caused by such animus or hos-
tility. Inferences of knowledge, animus and discriminatory
motivation may be drawn from circumstantial evidence as well
from direct evidence.8 Once the General Counsel has made an
initial showing of discrimination, the burden of persuasion
shifts to the employer to prove its affirmative defense that it
would have taken the same action even if the employee had not
engaged in protected activity. Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (lst Cir. 1981).
Donald Davis engaged in union activity by discussing orga-
nizing a union and meeting with other employees for this pur-
pose. Respondent, as evidenced by Emory Close’s remarks to
Davis and to Larry Detgen after Davis’ layoff, knew of, or sus-
pected, that Davis was engaging in union activity. Moreover,
Davis’ refusal to sign the antiunion placard was activity pro-
tected by the Act of which Respondent was aware through its
agent, Aaron Burrows, and I infer, through Close.
Animus
There is a great deal of evidence of animus toward union ac-
tivity on the part of management, including Emory Close’s
surveillance of employees on May 31, the solicitation of em-
ployees to report union activity to management, Close’s inter-
rogation of Davis regarding his union activities and his interro-
gation of Davis with regard to his friendship with Hurren. In-
deed, there is no innocent or nondiscriminatory explanation for
Close’s inquiry to Davis about whether or not he was a friend
of Hurren.
Discriminatory motive
Discriminatory motivation may reasonably be inferred from a
variety of factors, such as the company’s expressed hostility
towards unionization combined with knowledge of the em-
ployees’ union activities; inconsistencies between the prof-
fered reason for discharge and other actions of the employer;
disparate treatment of certain employees with similar work
records or offenses; a company’s deviation from past prac-
tices in implementing the discharge; and proximity in time be-
tween the employees’ union activities and their discharge.

W.F. Bolin Co. v. NLRB, 70 F.3d 863, 871 (6th Cir. 1995).
In the case of the Davis’ layoff, the timing of the layoff sug-
gests discrimination in the absence of any credible non-
discriminatory explanation of why Davis was laid-off instead of
less senior employees. In this regard I find Close’s explanation
that Davis took off too many days to be incredible particularly
in the absence of any corroborative proof and any evidence that

8 Flowers Baking Co., 240 NLRB 870, 871 (1979); Washington
Nursing Home, Inc., 321 NLRB 366, 375 (1996); W. F. Bolin Co. v.
NLRB, 70 F.3d 863 (6th Cir. 1995).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 312
management ever advised or disciplined Davis for excessive
absenteeism. Indeed, Close admitted that overall Davis was a
very good employee.9 Likewise, there is no credible explana-
tion for why the other employees laid off were recalled and
Davis was not. I find Respondent’s explanation for Davis’
selection to be purely pretextual.
Findings of antiunion animus and discriminatory motive may
also be predicated on the pretextual reasons advanced for a
personnel action. It is well settled that when a respondent’s
stated motives for its actions are found to be false, the circum-
stances may warrant an inference that the true motive is an
unlawful one that the respondent desires to conceal, Fluor
Daniel, Inc., 304 NLRB 970, 971 (1991); Fast Food Merchan-
disers, 291 NLRB 897, 898 (1988), Shattuck Denn Mining
Corp., 362 F.2d 466, 470 (9th Cir. 1966).
Indeed, in a case arising under the age discrimination in Em-
ployment Act, the Supreme Court reiterated the probative value
of an employer’s pretextual reasons for a personnel action in
proving discrimination.

Proof that the defendant’s explanation is unworthy of cre-
dence is simply one form of circumstantial evidence that is
probative of intentional discrimination, and it may be quite
persuasive. In appropriate circumstances, the trier of fact can
reasonably infer from the falsity of the explanation that the
employer is dissembling to cover up a discriminatory purpose.
Such an inference is consistent with the general principle of
evidence law that the factfinder is entitled to consider a
party’s dishonesty about a material fact as “affirmative evi-
dence of guilt.” Moreover, once the employer’s justification
has been eliminated, discrimination may well be the most
likely alternative explanation, especially since the employer is
in the best position to put forth the actual reason for its deci-
sion.

Reeves v. Sanderson Plumbing Products, 530 U.S. 133, 120 S.
Ct. 2097 at 2108 (2000).
Respondent constructively discharged Daniel Hurren on
May 29, 2001; credibility resolutions
Each of the alleged violations in this case must be estab-
lished independently and Respondent’s defense to each alleged
violation must also be analyzed independently. However, in
analyzing each allegation, the entire context of the situation
must be considered. This includes other established unfair
labor practices, which are highly relevant in determining Re-
spondent’s motive—particularly, as in this case, where they
establish extreme hostility to unionization and employees’ ef-
forts to organize, NLRB v. DBM, Inc., 987 F.2d 540 (8th Cir.
1993); Reeves Distribution Services, 223 NLRB 995, 998
(1976).
In Daniel Hurren’s case, Respondent concedes that he en-
gaged in union activity and that it knew that he was the princi-
pal in-house organizer. To determine whether the General
Counsel has proved animus and discriminatory motivation, I
must resolve the conflicting testimony of Emory Close and
Jason Enos, on the one hand, and Daniel Hurren, on the other.

9 Indeed, Close initially testified that he thought Davis still worked
for Respondent (Tr. 35).
In light of the facts surrounding the layoff of Donald Davis, I
credit Hurren’s account of his May 29 conversation and find
that Close threatened him physically and implied that his vehi-
cle might be vandalized. The fact that Respondent was willing
to select a senior employee such as Davis for lay-off without
any colorable nondiscriminatory explanation leads me to the
inference that it harbored an extreme degree of antiunion ani-
mus. There is also no satisfactory explanation for Close’s deci-
sion, shortly after learning of Hurren’s union activity, to re-
move him from his regular task and invite him outside the plant
for a private conversation.10
Under Board law, the test for determining whether an em-
ployer caused the resignation of, or constructively discharged,
an employee, is as follows

First, the burdens imposed upon the employee must cause,
and be intended to cause, a change in his working conditions
so difficult or unpleasant as to force him to resign. Second, it
must be shown that those burdens were imposed because of
the employee’s union activities.

Crystal Princeton Refining Co., 222 NLRB 1068, 1069 (1976).
I find that as a matter of law, Respondent constructively dis-
charged Daniel Hurren. Emory Close’s threats of physical harm
and vandalism to Hurren’s property, as well as Close’s threat to
terminate Hurren if he did not meet an unrealistic production
quota, created working conditions sufficiently difficult and
unpleasant so as to force Hurren to resign.
I also credit Daniel Hurren’s testimony that he did not say
that he was quitting on May 29, because employees would not
sign union authorization cards or anything similar. I discredit
the contrary testimony of Emory Close and Jason Enos. Due to
the pretextual nature of Close’s explanation for laying off
Davis, I consider Close an unreliable witness. Moreover, I
deem it highly improbable that Hurren would quit due to the
lack of interest in the Union on the first day that the Union
attempted to openly organize. It is also logically inconsistent
with the Union’s attempts to handbill employees on May 31.
Respondent argues that Hurren should not be credited be-
cause among other things, he “was no neophyte to union organ-
izational drives and activities.”11 It also alleges that his testi-
mony about the threats is the result of coaching by organizer
Gekeler. While it is possible that Respondent’s assertions are
true, I find that it is much more likely that Hurren’s account of
the events of May 29 are essentially accurate.12
10 The plant was noisy, but Close was able to communicate with oth-
ers inside the building.
11 Hurren’s father is the vice president of a United Autoworkers Lo-
cal. Hurren discussed the events of May 29 with his father immediately
after getting home that night. His father advised him to call Gekeler.
12 May 29, 2001, was Hurren’s first day back at work after a 3-day
suspension for allegedly failing to call in when he took off from work.
On May 24, Hurren came to the plant to pick up his paycheck and was
asked to leave by Close for allegedly interfering with production. I see
no relevance of these facts to the issues in this case.
LOUDON STEEL, INC. 313
Respondent violated the Act by telling employees
orally and in writing to report harassment by union
adherents to management
The memo distributed and read to Loudon Steel employees
on May 31, is unlawful insofar as it encourages employees to
report harassment by union supporters to Respondent. Such
documents and instructions have a dual potential. First, they
encourage employees to report to Respondent the identity of
union card solicitors who in any way approach them in a man-
ner subjectively offensive to the solicited employees. Sec-
ondly, they discourage card solicitors in their protected organ-
izational activities.
Loudon’s letter and oral presentation could be interpreted by
some employees to cover lawful attempts by union supporters
to persuade employees to sign union authorization cards. This
is particularly true since there is no credible evidence that union
supporters employed any unprotected tactics in soliciting sup-
port for the Union. Thus, Respondent’s letter would tend to
restrain union supporters from attempting to persuade any em-
ployee to sign an authorization card for fear that they would be
reported to management and disciplined, Arcata Graphics, 304
NLRB 541, 542 (1991); Greenfield Die & Mfg. Corp., 327
NLRB 237, 238 (1998). I therefore find that Respondent vio-
lated the Act as alleged in complaint paragraph 13.13
Respondent violated Section 8(a)(1) of the Act on May 29, by
coercively interrogating Daniel Hurren about his union activity,
telling him that he could only speak to other employees at
breaks, lunch, and before and after work, threatening to place
his protected activities under surveillance and doing so, and
threatening hurren with physical harm and property damage, as
alleged in complaint paragraphs 8 and 9
As I generally credit Hurren’s account of his May 29 conver-
sation with Close, I find that Respondent coercively interro-
gated Hurren by asking him why he supported the Union. This
inquiry is coercive in the context of the other things said in the
conversation.
Even Close’s account, that he told Hurren that he could only
talk to employees about the Union at lunch, breaks, and before
and after work, constitutes restraint of union activity in viola-
tion of Section 8(a)(1). While an employer may prohibit the
discussion of nonwork-related topics during working time, it
cannot limit such a prohibition to unions or other protected
subjects, Altorfer Machinery Co., 332 NLRB 130, 133 (2000),
M. J. Mechanical Services, 324 NLRB 812 (1997). There is no
evidence that Respondent prohibited employees from discuss-
ing nonwork-related topics. Its employee handbook, GC Exh.
8, contains no such prohibition. Thus, it could not prohibit
employees from either encouraging coworkers to support the
Union during worktime or discouraging coworkers from doing
so.14

13 Respondent would not have violated the Act if it had advised its
employees to contact the NLRB in the event of restraint, coercion, or
interference with their Sec. 7 rights on the part of the Union.
14 While Respondent can certainly take steps to limit conversations
that disrupt production, it cannot as a general rule disallow union-
related conversations while allowing discussion of other nonwork re-
lated subjects.
I also credit the testimony of Daniel Hurren and Larry Det-
gen, and find that Close told Jason Enos, in front of Hurren,
that Hurren was to be supervised at all times and that, at
Close’s direction, Enos kept a constant watch on Hurren.
Given that these instructions were given in the context of
Close’s warnings about not talking about the Union during
worktime, I find that Respondent both gave Hurren the impres-
sion that his union activities would be under surveillance and in
fact, placed his union activities under surveillance.
Respondent, by Emory Close, engaged in unlawful surveillance
of employee’s union activities by approaching employees’ ve-
hicles as the union attempted to distribute handbills
It is well settled that where, as here, employees are conduct-
ing their activities openly on or near company premises, open
observation of such activities by an employer is not unlawful,
Roadway Package System, 302 NLRB 961 (1991). Thus, Re-
spondent’s management personnel did not violate the Act by
standing in the parking lot and watching the Union distribute
handbills.
However, an employer may not do something “out of the or-
dinary” to give employees the impression that it is engaging in
surveillance of their protected activities, Arrow Automotive
Industries, 258 NLRB 860 (1981). Emory Close walked up to
and within a few feet of 8–10 employees’ vehicles when they
approached the handbillers. He testified that he did so because
his employees could not get into the driveway. I decline to
credit this testimony. First of all, the police were at Respon-
dent’s plant when the union handbillers were present on May
31. Had the Union been preventing employees from entering
the plant, it is reasonable to assume that Respondent would
have asked the police to intervene or that the police would have
intervened on their own. There is no indication that the police
interfered with the distribution of handbills in any way.15
Also, given the pretextual nature of Close’s explanation for
Davis’ layoff, I consider his testimony unreliable in the absence
of corroboration. There is no corroboration for his assertion
that the Union was blocking access to the plant when the 8–10
employees were trying to get to work. Moreover, Davis’ testi-
mony, at Tr. 119–120, indicates that the handbillers were not
impeding access to the driveway—other than delaying employ-
ees a few seconds if they stopped to accept a handbill.
By approaching the employees’ vehicles Close was giving
the impression that he was determining who was accepting the
handbills and thus created the impression of surveillance in
violation of Section 8(a)(1).16 Moreover, there is no alternative
and nonviolative reason for Close’s conduct during the hand-
billing.
15 The police asked the union handbillers to move their cars on May
31, so that trucks could get into the plant (Tr. 65). I assume the hand-
billers did so and did not otherwise block access to the plant. Other-
wise, I infer the police would have demanded further action by the
handbillers.
16 I conclude that the General Counsel has not established that the
presence of about seven management officials and foremen/team lead-
ers in the parking lot was “out of the ordinary.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 314
Respondent’s no-solicitation rule violated the Act
Respondent’s employee handbook, which was distributed in
1998, contains the following provision

Solicitation for any cause during working time and in working
areas is not permitted. Working time is defined as the time
assigned for the performance of your job. Working areas do
not include the lunchroom or parking areas. Solicitation dur-
ing authorized meal and “break” times is permitted as long as
it is not conducted in working areas.

GC Exh. 8.
There is no evidence that this rule has been invoked by Re-
spondent with regard to any activity, let alone union activity.
The General Counsel alleges that the rule is overly broad and
therefore violative of Section 8(a)(1) because it facially prohib-
its an employee from soliciting in work areas on nonworktime,
i.e., during authorized lunches and breaks.
Forty years ago in Stoddard-Quirk Mfg. Co., 138 NLRB 615,
619 (1962), the Board enunciated differing rules for the distri-
bution of literature and oral solicitations. A rule prohibiting the
distribution of literature may properly extend to working areas
even during nonworking times, Albert Einstein Medical Center,
245 NLRB 140, 142 (1979); Hale Nani Rehabilitation, 326
NLRB 335 fn. 2 (1998).
Oral communication regarding union activity can be prohib-
ited during working hours in working areas, only if the em-
ployer prohibits oral communication of all subjects during
working time, Altorfer Machinery Co., 332 NLRB 130 (2000).
Since Respondent’s no solicitation rule is ambiguous as to
whether it applies to oral communications and/or the distribu-
tion of literature, the ambiguity must be resolved against Lou-
don Steel, Grouse Mountain Lodge, 333 NLRB 1322, 1332
(2001). I therefore find that Respondent’s no-solicitation rule
violates Section 8(a)(1) of the Act because it could be inter-
preted to prohibit oral communication regarding union activity
in working areas at all times, as well as prohibiting oral com-
munications about union activity during working times in
which other subjects may be discussed.
CONCLUSIONS OF LAW
A. Respondent, Loudon Steel, Inc., violated Section 8(a)(1)
of the Act by
1. Coercively interrogating Donald Davis regarding his un-
ion sympathies;
2. Telling employees orally and in writing to report harass-
ment by union adherents to management;
3. Coercively interrogating Daniel Hurren about his union
activity;
4. Telling Daniel Hurren that he could only speak to other
employees at breaks, lunch, and before and after work;
5. Threatening to place Daniel Hurren’s union activities un-
der surveillance and doing so;
6. Threatening Daniel Hurren with physical harm and prop-
erty damage;
7. Engaging in surveillance of employees’ union activities by
approaching their vehicles as the Union attempted to distribute
handbills; and
8. Promulgating and maintaining a no-solicitation rule that is
overbroad due to its ambiguity.
B. Respondent violated Section 8(a)(3) and (1) of the Act by
1. Laying off Donald Davis on May 31, 2001, and failing to
recall him; and
2. Constructively discharging Daniel Hurren on May 29,
2001.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent having discriminatorily discharged Daniel
Hurren and discriminatorily laid off Donald Davis, it must offer
them reinstatement and make them whole for any loss of earn-
ings and other benefits, computed on a quarterly basis from
date of discharge to date of proper offer of reinstatement, less
any net interim earnings, as prescribed in F. W. Woolworth Co.,
90 NLRB 289 (1950), plus interest as computed in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987).
[Recommended Order omitted from publication.]