Precision Window Mfg.

National Labor Relations Board - Board Decisions

Jul 31, 1991

303 N.L.R.B. 946 (N.L.R.B. 1991)

946
303 NLRB No. 141
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 In deciding whether Sitzes’ conduct was, under the circumstances, so out-
rageous as to require forfeiture of remedies, we do not take issue with our
colleague’s conclusion that Hixon felt threatened or that calling the police may
be a reasonable course of action whenever a discharged employee utters a
threat of violence. We simply disagree that those conclusions are material to
the issue here.
1 The judge found that Sitzes had been discharged for his protected con-
certed activity in violation of Sec. 8(a)(3) and (1). As noted in the majority
decision, no exceptions were made to this finding.
Precision Window Manufacturing, Inc. and Alu-
minum, Brick & Glass Workers International
Union, AFL–CIO, CLC. Case 14–CA–20527
July 31, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On November 16, 1990, Administrative Law Judge
Bernard Ries issued the attached decision. The Re-
spondent filed exceptions and a supporting brief lim-
ited to the remedy granted with respect to the dis-
charge of employee Steve Sitzes.
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 brief and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions and to adopt the judge’s recommended Order.
Contrary to our dissenting colleague, for the reasons
set forth below, we agree with the judge that Steve
Sitzes did not engage in postdischarge conduct that
warrants the forfeiture of his right as a victim of an
8(a)(3) discrimination to remedial relief here. Thus, we
adopt the judge’s recommendation to provide reinstate-
ment and backpay for Sitzes.
The Respondent has not contested the judge’s find-
ing that it discharged Sitzes because of his union activ-
ity. The evidence shows that after the Respondent dis-
charged him, Sitzes was so upset that, while he was
leaving the plant, he cursed First-Shift Supervisor
Ricky Hixon, called him obscene names, challenged
him to a fight, and threatened to kill him. The judge
found that ‘‘[t]he killing was evidently to occur at
4:30, when the plant closed down.’’
Sitzes did return to the plant at quitting time. He re-
mained seated inside his car, talking through the win-
dow with other employees who gathered around. The
Respondent called the police, who arrived promptly
and asked Sitzes to leave the premises. He left imme-
diately and did not return. He subsequently testified
that he had returned at 4:30 p.m. to pick up his carpool
riders, an assertion the judge found to be
uncontradicted.
In determining whether backpay and reinstatement
are appropriate remedies in cases where the employer
has claimed employee misconduct, the Board tradition-
ally ‘‘looks at the nature of the misconduct and denies
reinstatemnt in those flagrant cases ‘in which the mis-
conduct is violent or of such character as to render the
employees unfit for further service.’’’ C-Town, 281
NLRB 458 (1986), quoting J. W. Microelectronics
Corp., 259 NLRB 327 (1981). Furthermore, the Board
takes into account whether the misconduct was an
‘‘emotional reaction’’ to the employer’s own unlawful
discrimination against the employee. Blue Jeans Corp.,
170 NLRB 1425 (1968), citing NLRB v. M & B
Headwear Co., 349 F.2d 170, 174 (4th Cir. 1965).
Here, Sitzes made verbal threats in immediate response
to the Respondent’s act of discriminatorily discharging
him. Although the dissent attempts to distinguish
Sitzes’ words from those uttered by unjustly termi-
nated employees in other cases in which the Board de-
clined to deny traditional remedies, we cannot see a
reasonable distinction. Contrary to the dissent’s por-
trayal of a stark threat to kill, we find that even
Hixon’s account of Sitzes’ outburst indicates that it
was a rambling, semicoherent mix of insult and threat.
As indicated above, Sitzes did not repeat any of his
statements when he returned at quitting time, and his
appearance then was entirely consistent with his
uncontradicted claim that he was there to pick up de-
parting employees in his carpool. Thus, while we of
course do not approve of Sitzes’ threats and other of-
fensive remarks, we find that, under all the cir-
cumstances, his statements did not rise to the level of
conduct so flagrant as to require forfeiture of reinstate-
ment and backpay.1
The dissent’s implication that the Board’s recent de-
cision in Family Nursing Home, 295 NLRB 923 fn. 2
(1989), supports a different result is clearly misplaced.
The Board denied remedial relief to the discriminatee
there because she physically assaulted the employer’s
director of nursing following her discharge. In this
case, by contrast, Sitzes did not engage in any kind of
violence.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Precision Window Manu-
facturing, Inc., St. Louis, Missouri, its officers, agents,
successors, and assigns, shall take the action set forth
in the Order.
MEMBER RAUDABAUGH, dissenting in part.
I strongly disagree with my colleagues’ adoption of
the judge’s finding that employee Steve Sitzes did not
forfeit his right to reinstatement and backpay by threat-
ening to kill his supervisor, Ricky Hixon.1 The cred-
ited or undisputed evidence is as follows. On January
9, 1990, Vice President Brian Brannick and First-Shift
Supervisor Ricky Hixon told Sitzes that he was dis-
947PRECISION WINDOW MFG.
2 Sitzes admitted he threatened to ‘‘beat [Hixon’s] Mexican face in.’’ The
judge found no meaningful difference between that threat and Hixon’s testi-
mony that there was an explicit threat to kill.
3 The judge did not expressly credit Sitzes’ claim that he returned for his
carpool riders. Instead, he found that no evidence contradicted the claim and
that it was not inherently unbelievable.
4 Blue Jeans Corp., 170 NLRB 1425 (1968), citing NLRB v. M & B
Headwear Co., 349 F.2d 170, 174 (4th Cir. 1965).
5 See, e.g., Family Nursing Home, 295 NLRB 923 fn. 2 and cases cited
therein (1989).
6 Id. at fn. 2, quoting J. W. Microelectronics Corp., 259 NLRB 327 (1981),
enfd. 688 F.2d 823 (3d Cir. 1982).
7 See, e.g., Anaconda Insulation Co., 298 NLRB 1105 (1990).
8 See, e.g., 299 Lincoln Street, Inc., 292 NLRB 172 (1988).
9 In concluding that Hixon could reasonably be terrified, I cannot ignore the
regrettable fact that, all too frequently, discharged employees return to the
workplace to commit violent acts against those whom they hold responsible
for their discharge.
1 The charge was filed on January 10, 1990; an amended charge was filed
on February 22; the complaint issued on February 26; an amendment to the
complaint issued on March 31; and the complaint was once again amended
at the hearing.
2 On June 8, Respondent filed a motion to strike the General Counsel’s brief
‘‘due to misrepresentations of the record.’’ General Counsel filed an opposi-
tion to the motion on June 15. As General Counsel points out, the motion to
strike is essentially a reply brief. The Board’s Rules and Regulations do not
make specific provision for the filing of reply briefs, and no request was made
Continued
charged. Sitzes responded, ‘‘I hope you guys feel like
big men now’’ and proceeded to leave the plant. How-
ever, as Sitzes was walking onto the parking lot, he
noticed Hixon at the door of the loading dock 25 feet
away. Sitzes cursed Hixon, called him obscene names,
and challenged him to fight. In addition, in clear and
unambiguous language, Sitzes said twice that he was
going to kill Hixon.2 He also said that he would return
at 4:30 in the afternoon to carry out these threats.
Sitzes returned at quitting time (4:15 p.m.), allegedly
to pick up his carpool riders.3 The Respondent then
telephoned the police and they arrived promptly. Sitzes
left when the police requested him to do so.
I agree with the general principle that ‘‘[a]n em-
ployer cannot provoke an employee to the point where
she commits . . . an indiscretion and then rely on this
to terminate her employment . . . . The more extreme
an employer’s wrongful provocation the greater would
be the employee’s justified sense of indignation and
the more likely its excessive expression.’’4 However, a
provoked employee does not have an unlimited right to
engage in misconduct without losing his remedial
rights. The Board has never found that reinstatement
and backpay should be provided to an employee re-
gardless of the nature of the employee’s misconduct
committed in response to the alleged provocation.5
Quite simply, the issue is where the line should be
drawn, i.e., whether the conduct is so ‘‘violent or of
such character as to render an employee unfit for fur-
ther service.’’6 I would deny these remedies where an
employee has engaged in misconduct as serious as a
threat to kill. By its very nature, a threat to kill is a
threat that is more serious than any other. Vague
threats to ‘‘get’’ a supervisor7 or profane remarks8 pale
by comparison to a threat to kill. In the instant case,
Sitzes’ threat was even more specific. He told Hicks
that he would return at 4:30 p.m. to carry out the
threat. Sitzes returned, just as he said he would, a few
minutes before 4:30 p.m. Because of this return, and
in light of the earlier threat, the Respondent telephoned
the police. The police responded and apparently ar-
rived within minutes. Sitzes left only after the police
asked him to do so.
In adopting the judge’s finding that Sitzes did not
engage in misconduct sufficient to forfeit his remedy,
my colleagues emphasize that there is no evidence that
Sitzes returned to the plant for the purpose of carrying
out his threat to kill. That can be said with the benefit
of hindsight and with a sigh of relief. At the time of
the events, there was no such comfort. Sitzes had ut-
tered a threat to return at an appointed hour for the
avowed purpose of killing Hixon. He had then taken
overt steps consistent with the threat. By returning at
the appointed hour, he had done precisely what he had
said he would do. The police were called and, in ap-
parent recognition of the danger, came to the site im-
mediately. The threat was relieved only after the police
persuaded Sitzes to leave.
It is not enough to say, more than a year later, that
there is no evidence that Sitzes actually intended to
carry out his threat. In his own mind, Sitzes may have
known all along that he was bluffing. But Hixon did
not know that. As he saw it, Sitzes was proceeding
step-by-step, just as he said he would, to carry out a
threat to kill. In these circumstances, Hixon would rea-
sonably conclude that the threat was not an idle one,
and would reasonably be terrified at the unfolding
course of events.9
I do not believe that we should extend our remedial
aid to a person who utters a threat to kill and then
takes overt steps consistent with the threat. Accord-
ingly, I dissent from my colleagues’ grant of the rem-
edy here.
Lucinda L. Morris, Esq., for the General Counsel.
Craig A. Sullivan, Esq. (Anderson, Gilbert & Garvin), of St.
Louis, Missouri, for the Respondent.
James M. Mosley, of Bridgeton, Missouri, for the Charging
Party.
DECISION
BERNARD RIES, Administrative Law Judge. This matter
was tried in St. Louis, Missouri, on April 23–24, 1990.1 The
complaint, as amended, alleges that the Respondent violated
Section 8(a)(1) by various statements made to its employees
by its agents; unlawfully issued written warnings to, and dis-
charged, two employees; and unlawfully laid off four em-
ployees.
Briefs were received from the General Counsel and the
Respondent on or about June 1.2 Having reviewed the tran-
948 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
by Respondent for permission to file such a brief. I shall therefore grant Gen-
eral Counsel’s motion to strike. On September 17, General Counsel filed a re-
quest that I take notice of a recent Board case. No opposition has been filed.
Since I am bound to take notice of all such relevant cases, I shall do so here.
3 Certain errors in the transcript have been noted and corrected.
4 As discussed later, Respondent initiated a second shift of 20 employees in
August 1989, but discontinued it in November.
5 Both Brannick and Erutti testified that they planned to leave Respondent’s
employ in the summer of 1990.
6 Around that time, an employee named Joe Marciante had contacted the
Charging Party.
7 Three of the witnesses made the statement somewhat more tentative—that
Respondent would ‘‘probably’’ relocate.
script of proceedings and the exhibits, having considered the
briefs, and having taken into account my impression of the
reliability of the witnesses, I make the following
FINDINGS OF FACT3
I. THE BASIC FACTS
Respondent employs some 40 persons in the manufacture
of custom replacement windows at its St. Louis facility. It
is owned by three individuals identified as Dick Ahrends,
Bob Miles, and Larry Cox. Although the trial did not go into
the matter in detail, it seems clear that Respondent was es-
tablished in the spring of 1989 principally for the purpose of
manufacturing windows for each of the co-owners, who use
the windows in some retail capacity in their own businesses.
Also somewhat obscure, but clear enough, is the fact that Re-
spondent is operating with the guidance of a firm, called
Spectus Systems, which designs and extrudes the window
system that Respondent uses.
The most important active official of Respondent is Brian
Brannick, who was hired in 1988 to establish the plant from
the ground up, and who stayed on as vice president. The sec-
ond-in-command on the production floor is Ricky (Rick)
Hixon, who was elevated from quality control to the position
of first-shift supervisor in mid-August, 1989.4 The only other
principal management official was Elmer Erutti, who identi-
fied himself at the hearing as ‘‘purchasing agent and per-
sonnel administrator.’’5
II. THE ALLEGED THREATS IN NOVEMBER 1989
The complaint alleges that on or about November 20,
1989, Vice President Brannick threatened employees with
plant relocation and loss of wages and benefits if the plant
was unionized, thereby violating Section 8(a)(1).
The record is unclear as to the precise date on which
Brannick held a meeting of all 40 employees, but that is not
important, for Brannick admits that he did meet with them
sometime around November, and the reason he did so was
that an antiunion employee had told him that an effort was
being made to organize the plant.6 Several employees testi-
fied that the meeting was held on November 20, a detail
which seems less than memorable, and all that each of them
recalled Brannick saying in a 20-minute speech was that, in
substance, if the Union came in, Respondent would (1) close
the doors and move to Oklahoma,7 (2) cut the employees’
pay, and (3) reduce annual vacations from 2 weeks to 1.
It seems odd that the employee-witnesses basically (al-
though with some variations) remembered just these three
topics from a 20-minute speech. One of the witnesses did not
mention these statements in his pretrial affidavit, and he tes-
tified that he recalled the remarks as a result of being re-
freshed by discussion with other witnesses. There is no
doubt, as the testimony of one witness shows, that the wit-
nesses consciously attempted prior to trial to conform and
‘‘refresh’’ their testimony. At the same time, with two excep-
tions to be noted later, they all left an impression of honesty.
However, since Brannick was a smoothly convincing wit-
ness, I might have discredited the employee witnesses, ex-
cept for one thing: Brannick virtually admitted one part of
their assertions and did not deny the rest.
On direct examination, Brannick was not asked by Re-
spondent about the speech other than an attempt to show that
it would not have been given on November 20. On cross,
while Brannick denied that he had told the employees at the
November meeting that ‘‘if the Union came in, the plant
would move to Oklahoma,’’ he candidly conceded having
said that ‘‘if the Union came in, the plant could possibly
move to Oklahoma.’’ He was not asked on direct or cross
about the threatened wage and vacation losses, and so that
testimony went unchallenged.
As I noted at the hearing, there is an incongruity between
a decisive declaration by Brannick that the plant would move
to Oklahoma and a threat of reduction in benefits, since if
the former occurred, it seems questionable that Brannick
would have thought that the employees would care one way
or the other about the latter. What seems most likely is that
Brannick did say that the plant might move to Oklahoma in
the event of unionization, but that even if it did not, benefits
would be diminished. Given Brannick’s admission and his
failure to deny the other statements, as well as my general
sense that the employees were not fabricating, I conclude
that Brannick very probably made remarks along those lines.
Such statements, of course, are violative of Section 8(a)(1).
Mack’s Supermarkets, 288 NLRB 1082, 1095, 1099–1100
(1988).
III. THE ALLEGED THREAT TO BEIS IN DECEMBER 1989
Employee Douglas Beis, an alleged discriminatee who was
laid off for 7 weeks and is currently employed elsewhere,
testified that on December 22, in a conversation with
Brannick (the contents of which he could not otherwise re-
member), he ‘‘distinctly’’ recalled Brannick saying that ‘‘if
a union came in, he would move the plant to Oklahoma.’’
Brannick’s denial was not specific; he said ‘‘No’’ to the
question ‘‘During December did you and Doug Beis have
any conversations concerning the Union?’’ The form of this
question contains loopholes which leave Brannick’s answer
less than a total denial of the thrust of Beis’ testimony (e.g.,
Beis might have erred as to the month). Beis made a good
impression while testifying, particularly in his willingness to
criticize the performance of fellow alleged discriminatee
Neff. While Brannick also earns points for his admission re-
garding the November speech, his concession that he at that
time spoke of relocating obviously bolsters Beis’ testimony
about a similar comment in December. I conclude that Re-
spondent again violated the Act by Brannick’s statement to
Beis in December about relocating the plant.
III. THE ALLEGED THREATS IN EARLY JANUARY
The record does not show that there was any overt union
activity between Brannick’s November speech and sometime
949PRECISION WINDOW MFG.
8 In this case, Brannick conceded that he told the employees that he was
referring to their attitude about ‘‘changes in the handbook.’’
9 The Board’s doctrine that employees are statutorily entitled to discuss mat-
ters of potentially common concern during worktime in the absence of a pub-
lished rule to the contrary appears to still be the law. Davlin Inc., 198 NLRB
281 (1972).
10 The record shows that Sitzes worked within a matter of feet from
Lampston and Haywood. Neither was called to testify.
in early January. According to Brannick, on January 2, the
first day after the Christmas shutdown, employee Steve
Sitzes asked him when the employees would be receiving
copies of promised revised handbooks; Brannick said that it
would probably be the next morning.
When Sitzes asked Brannick the same question again the
following morning, Brannick told him the handbooks would
be distributed in the afternoon. Sitzes inquired about the
changes in the revised manual and was told that 2 personal
days would replace the then-existing 3 sick days and Re-
spondent would not be paying for military leave or jury duty.
Sitzes asked about wage increases, which, he asserted,
Brannick had said would be forthcoming in January.
Brannick replied to the effect that raises would depend on
Respondent’s profitability.
Shortly thereafter, Supervisor Hixon allegedly reported to
Brannick that ‘‘production was virtually stopped’’ because
Sitzes was ‘‘going to people throughout the plant com-
plaining that they’re not going to get a raise at the beginning
of January, complaining that they didn’t get a Christmas
bonus and basically complaining about what [Brannick]
talked to him about the handbook.’’ Brannick decided to call
an immediate plant meeting, but first, he says, he told Sitzes
that he ‘‘didn’t want him going around the plant complaining
about the handbook and stopping production’’ and that
‘‘there was ample time to talk about the handbook at lunch
and before and after work’’; Sitzes said ‘‘fine,’’ that he
‘‘wasn’t causing trouble and that he had no problem with the
handbook.’’
Very soon thereafter, at an employee meeting, Brannick
told the employees that ‘‘if they didn’t care for the changes
in the handbook . . . they can always quit and leave, that
there was the front door.’’ He further admitted that he said
that he ‘‘didn’t want people causing trouble in the plant or
starting any type of cancer in the plant’’ because they had
a good team. By ‘‘cancer,’’ Brannick testified, he was refer-
ring to ‘‘people being upset’’ about the lack of a Christmas
bonus and the handbook changes.
Contrary to Brannick’s testimony that Hixon had informed
him that Sitzes had ‘‘virtually stopped’’ production
‘‘throughout the plant,’’ Hixon offered the more modest tes-
timony that he had reported to Brannick that ‘‘a couple of
the girls [Barbara Lampston and Barbara Haywood] and one
other person [probably Raymond Cato] just said [Sitzes] was
annoying them while they were working’’; he did not men-
tion having said anything to Brannick about a loss of produc-
tion, despite a leading question by Respondent as to whether
he had reported that Sitzes had been ‘‘causing the production
to slow down.’’ I therefore discredit Brannick’s version of
what Hixon told him.
Sitzes’ account of these events differed somewhat from
Brannick’s. Sitzes testified that after speaking to Hixon on
the morning of January 2 about Christmas bonuses and raises
(Hixon had reportedly said there would be no raises until an
employee had worked for a year; Sitzes had retorted that
Brannick had promised an across-the-board January raise), he
saw Hixon enter Brannick’s office, following which, minutes
later, Brannick came to Sitzes’ work station. He allegedly
told Sitzes twice that he did not need him ‘‘stirring up cancer
and causing trouble in the plant.’’ At the employee meeting
immediately thereafter, according to Sitzes, Brannick was
‘‘really hostile’’ (to the point, as several witnesses testified,
of punching the cardboard box in which the new handbooks
were packed) and said that he ‘‘did not want anybody caus-
ing trouble in the plant or starting up cancer, if you don’t
like it, you know where the door is.’’
Since Brannick admitted warning the employee meeting to
stop ‘‘causing trouble in the plant or starting any type of
cancer in the plant,’’ his testimony that he immediately prior
thereto only told Sitzes directly to cease ‘‘complaining about
the handbook and stopping production’’ seems doubtful, es-
pecially considering Brannick’s dubious embroidery that he
said Sitzes was free to complain on his own time. Moreover,
since Hixon evidently said nothing to Brannick about Sitzes
‘‘stopping production,’’ that also seems to be an embellish-
ment for purposes of litigation. Although I did not think
Sitzes to be a reliable witness, I am inclined to believe that
Sitzes was telling the truth on this occasion.
On brief, General Counsel does not argue that the state-
ments were related to any union activity by Sitzes. It is
claimed, rather, that Brannick’s invitation to all dissatisfied
employees to quit, and his admonitions against ‘‘stirring up
trouble’’ or ‘‘causing cancer’’ in the plant, made in reference
to employee complaints or potential complaints about the
handbook and terms and conditions of employment, are rea-
sonably considered to be coercive, in violation of Section
8(a)(1).
The Board has held that urging employees to quit if they
concertedly express dissatisfaction with working conditions is
coercive, constituting both a threat that further complaints
will result in discharge and an indication of the futility of
communicating concertedly. Bill Scott Oldsmobile, 282
NLRB 1073, 1082 (1987). The same would be true of admo-
nitions against causing ‘‘trouble’’ or ‘‘cancer,’’ if those ad-
monitions were reasonably understood to refer to protected
concerted activity.8 In recent cases, the Board has held (in
what seems to be a retreat from its embracement in Meyers
Industries, 281 NLRB 882, 887 (1986), of Mushroom Trans-
portation Co. v. NLRB, 330 F.2d 683 (3d Cir. 1964)) that
there is a ‘‘Section 7 right to discuss wages,’’ Super One
Foods #601, 294 NLRB 462 (1989); Chatham County of
High Point, 293 NLRB 159 (1989); Whittaker Corp., 289
NLRB 933 (1988), Brannick’s reactions to Sitzes’ efforts to
talk to a few employees, concerning terms of employment,
both as conveyed individually to Sitzes and collectively at
the employees meeting, violated this principle. Hixon’s testi-
mony, even if credited, that he told Brannick that Sitzes was
‘‘annoying’’ two or three workers, without any showing that
Sitzes had actually interfered with their production,9 is both
too indefinite and too limited to strip Sitzes’ conduct of its
statutory protection.10
I find, accordingly, that by his remarks on January 2 to
Sitzes about causing trouble and cancer, as reinforced by
their repetition that morning to all the employees, including
Sitzes, as well as by telling the employees and Sitzes that
if they did not care for working conditions, they had the
right to leave, all of which was based on Sitzes’ statutorily
950 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 While the record discloses good reason for not trusting Sitzes’ testimony,
in this respect, he was confirmed by credible witnesses.
12 Although the list is referred to in the record as a ‘‘petition,’’ it bore no
heading.
13 Brannick testified that he had heard about the meeting from Hixon, who
told him that ‘‘several employees’’ were discussing it; he did not deny having
announced his knowledge of the union meeting to the employees.
14 Rubel testified that he thought that an employee asked at this meeting
whether the plant would move to Oklahoma, and Brannick replied that he did
not know, that such a decision ‘‘would be up to the owners.’’ The complaint
alleges a threat of plant relocation ‘‘on or about January 8,’’ but General
Counsel’s brief does not mention this testimony. I take this to be a decision
by the General Counsel not to pursue the allegation, and I shall recommend
its dismissal.
protected activity, Respondent violated Section 8(a)(1) of the
Act.
V. THE ALLEGED VIOLATION AT THE JANUARY 8
MEETING; OTHER ALLEGED 8(A)(1) VIOLATIONS
On January 4, Sitzes, who evidently had, at some uncer-
tain time, taken over the job of being the contact person with
the Union, set out a pad of paper on the table at which San-
dra Woods worked, and Sitzes, Woods, and Danny Rubel
spread the word that any employees interested in having a
union should write their names and telephone numbers on the
fourth page beneath the top sheet.11 The list was signed by
24 employees. There is no direct evidence that any member
of management was aware of the existence of the list.12
The Union scheduled a meeting for interested employees
to follow work on January 8. Sitzes and a number of em-
ployees testified that Brannick also called a meeting of em-
ployees at the end of the shift on the same day. Brannick
opened the meeting by stating to the effect that he knew
‘‘there’s a union meeting tonight’’ and that he wished to
‘‘tell his side.’’13
The complaint alleges, and the General Counsel argues,
that the reference to the union meeting was unlawful in that
it created an impression that the employees’ union activities
were being monitored. General Counsel relies on an indistin-
guishable recent case, Spring City Knitting Co., 285 NLRB
426, 427 fn. 4, 448 (1987) (‘‘he told them that he understood
there was a union meeting that night’’). In the absence of
any known superseding precedent, I conclude that Respond-
ent violated Section 8(a)(1) as charged.
The witnesses further alleged that, as the complaint as-
serts, Brannick said that if a union was selected, ‘‘our pay
would be cut to $4.50 an hour and we would lose vacation
time’’ (in the words of employee Beis). While there were pe-
culiar variations on this theme, with some witnesses recall-
ing, e.g., Brannick saying that the Union, not the Respond-
ent, would have to pay for their wages and benefits, I believe
that the evidence preponderates in favor of showing a threat
of loss. Again, I think that Brannick probably suggested the
likelihood of loss rather than its certainty; he himself testi-
fied that, when asked whether wages and benefits would be
cut, he answered ‘‘I don’t know’’ to the first and ‘‘I am not
sure’’ to the second. I do not believe that the employee wit-
nesses (I was especially impressed with Rubel and Beis) con-
spired to create out of whole cloth these threats of probable
loss.14
The complaint alleges that on or about January 11, Hixon
unlawfully interrogated an employee concerning ‘‘his and
other employees’ union activities,’’ and Brannick ‘‘threat-
ened employees with loss of wages and/or benefits if union
organizing efforts were successful.’’
Employee Danny Rubel testified that on the date men-
tioned, as he was walking along the assembly line, Hixon
stopped him and asked ‘‘what he thought about what was
going on in the plant.’’ When Rubel asked for specificity,
they moved into Hixon’s office at the latter’s suggestion to
avoid the ambient noise, and Hixon explained that he was re-
ferring to ‘‘the union and all.’’ Rubel said that he was
‘‘mostly for the union right now,’’ that his investigation of
the Charging Party made it look ‘‘real good’’ to him, and
that he believed the union could ‘‘help us and the com-
pany.’’ Just then, Brannick entered the office and, when he
asked what was going on, Rubel repeated his prounion
leanings. Brannick said that he had once worked in a union
shop, that it had accomplished nothing, and that if the union
came in, the employees’ pay would drop to $4.50 an hour
and their vacation would be reduced to 1 week.
Respondent did not question Brannick or Hixon about this
conversation at the hearing. Rubel was an appealing witness,
and I credit his factual account. The test of whether interro-
gations are unlawful is whether ‘‘under all of the cir-
cumstances, the interrogation reasonably tends to restrain, co-
erce, or interfere with rights guaranteed by the Act.’’ Sunny-
vale Medical Clinic, 277 NLRB 1217 (1986). Stopping an
employee for no purpose other than to probe his thoughts
about union activity, without any indication that his answer
will not jeopardize him, ‘‘reasonably tends’’ to affect his in-
clination to support a union. While the Court of Appeals for
the Second Circuit, in Bourne v. NLRB, 332 F.2d 47, 48 (2d
Cir. 1964), held that the truthfulness of the employee’s reply
is a factor to be considered in evaluating the coerciveness of
an interrogation, it would seem that taking cognizance of this
element—an employee’s particular reaction to the interroga-
tion—comes uncomfortably close to rejecting the ‘‘reason-
able tendency’’ approach, which the Board has always held
to preclude an inquiry into the subjective effect of an interro-
gation or other 8(a)(1) conduct.
In any event, the fact that Rubel chose to be honest with
his employer does not detract from the tendency of the ques-
tioning to dampen Rubel’s willingness to support the Union.
As for Brannick’s statement regarding the adverse con-
sequences of unionism, Gissel Packing Co. v. NLRB, 395
U.S. 575, 618–619 (4th Cir. 1969), holds that such a ‘‘pre-
diction’’ of loss, not ‘‘carefully phrased on the basis of ob-
jective fact,’’ should be regarded as a threat of retaliation. I
so conclude here.
On the following day, January 12, according to the
uncontroverted testimony of employee Beis, while he was in
Hixon’s office receiving a writeup for tardiness, Brannick
told him in the course of a conversation about the Union that
it ‘‘would hurt us and drop our pay to $4.50 an hour and
we would lose vacation time.’’
Again, Gissel Packing requires a conclusion that
Brannick’s statement to Beis constituted ‘‘coercion’’ as pro-
hibited by Section 8(a)(1).
The remaining 8(a)(1) violation was added at the hearing
by oral amendment. It asserts that on February 17, Brannick
unlawfully ‘‘solicited employee grievances.’’
The evidence shows that Brannick approached employee
Herbert Hutson on February 21, 9 days before a scheduled
representation election, and asked him if he would like to
951PRECISION WINDOW MFG.
15 The solicitation of grievances is not, as the Board has often stated, per
se a violation of the Act. Uarco Inc., 216 NLRB 1, 2 (1975); City Products
Corp., 251 NLRB 1512, 1518 (1980).
16 Woods testified that if she had to choose one of the three assemblers for
layoff, she would probably have selected herself.
have the plant change from a 5-day week to a a 4-day, 10-
hour-day, workweek. Hutson testified, without controversion,
that in July or August of 1989, he had suggested the idea
to Brannick, who had replied that he ‘‘wasn’t coming in
there early in the morning.’’
According to Brannick, more than one employee had
broached such an idea in the summer of 1989, but he had
told them that Respondent ‘‘planned on having three shifts
and there is only 24 hours in the day so that’s probably not
going to be feasible.’’ However, after receipt from Spectus
of a February 6 letter summarizing suggestions derived from,
and already made during, a visit of January 22–25—includ-
ing ‘‘Work 4 ten hour days with Friday through Sunday
off’’—and the owners having decided while meeting with
Spectus in January ‘‘that we probably would not be going to
three shifts, that we would try to do it on two shifts’’ as an-
other window company did, Brannick decided that he was
now free to allow the employees to work 4-day weeks if they
wished. After speaking with the employees, he concluded
that it would be best to have an informal election, which was
held on February 23. The employees voted for the change
and the 4-day week was instituted on February 26, the Mon-
day prior to the Friday election.
As stated, the oral amendment to the complaint accuses
Respondent of having violated Section 8(a)(1) when it ‘‘so-
licited employee grievances.’’ Counsel for General Counsel,
however, made the gravamen of the allegation clear when, in
a colloquy during Hutson’s testimony, she said, ‘‘We’re say-
ing solicitation of grievances, asking employees what they
thought about their hours and then granting them that.’’ It
is the grant of benefit which is at issue here, and Respond-
ent’s reason for doing so was, as shown above, thoroughly
addressed by Respondent during its case-in-chief.15
This seems to me to be a fairly close one. While I credit
Hutson’s undenied testimony that Brannick rejected his 4-
day-week suggestion in the summer of 1989 by saying that
he did not want to come to work that early, it seems likely
that there was an element of levity in the remark. There is
nothing in evidence to either contradict or confirm
Brannick’s testimony that Respondent was considering a 3-
shift workday in the summer, when employees had spoken
to Brannick about a 4-day week, but there may have been
no documentation of that concept.
Nonetheless, it seems clear that the 4-day week certainly
became ‘‘feasible,’’ to use Brannick’s word, no later than
mid-November, when the second shift was laid off. At that
point, Brannick certainly knew that Respondent would not be
going to a 3-shift day for at least a good while; and yet
Brannick did nothing to explore further the earlier-expressed
desire of some employees to work a short week. It is true
that the concept appears in the February 6 letter from
Spectus, which purports to summarize, from their meetings
of January 22–25, the ‘‘points we discussed that were time
and money savers,’’ and those discussions could conceivably
have been the impetus for the change. We have no idea who
injected the 4-day-week into those discussions; it does not
sound like the detailed kind of other ‘‘time and money sav-
ers’’ outlined in Spectus’ letter. There is no explanation of
why Respondent waited until the Friday preceding the elec-
tion to offer the employees an opportunity to vote for a ben-
efit which it had rejected as infeasible the preceding summer
only because of the anticipated three-shift operation, which
notion clearly had passed into oblivion by mid-November.
Why, one wonders, were the employees not given this
choice, if not in November, at least soon after the January
22–25 meetings with Spectus ended, instead of a month later
and just prior to the election?
I conclude that Brannick’s decision shortly before the elec-
tion to grant the employees an opportunity which they had
previously sought looks, walks, and sounds like an 8(a)(1)
violation, and, Brannick’s proffered explanation being
unsatisfying, it is appropriate to find the General Counsel has
established the alleged violation by a ‘‘preponderance of the
testimony taken.’’ Section 10(b).
VI. THE LAYOFF OF SANDRA WOODS
On January 9, the same day that Sitzes was discharged, as
discussed hereafter, Sandra Woods, who had been employed
as a hardware assembler since August 14, was laid off. Next
to Sitzes, Woods had been the most active union supporter.
I found Woods to be a credible witness, and I accept her tes-
timony that she signed a union authorization card at the
union meeting on January 8 and passed out a number of
cards prior to work on January 9. Woods also notified per-
haps 25–30 employees on January 4 that the list to be signed
by those interested in the Union would be located on her
worktable. There is no direct evidence that Respondent was
aware of Woods’ activity, but the record as a whole shows
that some members of the work force were willing and, in-
deed, anxious to keep Respondent abreast of organizational
activities.
On January 9, when Woods was laid off by Brannick, he
told her that ‘‘production was low and . . . the day before
that the salesman had only brought in one window.’’
Brannick said she would be recalled when there was an
opening.
Brannick testified that experts from the Spectus firm had
made their first visit to the plant around the third week in
December to assess the production process and had offered
at that time a recommendation (among others) to ‘‘not have
so many people putting on hardware’’ (aside from Woods,
there were two other assemblers, Michael Meyer and Danny
Talley). In addition, Respondent had noticed a downward
trend in sales around the same time, and the decision on Jan-
uary 9 to lay off Woods ‘‘basically came to the lack of sales.
‘‘Woods was chosen for layoff because, as she conceded, she
required assistance in carrying the heavier windows after she
had done her assembly work on them, and the two men
needed no help.16
On January 12, Woods received a call from Hixon, offer-
ing her the janitorial position left open by the discharge of
Larry Neff on that day, as later discussed. She refused the
job because she believed herself incapable of hauling the
heavy pieces of trash, just as she had been unable to carry
the bigger windows when she did hardware assembling. On
March 16, after the charge was filed in this case, Woods was
recalled to work in another capacity and is presently em-
ployed by Respondent.
952 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
17 Woods confirmed that, in December, Brannick had told her Spectus was
‘‘trying to find ways to cut back on people.’’
18 It is very difficult, moreover, to understand why Ahrends, a part-owner
of Respondent, was so reluctant to purchase windows from his own company.
19 Sales in the 5 days between December 18–22 had been 350 windows.
20 The evidence on the point is that when Respondent laid off the second
shift, no second-shift employees with greater seniority bumped those first-shift
employees with less seniority. However, I am not sure that total elimination
of an entire shift of mostly short-term employees is dispositive of what Re-
spondent might do with regard to seniority on a single shift.
21 While Respondent had Brannick testify that four other laid-off employees
were recalled in March to fill vacancies, there is no such testimony as to
Woods.
Respondent’s explanation for its decision to lay off Woods
on January 9, the very day that Sitzes was fired, does not
hold up very firmly under examination. Although Brannick
testified that Spectus had advised him as early as the third
week in December that he had too many hardware assem-
blers,17 he chose to ignore the advice until Tuesday, January
9, when, in the middle of the week and the middle of the
pay period, and the day after the first union meeting, he
abruptly laid off the activist Woods.
Asked to explain the delay, Brannick testified that ‘‘we
really believed’’ that the major accounts from ASI, the com-
pany owned by Respondent’s co-owner Dick Ahrends, who
had been promising such accounts to Respondent for months,
would be ‘‘coming on the first of January,’’ and he would
have needed the whole work force to service those accounts;
he found out, however,’’during the first week in January,’’
that Ahrends was not coming on, and so he waited until
Tuesday of the second week to lay off Woods.
There are several problems here. One is that no one from
ASI was called to corroborate Brannick.18 A second dif-
ficulty is that Brannick earlier testified that the second shift
was created by Respondent in August 1989 specifically to
service the anticipated ASI accounts so that Respondent
‘‘could produce a high quality window’’ for Ahrends in Oc-
tober, the month he was supposed to start purchasing.
Ahrends, however, ‘‘decided not to come on at that time,’’
and when he had not done so by November 9, the second
shift was dismantled.
Having gone to the trouble in August of establishing and
training a second shift for the volume of business expected
from Ahrends, it is hard to believe that Respondent would
have disbanded that shift in November unless its co-owner
had made it indubitably clear that he would not be buying
his windows from Respondent in the near future. In the ab-
sence of supporting evidence from ASI, I am very much in-
clined to doubt, then, that it was not until January that
Ahrends unmistakably declared that ASI ‘‘wasn’t going to
come on.’’
Thus, it appears that even though Respondent knew as
early as November that it could not expect ASI’s production,
it did nothing to follow up on Spectus’ alleged (but also
uncorroborated) advice in or about the third week in Decem-
ber to pare down the number of hardware assemblers. But,
as noted above, Brannick elsewhere attributed the layoff not
to ASI’s putative decision in early January, but to a ‘‘lack
of sales,’’ which ‘‘trend’’ Respondent had first noticed also
around the third week in December. Respondent Exhibit 4,
a summary of sales, production, and backlog from com-
mencement of operations on May 9 through March 30, does
show a decline in sales for the last 5 workdays in December
(71 windows total), which, given that these days spanned the
yearend holidays, might not be unexpected. However, for the
5 workdays between January 2 (the first working day after
the Christmas shutdown) and January 8, Respondent sold 459
windows.19 Thus, the ‘‘trend’’ immediately preceding
Woods’ layoff was clearly on the rise.
Although I believe that, on the foregoing analysis, General
Counsel has made a potent case for concluding that a ‘‘moti-
vating factor’’ in the decision to lay off Woods was her
union activity, NLRB v. Transportation Management Corp.,
462 U.S. 393, 401 (1983), some factors at least superficially
cut in Respondent’s favor. It is argued by Respondent that
the offer to Woods of the janitorial job on January 12 ne-
gates any suggestion of union animus in her original layoff.
That argument carries a certain amount of force, but it also
seems a reasonable inference that Woods forseeably would
not accept such a position.
It may also be noted that Respondent had recently, prob-
ably after January 2, hired a new employee (George Francis)
into a position (weather stripper) which is the job Woods
was eventually returned to in March. While there is evidence
that Respondent did not follow a seniority system, there is
also no evidence that it had formally adopted any policy de-
nouncing deference to seniority in laying off.20 At the time
of her layoff, Woods was senior to more than 15 employees,
including Francis.
The recall of Woods in March came, as noted, some 3
weeks after the charge was filed naming her as an alleged
discriminatee. Woods testified that she was ‘‘recalled’’ on
March 16; since that was a Friday, it seems unlikely that she
actually began work that day, although she might have. It is
of more than passing interest to note that the backlog on
March 16 was 1475 windows, only two more than the 1473
shown for her layoff day of January 9.21
I conclude, in view of Woods’ active union support and
the likelihood that Respondent was aware of it, fortified by
the timing of the layoff to coincide with Sitzes’ discharge
and with Woods’ most vigorous union activity (including
placement of the signup list on her table); the serious weak-
nesses in Respondent’s explanation of why Woods was cho-
sen and when, weaknesses and inconsistencies which no ASI
official was brought in to corroborate or clarify; and on the
basis of the entire foregoing discussion, that General Counsel
has successfully established that Woods’ union activities
were a—indeed, the—motivating factor in her January 9 lay-
off. If I had to reach the point (but see Limestone Apparel
Corp., 255 NLRB 722 (1981)), I would conclude that Re-
spondent has failed to demonstrate that, even in the absence
of Woods’ protected activity, she would have been laid off
on January 9. Wright Line, 251 NLRB 1083, 1089 (1980).
I therefore find that the layoff was violative of Section
8(a)(3) and (1) of the Act.
VII. THE DISCIPLINE AND DISCHARGE OF LARRY NEFF
Larry Neff was Respondent’s janitor from August 21 until
he was discharged on January 12. The complaint alleges that
a written warning and a 3-day suspension imposed upon Neff
on January 8, and his discharge on January 12, violated Sec-
tion 8(a)(3).
953PRECISION WINDOW MFG.
22 Neff testified that he did not push any trash directly under McCann’s sta-
tion, but (apparently) just piled up, near McCann’s table, some dirt which he
had swept up from both ends of the aisle. McCann was a rather uncomplex
person who did not appear to be lying. Why Neff should have harassed
McCann this way, I have no idea.
Neff’s prounion activity was less pronounced than that of
Sitzes and Woods. He signed the ‘‘Union-interest’’ sheet on
January 4 (after being told about it by Woods) and he signed
a union card on January 8, presumably at the union meeting
of that date.
According to Brannick, during the first part of his employ-
ment, Neff’s work was ‘‘excellent,’’ but it deteriorated later
in the year. Douglas Beis, an alleged discriminatee testifying
on behalf of General Counsel, agreed on cross-examination
that Neff’s work did ‘‘go downhill,’’ insofar as floors not
being swept well and trash cans being full a lot ‘‘in some
areas.’’ A second fellow employee, now the Union’s record-
ing secretary, testified, as discussed hereafter, that twice in
January, Neff swept piles of dirt under the employee’s work
station.
Neff, whose mental acuity seemed limited, identified a
‘‘verbal warning’’ which was given to him in writing on Jan-
uary 8, 1990, but which shows the ‘‘Violation Date’’ as Jan-
uary 2, the day on which Brannick say she first spoke for-
mally to Neff about his derelict performance. The sheet
reads:
The plant has been in very poor condition, as far as
cleanliness, a lot of paper, vinyl dust and cardboard on
the floor. Larry has been spoken to by his First-Shift
Supervisor, by Elmer Erutti, who has somewhat to do
with maintenance [sic]. I have also spoken to him to
keep this plant clean.
Neff signed the sheet without comment.
At some other time on January 8, Neff received a second
warning sheet, this one filled out by Hixon and pertaining to
a ‘‘Violation Date’’ of ‘‘1-5-90’’ (the block showing it to be
a ‘‘Verbal warning’’ is marked and then the marking crossed
out, and the ‘‘written’’ warning box is then cleanly marked).
Hixon wrote:
Deliberately throwing trash under a work table. His po-
sition at Precision Window is janitor.
Matthew McCann, currently the Union’s recording secretary,
testified for Respondent that on January 5, for the second
time that week, Neff ‘‘took a very large pile of dirt and just
blatantly right there in front of me put it under my table, my
station.’’ McCann reported this ‘‘wrong’’ behavior to
Hixon.22
Neff received his third warning sheet of January 8 prob-
ably late in the day. There was virtually no testimony about
this document. The sheet shows that it was signed by Hixon
and Neff, is dated January 8, and reads:
After being warned several times about cleaning the
plant properly, Larry has refused to change his work
performance, as well as his attitude toward his job.
Which leaves me no choice, but to send him on a three-
day suspension. To our disappointment, we found
places that had not been cleaned the day before. We
gave the plant an afternoon inspection and found some
of the same places still remained uncleaned.
Before we come to Neff’s discharge, let us consider these
three warning sheets (one of which, the ‘‘verbal’’ warning,
is not specified in the complaint). It does seem stunning, as
General Counsel urges, that Neff received three different
forms of discipline on the same day. This industrial triple
play, however, is not quite as suspicious when its compo-
nents are considered individually.
General Counsel argues, as to the ‘‘verbal’’ warning, that
‘‘[n]o explanation was given for the delay between the the
date of the alleged offense and the issuance of the warning.’’
This is not correct. Brannick testified that his procedure was
not to formalize a ‘‘verbal’’ warning until a ‘‘written’’ warn-
ing was imposed. Under such a procedure, Neff would re-
ceive both the verbal warning and the written warning on
January 8, even if the first had been rendered orally on Janu-
ary 2. And while Neff’s testimony on the area was quite un-
certain, in answer to a question by General Counsel as to
whether he had received any kind of discipline before he was
fired, he came out, after some groping, with ‘‘January the
2nd, 1990.’’ This would have been prior to any of the mini-
mal union activity in which Neff engaged.
The second, ‘‘written,’’ warning, given by Hixon for the
McCann incident, occurred, according to McCann, on Janu-
ary 5, a Friday. It does not seem unreasonable for Hixon to
have waited until Monday, January 8, to write up the warn-
ing.
As for the January 8 3-day suspension notice, which states
that Brannick and Hixon had surveyed the plant in the after-
noon and found it wanting, Neff was not asked at the hearing
to address himself to this claim, but again he signed the
sheet without comment.
If all three notices given on a single day had been solely
produced and vouched for by only Brannick and Hixon and
pertained only to incidents which occurred on that same day,
the case would obviously be a lot stronger, but, as discussed
above, there is evidence from both Neff and fellow employee
McCann that two of the notices related to recent earlier
events. Moreover, by the end of the day on January 8, Neff
had engaged only in a small portion of his minimal union
activity—the signing of the ‘‘interested’’ list. The union
meeting and the card signing took place after Neff had been
placed on suspension.
For the reasons set out above, I am dubious about the
claim that Neff’s union activity was shown to have played
a part in the two warnings and the suspension, and I would
dismiss these allegations. This leaves us to evaluate the ter-
mination of Neff after he returned from the 3-day suspen-
sion.
Elmer Erutti, who testified that he started talking to Neff
about his job performance ‘‘long before December,’’ said
that when Neff returned from his suspension on January 12,
he spoke with Neff about the fact that ‘‘much needed to be
done because he was gone for three days’’; this indicates that
the plant was not really cleaned during the suspension pe-
riod. Erutti showed Neff around the plant and pointed out
what needed to be done. Then Erutti and Brannick walked
through the plant to get an overview of the condition of the
facility. That afternoon, the two managers toured the plant
again and, according to Erutti, ‘‘everything looked pretty
954 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
23 Cheryl Lamkin was also laid off on January 17. While she was named
in the charge and the original complaint, the alleged illegality of her layoff
was later amended out of the complaint, for reasons undisclosed by the record.
24 General Counsel argues on brief that the backlog on the day of layoff was
1263, which is what the record shows. This figure includes an unusually large
order of 186 windows on that day. Although the record is unclear, my assump-
tion is that the layoff was decided upon prior to the orders received on January
17.
much the same.’’ It was decided that Neff should be dis-
charged, which was accomplished by the following written
statement signed by Brannick:
At 8:10 a.m., Larry Neff was spoken to by myself and
Elmer Erutti, our personnel administrater [sic], about
the poor quality of work. We viewed the plant in the
morning and also at 3:45 p.m. in the afternoon and
found the following areas still uncleaned: Bays and
Bows; Entrance area; Dock area; Trash by Double
mitre saw; Trash by extrusions; Trash by glass area.
Due to the above reasons, as of 1-12-90, Larry Neff’s
employment with Precision Window is terminated.
At the hearing, Neff agreed that Brannick and Erutti spoke
to him on the morning of January 12 about the poor quality
of his work, but he asserted that he had thereafter cleaned
all of the areas mentioned in the written statement of dis-
charge. He did not, however, take issue, in the ‘‘Employee
Comments’’ space of the discharge sheet, with those allega-
tions.
I can perceive no decisive reason for finding that Brannick
and Erutti were lying here. Neff’s claim that he generally
‘‘did a real good job of cleaning that plant clean’’ was con-
tradicted by alleged fellow discriminatee Beis. I have almost
no basis for crediting Neff regarding the kind of job he did
on January 12, or for believing that Respondent would have
made such an effort to rid itself of a minor union supporter
like Neff. The matter is not, however, absolutely clear. There
is a substantial glitch in the testimony of Brannick and Erutti
as to whether, when they toured the plant in the morning of
January 12, they made any effort to identify pieces of trash
in order to ascertain later whether Neff had moved them.
While Brannick stated, ‘‘We also marked specific cardboard
that was on the floor so that—we didn’t want to make the
mistake that Larry swept it up and then someone just threw
more dirt there,’’ Erutti denied ‘‘mark[ing] any pieces of
trash so that [they] could check when [they] went around
later on.’’ This is possibly a serious discrepancy, but it also
may be that Erutti simply forgot doing so.
It seems entirely possible that the discharge of Neff could
have been an arbitrary power display of the kind in which
employers occasionally indulge during organizing campaigns.
In my view, however, the General Counsel has narrowly
failed to establish that union activity was a motivating factor
in the discipline or discharge of Larry Neff.
VIII. THE LAYOFFS OF JANUARY 17
As amended, the complaint alleges that employees Doug
Beis, Dean Roussin, and Danny Rubel were laid off on Janu-
ary 17 because of their union activities.
A. Danny L. Rubel
General Counsel’s brief launches attacks on two fronts, ar-
guing both that the layoff of the three employees23 had no
economic justification and/or that their selection for layoff
was predicated on their activities in support of the Union.
We first consider the portion of the argument related to the
reason for the layoff in general.
Brannick testified that prior to January 17, the production
‘‘quota’’ had been 100 windows per day. On January 17,
however, because of a ‘‘lack of sales’’ which ‘‘could not
support producing 100 windows a day any longer, ‘‘Re-
spondent had to decrease production in order ‘‘to try to
maintain some backlog in the plant,’’ so it reduced the daily
quota to 75 and laid off four employees. Employee Beis tes-
tified to his knowledge that the quota was dropped ‘‘from
100 to 70.’’
Important to this explanation is Respondent’s Exhibit 4,
the sales and production summary. It shows that on January
16, the day before the layoff, Respondent had a backlog of
orders for 1163 windows,24 and on the preceding day, 1245.
The last time Respondent had shown such low backlog fig-
ures had been on July 5 (1233) and prior thereto, i.e., for al-
most the first 2 months of its operation. Its high point had
been reached on September 7, with a backlog of 2167, but
there was a gradual decline thereafter, and on December 28,
the backlog dipped into the high 1200s. After a comeback
in the following 2 weeks (hitting 1517 on January 4), the
low mark of 1163 was reached on January 16. The figures
bounced around thereafter, going as low as 1138 on January
18 and as high as 1417 on February 6, and thereafter gen-
erally staying at the 1000+ and 1100+ levels until March 6,
when the backlog rose to 1288 and continued to pick up dur-
ing the spring.
These figures tend to support an argument that a decision
to reduce the work force on January 17 would not have been
an irrational judgment. There are some grounds for sus-
picion, on two counts. One is that the daily production fig-
ures (which I am assuming, perhaps erroneously, are roughly
equivalent to the ‘‘Number Shipped’’ column of R. Exh. 4)
do not, individually or in the aggregate, amount to a figure
of 75 windows per day. After January 17, the daily figures
are wildly disparate, ranging from 0 windows shipped to
193. However, for the first 5 working days after January 17,
an average of 65.6 windows were shipped, and for the next
5 working days, an average of 83 were shipped. Assuming
that there is some correlation between numbers shipped and
produced, these figures are not out of range for an average
75-window production quota.
The second questionable feature is why, if Respondent
wished to cut production by 25 percent, it only laid off 4
employees out of a work force of at least 34 (see R. Exh.
7) instead of twice that number. This matter was not, how-
ever, inquired into at the hearing, and may be subject to
technical production explanations. The question also may be
seen to cut two ways. If Respondent was laying off because
of the union activity, it might be thought that it would get
rid of all the union supporters it possibly could, and its deci-
sion not to do so could be favorable to its defense. All told,
I cannot find that the decision to lay off on January 17 was
itself motivated by union considerations. Additional support
955PRECISION WINDOW MFG.
25 On brief, General Counsel points to the fact that on January 17, the Union
filed a petition for election, but there is no indication that Respondent was
aware of its filing on that date.
26 Rubel testified that he could perform all the jobs in the plant except for
the bays and bows area. Brannick testified that when Rubel was recalled in
March to take the job of the departing George Francis, who had replaced
Sitzes as sash welder, Rubel needed a great deal of training, and finally could
not master the work. But there is no testimony that, in January, Brannick con-
sidered Rubel incapable of performing that job.
for this conclusion will be adduced in the subsequent discus-
sion.25
With regard to the selection of the three alleged
discriminatees, perhaps the strongest case is made for em-
ployee Rubel. Rubel was the ‘‘floater,’’ the only employee
who was trained to perform nearly all of the jobs in the
plant, so that he could replace missing employees. He signed
the union-interest sheet on January 4; was at Sitzes’ house
on January 7 when they arranged with Union Representative
Mosley for the January 8 union meeting; notified several em-
ployees at work about the meeting; signed a union card at
the January 8 meeting; placed union fliers on the lunchroom
tables on January 9 (employees were present when he did
so); passed out 6–8 authorization cards in the parking lot be-
fore and after work and in the lunch room during the week
of January 9–15; and, on January 17, handed out union caps
in the parking lot. As earlier discussed, on January 11, Hixon
asked Rubel his views on the union activities and Rubel not
only expressed support but also said he had investigated the
Union and it looked ‘‘real good’’ to him, a sentiment he re-
peated to Brannick.
On January 17, the same day that Rubel passed out union
caps in the parking lot, Brannick called him in and said that
he would have to lay him off because ‘‘the company was
losing money and sales were down real low and all this.’’
Rubel reacted angrily, asking how Brannick could lay off a
man who ‘‘can do basically any job in the plant.’’ Rubel
pointed out that Respondent was retaining George Francis,
who had been hired on or about January 2 into the balancing
and then the weatherstripping department and had been as-
signed, when Sitzes was discharged, to Sitzes’ welding job,
which Francis was still learning at the time. Rubell also
made note of the fact that Respondent had just the day be-
fore hired a man, Joe Beaty, to sweep the floors (presumably
Neff had not been replaced since his January 12 discharge),
but was choosing to lay off an all-position player. Brannick
simply replied that ‘‘we don’t go by seniority, we go by
what job can be eliminated,’’ and ‘‘a floater can be elimi-
nated.’’ Rubel was recalled on March 1, when George
Francis terminated his employment.
Brannick testified that there were two reasons for selecting
Rubel for layoff. The first was that, since the quota was
being reduced to 75 windows a day, ‘‘[w]e just didn’t have
the work for a floater.’’ This makes little sense to me. Re-
spondent was laying off only three permanently assigned em-
ployees, leaving perhaps 36 still employed (see R. Exh. 4
and Sitzes’ probably accurate testimony at Tr. 49). The need
for a ‘‘floater’’ was only marginally diminished. Second,
said Brannick, the review by Spectus had recommended that
Rubel be let go because ‘‘a floater was a luxury.’’ Again,
no Spectus witness was called to confirm that this suggestion
had been made, and Respondent made no attempt to explain
why the asserted suggestion by Spectus, which had been
made perhaps around the third week in December, was not
implemented until January 17, the day that Rubel passed out
union caps in the parking lot (which, Rubel thought, was not
seen by management).
Rubel was one of Respondent’s first employees hired on
May 1. When the second shift was instituted in August, he
was assigned as the supervisor of the approximately 20 sec-
ond-shift employees and apparently received a $1-per-hour
raise. When the second shift was terminated in November,
Rubel was one of the four employees who were transferred
back to the first shift; Brannick told him that he did ‘‘good
work, and since I had been on first shift before, and had
taken second shift as a supervisor, that he would take me
back to the first shift.’’
Thus, Rubel appears to have been, and had been treated
as, a desirable employee in the past. But in January, he not
only engaged openly and vigorously in union activities, but
he expressed his support for the Union directly to Brannick
and Hixon on January 11. Considering Brannick’s declaration
of a dedicated determination to stay unorganized, by perhaps
moving to Oklahoma or reducing wages and benefits, Rubel
would have seemed the enemy incarnate from that moment
on.
I find it inconceivable that Brannick was simply exercising
business judgment when he chose Rubel as one of the four
employees to be laid off on January 17. Rubel’s special skill
was an obviously vital one—to be able to substitute for near-
ly every classification in the plant26—and it is simply be-
yond belief that Brannick thought that it made good business
sense to let this ex-supervisor go while retaining even a
welder-in-training who had been hired only 2 weeks pre-
viously and, as well, a brand-new, 1-day employee who was
hired as a janitor, a job which Rubel clearly indicated he was
willing to take. While Respondent stresses in the record and
on brief that it does not follow seniority or afford bumping
rights, that is to some extent controverted by Rubel’s
uncontradicted testimony that Brannick, in moving him back
to the first shift, said that he was doing so because Rubel
‘‘did good work’’ and ‘‘had been on first shift before.’’ The
refusal to prefer the proven Rubel over two new employees
in training also squarely collides, from a practical business
standpoint, with Respondent’s explanation of its other layoff
choices: that they were not as valuable as other employees
in their categories.
I believe, therefore, that General Counsel has carried its
Wright Line burden as to the allegation relating to Danny L.
Rubel. His selection for layoff was clearly due to his ex-
pressed and demonstrated preference for union representa-
tion, and he would not in any other circumstances have been
laid off.
B. Douglas Beis
Douglas Beis played a less active role in the union effort
than Rubel. He signed the sheet on January 4, signed a union
card on January 8, and on January 9 handed a card to the
employee who worked next to him. Beis did not don a union
cap on January 17, although more than one-half of the em-
ployees did.
Beis was a quality control inspector, along with Carl
Cockman, who was hired one day later than Beis. Brannick
explained at the hearing that, with the lower quota, two full-
time quality control people were not needed, and he felt that
956 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
27 Cockman had been in quality control since he was hired; Beis was not
‘‘promoted’’ to that position until about August 1.
28 Beis also testified that when he was recalled to work on March 5 to cut
frames on the saw for $2 an hour less than he had received, he saw Alvey
‘‘over there every day helping to QC windows.’’ There was no testimony as
to the amount of time Alvey spent on this function immediately after January
17 and before March 5, nor was Beis asked to specify how much time Alvey
spent doing this job each day after March 5.
29 Brannick testified that there was not enough work to keep both glaziers
busy, and he thought Elswick was ‘‘quicker and caused less breakage.’’
30 Brannick testified that the first two dates were errors, and should have
been January 5 and 3, respectively.
31 It is not clear from Brannick’s testimony whether he also personally
spoke to Lampston about these matters.
‘‘Carl could do a better job, had more experience in the in-
dustry and had been a quality control man longer27 and just
felt that his expertise in the windows would produce a higher
quality window.’’ The record shows that at the time of the
hearing, Cockman was still the sole quality control inspector,
although Cockman is ‘‘helped’’ when time permits by
Wayne Alvey, whose ‘‘first job’’ is coordinating the remak-
ing of broken windows. Beis testified that Cockman had
prior experience in the window industry and stated that if he
were forced to decide between himself and Cockman, he
would ‘‘keep Carl.’’28
Having concluded that General Counsel has not suffi-
ciently established that the January 17 layoff was contrived
to defeat the Union, I am unable alternately to conclude, on
this record, that the selection of Beis was an irrational (and
therefore suspicious) exercise of managerial judgment. Beis’
prounion activities were minimal and undoubtedly were no
greater than that of many other employees. Brannick’s expla-
nation holds water; Beis himself agreed with Brannick’s
choice; and the evidence regarding Alvey’s role in quality
control lacks important detail. On this proof, I would not find
that a prima facie case has been made out.
C. Dean Roussin
Dean Roussin signed the sheet on January 4 at the request
of Sandra Woods, signed a union card on January 8, attended
union meetings, and ‘‘talked about the Union with other em-
ployees.’’ He had been hired on August 10 and, at the time
of his layoff, was one of two glaziers, the other being Roger
Elswick, who was hired 18 days after Roussin.
Roussin testified that Brannick told him on January 17 that
work was slack and that he thought Elswick was a better
worker than Roussin, which Roussin denied.29 Brannick told
him that he might be recalled in March or April. Roussin
was reinstated on March 12; the record does not disclose the
job to which he was recalled. He testified that even after he
returned to work in March, Elswick continued to be the sole
glazier, although someone helped him ‘‘occasionally.’’
Elswick was himself perhaps a more notable union activist
than Roussin. He not only signed the sheet and a card at the
January 8 meeting, but he also wore a union hat on January
17. If Brannick was shooting at union targets among the gla-
ziers, he apparently hit the wrong one.
The reasoning given with respect to Beis applies even
more strongly here. I would dismiss the allegation relating to
Roussin.
VIII. THE DISCIPLINE AND DISCHARGE OF STEVE SITZES
As noted, on January 4, Sitzes arranged for the preparation
of a list of employees interested in the Union. On January
5, Brannick gave Sitzes two ‘‘warning sheets,’’ the first of
which, marked as a ‘‘verbal’’ warning, dated with ‘‘Today’s
Date’’ as ‘‘1–4–90,’’ ‘‘Violation Date’’ as ‘‘1–2–90,’’ and
Brannick’s signature as appended on ‘‘1–5–90,’’30 charged
Sitzes with ‘‘annoying fellow co-workers.’’ Sitzes wrote, ‘‘I
did not do these things. I refuse to sign.’’ According to
Sitzes’ undenied testimony, Brannick declined to identify the
‘‘couple of’’ coworkers or to show Sitzes ‘‘the papers they
had signed.’’
The second warning sheet is marked as a ‘‘written’’ warn-
ing, bears ‘‘Today’s Date’’ as ‘‘1–5–90,’’ a ‘‘Violation
date’’ of ‘‘1–4–90,’’ and a signature date for Brannick of 1–
5–90. This sheet reads:
This written warning is being issued because of re-
peated reports that you have been annoying and upset-
ting other employees while they are trying to con-
centrate on their job and while you are supposed to be
producing and concentrating on your job. If you repeat
this conduct, you will be given a three-day suspension.
You are, of course, free to communicate with the other
employees during nonproduction time.
Sitzes again refused to sign, writing that he ‘‘did not do
these things.’’
As with Brannick’s and Hixon’s contradictory testimony,
as discussed above, with reference to the nature of Sitzes’
behavior on January 2 (or 3), as reported by Hixon to
Brannick, the remaining evidence of record on this score is
somewhat confusing. General Counsel introduced a document
(received in response to a subpoena) which purports to be
signed by employee Barbara Lampston, under a 5-paragraph
typed heading assuring Lampston in five different ways that
her statement ‘‘concerning reported complaints about annoy-
ances during production time at Precision’’ was being volun-
tarily given. Lampston’s handwritten statement reads:
Steve Sitzes is constantly annoying me during produc-
tion time so I ask [sic] for a position change, which I
did receive. 1–5–90.
Brannick amplified on this by saying that Lampston had
come to Elmer Erutti on January 4 and stated that she ‘‘was
being annoyed by the handbook [sic], that Steve was upset,
kept annoying her and complaining to her about the lack of
a raise, lack of a Christmas bonus.’’31
Erutti testified that he received two visits on this subject,
the first from a ‘‘crying’’ Barbara Haywood, who told him
that Sitzes was ‘‘aggravating and annoying’’ her while she
was ‘‘trying to do her job.’’ He immediately reported this to
Brannick. Although Erutti was unsure about when this inci-
dent occurred, he testified that ‘‘within a week’s time,’’ per-
haps in the first week of January, Lampston and Haywood
came together to see him. They said at length that they were
‘‘tired of being aggravated’’ by Sitzes and his ‘‘nagging’’
and ‘‘complaining.’’ This was also assertedly reported imme-
diately to Brannick by Erutti. Brannick contradicted Erutti on
this point, however, saying that Lampston had come to Erutti
on January 4 and the latter had relayed the complaint to
Brannick on January 5.
957PRECISION WINDOW MFG.
32 As can be seen from the quotations above, General Counsel is half-wrong
on brief in stating that the two employee complaints ‘‘alleged Sitzes ‘annoyed’
them on January 5, not January 3 or 4 as the warnings state.’’
33 I note that the two Barbaras had been on the second shift and were
among the few employees who had been selected to transfer to the first shift
when the second was eliminated in November.
34 The ‘‘small plant’’ doctrine would also seem to apply ideally here. Wiese
Plow Welding Co., 123 NLRB 616, 618 (1959).
35 I need not consider the effect, if any, of Cato’s statement to Brannick on
the morning of January 5 that Sitzes had been bothering him ‘‘about a union,’’
other than to point out that this testimony from Brannick is direct evidence
that Brannick knew that Sitzes was actively engaged in union support.
36 Brannick confirmed Hixon’s testimony in this respect.
37 Sitzes testified that Hixon did not mention the subject to him on Monday.
A second document, headed by an identical 5 paragraphs
of assurance of voluntariness, was also introduced by Gen-
eral Counsel. It is purportedly signed by Raymond (Butch)
Cato on January 5, and it states, in handwriting, ‘‘Steve
Sitzes was harasing [sic] me on the job on Jan. 5, 90. I re-
ported it to my supervisor as soon as possible.’’32
Aspects of this evidence are worthy of comment. The first
is that Respondent produced neither Barbara Haywood nor
Barbara Lampston nor Raymond Cato to testify about their
problems with Sitzes, and offered no explanation for their
absence.33 This apparent unwillingness to subject them to ex-
amination raises a serious question as to the reason for their
absence.
Second, the first warning seems to correspond to the date
that Hixon, not Erutti, had carried the word that Lampston
and Haywood and another person had complained to him
about Sitzes. I do not believe Brannick’s testimony that the
first warning bore an erroneous ‘‘Violation Date’’ of January
2; there is no testimony that anything occurred or was re-
ported to Brannick on that date other than Brannick’s testi-
mony that Sitzes ‘‘virtually stopped production’’ before the
employee meeting on that date. I think the use of the viola-
tion date of January 2 on the warning confirms Sitzes’ testi-
mony that the employee meeting occurred on that day.
Third, the extremely careful typed professions of voluntari-
ness preceding Lampston’s and Cato’s statements were, I
think, most probably prepared by an attorney. There is no
reason to believe that such legal precautions would have
been thought important unless Brannick understood, as of
January 5, the day after the ‘‘Union-interest’’ list was signed,
that Respondent was involved in a union organizational con-
text. Sitzes, as noted, had been the prime mover in the prepa-
ration of the list, and the record makes very clear that in this
shop, antiunion employees were quite enthusiastic about noti-
fying Brannick as to what was going on.34
Fourth, Brannick testified that when Cato had complained
to him on the morning of January 5, he said that Sitzes had
been annoying him ‘‘about a union.’’
The state of the evidence does not make it easy to align
the two January 5 warnings and the facts on which they were
based. As far as I can tell, the ‘‘verbal warning’’ was ad-
dressed to Sitzes’ alleged behavior on January 2 when, ac-
cording to Hixon, Sitzes complained to a few other employ-
ees about the handbook changes and the lack of a wage in-
crease. As earlier noted, this clearly protected activity, in the
absence of a specific and legitimate rule prohibiting talking
during worktime, can be lawfully punished only if ‘‘the em-
ployer can establish that the solicitation interfered with the
employees’ own work or that of other employees,’’ Daylin
Inc., supra. Respondent has unquestionably failed to make
such a showing here.
The second, ‘‘written,’’ warning may be based upon what
Brannick reported as the visit paid to Erutti on January 4 by
Lampston. Again, in the absence of evidence that the as-
serted ‘‘annoying’’ and ‘‘complaining’’ by Sitzes about the
‘‘lack of a raise, lack of a Christmas bonus’’ resulted in in-
terference with Lampston’s work rather than mere ‘‘annoy-
ance,’’ Davlin requires that the warning be rescinded. By
issuing such warnings, Respondent violated Section 8(a)(1).35
The circumstances surrounding the discharge of Sitzes are
also in dispute. Because broken machinery caused a plant
shutdown at midday on Thursday, January 4, Hixon asked
for volunteers to work on Saturday. Sitzes says that when he
was approached by Hixon, he told him that he would prefer
to respond to the request on Friday, but when Hixon insisted
on knowing instanter, Sitzes said that he would not work.
Sitzes further testified that the next day, Friday, having just
received two warnings, he tried to stay in Hixon’s good
graces by telling him that he had spoken to his wife, ‘‘and
she’s having a birthday party for me on the 6th, but my
birthday is not ’til the 24th.’’ With that, Sitzes pulled out his
driver’s license to prove the latter statement, and Hixon
looked at it and said ‘‘Fine.’’ Hixon also said that, in any
event, the absence of four other employees made it unneces-
sary for Sitzes to be there.
Hixon testified differently. He said that on Thursday,
Sitzes became angry at Hixon’s insistence on an immediate
answer and complained to Brannick, who said Sitzes could
give his answer the next morning.36 On Friday, Sitzes alleg-
edly told Hixon that he had conferred with his wife and
‘‘Saturday is my birthday and she told me that everybody
was getting together for a surprise birthday party,’’ so that
he would be unable to work that day. Hixon said ‘‘Fine.’’
Somewhat reluctantly, Hixon testified that Sitzes did not
show him his wallet.
On Saturday morning, as Hixon sat in the office with ship-
ping supervisor William (Joe) Brandon, he checked the files
and discovered that Saturday was not Sitzes’ birthday. When
asked why he did so, Hixon replied, ‘‘No reason. I just felt
real uneasy about it and . . . I just looked.’’ On Monday,
Hixon says, he asked Sitzes ‘‘how his birthday went,’’ and
Sitzes replied that ‘‘it was a birthday party and not a birth-
day,’’ to which Hixon made no reply.37 Hixon was asked
whether Sitzes displayed his driver’s license during that con-
versation, and he denied it.
Hixon says he notified Brannick that ‘‘Steve told me it
was his birthday [and] that I found out it wasn’t his birthday
[and] that he was lying to me.’’ They decided to discharge
Sitzes; on Tuesday, Sitzes was called in and given, on a
warning sheet form, the following message, which, in my
view, is so defensive as to practically constitute a legal brief:
On the morning of January 5, 1990, Steve Sitzes bla-
tantly lied to his supervisor, telling him that it was his
birthday on January 6, 1990, thus stating the reason
why he could not work. On January 8, 1990, Steve
Sitzes, upon coming into work, told his supervisor that
it was not his birthday and that he had a surprise party
for himself on January 6, 1990. Precision Window
views lying very seriously, as most companies do, and
as our application states, if any information is falsified,
958 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
38 Sitzes’ hopelessly shifting testimony about whether or not he passed out
cards prior to his dismissal is sufficient to undermine his credibility. Other in-
stances of both internal and external inconsistency by Brannick and Hixon,
some of them mentioned in this decision, similarly taint their testimony.
39 Why this gathering should have prevented Sitzes from working on Satur-
day is a question that the parties did not get into. Presumably, the ‘‘party,’’
if there was one, was not an afternoon picnic in St. Louis in January, but rath-
er a nocturnal function.
40 When Brannick was first asked on direct if he had ‘‘any idea’’ that Sitzes
was involved in union activity at the time of discharge, he said ‘‘No.’’ But
when he was reminded of this testimony about Cato on cross, he said he had
no ‘‘personal knowledge,’’ only ‘‘hearsay.’’
41 On this point, Brannick contradicted Hixon. Brannick said that Hixon had
reported to him on Monday that, on Saturday, Joe Brandon ‘‘mentioned to
Rick to check on Steve’s record to see if it was his birthday, in fact.’’ Hixon
denied that Brandon had ‘‘suggest[ed] it.’’
42 R. Exh. 7 shows that only 24 employees worked on Saturday. There was
no denial of Sitzes’ testimony that Hixon told him that he was not, in the end,
needed because other employees whose work meshed with his were not com-
ing in. Brannick agreed that there was no loss of employee time resulting from
Sitzes’ failure to volunteer.
43 The fact that Respondent called the police when Sitzes reappeared at the
plant is, in my judgment, some corroboration of the testimony that Sitzes had
uttered the threat.
we have grounds for dismissal. We view lying to one’s
supervisor in the same frame. As of January 9, 1990,
we are terminating Steve Sitzes’ employment with Pre-
cision Window, for lying.
The first issue presented is whether Brannick believed that
Sitzes lied to Hixon by telling him that Saturday was his
birthday. I cannot rely upon my impression of the pertinent
witnesses; Sitzes, Brannick, and Hixon all gave testimony
which made them demonstrably unreliable.38
Reading Sitzes’ testimony alone would almost certainly
lead the reader to believe that Sitzes was not telling the truth.
Assuming that he said to Hixon on Friday that he was having
a birthday party on January 6, but that his birthday was real-
ly on January 24, what would make him think he needed to
pull out his driver’s license to prove the latter fact to Hixon?
There obviously would have been no reason for Hixon to
disbelieve the statement or for Sitzes to try to prove it. But
although Hixon denied that Sitzes had showed him his li-
cense either on Friday or Monday, Brannick contradicted
Hixon’s version to some extent by testifying that Hixon told
Brannick that on Monday, Sitzes had ‘‘made a very strong
point . . . [that] it wasn’t my birthday, it was my birthday
party. And then he showed Rick his license and said, see, my
birthday is on the 24th.’’
It would probably have been just as peculiar for Sitzes to
have shown his driver’s license to Hixon on Monday as it
would have been for him to do so on Friday, but now we
have both Sitzes and Brannick (quoting Hixon) saying that,
in fact, he did so on one day or the other. While the fore-
going shows us that sometimes Sitzes may be telling the
truth, it does not help us much with the question of when.
My intuition is that Sitzes did not tell Hixon on Friday that
Saturday was his ‘‘birthday,’’ but rather that it was his
‘‘birthday party.’’39 If he had specified on Friday that Satur-
day was his ‘‘birthday,’’ doubt that he would have contradic-
torily ‘‘made a very strong point’’ (Brannick quoting Hixon)
on Monday that it had not been his ‘‘birthday,’’ but rather
his ‘‘birthday party.’’
I cannot resolve credibility with any confidence here, how-
ever, and, in reaching my conclusion that Sitzes’ discharge
was motivated by his union activities, I rely strongly on
other factors. Brannick has displayed a strong animosity to
the Union, including threats of plant closure and loss of
wages; he knew, from Cato (and probably others), that Sitzes
had been promoting the Union;40 and he was aware from
personal experience that Sitzes was a complainer, a ‘‘trou-
ble’’ maker, and a potential ‘‘cancer’’ causer.
That Respondent was looking for something to pin on
Sitzes is suggested by Hixon’s testimony that he checked
Sitzes’ birthday date on Saturday for ‘‘no reason’’ other than
that he felt ‘‘real uneasy’’ about it.41 Brannick conceded at
the hearing that he failed to follow the graduated disciplinary
procedure he had just recently established, by omitting the
third step of suspension; he was not asked to explain this
failure. Finally, the idea of discharging a ‘‘good employee’’
(Brannick’s words) like Sitzes for lying about his birthday,
in the context of a situation in which Sitzes admittedly had
every right to simply refuse to work, seems absurd.42
Thus, there is no doubt here that if Sitzes had failed to
give a reason for not working, or had simply said that he
was having a party, his absence would have been accepted
without question. To elevate his alleged lie about his birth-
day into a ground for discharge (while skipping over the
third-step suspension) may justifiably be characterized as lu-
dicrous. The absurdity of the discharge is caught in
Brannick’s quotation of Hixon’s statement to him ‘‘[H]e bla-
tantly lied to me to get out of working on a Saturday when
he didn’t have to to begin with because it was volunteer.’’
All the circumstances persuade me that Sitzes’ union and
other protected activity constituted a ‘‘motivating factor’’ in
his discharge, and that even if Sitzes did lie to Hixon about
the date of his birthday, Respondent has not shown (as is its
burden, Wright Line, supra), that discharge would have fol-
lowed even in the absence of the protected conduct.
Respondent advances two additional arguments relative to
remedial relief for Sitzes, both of which I reject. The first
is that Sitzes acted so outrageously after he was discharged
that, if a violation is found, Sitzes has forfeited his right to
any remedy.
Hixon and two other witnesses testified that Sitzes was
very upset as he left the plant after his discharge, that he
cursed Hixon, called him obscene names, challenged him to
fight, and threatened to kill him. All of this was from a dis-
tance of 25 feet or so. The killing was evidently to occur at
4:30, when the plant closed down. Sitzes admittedly did re-
appear at the plant at closing time, but when the police were
called, he left. Sitzes testified that he neither cursed nor
threatened to kill Hixon, although he did say that he would
‘‘kick [his] butt and beat [his] Mexican face in.’’ Sitzes said
that he returned to the plant to ‘‘pick up [his] riders,’’ but
left when ordered to by the police.
I believe the testimony that Sitzes did make a threat to kill
Hixon; indeed, there is not a great deal of difference between
that threat and Sitzes’ admission that he promised to ‘‘beat
[Hixon’s] Mexican face in.’’43 This is the kind of foreseeable
loss of control by discriminatees frequently encountered by
the Board in discharge situations, and the Board’s practice,
with court approval, is to disregard the expression of out-
raged resentment by an unlawfully discharged employee. An-
aconda Insulation Co., 298 NLRB 1105 (1990); Blue Jeans
Corp., 170 NLRB 1425 (1968); NLRB v. M & B Headwear
959PRECISION WINDOW MFG.
44 The directness and immediacy of the encounter is, I assume, what distin-
guishes Clear Pine Moldings, 268 NLRB 1044 (1984), a case relied on by
Respondent, from the instant kind of case.
45 Harassment that Hixon and his truck have received since the discharge
was not probatively linked to Sitzes. Respondent also argues that reinstatement
of Sitzes to work under Hixon would create a potentially unhealthy situation.
Assuming that Sitzes desires reinstatement and that Hixon is still employed
when Sitzes returns, the Board has held that ‘‘the difficult and awkward’’ situ-
ations between conflicting personalities to which reinstatement might lead is
no bar to such a remedy. Trustees of Boston University, 224 NLRB 1385
(1976), enfd. 548 F.2d 391 (lst Cir. 1977).
46 See generally Isis Plumbing Co., 138 NLRB 716 (1962).
47 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
Co., 349 F.2d 170, 174 (4th Cir. 1965) (‘‘The more extreme
an employer’s provocation the greater would be the employ-
ee’s justified sense of indignation and the more likely its ex-
cessive expression’’).44
The fact, however, that Sitzes did return to the plant at
quitting time can be argued to make the earlier threat more
real and intimidating. Sitzes testified that he ‘‘had to pick up
[his] riders.’’ There is no evidence in the record to contradict
the claim that Sitzes had a carpool to which he owed an obli-
gation, and the assertion is certainly not inherently unbeliev-
able. But, whether or not his return to the plant evinced an
intention to carry out his threat against Hixon, the fact is that
he left without taking revenge (albeit under the watchful eye
of the police) and has not since been shown to have made
any attempt to harm Hixon.45
Finally, Respondent contends that Sitzes forfeited any right
to reinstatement when he ‘‘willfully and deliberately perjured
himself on the stand.’’ I agree that Sitzes was initially dis-
honest about his predischarge activity in handing out author-
ization cards, although in the end, he was hammered into
telling the truth.
The Board has recently recognized that there may be cases
in which a discriminatee’s false statements ‘‘amount to a ma-
licious abuse of process’’ requiring forfeiture of remedies.
Owens Illinois, Inc., 290 NLRB 1193 (1988), quoting Service
Garage, 256 NLRB 931 (1981). The general rule does not,
however, apply here. In Owens Illinois, the administrative
law judge found that the discriminatee lied in five instances,
but he ‘‘credited the major portion of her testimony,’’ and
the remedy was not withheld. In the instant cases, Sitzes’ fal-
sification of one aspect of his union activity was eventually
recanted, and did not amount to a ‘‘malicious abuse of the
Board’s processes.’’
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Charging Party is a labor organization within the
meaning of Section 2(5) of the Act.
3. By, on November 20 and December 22, 1989, threat-
ening employees with possible plant relocation if a union
was selected; by, on November 20, 1989, and January 8, 11,
and 12, 1990, threatening employees with loss of wages and
benefits if a union was selected; by, on January 2, 1990, ad-
vising employees with respect to lawful complaints about
terms of employment, not to cause trouble and to resign if
they were unhappy; by, on January 8, 1990, creating the im-
pression of surveillance of employee union activities; by, on
January 11, 1990, interrogating an employee concerning his
sentiments regarding union activities; and by, on February
17, 1990, granting a benefit to employees by allowing them
the option of changing their work schedule, Respondent vio-
lated Section 8(a)(1) of the Act.
4. By, on January 9, 1990, laying off Sandra Woods; by,
on January 5, 1990, issuing warnings to Steve Sitzes, and,
on January 9, 1990, discharging him; and by, on January 17,
1990, laying off Danny L. Rubel, Respondent violated Sec-
tion 8(a)(3) and (1) of the Act.
5. The foregoing unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
6. Other than as found above, Respondent has not com-
mitted unfair labor practices as alleged in the complaint, as
amended, in Case 14–CA–20527.
THE REMEDY
The traditional remedies of a cease-and-desist order and
posting of notices are appropriate here. In addition, having
found that Respondent unlawfully discharged Steve Sitzes on
January 9, 1990, and unlawfully laid off Sandra Woods on
January 9 and Danny L. Rubel on January 17, 1990, I shall
recommend that it be ordered to offer them immediate and
full reinstatement, without prejudice to their seniority and
other rights and privileges, and make them whole for any
loss of earnings they may have suffered from the dates of
their discharge and layoffs to the date of Respondent’s offers
of reinstatement, with interest, in accordance with F. W.
Woolworth Co., 90 NLRB 289 (1950), and New Horizons for
the Retarded, 283 NLRB 1173 (1987).46 Although the record
suggests that some of the discriminatees may have been fully
reinstated in March, this remedy shall preserve that issue, if
necessary, for the compliance stage of this proceeding.
I shall also recommend removal and recission from Re-
spondent’s files of the warning notices found unlawful here
and of all documentation relating to the discharge and the
layoffs.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended47
ORDER
The Respondent, Precision Window Manufacturing, Inc.,
St. Louis, Missouri, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Discharging, laying off, or otherwise discriminating
against employees because of any activities on behalf of the
Aluminum, Brick & Glass Workers International Union,
AFL–CIO, CLC (the Union), or any other labor organization.
(b) Threatening employees, for assisting or selecting the
Union or any other labor organization, with plant relocation
or loss of wages and benefits; granting benefits to employees
to induce them to refuse to support the Union or any other
labor organization; coercively interrogating employees; giv-
ing employees the impression that their protected activities
are under surveillance; and advising employees, with respect
to lawful complaints about terms of employment, not to
cause trouble and to resign if they are unhappy.
960 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
48 If this Order is enforced by a judgment of a United States court of ap-
peals, 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.’’
(c) In any other manner, interfering with, restraining, or
coercing its employees in the exercise of their rights to self-
organization, to form, join, or assist any labor organization,
to bargain collectively through representatives of their own
choosing, to engage in concerted activities for the purposes
of collective bargaining or other mutual aid, or to refrain
from any and all such activities.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) If it has not done so, offer to Steve Sitzes, Sandra
Woods, and Danny L. Rubel immediate and full reinstate-
ment to their former jobs, or, if those jobs no longer exist,
to substantially equivalent positions, without prejudice to
their seniority or other rights and privileges, and make them
whole in the manner set forth in the section of this remedy
section of this decision.
(b) Remove from its files the warning notices found herein
to be unlawful and any references to the discharge of Steve
Sitzes and the layoffs of Sandra Woods and Danny L. Rubel,
and notify them in writing that this has been done and that
their discharge and layoffs and warning notices will not 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 payroll records, timecards, personnel
records and reports, and all other records necessary, or ap-
propriate, to analyze the amount of backpay due.
(d) Post at its place of business in St. Louis, Missouri,
copies of the attached notice marked ‘‘Appendix.’’48 Copies
of the notice, on forms provided by the Regional Director for
Region 14, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately 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 notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS ALSO FURTHER ORDERED that those portions of the
complaint found to be without merit are hereby dismissed.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all sides had a chance to give evi-
dence, the National Labor Relations Board has found that we
violated the National Labor Relations Act and has ordered us
to post 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, lay off, or otherwise discriminate
against any employees to discourage membership in Alu-
minum, Brick & Glass Workers International Union, AFL–
CIO, CLC (the Union), or any other labor organization.
WE WILL NOT threaten employees with loss of wages or
benefits or with plant relocation; grant benefits to employees
in order to affect their support for the Union or any other
labor organization; coercively interrogate employees; give
employees the impression that their protected activities are
under surveillance; or advise employees, with respect to law-
ful complaints about terms of employment, not to cause trou-
ble or resign if they are unhappy.
WE WILL NOT in any other manner interfere with, restrain,
or coerce our employees in the exercise of their rights to
self-organization, to form, join, or assist any labor organiza-
tion, to bargain collectively through representatives of their
own choosing, to engage in concerted activities for the pur-
poses of collective bargaining or other mutual aid, or to re-
frain from any and all such activities.
WE WILL offer, if we have not done so, Steve Sitzes, San-
dra Woods, and Danny L. Rubel their former jobs and WE
WILL compensate them with interest for any loss of pay they
may have suffered as a result of their adverse personnel ac-
tions.
PRECISION WINDOW MANUFACTURING, INC.