Webco Industries

National Labor Relations Board - Board Decisions

Jul 19, 2001

334 N.L.R.B. 608 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 608
Webco Industries and United Steelworkers of Amer-
ica. Case 17–CA–19898
July 19, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
TRUESDALE AND WALSH
On September 17, 1999, Administrative Law Judge
Michael D. Stevenson issued the attached decision. The
Respondent filed exceptions and a supporting brief, and
the General Counsel filed a brief in support of the
judge’s decision.
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 briefs1 and has decided to
affirm the judge’s rulings, findings,2 and conclusions as
modified and to adopt the recommended Order as modi-
fied and set forth in full below.
1. The judge found that the Respondent violated Sec-
tion 8(a)(3) and (1) of the Act by laying off or terminat-
ing a number of employees because of their support of
the Union. We agree with the judge’s findings except
with regard to Charley Casey.3 Contrary to the judge, we
find that the General Counsel failed to establish that Ca-
sey’s union activities were a motivating factor in the Re-
spondent’s decision to lay him off.

1 The Respondent has requested oral argument. The request is de-
nied as the record, exceptions, and briefs adequately present the issues
and the positions of the parties.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
In affirming the judge’s finding that Supervisor Jene Harmon unlaw-
fully interrogated Gary Schooley concerning his union views, we dis-
avow the judge’s suggestion that interrogations of open union support-
ers are necessarily coercive. Contrary to the judge, neither the majority
opinion nor Member Brame’s concurrence in Randell Warehouse of
Arizona, 328 NLRB 1034 (1999), remanded 252 F.3d 445 (D.C. Cir.
2001), supports that proposition. We find, under all the circumstances
of this case set forth by the judge, and especially the Respondent’s
previous unfair labor practices, that Harmon’s interrogation of Schoo-
ley was coercive.
3 In finding the 8(a)(3) violations, the judge stated that, under
Wright Line, 251 NLRB 1083 (1980), approved in NLRB v. Transpor-
tation Management Corp., 462 U.S. 393 (1983), the General Counsel
has the initial burden of establishing a prima facie case sufficient to
support an inference that the employees’ protected activities were a
motivating factor in the Respondent’s decisions to lay them off or ter-
minate them. Although it has sometimes phrased the General Coun-
sel’s burden in terms of establishing a prima facie case, the Board has
made clear that, under Wright Line, the General Counsel must establish
that the employees’ protected conduct was, in fact, a motivating factor
in the Respondent’s decision. See, e.g., Manno Electric, 321 NLRB
278, 280 fn. 12 (1996). We find, however, that the General Counsel
clearly carried that burden in this case.
As the judge found, there is no direct evidence that the
Respondent knew that Casey supported the Union. Ca-
sey’s only union activities consisted of signing a union
card and attending one union meeting, and there is no
showing that the Respondent was aware of either.
The judge, however, inferred from other circumstances
that the Respondent laid Casey off because of his support
of the Union. Thus, the judge noted that in 1996, Ca-
sey’s supervisor attempted to have him terminated for
inadequate job performance, which was apparently due
in part to Casey’s difficulties in reading. Bill Weber, the
Respondent’s founder and CEO, intervened on Casey’s
behalf and prevented his termination, on the condition
that he upgrade his reading and writing skills by working
with a private tutor paid for by the Respondent. Casey
dropped out of the program after 2 months without
achieving its objective, but nonetheless continued to
work, with Weber’s permission, until he was laid off as
part of a reduction in force for economic reasons in Oc-
tober 1998. The judge found that “animosity toward the
Union trumped any personal relationship” between Ca-
sey and Weber. He reasoned that Weber condoned Ca-
sey’s failure to improve his skills and therefore could not
later rely on that failure as an excuse to discharge him.
The judge’s reasoning cannot withstand scrutiny. As
the judge conceded, there is no direct evidence that the

The judge also stated that, if the General Counsel carries his initial
burden, the burden shifts to the Respondent to demonstrate that it
would have taken the same actions against the employees even in the
absence of their protected activities and that, if the Respondent goes
forward with such evidence, the General Counsel is required to rebut
that evidence by demonstrating that the discrimination would not have
taken place except for the employees’ protected activities. That state-
ment is incorrect. Wright Line clearly states that, if the General Coun-
sel carries his initial burden, the burden shifts to the Respondent to
demonstrate that it would have taken the same actions even absent the
employees’ protected activities; it is not the General Counsel’s burden
to prove the opposite. 251 NLRB at 1089. The Respondent’s burden
thus is that of establishing an affirmative defense, for which it has the
burden of persuasion. Id. at 1088 fn. 11; Manno Electric, 321 NLRB at
280 fn. 12. This allocation of burdens was explicitly approved by the
Supreme Court in NLRB v. Transportation Management Corp., supra at
400–403; see also Director, Office of Workers’ Compensation Pro-
grams v. Greenwich Collieries, 512 U.S. 267, 278 (1994).
Although the judge misstated the parties’ respective burdens, he
found that the Respondent had failed to rebut the General Counsel’s
case. Thus, the judge correctly required the Respondent to prove that it
would have taken the actions it did regardless of the employees’ union
activities, and he found that it had failed to do so. We agree.
In affirming the judge’s findings, we note that Charlie Williams and
Shawn Wilson were among the employees identified as union support-
ers in management meetings in which employees were selected for
layoff.
334 NLRB No. 77
WEBCO INDUSTRIES 609
Respondent was aware of Casey’s support of the Union.
And we do not think such awareness may be inferred
simply from the fact that the Respondent laid Casey off
in 1998 after failing to terminate him in 1996. The judge
accepted the Respondent’s representation that the 1998
layoff was caused by adverse economic developments
that required the Respondent to reduce its work force by
more than 50 employees, or some 20 percent.4 In such
circumstances, it is understandable that the Respondent
would seek to terminate employees whom it considered
to be marginal performers. Thus, it is entirely plausible
that the Respondent selected Casey for layoff for lawful
reasons even though it had not discharged him before.
The Respondent may reasonably have deemed Casey an
acceptable employee when business was good, but not
when business had turned sour and it was necessary to
trim the work force while retaining its best employees.5
Accordingly, in the absence of any other evidence that
the Respondent knew of Casey’s support of the Union,
we do not think it proper to infer such knowledge, or an
antiunion motive in his layoff. We shall therefore dis-
miss the 8(a)(3) allegation insofar as it pertains to Ca-
sey’s layoff.
2. The Respondent contends that the judge erred in
finding that it violated Section 8(a)(3) by laying off
Bryan O’Connell because O’Connell was a supervisor.
We find no merit in that contention.
O’Connell was a trainer. He spent approximately half
of his working time training other employees to use vari-
ous pieces of equipment, and the other half operating
equipment or assisting his supervisor, Mark McIllivain.
As the judge found, O’Connell attended management
meetings and took part in employee evaluations, as part
of a process in which all of the employees in a work team
would evaluate each other. O’Connell also initialed other
employees’ timecards and signed reprimand forms when
McIllivain directed him to do so. The judge found that
none of those aspects of O’Connell’s authority were suf-
ficient to render him a statutory supervisor.
In its exceptions, the Respondent contends that the
foregoing aspects of O’Connell’s authority establish that
he was a supervisor. It also argues that O’Connell pos-
sessed other types of authority, which the judge did not

4 The decision to lay off is not alleged to be unlawful. The com-
plaint alleges only that certain employees were included in the layoff
because they supported the Union.
5 This is not, in other words, a typical condonation case, in which an
employer tolerates an employee’s misconduct until union activity be-
gins, and then discharges him, assertedly because of the previously
tolerated misconduct. In such cases, the only intervening event is the
union activity. Here, another intervening event occurred: the economic
reverses the Respondent suffered, necessitating a reduction in its em-
ployee complement.
discuss, that also establish his supervisory status. Thus,
the Respondent cites management’s reliance on
O’Connell’s evaluations of the employees whom he was
training, including in making decisions about whether or
not to retain probationary employees. The Respondent
also relies on the fact that when McIllivain was absent,
O’Connell sometimes was in charge of his department
and had the authority to send employees home if they
were sick. The Respondent further notes that O’Connell
critiqued other employees and that Robin Robinette, the
Respondent’s director of human resources, testified that
he had the authority to suspend employees who were
suspected of wrongdoing. Finally, the Respondent relies
on such secondary indicia of supervisory status as the
fact that O’Connell was higher paid than other rank-and-
file employees and that he wore the same uniform as
certain supervisors and parked in the parking lot reserved
for managers and supervisors.
Section 2(11) of the Act defines a supervisor as
[A]ny individual having authority, in the interest of the
employer, to hire, transfer, suspend, lay off, recall,
promote, discharge, assign, reward, or discipline other
employees, or responsibly to direct them, or to adjust
their grievances, or effectively to recommend such ac-
tion, if in connection with the foregoing the exercise of
such authority is not of a merely routine or clerical na-
ture, but requires the use of independent judgment.

The statutory indicia are listed in the disjunctive; thus,
the possession of any one of them is sufficient to estab-
lish an individual as a supervisor.6 The exercise of any
such authority, however, must involve the use of inde-
pendent judgment.7 As the party alleging that O’Connell
was a supervisor, the Respondent has the burden of per-
suasion on that issue.8 We agree with the judge that the
Respondent has failed to carry that burden.
In affirming the judge’s finding that O’Connell was
not a supervisor, we find that his evaluations of the pro-
gress made by probationary employees do not constitute
supervisory authority. Such evaluations, made by a more
experienced employee on the basis of his superior
knowledge, do not establish supervisory status if they do
not, by themselves, affect the wages or job status of the
employees being evaluated.9 The Respondent, however,
cites the testimony of one of its former managers, Bill
Nance, that trainers could recommend retaining or not
retaining probationary employees and that he and other
managers listened to the trainers’ evaluations and would
6 See Elmhurst Extended Care Facilities, 329 NLRB 535 (1999).
7 Id.
8 Id.
9 Id.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 610
rely on their recommendations. Nance did not, however,
provide specific examples detailing the circumstances
surrounding management decisions regarding probation-
ary employees and the effect, if any, of the trainers’
evaluations in that decision-making process. The Re-
spondent thus has not established that there was a direct
link between the trainers’ evaluations and recommenda-
tions and management decisions regarding whether to
retain probationary employees.10 Accordingly, we find
that the Respondent has not demonstrated that the train-
ers made effective recommendations concerning the con-
tinued employment of probationary employees.
Other factors relied on by the Respondent have not
been shown to entail the use of independent judgment on
O’Connell’s part. Thus, neither initialing timecards nor
sending employees home when they are sick (a form of
authority O’Connell never exercised) indicates the use of
independent judgment. Neither does signing reprimand
slips at McIllivain’s direction.11
Similarly, although Robinette testified that O’Connell
could suspend employees, the only specific circum-
stances in which she testified that he could exercise that
authority were “if someone was alleged to have done
something and the Company or someone was wanting to
suspend that person pending an investigation.” That tes-
timony indicates that whatever authority O’Connell may
have had to suspend employees existed only when “the
Company or someone” desired that such action be taken.
Thus, even if O’Connell possessed the authority to sus-
pend, we find that the Respondent failed to demonstrate
that the exercise of such authority involved the use of
independent judgment by O’Connell.
Further, the authority possessed by O’Connell in McIl-
livain’s absence is insufficient to confer supervisory
status. O’Connell testified that he substituted for McIl-
livain only about four times, and he did not indicate the
duration of those incidents. Such sporadic assumption of

10 Id.
11 Indeed, Nance testified that the trainers could not take discipli-
nary action, but were supposed to bring personnel problems to him to
resolve. He also testified that, although the trainers could sign discipli-
nary forms, both he and McIllivain also signed them and would do their
own investigations of the situation. Moreover, the slips signed by
O’Connell and introduced into evidence by the Respondent are entitled
“Employee Consultation Form.” All three were reports of failure to
adhere to proper work standards, and all indicated only the action that
the employee needed to take to perform properly. None contained any
recommendation for disciplinary action; they indicated only that the
employees had received verbal notices for the conduct in question.
There is no mention of any effect on the employees’ job status or ten-
ure. Thus, even if O’Connell had signed the slips on his own and not at
McIllivain’s direction, his actions would not constitute the exercise of
supervisory authority. Passavant Health Center, 284 NLRB 887, 889
(1987).
supervisory duties does not establish supervisory status
at other times.12 In addition, O’Connell testified only that
McIllivain left him “in charge” on these few occasions
when he was out. Based on this scant evidence, the Re-
spondent has not met its burden of showing that
O’Connell either possessed or exercised any statutory
supervisory authority during those occasions when he
substituted for McIllivain.13
The Respondent also relies on the fact that O’Connell
critiqued other employees’ job performance and took part
in the periodic evaluations of employees. Those factors
do not establish O’Connell’s supervisory status, how-
ever, because there is no showing of how, if at all,
O’Connell’s actions affected other individuals’ status as
employees.14 In particular, we note that the evaluation
process was an event in which team members partici-
pated in each other’s evaluations, and there is no show-
ing that O’Connell had any greater input than any other
rank-and-file employee.
Finally, the existence of secondary indicia cannot con-
fer supervisory status, in the absence of any of the statu-
tory indicia.15
For all the foregoing reasons, then, we affirm the
judge’s finding that O’Connell was an employee and not
a supervisor, and that the Respondent violated Section
8(a)(3) by selecting him for inclusion in the October 7
layoff because of his union activities.
3. We agree with the judge, for the reasons discussed
in his opinion, that discriminatee Eric Martin did not
waive his right to obtain relief under the Act by signing a
severance agreement in which he purported to release the
Respondent from all legal claims arising from his em-
ployment with the Respondent, including those arising
under the Act.16 As the judge noted, the Board in
Hughes Christensen Co., 317 NLRB 633, 634 (1995),
enf. denied on other grounds 101 F.3d 28 (5th Cir. 1996),
held that the validity of waiver and release agreements of
the sort at issue here should be evaluated in the same
manner as private non-Board settlement agreements, as
discussed in Independent Stave Co., 287 NLRB 740
12 Latas de Alumina Reynolds, 276 NLRB 1313 (1985).
13 See St. Francis Medical Center-West, 323 NLRB 1046 (1997)
(Board agrees that alleged supervisor “exercised supervisory authority”
during substitutions, but finds that the substitutions were not “regular
and substantial”); Aladdin Hotel, 270 NLRB 838, 840 (1984) (test is
“whether the part-time supervisors spend a regular and substantial
portion of their time performing supervisory tasks or whether such
substitution is merely sporadic and insignificant”) (emphasis added).
14 Passavant Health Center, supra at 889; Elmhurst Extended Care
Facilities, supra, at 3.
15 First Western Building Services, 309 NLRB 591, 603 (1992).
16 We do not, however, rely on the judge’s discussion of the condi-
tions under which an employee may waive a union’s rights.
WEBCO INDUSTRIES 611
(1987). In Independent Stave, the Board listed four fac-
tors bearing on the validity of such agreements:

(1) whether the charging party(ies), the respondent(s),
and any of the individual discriminatees have agreed to
be bound, and the position taken by the General Coun-
sel regarding the settlement; (2) whether the settlement
is reasonable in light of the nature of the violations al-
leged, the risks inherent in litigation, and the stage of
the litigation; (3) whether there has been any fraud, co-
ercion, or duress by any of the parties in reaching the
settlement; and (4) whether the respondent has engaged
in a history of violations of the Act or has breached
previous settlement agreements resolving unfair labor
practice disputes.

Id. at 743. Here, as the judge found, the Charging Party
Union did not agree to be bound by the terms of the Re-
spondent’s agreement with Martin, and the General
Counsel argues that Martin should not be bound by the
agreement. As the judge further found, the Respondent
previously committed serious violations of the Act.17 We
agree with the judge that, in these circumstances, Martin
should not be found to have waived his right to relief
under the Act by signing the severance agreement.
Our dissenting colleague would find it immaterial that
the Union did not agree to be bound by the severance
agreement, because at the time Martin signed the agree-
ment, no charges had been filed. We find no merit in
that position. Even though there was no charging party
to consult with concerning the agreement at the time it
was signed, the agreement clearly was meant to settle
any future causes of action arising from Martin’s layoff,
expressly including any that might arise under the Act if
a charge was later filed. Had the Union filed its charge
before Martin signed the agreement, we would consider
whether the Union had agreed to be bound as one factor
in determining whether to give effect to the agreement.
In fact, Martin signed the agreement on October 7, the
day he was laid off. That he did so before the Union
even had a chance to become involved by filing a charge
(which it did the next day) should not, in our view, make
any difference. Indeed, it seems to us further reason to
find that the agreement does not preclude us from afford-
ing relief to Martin.
Our colleague also argues that, even if we give effect
to the settlement agreement and dismiss the allegations
concerning Martin, the Respondent will still be required
to post a notice assuring employees that it will respect

17 We note that, since the judge issued his opinion, the Board’s pre-
vious decision has been enforced. Webco Industries, 327 NLRB 172
(1998), enfd. 217 F.3d 1306 (10th Cir. 2000).
their Section 7 rights. We reject that argument as well.
Posting a notice will inform employees of their rights,
but it will not give relief to Martin, whose rights the Re-
spondent transgressed. Moreover, if we failed to find the
violations with regard to Martin and order him reinstated
and made whole, it might well appear to the employees
that their rights are not adequately protected.18
ORDER
The National Labor Relations Board orders that the
Respondent, Webco Industries, Sand Springs, Oklahoma,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Coercively interrogating employees about their un-
ion activities;
(b) Threatening employees with unspecified reprisals
for union or other protected activities;
(c) Imposing on employees an unlawful no-solicitation
policy;
(d) Terminating and laying off employees because of
their union activities;
(e) In any other manner interfering with, restraining, or
coercing employees in the exercise of their Section 7
rights.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Robert Leasman, Gary Schooley, Jerry Rogers, Roy
Morris, Shawn Wilson, Richard Teague, Terry Ruckman,
Eric Martin, Charlie Williams, and Bryan O’Connell full
reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights or
privileges previously enjoyed.
(b) Make Robert Leasman, Gary Schooley, Jerry
Rogers, Roy Morris, Shawn Wilson, Richard Teague,
Terry Ruckman, Eric Martin, Charlie Williams, and
Bryan O’Connell whole for any loss of earnings and
other benefits suffered as a result of the discrimination
against them, with interest, in the manner set forth in the
remedy section of the judge’s decision.
(c) Within 14 days from the date of this Order, remove
from the files of Robert Leasman, Gary Schooley, Jerry
Rogers, Roy Morris, Shawn Wilson, Richard Teague,
Terry Ruckman, Eric Martin, Charlie Williams, and
Bryan O’Connell all reference to their termination and
layoffs, and within 3 days thereafter notify them in writ-
ing that this has been done and that those actions will not
be used against them in any way.
18 In any event, whether a partial remedy is adequate is not one of
the factors that we consider under Independent Stave.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 612
(d) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all
other records, including an electronic copy of the records
if stored in electronic form, necessary to analyze the
amount of backpay due under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its facility in Sand Springs, Oklahoma, copies of the at-
tached notice marked “Appendix.”19 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 17, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent
immediately on receipt and maintained for 60 consecu-
tive 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 cov-
ered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone
out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respon-
dent at any time since August 24, 1998.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

CHAIRMAN HURTGEN, dissenting in part.
I would uphold the agreement between Respondent
and employee Martin. Accordingly, I would dismiss the
charge as to him.
Respondent laid off Martin on October 7. On that
date, Respondent and Martin entered into a “severance
agreement.” In return for consideration (including a
monetary payment), Martin agreed not to file any claim
with any court or agency concerning his employment
with Respondent or the termination thereof. Further, if
any court or agency received a case concerning such mat-
ters, Martin would seek to withdraw therefrom. Respon-
dent advised Martin to consult with an attorney, and Re-
spondent gave Martin time to consider the matter. Martin
signed, and has never revoked.

19 If this Order is enforced by a judgment of the United States court
of appeals, the words in the notice reading “Posted by Order of the
National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board.”
My colleagues reject the agreement under the test of
Independent Stave, 287 NLRB 740, 790. The four factor
test is:
(1) whether the charging party(ies), the respondent(s),
and any of the individual discriminatee(s) have agreed
to be bound, and the position taken by the General
Counsel regarding the settlement; (2) whether the set-
tlement is reasonable in light of the nature of the viola-
tions alleged, the risks inherent in litigation, and the
stage of the litigation; (3) whether there has been any
fraud, coercion, or duress by any of the parties in reach-
ing the settlement; and (4) whether the respondent has
engaged in a history of violations of the Act or has
breached previous settlement agreements resolving un-
fair labor practice disputes.

At the outset, I am not at all certain that Independent
Stave applies to the agreement here. Independent Stave
applies to an agreement reached in settlement of an
NLRB case. By contrast, the instant case involves an
agreement reached before there was any NLRB case.
Indeed, the agreement provides that no such case will be
filed.
My colleagues have missed my point in this respect. It
is not that “there was no charging party to consult with
concerning the agreement at the time it was signed.”
Rather, my point is that the first factor of Independent
Stave does not fit this case. The first factor is whether
the Charging Party agreed to be bound to the settlement.
In the instant case, there was no charging party at the
time of the settlement.
My colleagues’ reliance on Hughes Christensen, 317
NLRB 633, 634 (1995), is a further indication that they
have missed my point. In that case, there were charges at
the time of the settlement. That is not the situation here.
Further, even assuming arguendo that Independent
Stave applies, I would give effect to the agreement. Of
the four factors in Independent Stave, my colleagues find
defects only in factors 1 and 4. As to factor No. 1, there
could be no Charging Party agreement because there was
no Charging Party at the time of the agreement. Thus,
this is not a case where a Charging Party had advised the
employee not to sign the agreement, and the employee
nonetheless signs it.
As to factor 4, I agree that Respondent has committed
other unfair labor practices. However, even if those un-
fair labor practices constitute a “history” of violations,
that should not necessarily void the agreement. My col-
leagues believe that an employer (or union) with such a
history cannot validly settle a case. I disagree. I believe
that NLRB policy regarding settlements must take into
account two goals: (1) encouraging parties to settle dis-
WEBCO INDUSTRIES 613
putes and enforcing those agreements; (2) assuring em-
ployees of their statutory rights. In the instant case, we
can achieve both objectives. The voluntary agreement of
Respondent and Martin can be upheld, and the employ-
ees will nonetheless be assured of their statutory rights.
That is, even with the Martin allegations removed, the
violations of the Act found here will yield a remedial
notice that will assure employees of their statutory rights.
My colleagues say that a remedial notice will not give
relief to Martin. However, Martin has settled his claim
with Respondent, and has accepted a monetary payment
as part of that settlement. My colleagues now give Mar-
tin relief in addition to his settlement. Further, the Union
(and Martin) are free to publicize the relief that he re-
ceived.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT coercively interrogate employees
about their union activities.
WE WILL NOT threaten employees with unspecified
reprisals for engaging in union activities.
WE WILL NOT restrict employees’ discussions about
the Union on nonwork time in a de facto breakroom or
on work time when employees are permitted to discuss
other subjects.
WE WILL NOT terminate or lay off employees be-
cause of their union or other protected activities.
WE WILL NOT in any other manner interfere with,
restrain, or coerce you in the exercise of your Section 7
rights.
WE WILL, within 14 days from the date of the
Board’s Order, offer Robert Leasman, Gary Schooley,
Jerry Rogers, Roy Morris, Shawn Wilson, Richard
Teague, Terry Ruckman, Eric Martin, Charlie Williams,
and Bryan O’Connell full reinstatement to their former
jobs or, if those jobs no longer exist, to substantially
equivalent positions without prejudice to their seniority
or any other rights or privileges previously enjoyed, and
WE WILL make them whole for any loss of earnings and
other benefits resulting from their discharges or layoffs,
less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of the
Board’s Order, remove from our files any references to
the unlawful discharges and layoffs of the employees
named above, and WE WILL, within 3 days thereafter,
notify each of them in writing that this has been done and
that those actions will not be used against them in any
way.
WEBCO INDUSTRIES

Francis A. Molenda, Esq., for the General Counsel.
David E. Strecker and James Erwin, Attys. (Strecker & Associ-
ates), of Tulsa, Oklahoma, for the Respondent.
Nga Ostoja-Starzewski, Atty.(Youngdahl, Sadin, & McGowan),
of Little Rock, Arkansas, for the Charging Party.
DECISION
STATEMENT OF THE CASE
MICHAEL D. STEVENSON, Administrative Law Judge.
This case was tried before me at Tulsa, Oklahoma, on May 11–
13 and June 8–9, 1999,1 pursuant to an amended complaint
issued by the Regional Director for the National Labor Rela-
tions Board for Region 17 on March 8, 1999, and which is
based on charges filed by United Steel Workers of America
(here called Union) on October 9, December 29 (first-
amended), March 3, 1999 (second-amended), and April 30,
1999 (third-amended).2 The complaint alleges that Webco
Industries (here called Respondent) has engaged in certain vio-
lations of Section 8(a)(1) and (3) of the National Labor Rela-
tions Act, (the Act).
I. Whether Respondent acting through its supervisors, vio-
lated Section 8(a)(1) of the Act: (a) by interrogating employees
about their union activities; (b) by prohibiting employees from
discussing their terms and conditions of employment with other
employees and/or restricting conversations about the Union to
the breakroom; (c) by threatening employees with unspecified
reprisals if they engage in union activities and by implying that
union activities were under surveillance by Respondent; (d) by
engaging in surveillance of employees’ union activities by
videotaping these activities; and (e) by threatening employees
with a shutdown of Respondent’s facility if employees engage
in union activities.
II. Whether Respondent violated Section 8(a)(1) and (3) of
the Act by permanently laying off certain of its employees be-
cause said employees joined or assisted the Union and engaged
in concerted activities, and to discourage employees from en-
gaging in these activities.

1 All dates here refer to 1998 unless otherwise indicated.
2 On June 8, 1999, a day beginning the second week of hearing, the
Union filed a fourth-amended charge (GC Exh. 1(t)).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 614
III. Whether Respondent violated Section 8(a)(1) and (4) of
the Act by permanently laying off certain of its employees be-
cause said employees testified at an unfair labor practice hear-
ing in Cases 17–CA–19047 and 17–CA–19120.
IV. If Respondent unlawfully permanently laid off any em-
ployees who executed certain severance agreements/releases,
were said documents legally sufficient to confer immunity on
Respondent for its actions.
All parties were given full opportunity to participate, to in-
troduce relevant evidence, to examine and to cross-examine
witnesses, to argue orally, and to file briefs. Briefs, which have
been carefully considered, were filed on behalf of the General
Counsel and Respondent.
On the entire record of the case, and from my observation of
the witnesses and their demeanor, I make the following
FINDINGS OF FACT
I. RESPONDENT’S BUSINESS
Respondent admits that it is a corporation engaged in the
business of manufacturing and distributing steel tubing and
having an office and place of business located in Sand Springs,
Oklahoma. Respondent further admits that during the past year
ending February 28, 1999, in the course and conduct of its
business it has purchased and received at its facility goods val-
ued in excess of $50,000 directly from points outside the State
of Oklahoma. During the same year ending February 28, 1999,
also in the course and conduct of its business, Respondent ad-
mits that it sold and shipped from its facility, goods valued in
excess of $50,000 directly to points outside the State of Okla-
homa. Accordingly it admits, and I find, that it is an employer
engaged in commerce and in a business affecting commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. T HE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that United Steel Workers of
America, is a labor organization within the meaning of Section
2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
1. General background
On Wednesday, October 7, 53 employees were permanently
laid off by Respondent. In order to receive a severance pay-
ment offered to most of the laid-off employees, employees
were required to sign a “severance agreement/release“ ac-
knowledging among other conditions, that they could never
work for Respondent again. Those who declined to sign the
document received no severance, but are nevertheless perma-
nently barred from re-employment by Respondent pursuant to
company policy. This policy although apparently predating
October 7, for several years was not generally disclosed to em-
ployees prior to any layoff in which they or their coworkers
were involved.
From the group of 53 employees referred to above, the Gen-
eral Counsel initially carved out 14 employees, which he claims
were laid off for union-related reasons. In a later amendment to
the complaint, the General Counsel added three additional
names to the group described above. In addition, the General
Counsel alleged that 3 of the 17 were laid off for an additional
or alternative reason: because they testified at an unfair labor
practice hearing in September 1997.
Before hearing of this case concluded, several of the 17 al-
leged discriminatees reached private non-Board Settlement
Agreements with Respondent. The first such group consisting
of Mike Leslie, Chris White, Don Greenfield, and Eddie Davis
whose names were recited before I closed the record, has now
been supplemented with a second group consisting of Chris
Buchanan, Andy Stephenson, and Rick Hake (GC Br., p. 11, fn.
7).3 The terms and conditions on which non-Board Settlements
have been reached are not part of this record—no party ex-
pressing any desire to incorporate them. Accordingly, I do not
concern myself with any such terms and conditions except for
the parties’ agreement that testimony given or evidence ad-
duced during the hearing by those who reached non-Board
settlement or by any other witness is not affected by the settle-
ments, specifically with respect to the 8(a)(1) allegation, or as
regarding the remaining alleged discriminatees.
As to those who remain as alleged discriminatees, they are
divided into those who signed the severance/releases and those
who did not. As to the former, an issue is presented and will be
considered in due course regarding the effects, if any, of the
severance/releases.4
Other divisions of employees may be relevant to this case.
For example, I may compare the 17 alleged union supporters to
the remaining laid-off employees, a group which included su-
pervisors, clericals, trainers, and production and maintenance
employees. According to Respondent’s evidence, a full-scale
restructuring of its operations at one of its facility coincided
with the October 7 layoff. All of those laid off—alleged union
supporter or not, may need to be compared to the 80 percent of
Respondent’s workforce not laid off. This group allegedly
includes some union supporters, according to Respondent, a
claim, which will be subject to close scrutiny below.
As still more general background, I note that on May 20,
1999, a U.S. District Judge in Tulsa, Oklahoma, granted the
General Counsel’s petition for relief pursuant to 10(j) of the
Act (GC Exh. 12(o)). Pursuant to this Order, Respondent was
directed to reinstate within 5 days of the court’s order, alleged
discriminatees Gary Schooley, Roy Morris, Jerry Rogers, Bob
Leasman, Shawn Wilson, and Terry Ruckman. As to Morris
and Rogers, the court provided that on a showing of insufficient

3 At the hearing, the General Counsel made a formal motion to de-
lete the names of the first four from the complaint, a motion which I
granted. I will construe General Counsel’s motion at hearing as cover-
ing the additional three alleged discriminatees and strike their names
from the complaint.
4 As to those who signed the severance/releases, accepted the sever-
ance payment, and remain in the present case, I am informed that Re-
spondent is now suing them in state court for return of the money, on
the grounds that their presence in the present case constitutes a breach
of the severance/releases, one condition of which is that the employee
gives up any and all rights he may have to file charges with a govern-
mental agency, such as the NLRB, with respect to his loss of employ-
ment or to even participate in such a case seeking relief. The Union has
complained to the Board’s Regional Office that these suits are them-
selves a violation of the Act and the Regional Office is investigating.
WEBCO INDUSTRIES 615
work for both, then one or the other shall be placed on a prefer-
ential hiring list (p. 3 of Order). As to other relief, the court
enjoined Respondent from enforcing certain of its work rules,
threatening its employees with unspecified reprisals and/or
implying that union activities are under surveillance. These
provisions generally track allegations from the complaint. The
court’s order is to remain in effect pending final disposition of
matters pending before the Board.
So far as I am aware, Respondent has fully complied with
the court’s order and it informs me, it is pursuing an appeal
before the U.S. Court of Appeals for the Tenth Circuit.5
2. Prior unfair labor practice case
In early 1997, the Union began a campaign to organize cer-
tain of Respondent’s production and maintenance employees.
Respondent opposed this campaign, in part by committing cer-
tain unfair labor practices. Charges were filed and a hearing
held in September 1997. On May 4, Judge Anderson issued a
decision finding certain violations and on November 30, the
Board affirmed the judge in certain respects (Webco Industries,
327 NLRB 172). Respondent informs that it is now appealing
the Board’s decision to the U.S. Court of Appeals for the Tenth
Circuit. As of this writing, I have not been informed of any
result. [Enfd. 217 F.3d 1306 (10th Cir. 2000).]
Many of the participants in the instant case, such as attorneys
and witnesses were “old friends“ from the first case. Even
some of the issues were similar. For the record, however, I
base my decision here on the evidence produced in this hearing,
except to the extent, the prior case and other evidence might
establish animus toward the Union.
A minor distraction is presented by the conflict in the evi-
dence over whether the 1997 organizing campaign had been
preceded by one or more prior campaigns. Two General Coun-
sel witnesses, former Respondent executive Harvey Whitten-
burg, a 23-year employee, and alleged discriminatee Charley
Casey, a 26-year employee before his layoff, both recalled prior
union campaigns. The former recalled campaigns by the
Charging Party in the mid-1980’s and early 1990’s. Casey
corroborated this testimony without any details. Respondent’s
witnesses flatly denied any such prior organizing activity. Re-
spondent’s president and chief operating officer, Dana Weber, a
Respondent executive for 22 years, and Respondent’s vice-
president of operations, Tom Lewis, a Respondent official for
17 years, both denied prior organizing activity. I note this issue
has only minimal importance as to the credibility of Whitten-
burg, but I credit Respondent’s two witnesses on the point. The
General Counsel called two union organizers, Murlin Andrews,
with the Union since 1976 and Jim Teague, a union organizer
for 5 years. Neither of them testified about a prior union orga-
nizing campaign nor were any union records presented to bol-
ster the testimony of Whittenburg.

5 Neither the granting nor the denial of 10(j) relief is binding on the
Board or determinative of the merits of a subsequent unfair labor prac-
tice proceeding. Sullivan Bros. Printers, 317 NLRB 561, 566 fn. 14
(1995); NLRB v. Q-1 Motor Express, 25 F.3d 473, 477 fn. 3 (7th Cir.
1994).
3. Union’s 1997 organizing campaign
No dispute is presented about the existence of or the results
of the 1997 union campaign. The in-house organizers distrib-
uted union authorization cards to be signed and all save one of
the alleged discriminatees signed one. Meetings were held and
flyers were distributed. Discussions about the benefits and
burdens of bringing a union into Respondent were held at work.
Within just a few months of the campaign, it became clear to
the Union’s leadership, that they lacked a level of support high
enough to continue the campaign. Accordingly, without filing
a petition for election or making a demand for recognition by
Respondent, the Union withdrew from the field with a promise
to fight again another day. All of this and more was contained
in a union letter to Respondent’s employees, dated April 7,
1997, explaining the Union’s reasons for the suspension of its
campaign (R. Exh. 71). I see no point in reciting the Union’s
letter except to note it blamed the Union’s lack of success on
Respondent’s unfair labor practices.
4. Respondent’s business and facilities
As I will describe below, Respondent has many facilities,
both located in Oklahoma and elsewhere, but appropriately
enough, the focus of this case is on the Southwest Tube (SW
Tube) facility located in Sand Springs, Oklahoma, about six
miles from Tulsa. When the company began operations in
1969 founded by Frank Weber, a/k/a Bill Weber, it began as
SW Tube. As I understand it, over the years other facilities
were established, but SW Tube remains the largest production
facility. Bill Weber testified as Respondent’s witness and de-
scribed his efforts building the company between 1969 and the
present. Currently Respondent’s Chairman of the Board and
Chief Executive Officer, Bill Weber’s proudest achievement
perhaps is bringing into the business, his daughter, Dana We-
ber. Regrettably, Bill Weber’s impressive record is stained by
the allegations involving his role in the Union’s campaign, a
subject to be dealt with below.
Relying primarily on Dana Weber’s testimony, I will review
the extent of Respondent’s business. Respondent is described
as primarily a manufacturer and distributor of specialty steel
tubing, with some additional business involving the manufac-
ture of high efficiency industrial water heaters. It employs
slightly over 700 employees in all facilities. Respondent has
two manufacturing facilities located in Sand Springs, SW Tube
and Specialty Steel Components & Manufacturing (SSCM)
located about ½ mile apart. In Manford, Oklahoma, 15 to 20
miles distant from Sand Springs, Respondent’s facility manu-
factures stainless tubular products, and in Oil City, Pennsyl-
vania, Respondent manufactures carbon tubing—a similar op-
eration is at SW Tube, where Respondent manufactures carbon
tubing for heat exchanger, boiler, and mechanical parts. In
addition to the manufacturing facilities, Respondent operates
six distribution facilities located in Grand Rapids, Michigan,
Rock River, Illinois, Nederland, Texas, Tulsa and Sand
Springs, Oklahoma.
The focus is on SW Tube because the Union’s organizing
campaign occurred there, the Respondent’s business shortfall,
the layoffs, restructuring, and alleged unfair labor practices all
occurred there. Before the layoffs, SW Tube employed about
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 616
273 employees and after layoffs about 220. That figure was
further reduced to 210 by the time of hearing. Beginning in the
spring of 1999, Respondent began to hire new employees for its
Tulsa area facilities and some of them were assigned to SW
Tube. Some of these new employees were part of a special
campaign designed to recruit Spanish-speaking employees,
teach them to speak and understand English, and employ them
where needed.
As already mentioned, none of those laid off were eligible
for rehire. Respondent did not contest awards of state unem-
ployment compensation, although the employees were in effect
terminated allegedly for being marginal and/or unsatisfactory
employees.
Respondent’s policy is to disfavor transfers on the grounds
that employees at SW Tube operate machines and perform
other work, which is not suitable for transfer to other facilities.
Since Respondent’s restructuring involves cross-training of
employees to operate more than one machine, it is not at all
clear to me why at least some laid-off employees could not
have been transferred to other nearly facilities. Respondent’s
evidence that the tube cutting machines at SSCM are too dis-
similar from the machines at SW Tube is not persuasive.
SW Tube contains three operating areas cold draw, weld mill
and finishing, and additional support areas such as mainte-
nance, human relations, purchasing, quality assurances, and
tool and dye.
A curious aspect of this case concerns the undisputed busi-
ness shortfall, which affected only SW Tube. Respondent’s
other facilities including SSCM located across the street were
unaffected and experienced no layoffs. Moreover, all facilities
including SW Tube after passage of a few months, replaced
employees who left in the course of normal employee turnover.
Both before and after the layoffs in this case, SW Tube oper-
ated its production facilities 7 days/week, 24 hours/day.
5. Respondent’s prior layoffs
If there was disagreement over whether the Union had tired
to organize Respondent prior to 1997, all agree that Respondent
experienced prior lay-offs before October 7. According to
Robin Robinette, Respondent and General Counsel witness and
Respondent director of human resources, there were layoffs at
SW Tube Co. in 1995 (approximately 22) and in 1990 (ap-
proximately 70). From these two prior layoffs, I find two facts:
first, is explained by the General Counsel’s witness, Larry
O’Brien, a former quality assurance manager for Respondent
between 1993 and October (when he himself was laid off). In
1995, O’Brien was involved with making decisions as to who
was to be let go. The persons released were employees who
had poor evaluations and poor attendance records (Tr. p. 193).
Second, as explained by Robinette, the two prior layoffs re-
leased people who were never eligible for reemployment with
Respondent per company policy. This odd company practice
continued during the layoffs of October.
B. Analysis and Conclusions
1. Alleged videotaping of union handbilling
According to former alleged discriminatee and the General
Counsel witness Chris Buchanan, on August 19, he was engag-
ing in his usual practice of temporarily substituting for a guard
at Respondent’s guard shack while the guard took a break. At
this time, he was allegedly directed by Robinette to videotape
some handbilling that was occurring about 5 to 6 p.m. as Re-
spondent’s employees changed shifts. For a number of reasons,
I don’t believe Buchanan’s testimony and I will recommend
that the allegation be dismissed.
Buchanan worked for Respondent between April 1995, and
October 7, as a storeroom attendant and parts crib employee.
During his time there, Buchanan was suspected by Respon-
dent’s managers of stealing from the parts crib, but they were
not able to gather sufficient evidence or any credible evidence
so far as I can tell, to substantiate their suspicions. In any
event, it seems most unlikely that Robinette would have as-
signed a delicate task of videotaping employees to such an
employee. In fact, she denied doing so, although the evidence
shows that a number of fixed security cameras were in place at
various locations around the plant and the monitor in the guard
shack was capable of videotaping. However, Respondent pre-
sented Buchanan’s timecards for the time he claimed to have
been working and these timecards contradict his testimony,
showing that he was not employed on the day in question (R.
Exhs. 171, 172).
To be sure, the Board has held that absent proper justifica-
tion, an employer photographing or videotaping employees
engaging in protected activities is unlawful, because it has a
tendency to intimidate. Randell Warehouse of Arizona, Inc.,
328 NLRB 1034, 1036–1037 (1999) citing F. W. Woolworth
Co., 310 NLRB 1197 (1993). While the union handbilling
which occurred on the day in question is protected concerted
activities, I simply don’t believe the General Counsel’s evi-
dence.
Out of an abundance of caution, Respondent notes the evi-
dence presented in this case regarding the August 19 surveil-
lance of the handbilling by Respondent’s supervisors (Br. pgs.
54–55). First, no issue is raised by the complaint or by any
General Counsel contention that I should make a finding on this
issue.6 The purpose of this surveillance evidence appears to be
solely as it relates to alleged discriminatee Robert Leasman,
whose case I will consider below. Nevertheless, I will note the
evidence as follows. On August 19, it is undisputed that a Re-
spondent supervisor and witness named Teddy Gene Dye, Jr.
began his 12-hour shift at 6 a.m. Sometime in late afternoon of
that day, he received information that union agents were hand-
billing the incoming and outgoing employees. So on a hot
August afternoon, Dye went to a location in plain view of all
employees (Dye wanted to be seen, Tr. p. 1131), and watched
the handbilling for about an hour. Dye’s explanation for this
surveillance, that he wished by his presence to prevent any
incidents by anti-union employees from occurring is demon-
strably false. Dye testified that in a 1997 handbilling, some
employees crushed the handbill up and threw it back in the face

6 The general rule is that no unlawful visual surveillance can be
found where employees carry on their protected activities openly. See
e.g., Roadway Package Systems, 302 NLRB 961 (1991) (open handbill-
ing outside plant entrance); Harry M. Stevens Inc., 277 NLRB 276,
276-277 (1985) (open distribution of union literature in sales area).
WEBCO INDUSTRIES 617
of the union agent. Other employees signaled their disapproval
by peeling away on the gravel driveway. However, at one
point, on August 19, Dye sat on the tailgate of his truck for a
period of time as he conferred with Ronnie Ryker, the incoming
supervisor and Respondent witness, who needed to be briefed
by Dye on what had happened on Dye’s shift. Clearly, Dye’s
alleged interest in preventing a disturbance was not served as
he conferred with Ryker for several minutes, while facing away
from the handbilling.
Any doubt that Dye’s explanation for his surveillance is not
to be believed is provided by this final selection from his testi-
mony. At one point, two employees, apparently not sympa-
thetic to the Union’s message, left the plant in their vehicle and
circled the block. With Dye watching from his bright red
pickup truck, one of the two employees “mooned“ the union
agent while yelling out the window. Dye knew who the em-
ployees were, employees not deterred from misconduct by
Dye’s presence on the scene, and the next day, according to
Dye, “we did talk about it a little bit, that they needed to be a
little more professional, be more mature, basically: [Tr. 1130–
1131]. Not only were the employees not written up, but Dye
didn’t even document the candy-coated “rebuke.“
2. Alleged threat of Supervisor Ronnie Cole
According to Buchanan, on August 22, Respondent’s Shift
Business Manager Ronnie Cole held a meeting with Buchanan
and other employees to talk about the company’s policy regard-
ing the union. To emphasize his point, Cole had a union con-
tract from another company. Supposedly, Cole then said that
[Bill] Weber had said he’d shut the plant down and move to
Mexico before he’d let the Union in. Cole then added that the
company was keeping some sort of list [of union supporters].
To rebut this testimony, Respondent called its supervisor
Ronnie Cole who denied Buchanan’s testimony.
No other employees were called to corroborate Buchanan on
this point and it is not helpful to the General Counsel’s case
that I may find below that Bill Weber did make statements such
as that which Cole is accused of repeating. The issue here is
the credibility of Buchanan, which is not great. In recommend-
ing dismissal of this allegation, I note first his lack of credibil-
ity in the prior allegation. Then I note that in his direct testi-
mony, Buchanan claimed to be a union supporter though he
could point to no specific union activities, such as attending
union meetings or signing union cards. Even his testimony
regarding discussions about the union was vague.7
3. Alleged restraint on employees’ right to discuss terms and
conditions of employment amongst themselves
This allegation involves two employees, former alleged dis-
criminatee Andrew Stephenson and Micah Wise and Respon-
dent’s supervisor Monty Pratt. All three testified. Prior to his
layoff in October, Stephenson had worked for Respondent since
August 1992, in the cold-draw tooling in the tool and dye de-
partment. In September, according to Stephenson, he and a co-

7 I recognize that threats of plant closure or futility of seeking union
representation are violative of Sec. 8(a)(1) of the Act. Almet, Inc., 305
NLRB 626, 626–627 (1991). However, this is not a proper case to
apply this authority.
employee Micah Wise, who testified as a Respondent witness
asked about a pay increase, which was then allegedly due but
had not been received. Pratt agreed that the two deserved it and
he was going to give it, but then according to Stephenson,
added, don’t tell Schooley because we’ll have union problems
again (Gary Schooley is an alleged discriminatee who was gen-
erally regarded as the leader and most active of the in-house
organizing committee. I will consider his case below).
Wise a 15-year employee who wasn’t laid off, was called as
Respondent’s witness and told a different story from Stephen-
son. He recalled talking to Pratt about another employee
named Wesley, who was supposedly similarly situated to Wise
and Stephenson, yet was making more money. Pratt deter-
mined first that Wesley had taken some additional classes, but
later determined he wasn’t making more money than Wise and
Stephenson to begin with. Wise didn’t recall Pratt telling him
and Stephenson not to talk to other employees about this.
On cross-examination Wise was asked:

Q. And do you recall everything that was said in that conver-
sation [with Pratt]?
A. Not everything. I remember some things that were said.
[Tr. 974.]

Then on re-direct examination, the following occurred:

Q. Do you think if Mr. Pratt would have told you at that
meeting that you were to keep your mouth shut and not talk to
other employees about this, that you would remember that
statement, even though it was back in September?
A. Possibly, yes. You know, it’s been awhile, so I don’t re-
call everything that was said. [Tr. 975.]

Respondent also called Pratt, a 14-year employee who is
manager of the machine shop and tooling which includes the
tool and dye department. Unlike Wise, Pratt had no difficulty
recalling the conversation and flatly denied ever telling Ste-
phenson not to discuss pay issues with anyone else. However,
Pratt tells a different story from both Stephenson and Wise.
Pratt admitted that he had brought up Schooley’s name at the
end of the conversation. More specifically, “At the end of the
meeting, when I had proved that in fact Kenneth Wesley wasn’t
getting any higher pay than they were, I told them if they had
said anything out in the shop to anybody that said I was unfair,
they owed that to me, to go back in the shop and tell everybody
that [the matter had been cleared up].

And I went on to say . . . “If you told Gary [Schooley] go
straighten it up.” And they said they would. [Tr. 1002.]

Pratt thought Stephenson had complained to Schooley because
earlier in the day he had seen the two men talking and when
Pratt went up to them, they stopped their conversation.
Pratt impressed me as someone who had been falsely ac-
cused of not maintaining wage parity among his employees.
His feelings had been hurt and the earnest testimony he gave
that the two employees should go and make things right per-
suades me to credit him over Stephenson. Wise tends to cor-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 618
roborate Pratt more than Stephenson. I will recommend that
this allegation be dismissed.8
4. Alleged interrogation of Schooley by
a respondent supervisor
It is undisputed that on September 7, Respondent supervisor
Jene Harmon who did not testify called Schooley at home.
During the course of the conversation, Harmon asked Schooley
how the union activities were going. Schooley falsely an-
swered that he was laying low and trying to stay out of it (In
fact, Schooley was still trying to solicit people to sign union
cards and attend meetings). Harmon then replied, that he un-
derstood, and added, “I just want you to know what has hap-
pened in the past, don’t worry about it, we are going to try to
move on with this thing and get the past behind us and make
this a stronger company.” (Tr. 361).
In its brief (Br. 47), Respondent first argues that it is unlikely
that the conversation ever took place because Respondent’s
supervisors are instructed not to interrogate employees. This is
a weak argument and I reject it because there is no showing that
Harmon heeded these alleged instructions (Harmon never testi-
fied). Similarly without merit is Respondent’s claim that be-
cause Schooley was an open and active union supporter—a
position I agree with—and because other subjects were dis-
cussed in the telephone conversation for a longer period,
Schooley was not coerced. Again, I must reject Respondent’s
bottom line. In Randell Warehouse of Arizona, Inc., supra, 328
NLRB No. 153 at p. 14 (Member Brame concurring), the Board
stated the probing of views relating to the Union, even ad-
dressed to employees who have openly declared their pro-union
sympathies, reasonably tends to interfere with the free exercise
of employee rights under the Act and, consequently is coercive.
I so find here and note three additional factors in support of my
conclusion. First, Schooley gave a false response to the super-
visor’s inquiry and this tends to support a finding of coercive
question. Next, Respondent ignores the unfair labor practices,
which it committed in 1997, a fact which tends to taint an in-
quiry which might be innocuous in other circumstances. Fi-
nally, by September 7, Respondent was gearing up to commit
additional unfair labor practices, as will be more clearly recited
below.9 For now I find Respondent violated Section 8(a)(1) of
the Act as alleged. See Lucky Stores, Inc. d/b/a Gemco, 279
NLRB 1138 (1986), pgs. 1143–1145 of JD and the Board’s
leading case of Rossmore House, 269 NLRB 1176, 1176–1177
(1984), aff’d sub. Nom. Hotel Employees Union L. 11 v. NLRB,
760 F.2d 1006 (1985).
5. Alleged threats by Supervisor Mark McIllivain to
Bryan O’Connell
Respondent’s employee Mark McIllivain was an admitted
statutory supervisor until he was laid-off on October 7. He did

8 Of course, Pratt’s testimony that he never knew at the time that
Schooley was involved with the Union is absurd and I don’t credit it for
a moment. Yet this false testimony is not enough to carry the day for
General Counsel.
9 I find that the so-called Bourne factors (Bourne Co. v. NLRB, 332
F.2d 47, 48 (2d Cir. 1964) as recited by Member Brame at p. 1047 of
Randell Warehouse of Arizona, are fully satisfied to find the requisite
coercion.
not testify in this case so the testimony of alleged discriminatee
and the General Counsel witness Bryan O’Connell remains in
the record unrefuted. Briefly, O’Connell testified that he was
supervised by McIllivain, a shift business manager, who ap-
proached O’Connell at work on the Friday of Labor Day week.
McIllivain was returning from a routine morning meeting with
his boss, Larry O’Brien when he asked O’Connell if he was
talking union again. In fact, O’Connell had been talking union
with alleged discriminatee Jerry Rogers. O’Connell denied the
accusation, but McIllivain told him that O’Brien had instructed
McIllivain to “keep an eye on“ O’Connell.
Although O’Brien, a witness called by the General Counsel,
was not asked and did not testify about any alleged conversa-
tion with McIllivain, I nevertheless credit O’Connell’s undis-
puted testimony. Respondent makes two points in its brief: (p.
57) first, it urges me not to draw an adverse inference from
McIllivain’s absence, because McIllivain is no longer em-
ployed by Respondent. I agree. Second, Respondent, also
contends that no violation can be established because
O’Connell was a supervisor at the time of his encounter with
McIllivain. I disagree.
In Mississippi Power & Light Co., 328 NLRB 965, 969
(1999), the Board stated a good review of general principles of
law which govern this issue:

Section 2(3) of the Act excludes “any individual em-
ployed as a supervisor from the definition of “employee.“
Section 2(11) of the Act defines “supervisor“ as:
any individual having authority, in the interest of the
employer, to hire, transfer, suspend, layoff, recall, pro-
mote, discharge, assign, reward, or discipline other em-
ployees, or responsibly to direct them, or to adjust their
grievances, or effectively to recommend such action, if
in connection with the foregoing the exercise of such au-
thority is not of a merely routine or clerical nature, but
requires the use of independent judgment.

Section 2(11) is to be read in the disjunctive, and “the posses-
sion of any one of the authorities listed in [that section] places
the employee invested with this authority in the supervisory
class.“ Ohio Power Co. v. NLRB, 176 F.2d 385, 387 (6th Cir.
1949), cert. denied 338 US 899 (1949). The Board is cautious
in finding supervisory status because supervisors are excluded
form the protections of Section 7 of the Act: “[T]he Board has a
duty . . . . not to construe supervisory status too broadly be-
cause the employee who is deemed a supervisor is denied em-
ployee rights which the act is intended to protect.“ Westing-
house Electric Corp. v. NLRB, 424 F.2d 1151, 1158 (7th Cir.
1970), enfg. 171 NLRB 1239 (1968), cert. denied 400 US 831
(1970). The burden of proving supervisory status is on the
party alleging that such status exists. Northcrest Nursing
Home, 313 NLRB 491, 496 fn. 28 (1993), and cases cited
therein.
All agree that O’Connell had been employed as one of 12
trainers between March 1994 and October 7. Notwithstanding
his title, O’Connell spend only about 50 percent of his time
training new employees on how to operate six machines. The
other 50 percent was spent on the floor running various ma-
chines for production purposes or running errands for McIl-
WEBCO INDUSTRIES 619
livain. As a trainer, O’Connell attended two management
meetings and participated in employee evaluations. The
evaluations were done as part of a team concept where employ-
ees were taught ultimately to perform their own evaluations.
When McIllivain wasn’t present, O’Connell performed his
duties such as the initialing of timecards or signing reprimands
when directed to do so by McIllivain. O’Connell was paid
$10.30 per hour before his layoff, about 25 cents per hour more
than the most experienced employee in the department. Ac-
cording to the General Counsel witness Bill Nance, former
general business manager of the cold draw department, a trainer
was equivalent to a leadperson.
In its case, Respondent introduced a six-page position de-
scription for a trainer (R. Exh. 178). The document is undated
but Robinette testified she prepared it in 1995. The document
was never shown to O’Connell for his examination as a witness
in this case and there is no credible evidence that this document
determined the day-to-day activities of trainers. I note that
Respondent did not call as witness any of the other trainers, all
of whom (except for union supporter O’Connell) were re-
classified and transferred to other jobs in lieu of lay-off as part
of Respondent’s restructuring.
In McDonnell Douglas Corp. v. NLRB, 655 F.2d 932, 936–
97 (9th Cir. 1981), the issue was whether pilot instructors were
statutory supervisors. In affirming the Board’s holding that the
pilots were employees, the court noted that an instructor-trainee
relationship is different from a supervisor-employee relation-
ship (citations omitted). The court went on to find that any
supervisory authority exercised was too sporadic to permit a
finding that the pilot was a statutory supervisor. This is par-
ticularly true, the court held, where the occasional directions is
exercised over fellow employees of equal rank. This precedent
is directly applicable to the issue pending. I find that Respon-
dent has failed to prove that O’Connell was ever a statutory
supervisor. See General Security Services Corp., 326 NLRB
312 (1998) and SDI Operating Partners, L.P., 321 NLRB 111
(1996) (Neither the fact that employee attended one or more
supervisor’s meetings nor the fact that he was consulted regard-
ing staffing makes employee supervisor).
Having credit O’Connell’s testimony and having found him
not to be a statutory supervisor, I now find that General Coun-
sel has established a violation of Section 8(a)(1) of the Act. In
the context of this case, McIllivain’s comment that he had been
instructed to keep an eye on O’Connell reasonably means that
McIllivain was to engage in surveillance to discourage
O’Connell from engaging in union activities. Stoughton Trail-
ers, Inc., 234 NLRB 1203, 1207 (1978); NLRB v. Thermon
Heat Tracing Services, 143 F.3d 181, 187 (5th Cir. 1998)
(Foreman warned each other to keep track of “union people“).
6. Alleged unlawful no-solicitation rule
a.
In September, Respondent’s employee and witness, J.D. Ca-
sey, held a meeting with his supervisor, Randy Watson. Then
employed as a shift manager, J.D. Casey (a distant relative of
alleged discriminatee Charley Casey) told Watson that he had
heard some “scuttlebutt that the union was organizing“ (Tr. p.
1029).10 In response to this information, Watson “suggested“
to Casey and to another supervisor who was also present, Ken-
neth Deeds, that the two supervisors hold a meeting with their
subordinates to make sure the employees understood Respon-
dent’s no-solicitation policy and to asked if there was any ques-
tions about it. Deeds, a 23-year employee of Respondent’s who
also testified as Respondent’s witness and Casey did as in-
structed and in mid-September assembled a group of about
seven employees for a meeting. Both J.D. Casey and Deeds
testified that Deeds read Respondent’s policy to the employees
from a sheet of paper. This policy is in the record and reads as
follows:

NON-SOLICITATION AND DISTRIBUTION OF
LITERATURE POLICY
PURPOSE: Webco intends to provide a work
environment, which permits all employees to achieve the
fullest possible level of productivity, with minimal inter-
ruption. In order to maintain a proper business environ-
ment free from interference and inconvenience by other
employees, the company will adhere to the following so-
licitation and distribution of literature policy.
PROCEDURE:

1. Solicitation, distribution of literature of other non-
work related items of any kind by employees during work-
ing time of the employee doing the soliciting or distribu-
tion, or distribution of literature of any kind or solicitation
during the working time of the employee being solicited or
receiving the literature is prohibited.
2. Additionally, distribution of literature or other non-
work related items of any kind by employees is prohibited
at all times in working areas.
3. Solicitation, distribution of literature or other non-
work related items of any kind by persons not employed
by Webco is prohibited at all times on company property.
4. Webco reserves the right to regulate all posting on
all bulletin boards.
5. All posting must be approved by the Director of
Personnel Services and related only to Webco’s business.
6. Employees who are not on duty are prohibited from
entering or remaining on the premises other than for pur-
poses directly related to Webco’s business.
7. Employees who violate this policy shall be subject
to discipline up to and including discharge.

10 The date and substance of this conversation is important because
it presents the second prong of a finding I will make below that Re-
spondent was aware of renewed union activity prior to the October 7
layoff. Casey also testified at hearing, although it was not clear if he
related this to Watson, that a couple of [unnamed] employees had al-
legedly complained to him and Deeds that they objected to people
talking to them about the union and they asked Casey and Deeds for
help (Tr. p. 1030). The first prong of Respondent’s knowledge will
relate to Union handbilling at Respondent’s premises on August 19.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 620
8. As used in this policy, the phrase “working time“
does not include time during the workday such as rest or
lunch periods when employees are not properly engaged
in performing their work tasks. [R. Exh. 166.]

Then at the conclusion, when the two supervisors asked if
anyone had questions, only one employee had a question: Why
was the meeting being held? Supposedly this reading and the
single question took about 30 minutes.
One of the employees attending the meeting was Eric Mar-
tin, a witness for the General Counsel and alleged discrimina-
tee. Martin worked as a cutoff operator between December
1994, and October 7. Martin testified that Deeds stated there
can be no talk regarding the Union in the shop nor can anyone
pass out Union literature in the shop. Allegedly, Deeds contin-
ued to say, these things can be done in the breakroom (lunch-
room) only, Martin began to shake his head, a gesture which
caused Deeds to tell him not to do that. On cross-examination,
Martin admitted that Deeds appeared to be reading from a piece
of paper.
Out of seven employees present only Martin testified in sup-
port of the General Counsel’s theory. However, another em-
ployee named David Tidwell, a 15-year employee, who cur-
rently works as a cut-off machine operator testified for Respon-
dent. On direct examination, Tidwell generally corroborated
Casey and Deeds. On cross-examination, he admitted he was
vague about the meeting, except for the beginning. There he
recalled Deeds saying, “I am going to read this, so that there is
no misunderstandings“ (Tr. p. 1009).
Based on the above summary of the evidence, I credit Re-
spondent’s witnesses. The General Counsel does not argue that
Respondent’s printed policy, recited above, is unlawful and I
cannot find that the issue was litigated at the hearing. Accord-
ingly, based on Deeds’ reading of R. Exh. 166, I will recom-
mend this allegation be dismissed.
b.
A second issue regarding Respondent’s no-solicitation policy
is presented with different witnesses. Again in mid-September,
Respondent supervisor and witness Charles Conn, a quality
control manager employed for 13½ years, held a meeting of
two of the three employees subordinate to him. They were
Jerry Rogers, an employee between August 1984, and Octo-
ber 7, and Roy Morris, an employee between March 1994, and
October 7. A third employee named Jarred Johnson worked a
different shift and did not attend. All three employees were
employed as quality assurance auditors and Rogers and Morris
are alleged discriminatees and the General Counsel witnesses.
The two supported the union and were laid off; Johnson did not
testify and was not laid off, although his job was restructured.
The meeting in question was held in the tensile room, a work
area where certain testing is done, such as tensile strength of
material, other testing, a computer is used and some paperwork
is completed. According to Conn, he held a meeting because
his then boss, O’Brien asked him to review Respondent’s so-
licitation policy. The tensile room served many purposes: be-
sides a work area, and room for meetings, it was also used as a
lunchroom and breakroom. Rogers and Morris preferred the
tensile room over the more crowded and apparently louder
lunchroom. Conn himself occasionally ate his lunch in there
and was aware of the more frequent usage by Rogers and Mor-
ris. I find that the tensile room was a de facto break and lunch-
room for all times material.
As Conn entered the tensile room to convene the meeting, he
locked the door. His explanation for doing so—to prevent in-
terruptions—is credited only in part. Conn also wished to con-
vey the gravity of the meeting and he succeeded in that objec-
tive. According to Rogers, Conn interrogated him about union
activities, asking him if he was still serious about bringing the
union into Webco. Rogers answered that he was. Conn also
said that employees could talk about the union on breaktime
only and in the breakroom only. Conn insisted that the tensile
room was not a breakroom. Morris, essentially corroborated
Rogers’ testimony except he recalls adding that the Webers
were the Union’s best friend. On cross-examination, Morris
recalled Conn saying that while it was permissible to take
breaks in the tensile room, employees couldn’t talk about the
union there. However, other non-work subjects such as family,
hunting and fishing were permissible.
In his testimony as Respondent witness, Conn stated he held
the meeting in question to “communicate various things, com-
ing down from customer relations to such as policies. And it
was just updating each individual as a group, on things that are
going on, as far as changes to procedures“ (Tr. p. 1033). Conn
denied making the statements attributed to him, but allowed on
cross-examination that he didn’t recall everything that he said
in the meeting.
This time I credit the General Counsel’s witnesses and find
that Conn violated the Act by attempting to ban union talk or
activities from a de facto breakroom, a non-working area when
used for that purpose.11 Valmont Industries, 328 NLRB 309,
318 (1999). Conn also violated the Act by attempting to re-
strict conversations about the Union while allowing conversa-
tions about other subjects. This rule applies both to worktime
or non-worktime. Williamette Industries, 306 NLRB 1010 fn.
2, 1017 (1992); Orval Kent Food Co., 278 NLRB 402, 407
(1986). I also find that Respondent violated Section 8(a)(1) of
the Act by Conn interrogating Rogers about his union activities.
7. Alleged threat and impression of surveillance by
Supervisor Blevins to Schooley
The General Counsel’s witness Schooley and supervisor
Dewayne Blevins went to high school together and their sons
participated in the same sports activities. Blevins has worked
for Respondent for 15 years and as of September 22, he was a
supervisor, but did not supervise Schooley. Both sides agree
that on September 22 about 2 p.m., Schooley initiated a contact
with Blevins, who Schooley described as a “friend,“ because
Schooley had heard that an antiunion meeting had been held
that day and Schooley asked his friend Blevins, if any names
had been mentioned and if it was an antiunion meeting. This
conversation occurred near the vending machine where Schoo-
ley had gone to look for Blevins apparently on worktime.

11 In Webco Industries, 327 NLRB 172, 183–184 (1998) made a
similar finding. I need not determine whether the principle of res judi-
cata applies here.
WEBCO INDUSTRIES 621
According to Schooley, Belvins confirmed that an antiunion
meeting had been held that morning, but that no names had
been mentioned; Blevins added, “they don’t forget, they re-
member from the past what is going on . . . you need to watch
out what you are doing . . . . Right now, you are out of your
work area so they can fire you, you need to be careful who you
are talking to and where you are at . . . . they are going to make
an example out of somebody“ (Tr. p. 363).
According to Blevins, Schooley asked him if an antiunion
meeting had been held and if any names had been mentioned.
This interrogation of Blevins by Schooley, lasted a few minutes
with Blevins telling Schooley only that no names had been
mentioned at the meeting. Blevins concluded the meeting by
saying that “this is worktime, and worktime is worktime. And
you probably should be back in your area“ (Tr. p. 1055).
Like the General Counsel (Br. p. 19), I find some of Blevins’
testimony incredible. For example, he testified that Schooley
tried to “clear“ himself of union involvement, denying he was a
union supporter. Blevins denied knowing that Schooley was a
union supporter or even that he had testified in the prior Board
hearing. On the other hand, the substance of Schooley’s testi-
mony does not differ from Blevins’ in certain respects. So the
question is whether a conversation initiated by an open and
active union adherent with a supervisor thought to be a friend is
a violation of Section 8(a)(1) of the Act. I think not in this
instance for I can find no coercion. Compare Sundance Con-
struction Management, 325 NLRB 1013 (1998).
To be sure, the mere existence of friendly relations between
a supervisor and an employees does not preclude a finding that
the supervisor employed coercion violative of the Act. NLRB
v. Homemaker Shops, Inc., 724 F.2d 535, 550 (6th Cir. 1984).
Here however Blevins seems to be telling Schooley only that
the Respondent would be glad to be presented with an opportu-
nity to discharge Schooley. Klate Holt Co., 161 NLRB 1606,
1612 (1966).
As to the alleged impression of surveillance, the General
Counsel must prove that Schooley would reasonably assume
from the statement in question that his union activities had been
placed under surveillance. United Charter Service, 306 NLRB
150 (1992). Even assuming for the sake of argument that I
credit Schooley’s testimony in toto, I cannot find that it was his
union activities under surveillance, but his activities outside of
his work area during working time that would be placed under
surveillance. In recommending that this allegation be dis-
missed, I note that Blevins could have disciplined Schooley for
being out of his work area at the time of the conversation. In-
stead, Blevins merely told Schooley to return to his work area
and be careful in the future. To find a violation here would not
only be outside Board law, but would turn the principles of
equity upside down and inside out.
8. Alleged unlawful layoffs of certain employees
The General Counsel has the initial burden of establishing a
prima facie case sufficient to support an inference that union or
other activity which is protected by the Act was a motivating
factor in Respondent’s‘’ action alleged to constitute discrimina-
tion in violation of Section 8(a)(3). Once this is established, the
burden shifts to Respondent to demonstrate that the alleged
discriminatory conduct would have taken place even in the
absence of the protected activity. If Respondent goes forward
with such evidence, the General Counsel “is further required to
rebut the employer’s asserted defense by demonstrating that the
[alleged discrimination] would not have taken place in the ab-
sence of the employee[‘s] protected activities.“ Wright Line,
251 NLRB 1983 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 US 989 (1982); approved in NLRB v. Trans-
portation Management Corp., 462 US 393 (1983). See also,
Fluor Daniels, Inc., 304 NLRB 970 (1991) and Manno Elec-
tric, 321 NLRB 278, 280, fn. 12 (1996). The test applies re-
gardless of whether the case involves pretextual reasons or dual
motivation. Frank Black Mechanical Services, 271 NLRB
1302, fn. 1 (1984). “[A] finding of pretext necessarily means
that the reasons advanced by the employer either did not exist
or were not in fact relied upon, thereby leaving intact the infer-
ence of wrongful motive established by the General Counsel.“
Limestone Apparel Corp., 255 NLRB 722 (1981), enfd. 705
F.2d 799 (6th Cir. 1982).
A prima facie case is made out where the General Counsel
establishes union activity, employer knowledge, animus, and
adverse action taken against involved or suspected of
involvement, which has the effect of encouraging or discourag-
ing union activity. Farmer Bros. Co., 303 NLRB 638, 649
(1991). Inferences of animus and discriminatory motivation
may be warranted under all the circumstances of a case; even
without direct evidence. Evidence of suspicious timing, false
reasons given in defense, and the failure to adequately investi-
gate alleged misconduct all support such inferences. Adco
Electric, 307 NLRB 1113, 1128 (1992), enfd. 6 F.3d 1110 (5th
Cir. 1993); Electronic Data Systems Corp., 305 NLRB 219
(1991).
In this case, I find that the General Counsel has established a
strong prima facie case of discrimination against the remaining
alleged discriminatees because of their union or other protected
activities.
a.
As will be mentioned below, I find first that the General
Counsel has established renewed union activity. As first men-
tioned in fn. 10 above, the Union resumed its union activity
beginning with the distribution of union flyers on August 19.12
Respondent was well aware of this activity and other activity
within the plant. Witness the testimony of supervisor Dye who
watched this activity for 1–2 hours on a hot afternoon. Animus
is amply demonstrated not only by the unfair labor practices
committed in the prior Webco case, 327 NLRB 172 (1998), but
by the 8(a)(1) violations found in this case, although fewer than
those alleged. Any remaining doubt of animus will evaporate
as I recite below the testimony of certain General Counsel wit-
nesses not yet mentioned. The adverse action, of course, is
evident.
I begin by noting the timing factor, which to me is “stun-
ningly obvious.” NLRB v. Long Island Limousine Service
Corp., 468 F.2d 292, 295 (2d Cir. 1972); see also NLRB v. Rain

12 The argument at hearing whether the Union was beginning a new
campaign or merely resuming its 1997 campaign is an argument I do
not join as it makes no difference to any issue in this case.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 622
Ware, Inc., 732 F.2d 1349, 1354 (7th Cir. 1984). In sum,
shortly after Respondent became aware of the resumption of
union activity, layoffs began. This is not the only factor, but it
is one factor. (Compare Frierson Building Supply Co., 328
NLRB 1023, 1024 (1999). To be sure this factor has less
prominence in the present case compared to other cases because
of the undisputed economic shortfall, which Respondent ex-
perienced at its SW Tube facility.
I also note that Respondent attempted to justify its lay-offs
by referring over and over to an employee’s “bad attitude.“
The Board has long held that such terminology is a code word
for supporter of union activities. See e.g., Denholme & Mohr,
Inc., 292 NLRB 61, 67 (1988).13 “Bad attitude“ in Respon-
dent’s lexicon includes resistance to being a “team player,“
unwillingness to change jobs or shifts in accord with Respon-
dent’s needs (inflexibility), failure to undergo additional train-
ing and attendance problems. Robinette testified she relied in
part on her subjective impressions of employees from her sev-
eral years as plant manager to justify the layoffs.14 In some
cases, Respondent presented certain evaluations to corroborate
Robinette’s impressions, in other cases, the General Counsel
offered evaluations to rebut. Besides “bad attitude“ meaning
“union supporter,“ there is another problem: when the alleged
discriminatees asked on October 7 why they were being laid
off, not one was told because of bad attitude or for any other
personal or disciplinary reason. Even where certain employees
specifically asked if certain prior disciplinary actions or screw-
ups were the reason for the layoffs, they were all told the
layoffs were due to an economic shortfall or competitive pres-
sures. This vacillation in offering a consistent explanation for
its actions raises an inference that the real reason for its conduct
is not among those asserted. Resolute Realty Management
Corp., 297 NLRB 679, 687 (1990); Shattuck Denn Mining
Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir. 1966).
This failure of consistency extended even to the hearing. For
example, it is not clear whether Respondent was laying off
employees due to an economic downturn or terminating em-
ployees because they were considered to be poor or marginal
employees. As to lay-offs, Respondent did not oppose any
applications for state unemployment compensation filed by laid
off employees. Moreover, the testimony of Dana Weber cov-
ered in excruciating detail the sudden economic problems faced
by Respondent prior to the layoffs. As to terminations, I have
already described Respondent’s policy prohibiting the re-hiring
of any laid-off employee. Moreover, Robinette and other wit-
nesses covered alleged transgressions of various alleged dis-
criminatees to justify their lay-offs. Under Respondent’s disci-
plinary system, the accumulation of 12 points within a certain
period of time means automatic dismissal. An employee can
also reduce his points by improving his performance over a
period of time. One or more alleged discriminatees reached 11

13 There was also evidence that Bill Weber referred to certain em-
ployees as “troublemakers,“ another term which the Board has found
means “union supporters.“ Monfort of Colorado, 298 NLRB 73, 74
(1990), enfd. in relevant part, 145 LRRM 2923 (10th Cir. 1994).
14 In a case like this, reliance on subjective impression is also evi-
dence of an illicit motive. NLRB v. Centra, 954 F.2d 366, 374 (6th Cir.
1992).
points, but then apparently improved their performance to Re-
spondent’s satisfaction.
One factor, which I assign no weight to, is the employment
of new employees beginning in the spring of 1999 to work in
SW Tube and elsewhere. Generally, when seasoned employees
are replaced by new employees, this is a factor supporting an
illicit motive. Denholme & Mohr, Inc., supra, 292 NLRB at 67
of J.D.; NLRB v. Foodway of El Paso, 496 F.2d 117, 119-120
(5th Cir. 1974). Here, however, Respondent’s apparent policy
of long duration of not recalling laid-off employees precludes
the assignment of any weight to this factor.15
A second factor to which I assign little or no weight is the
abrupt nature of the layoffs. In this regard, I assume without
finding that the testimony of Dana Weber is sufficient not only
to establish that which was not contested in the first place, that
Respondent’s competition both national and international cou-
pled with a sudden and precipitous decline in the market for
Respondent’s products required the 53-employee layoff (R.
Exhs. 156, 157). Dana Weber was corroborated by Respon-
dent’s vice president for operations, Tom Lewis, a 17-year
employee, and Respondent witness. A full-time employee at
Respondent’s facility in Pennsylvania beginning in 1994, Lewis
was suddenly recalled in September to work on the layoffs and
restructuring required by the economic crisis. Don Holder,
Respondent’s director of human resources, also provided
corroborating testimony on this point.
So up to this point, Respondent has managed to give a good
account of its evidence, blunting certain incriminating factors
such as timing and eliminating other factors. The case might be
a close case except for a group of five former Respondent su-
pervisors whose combined testimony, in my opinion, presents
an insurmountable barrier to Respondent. I call this group, the
“gang of five.“
b.
The General Counsel began with Harvey Whittenburg, an
employee between April 1973, to October 1996, when he was
terminated for what he claimed were unknown reasons. At the
time of his termination Whittenburg was a corporate director
and prior to that he had been plant manager. In fact he was part
of Respondent’s management for all his tenure, save for the
first 2 years. Based on his attendance at various management
meetings over the years, Whittenburg testified that Bill Weber
was very adamant; anyone involved in union activity would
lose their jobs. Whittenburg described two past union organiz-
ing drives, one in the mid-1980’s and the other in the early
1990’s, where Bill Weber orchestrated the lay-offs of union
supporters. In the earlier campaign, the names of union sup-
porters were placed on a blackboard list. In the later campaign,
Whittenburg was told to go out and try to get rid of union sup-
porters. At this point Bill Weber held a meeting after union
flyers had been distributed in Respondent’s driveway and re-
peated that anyone involved in union activities would lose his
15 Notwithstanding my decision on this point, Respondent’s former
classification of “trainer,“ and about 12 employees in that classification
before the restructuring indicate that Respondent’s employees had a
level of skill not easily replaced. Furthermore, Respondent’s alleged
policy of viewing transfers as disfavored is not convincing.
WEBCO INDUSTRIES 623
job or Bill Weber would close the plant down. Managers were
instructed to lay off employees using a criteria of attendance,
and other objective factors and then work in the union support-
ers from a list supplied by Holder.
According to Dana Weber, Whittenburg’s job performance
declined for the last 2 years of his employment. He refused to
accept other positions, although when he finally left, Dana We-
ber provided several positive references. All of Respondent’s
witnesses denied the existence of prior union campaigns and
Bill Weber specifically denied the statements attributed to him
by Whittenburg. I find that Whittenburg’s testimony must be
viewed with great caution and scrutinized carefully.
A second witness called by the General Counsel is Larry
O’Brien, a Respondent employee between June 1993, and Oc-
tober when he was laid off from his job as quality assurance
manager. O’Brien’s testimony begins in the summer when
managers received information of union activity resumption.
According to O’Brien, General Manager Bill Obermarck told
supervisors to find out the extent of union activity and report
back to him (Obermarck did not testify in this case). Eventu-
ally at manager meetings the names of 25 to 30 union support-
ers were placed on a white board in the meeting room. These
names included many of the remaining alleged discriminatees
in this case such as Schooley, Rogers, Morris, Teague, and
Leasman. O’Brien recalled that Robinette had questioned how
Richard Teague and Leasman could have been hired because
they are respectively, brother and brother-in-law to Jim Teague,
a union organizer who was handbilling at Respondent on Au-
gust 19. O’Brien also recalled how in the meetings during this
period, certain departments were identified as having a high
concentration of prounion employees, such as maintenance,
tool and dye, and cold draw.
A third former supervisor was James Kash, an employee be-
tween, August 1993, and March 1999 when he resigned as
director of quality assurance. Kash had also worked for a few
years as general manager of Respondent’s SSCM facility.
Kash described a management meeting on October 6, which
Bill and Dana Weber attended for a while. When they left,
Robinette provided Kash and other managers with a list of 50 to
55 names of employees to be laid off. During a discussion of
those employees on the list, managers made comments about
some. For example, someone said Schooley, Rogers, and Les-
lie were involved with the Union and Leslie had a union sticker
on the back of his motorcycle. Other comments were made
about employees’ attendance, work habits, or attitude. Appar-
ently there was some trading going on with respect to those
employees not thought to be union supporters. Some names
were deleted and others added. According to Kash, before he
left, Bill Weber said that anyone removed from the lay-off list
would be the responsibility of the managers for that depart-
ment. Weber denied making this remark.
When Kash resigned he wrote a letter to Lewis giving the
reason for his departure as a difference of opinion over policy
(R. Exh. 163). According to his supervisor at the time, Re-
spondent witness John Bayless, Kash was having trouble in
performing his assigned tasks.
The General Counsel’s fourth former supervisor was Bill
Nance, a Respondent employee between July 1997, and Janu-
ary 1999, when he was laid off. Nance had been the general
business manager of the cold draw operation. In August,
Nance began to attend management meetings in the conference
room where Robinette and Holder described the cold-draw
department as a “hot bed for union activity.“ Nance also de-
scribed the October 6 meeting and generally corroborated
Kash’s account as to the existence of a lay-off list. Schooley
was described as having a black mark against him for being a
union organizer and Lewis added, “he’s out of here.” Others
were described as union sympathizers: Rogers, Morris, Ruck-
man, O’Connell, Teague, and Williams. Supposedly Leasman
was described by Holder as a union plant.16 To the extent he
was familiar with the names of employees on this list, Nance
said the job performance of most was fairly good but in any
event, job performance was not discussed as the reason they
were on the list. Based on his observation, Nance thought some
employees targeted as union sympathizers were innocent of the
charge.
Dana Weber described Nance as an unsatisfactory employee
who was not getting the job done. Lewis also described Nance
as not having a clue about what was going on.
The final General Counsel witness in this category was
Robert Krevett, an employee between January 1997, and No-
vember when he was terminated. Krevett had been the person-
nel manager for SW Tube and attended the August manage-
ment meeting referred to above. He recalled Robinette’s com-
ment deploring the hiring of Richard Teague and expressing
concern that he was a union plant. Krevett testified that at this
meeting, Robinette told participants that if an opportunity pre-
sented itself to get rid of the union sympathizers, the company
should do it.
According to Dana Weber, Krevett was fired because of an
unacceptable philosophy of personnel management, which
involved the showing of favoritism, inability to resolve a sexual
harassment problem, and workmen’s compensation difficulties.
In fact, he was so bad, that when told he would be fired, he
wept in the presence of Dana Weber, apparently thereby con-
firming his incompetence, in her eyes.
A fair summary of the evidence presented by the “gang of
five“ is to present irrefutable evidence of Respondent’s unlaw-
ful motive in targeting union supporters to be laid off. With the
partial exception of Whittenburg, I credit these witnesses over
all of Respondent’s witnesses who denied making the remarks
attributed to them. I also find that Respondent equated support
for the union as a negative, which deserved employee’s layoff.
The witnesses are generally independent and mutually corrobo-
rating and despite certain unlikely aspects, for example discuss-
ing Leasman at an October meeting when he had been termi-
nated in August, I believe their testimony. In so finding, I have
considered that each could have a motive to fabricate. But
when taken together there is just too much evidence to disbe-
lieve.17

16 By this time of this meeting, Leasman had been terminated for
about 6 weeks.
17 Respondent’s contentions regarding the “gang of five“ (Br. pgs.
32–40), is not convincing.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 624
c.
I turn briefly to the alleged discriminatees remaining in this
case. Robert Leasman was hired in late July and terminated on
August 24. Originally hired as a “temporary,“ he worked for 2
weeks until a hiring official returned from a vacation. At this
time he was made permanent. On August 19, Leasman was
driving out of work in his rather prominently decorated truck,
which contained the name of his auto repair business, when he
stopped to talk with and receive a union handbill from Jim
Teague to whom he was related. That night he attended the
union meeting mentioned in the handbill. On August 24, his
supervisor Frank Casey, who did not testify, told him, without
explanation, that his services were no longer required.
When terminated, Leasman was a probationary employee.
However, this fact does not immunize Respondent’s decision
from scrutiny. Caguas Asphalt, Inc., 296 NLRB 785, 785–786
(1989). But see Parker Seal Co., 239 NLRB 1023, 1026
(1978). Besides accepting the flyer and attending the union
meeting, Leasman had another strike against him, he was Jim
Teague’s brother-in-law and former supervisor O’Brien credi-
bly testified that Robinette made a critical comment about him
for this reason (Kash also claimed to have recalled a similar
comment made by Robinette at a meeting on October 6, but by
this time Leasman was long gone and I do not credit this part of
his testimony).
At hearing, Respondent established that several others re-
ceived union handbills and some of these recipients also at-
tended the union meeting that night, but none of them experi-
enced immediate terminations, although many were laid off on
October 7. Leasman was the only employee on probation and I
find that he was perceived to be the most vulnerable because of
his status. I find that Respondent was aware of his protected
activities based on the surveillance of Dye. In the absence of
any credible explanation for his abrupt termination, I find that
he was terminated in violation of Section 8(a)(3) of the Act.18
As to the others, I find that all engaged in union activities
primarily in early 1997 when the union campaign began. Re-
spondent singles out Charley Casey as one who never engaged
in union activities (Br. p. 10). I find that he signed a union card
on May 20, some several months before his lay-off. I cannot
account for Casey’s signing of a card at this time and there is
no direct evidence that Respondent was aware of Casey’s union
activities; however, the following circumstantial evidence is
very convincing. Respondent witness, John Bayless, Director
of Maintenance and Engineering and Casey’s boss, desired to
fire Casey in 1996 for failure to perform his job adequately
based in part on his illiteracy. Casey sought and received the
personal intervention of Bill Weber with whom he had some
sort of personal relationship due to the former’s 26-year tenure
with the company. Bill Weber prevented Casey’s termination
on condition that Casey learn to read and write by working with
a personal tutor paid for by the company and working in part on
company time. Casey quit this program after 2 months without
achieving its objective. Yet he continued working, apparently

18 Leasman was also held accountable for the union activities of his
relative, Jim Teague. NLRB v. Advertisers Mfg. Co., 823 F.2d 1086,
1089 (7th Cir. 1987).
under the protection of Bill Weber until October 7, when We-
ber gave permission to include Casey on the lay-off list. This
shows me that animosity toward the union trumped any per-
sonal relationship.19
Richard Teague, like Leasman, was related to union organ-
izer Jim Teague and was blackballed for that reason. I agree
with General Counsel (Br., p. 21), that the names of Schooley,
Rogers, Morris, Martin, Ruckman, and O’Connell were men-
tioned by the “gang of five“ as being on a list, identified as pro-
union. This is probative evidence of Respondent’s motive, if
not dispositive. See Jet Star, Inc., 328 NLRB 580, 583 (1999).
Respondent offered evidence that the alleged discriminatees
were marginal employees and guilty of having a bad attitude.
Respondent uses a number of different forms to evaluate its
employees such as reviews, consultations, and formal evalua-
tions. Each of these forms prepared on a regular schedule has a
number of subsections, which frequently rated a subject good in
one area, deficient in another. Many of these forms were of-
fered by Respondent in support of its defense (R. Exhs. 15–70,
72–75, 164–165). General Counsel offered similar documents
on the alleged discriminatees (see e.g. GC Exhs. 2–20), appar-
ently to show the alleged discriminatees were not so bad after
all. The fact is for even the worst alleged discriminatee, certain
sections support the General Counsel’s theory; for even the
best-alleged discriminatee, certain sections support Respon-
dent’s theory. Those employees among the 53 laid off, who are
not claimed to be alleged discriminatees also had records,
which could be argued from either side. For good measure, my
attention is also called to those employees not laid off who in
some cases had equally inconsistent records (GC Exh. 37, 38–
119). The result of this tidal wave of reports, evaluations, re-
views, and disciplinary write-ups is in my opinion, inconclu-
sive.
This still leave more than ample evidence to find in favor of
the General Counsel. To be more specific, I find that Respon-
dent has failed to rebut the General Counsel’s strong prima
facie case as to Gary Schooley, Jerry Rogers, Roy Morris,
Shawn Wilson, Richard Teague, Terry Ruckman, Eric Martin,
Charlie Williams, Bryan O’Connell, and Charley Casey. All
engaged in union activities. Based on direct and circumstantial
evidence, Respondent was aware of these activities. Respon-
dent’s animus is undeniable, and they were all laid off. See
Garvey Marine, 328 NLRB 991 (1999) (Respondent failed to
meet “formidable“ burden of showing that it would have taken
disciplinary action against employees regardless of their union
activities). American Wire Products, 313 NLRB 989 (1994)
(mass discharge of union supporters unlawfully motivated);
Hoffman Plastic Compounds, 306 NLRB 100 (1992) (during
valid layoffs for economic reasons, Respondent discriminato-
rily selected union supporters to be included in group to be laid
off).
In sum, Respondent’s action removed the principal union
supporters from the plant just as Bill Weber vowed to do in the
19 It appears to me that Bill Weber condoned the failure of Charley
Casey to improve himself, and therefore Respondent may not thereafter
rely on that alleged misconduct as a basis for discharging Casey. Vir-
ginia Electric & Power Co., 262 NLRB 1119 , 1126 (1982).
WEBCO INDUSTRIES 625
past. To the extent, some less prominent union supporters re-
main; and to the extent employees neutral or even opposed to
the union were included, the General Counsel’s case remains
unaffected. See Birch Run Welding & Fabricating, Inc., 761
F.2d 1175, 1180 (6th Cir. 1985). I find that Respondent vio-
lated Section 8(a)(3) and (1) of the Act by the layoffs of those
named above.
9. Alleged violations of Section 8(a)(4)
As to Schooley, Ruckman and Williams, the General Coun-
sel also contends they were selected for layoff because they
participated in the prior Board hearing. The purpose of Section
8(a)(4) is to assure an effective administration of the Act by
providing immunity to those who initiate or assist the Board in
proceedings under the Act. General Services, Inc., 229 NLRB
940, 944 (1977). Despite the Board’s “liberal approach“ in
order to fully effectuate the section’s remedial purpose (Id., p.
941), I find that the General Counsel has failed to prove a viola-
tion here. Dana Weber credibly testified that after the prior
hearing was completed, she held a managers meeting and told
those in attendance that they were to put the case behind them
as there was work to be done. Managers were also told to
spread the word that there would be no retaliation against pro-
union employees, witnesses and others by managers or by anti-
union employees. The General Counsel witness and former
supervisor Krevett corroborated Dana Weber on this point.
Indeed, until the start up of union activity in the summer, that
message appeared to take hold. So in a strange and curious
way, Respondent’s defense to this charge is that in laying off
the three alleged discriminatees, it was motivated not by their
participation in a prior Board hearing, but by their status as
union supporters, thereby violating a different section of the
Act. I find no merit here and recommend this allegation be
dismissed.
10. Alleged waiver of rights against respondent
Respondent has timely raised an affirmative defense involv-
ing the severance agreements/releases. Of the 10 discrimina-
tees in this case, only 2, Eric Martin and Charley Casey exe-
cuted these documents (R. Exhs. 76, 77 (Martin) and 92, 93
(Casey). The issue is whether these severance agreements were
effective to bar Martin and Casey from the relief they are enti-
tled to under this decision. Respondent’s brief on this point
was submitted midhearing and is contained in the record (R.
Exh. 94(a)).
According to Respondent, it attempted to lessen hardship to
those, which Respondent was forced to lay off to remain com-
petitive, by offering sums of money pursuant to a severance
agreement. Under this agreement, the subject employee agreed
to release Respondent from a claim or liability, including any
claims under the Act. Respondent claims the current ULP case
arose when the subject employees breached their agreement
(This alleged breach did not bar Respondent from entering into
private settlement agreements with many alleged discriminatees
who signed the severance agreements). Respondent bases the
thrust of its argument on Hughes Christensen Co., 317 NLRB
633 (1995).
In Hughes Christensen, the Board held that the validity of
the severance agreements should be governed by the same
standards as private non-Board settlements under Independent
Stove Co., 287 NLRB 740 (1987). Using that analysis, the
Board found the severance releases were effective and the com-
plaint was dismissed.
I will engage in the same analysis mandated by the Board,
find the facts in Hughes Christensen to be distinguishable and
reach a contrary conclusion:
(1) Whether the parties have agreed to be bound by the posi-
tion taken by the General Counsel. In this case, neither the
Union (Charging Party here) nor the General Counsel was ever
noticed nor did they agree to be bound. At page 635 of Hughes
Christensen, the Board noted that the Union was not a party to
the severance agreement, but the Board held that factor is out-
weighed by other factors. I am bound by the Board’s view, of
course, but I cannot understand how an employee could waive
the rights of the nonparty union. In American Broadcasting
Co., 290 NLRB 86, 88 (1988), the Board discussed under what
conditions a union could waive the rights of employees. Such
waivers are disfavored and there must be clear and unmistak-
able evidence of the union’s intention to give up an employee
right. Surely an employee’s waiver of union rights must met
the same high threshold, particularly in a case like that pending
at bar, where the union has important institutional rights to
vindicate, such as its right to prove to its supporters that an
employer may not frustrate its organizational campaign by
terminating its supporters. Such rights as these should not be
waivable by the whim or caprice of an impoverished employee
whose hardship was created by the unlawful acts of the em-
ployer.
In Hughes Christensen Co., the General Counsel opposed the
agreement. However, at the time the agreements were signed,
the charges filed on behalf of the alleged discriminatees had
been dismissed by the Regional Director and had not yet been
reinstated by the General Counsel, so this factor affected the
Board’s calculus as to the risks inherent in litigation and the
stage of litigation. In the instant case, the Union’s first charge
was filed on October 8 alleging the unlawful terminations of
Morris, Rogers, Schooley, White, Stephenson, Wilson, and
Richard Teague (GC Exh. 1(a)). Martin signed his agreement
on October 7 (R. Exh. 76) and Casey signed his on November 3
(R. Exh. 92). So for Martin no case even existed and for Casey,
the case was still in the investigative stages, major points of
departure from Hughes Christensen.
(2) Another significant difference concerns the Respondent’s
history. Unlike the Respondent in Hughes Christensen, Re-
spondent here has a history of violating the Act. Moreover,
there is a nexus between the prior violations and those found
here which, in my view, further strengths the General Counsel’s
argument.
(3) To be sure, Martin and Casey were advised to consult an
attorney, were given a period of time to agree to the severance
agreement plus another period of seven days to revoke or re-
scind after signing, all like those releases found valid in Hughes
Christensen.20 However, I find the difference outweigh the
similarities and Hughes Christensen does not apply to the pre-

20 I assume without finding that these and other relevant considera-
tion are adequate to show lack of coercion or duress.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 626
sent case. Inexplicably, no party to this case has cited the later
Board decision of Weldun International, Inc., 321 NLRB 733
(1966), enfd. in relevant part, unpublished order, Docket #97-
5272 (6th Cir. 9/16/98). In that case, the Board held (p. 734),
that Respondent had failed to demonstrate that it would have
permanently laid off 29 employees, absent the union campaign.
At page 734, footnote 6, the Board distinguished Hughes Chris-
tensen for the same reason I do, above, because the case was in
the investigative phase and had not been dismissed (at p. 754 of
the J.D. the judge deals with the question of the Charging Party
Union not being a party to the severance agreements, a point
that the Board did not take up).
Both Weldun International Inc., fn. 6 and a still later case,
Krist Oil, 328 NLRB 825 fn. 3 (1999) leave to the compliance
stage of the proceeding, the question of the effect that the
amounts received shall have on these employees backpay
awards. I will do the same.21 For now, I find that Respondent
has failed to prove its affirmative defense and as to Martin and
Casey, the severance agreements/releases are null and void.22
11. Alleged bar of certain allegations by
Section 10(b) of the Act
In GC Exh. 1(n)), the General Counsel sought to amend the
complaint to add (to par. 6(b)) Casey, Williams, and O’Connell
as alleged discriminatees terminated on October 7, in violation
of the Act. The General Counsel also sought to add Schooley,
Ruckman, and Williams as alleged discriminatee in par. 6(d) in
violation of Section 8(a)(4) of the Act, an allegation, I have
found without merit above. A second notice to amend is found
at G.C. Ex. 1(q), which amends par. 5 of the complaint to allege
threats of unspecified reprisals by supervisor Mark McIllivain,
a violation I found above, and unlawful videotaping by
Robinette and threats by supervisor Ronnie Cole, two allega-
tions I found to be lacking in merit above.
In addition to the McIllivain allegation, I found merit to the
Schooley, Williams, and Casey amendment. I allowed the
amendment at hearing with the understanding I would re-
examine the issue in my decision. I now re-affirm my decision
made at hearing.
A statute of limitations defense is an affirmative defense and
the initial burden of proceeding with an affirmative defense
rests with Respondent. Silver State Disposal Service, Inc., 326
NLRB No. 25, slip op. p. 2 (1998). I find here that Respondent
has failed to meet its burden of proof. I begin with Burlington
Times, Inc., 328 NLRB 750, 751–752 (1999), citing Redd-I,
Inc., 290 NLRB 1115 (1988), where the Board instructed that
any amendment of the complaint must be closely related to an
allegation contained in a timely filed charge. As further con-
tained within, Redd-I, Inc., the Board looks to (1) whether the

21 At p. 61 of its brief, Respondent asserts that Schooley returned to
work for 1 day and quit and Leasman never showed up at all, both
having been reinstated by the 10(j) proceedings. If true, these represen-
tations present additional issues for compliance and I express no opin-
ion on these representations at this time.
22 At pgs. 4–7, R. Exh. 94(a), Respondent discussed its view of
whether the severance agreements are valid under Federal law and
Oklahoma law. I see no reason to enter into that debate since the
agreements are not valid under Board law.
new allegations involve the same legal theory as the allegations
in the charge; (2) whether the allegations arise from the same
factual situation or sequence of events as the allegations in the
charge; and (3) whether a Respondent would raise the same or
similar defense to both allegations.
I have already referred to the original charge (GC Exh. 1(a))
filed on October 8 and alleging the unlawful termination of
certain employees. The amended charge (GC Exh. 1(c)) filed
on December 29 alleges an unlawful course of conduct by Re-
spondent including interrogations, restrictions on communica-
tions regarding unions, threats, and other coercive activities.
Extended discussion is not warranted. Surely it is evident
that in the allegations found to here merit, the same legal theory
is present, arising out of the same factual situation or sequence
of events and Respondent raises the same defense; a straight
denial of the allegation.
Accordingly, I find that amendments are closely related to
the original charge and are predicated on the same legal theory.
Epic Security Corp., 325 NLRB 772, 775 fn. 13 (1998), citing
Nickles Bakery of Indiana, 296 NLRB 927, 928 fn. 5 (1989);
Sonicraft, Inc. v. NLRB, 905 F.2d 146, 148–149 (7th Cir. 1990).
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Sections 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by its Su-
pervisor Harmon interrogating employee Schooley about his
union activities; by its supervisor McIllivain threatening em-
ployee O’Connell with unspecified reprisals; by its supervisor
Conn restricting employees discussions about the union on non-
worktime in a de facto breakroom and on worktime when em-
ployees were permitted to discuss other subjects, but not the
union; and by Conn interrogating Rogers about his union activi-
ties.
4. Respondent violated Section 8(a)(3) and (1) of the Act by
terminating employee Robert Leasman and by laying off Gary
Schooley, Jerry Rogers, Roy Morris, Shawn Wilson, Richard
Teague, Terry Ruckman, Eric Martin, Charlie Williams, Bryan
O’Connell, and Charley Casey.
5. Respondent has failed to prove its affirmative defenses
that two employees waived their right against Respondent by
signing severance agreements/releases and that certain amend-
ments to the complaint are barred by the statute of limitations.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act. Having also found that the Respon-
dent unlawfully terminated one employee and laid off others, I
shall recommend that the Respondent be required to reinstate
them immediately to their former positions or, if those positions
no longer exist, to substantially equivalent positions, without
prejudice to their seniority or to any other rights or privileges
previously enjoyed, dismissing if necessary any person hired
after October 7, 1998, and make the employees whole for any
WEBCO INDUSTRIES 627
loss of earnings and other benefits suffered as a result of the
Respondent’s unlawful termination and lay-offs. Backpay is to
be computed in the manner prescribed in F. W. Woolworth Co.,
90 NLRB 289 (1950), with interest to be computed in accor-
dance with New Horizons for the Retarded, 283 NLRB 1173
(1987).
In light of Respondent’s prior unfair labor practices and the
unfair labor practices found here and the serious nature of the
violations, I will recommend that a “Broad“ Order is warranted
on the grounds that Respondent has demonstrated a proclivity
to violate the Act and a general disregard for the employees’
statutory rights. Hickmott Foods, 242 NLRB 1357 (1979);
Western Plant Services, 322 NLRB 183 fn. 1 (1996).
[Recommended Order omitted from publication.]