NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes.

Hercules Drawn Steel Corp. and Local 174, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), AFL–CIO. Cases 7–CA–48573, 7–CA–48785, 7–CA–49221

February 7, 2008

DECISION AND ORDER

By Members Liebman and Schaumber

On December 8, 2006, Administrative Law Judge George Alemán issued the attached decision. The Charging Party filed exceptions and a supporting brief, the Respondent filed an answering brief, and the Charging Party filed a reply brief.

The National Labor Relations Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,1 and conclusions2 and to adopt the recommended Order.3

The judge found, among other things, that the Respondent did not violate Section 8(a)(5) of the Act by generally engaging in direct dealing with employees it recalled from a lockout. The Charging Party excepts. We agree with the judge’s finding, for the reasons fully set forth in the judge’s decision. The Charging Party also excepts to the judge’s failure to find that the Respondent engaged in unlawful direct dealing with employee Kenneth Lewis in particular when it recalled him to a different position, at a different salary, than he had prior to the Respondent’s lockout. The Charging Party excepts to the judge’s failure to address this contention, and argues that the Respondent’s conduct in this regard violated Section 8(a)(5) of the Act. For the reasons set forth below, we find that the Respondent’s recall of Lewis did not violate the Act.

The facts, as set forth more fully in the judge’s decision, are as follows. The Respondent, which manufactures steel products, began negotiations with the Charging Party Union for a new collective-bargaining agreement in April 2005.4 On May 1, no agreement having been reached, the Respondent locked out its employees. In response, the employees set up a picket line outside the facility.

During the lockout, the Respondent attempted to continue its steel production by hiring temporary replacements and using management personnel. However, the Respondent was unable to secure replacements for certain skilled positions, resulting in diminished production and lost material. In order to maintain its level of production, the Respondent selectively recalled certain employees to these positions.

Although some of the Respondent’s “skilled” employees accepted the Respondent’s recall request, many refused and continued to picket the Respondent out of solidarity with the “support” workers, who remained locked out. Among those who refused recall were the Respondent’s Schumag operators who ran the 4D line, the Respondent’s fastest steel production line.

At the time of the lockout, Kenneth Lewis was working for the Respondent as a coil-end operator. He had previously worked as a Schumag operator on the Respondent’s 4D line.5 On July 2, the Respondent’s plant manager, Kenneth Lee Pinion, called Lewis at home and offered to recall him as a Schumag operator on the 4D line. Lewis asked why he was being chosen over the other 4D line Schumag operators. Pinion answered that those operators had not responded to the Respondent’s recall request.6 Lewis then asked about two other Schumag operators who had not worked on the 4D line but who had more seniority than Lewis. Pinion responded: “Right now we need someone who can run the 4D.” Pinion requested that Lewis begin working on July 11. Lewis asked to begin work on July 12, and Pinion agreed. The Respondent did not offer to bargain over employment terms for Lewis’ 4D line position, but applied the same terms that prevailed for that position before the lockout.

As mentioned above, the judge found that the Respondent did not engage in unlawful direct dealing in connection with the partial recall of its employees. In support, the judge explained that, with the exception of Lewis, the Respondent had merely recalled employees to their former positions. However, the judge did not address whether Lewis’ recall to a different position at a higher salary constituted unlawful direct dealing. Addressing this issue, we find that Lewis’ recall was not unlawful.

An employer’s direct communication with its employees about terms and conditions of employment is unlawful when it “is likely to erode the union’s position as exclusive representative.” Armored Transport, Inc., 339 NLRB 374, 376 (2003); U.S. Ecology Corp., 331 NLRB 223, 226 (2000), enfd. 26 Fed. Appx. 435 (6th Cir. 2001) (internal citations omitted). The Board will find that such employer communications violate Section 8(a)(5) if those communications are coercive or constitute direct bargaining between the employer and represented employees. Armored Transport, above. Here, no evidence suggests that the Respondent’s communication with Lewis was likely to have any material effect on the Charging Party’s status as the employees’ exclusive representative. In so finding, we note that the Respondent’s 4D line Schumag operators did not accept the Respondent’s offer of recall. Thus, as the judge found, they were no longer locked-out workers but had become economic strikers.7 In order to maintain operations during the strike, the Respondent asked Lewis, who was qualified to perform the work, to fill the 4D line Schumag operator position “right now.” In sum, we find that the Respondent’s dealings with Lewis amounted to nothing more than a lawful effort to maintain production in the face of the other 4D line Schumag operators’ failures to respond to the Respondent’s recall. In particular, we observe that the Respondent contacted the more senior 4D line Schumag operators and either offered or attempted to offer them the work before offering the position to Lewis. In these circumstances, we find that the Respondent’s discussions with Lewis, which consisted simply of advising him of the situation and asking him to return to work, did not amount to unlawful direct dealing. The Respondent’s action was tantamount to the reassignment of its struck work, which is clearly permissible under the Act. NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333, 345–346 (1938).

In these circumstances, we find nothing about the recall of Lewis that establishes that the Respondent engaged in unlawful direct dealing. Accordingly, we find that the Respondent did not violate the Act as alleged.

ORDER

The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Hercules Drawn Steel Corporation, Livonia, Michigan, its officers, agents, successors, and assigns, shall take the action set forth in the Order.

Dated, Washington, D.C. February 7, 2008

Wilma B. Liebman, Member

Peter C. Schaumber, Member

(seal) National Labor Relations Board

Donna M. Nixon & Jennifer Y. Brazeal, Esqs., for the General Counsel.

David B. Gunsberg, Robert J. Finkel, & Michael L. Weissman, Esqs., for the Respondent.

Lisa M. Smith, Esq., for the Charging Party.

DECISION

Statement of the Case

George Alemán, Administrative Law Judge. Pursuant to a second consolidated complaint issued on March 9, 2006, by the Regional Director for Region 7 of the National Labor Relations Board (the Board), a trial in this matter was held from May 15–18, and on June 21, 2006, in Detroit, Michigan, to hear and resolve allegations that Hercules Drawn Steel Corp. (the Respondent), had violated Sections 8(a)(1), (3), and (5) of the National Labor Relations Act (the Act).^[1]

Specifically, the consolidated complaint alleges that the Respondent violated Section 8(a)(1) by threatening employees with loss of jobs if they went on strike; if they supported a another employee who had been disciplined; threatened them with unspecified adverse action if they filed a grievance or if they gave statements against it in support of other employees; threatened employees with job loss if they did not accept its contract proposals; by engaging through videotaping in the surveillance of employees engaged in picketing; by threatening employees with discharge if they did not accept their selective recall from a lockout and return to work, and by threatening employees by telling them that it did not want back those employees who had not been selectively recalled from the lockout.

It further alleges that the Respondent violated Section 8(a)(3) and (1) by making unfavorable and discriminatorily motivated work assignments to an employee, Lawrence Lewis, by locking out employees on May 1, 2005;^[2] and by selectively recalling from lockout employees in certain job classifications.

Finally, the consolidated complaint alleges that the Respondent violated Section 8(a)(5) and (1) when, in or around late May or early June, it bypassed the Union and dealt directly with certain employees in selectively recalling them from the lockout; and by presenting the Union on August 9, with regressive contract proposals, which conduct is further alleged to have been “inherently destructive” of the rights guaranteed to employees by Section 7 of the Act.

By answer dated March 20, 2006, the Respondent denied engaging in any of the unfair labor practices alleged in the consolidated complaint, asserting, inter alia, that it had legitimate, nondiscriminatory and/or substantial business reasons for taking any and all action alleged as unlawful in the complaint.

At the hearing in this matter, all parties were afforded a full and fair opportunity to be heard, to present oral and written evidence, to examine and cross-examine witnesses, and to argue orally on the record. On the entire record, including my observation of the demeanor of the witnesses, and after considering the briefs filed by the General Counsel, the Charging Party, and the Respondent, I make the following^[3]

i. findings of fact

Jurisdiction

The Respondent is a corporation with an office and place of business in Livonia, Michigan, where it is engaged in the manufacture of steel products. During the 2004 calendar year, a representative period, the Respondent purchased and received at its Livonia facility materials and supplies valued in excess of $50,000 directly from points and places outside the State of Michigan. The Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and that the Union is a labor organization within the meaning of Section 2(5) of the Act.

ii. alleged unfair labor practice

A. Factual Background

The Respondent, as noted, is in the business of manufacturing steel products. Essentially, it produces steel bars which it sells to companies that use the steel bars to make screws and other parts. Mark Goodman is the Company’s owner and president. Kenneth Lee Pinion serves as plant manager, Jean Rincher is the Respondent’s plant superintendent and reports to Pinion. Below Rincher in the supervisory/managerial hierarchy are all of the supervisors at the Livonia plant, which include Maintenance Supervisor Kerry Morley, and Shift Supervisors Perry Sanford, Jim Ritchie, Bob Giacherio, and Stanley Gulaszewski. All are admitted supervisors within the meaning of Section 2(11) of the Act.

The Respondent and the Union have had a longstanding 30–40 year bargaining relationship, during which period the Union has served as the exclusive collective-bargaining representative of all full-time and regular part-time production and maintenance employees employed by the Respondent at its Livonia facility.^[4] The parties’ most recent collective-bargaining agreement covered a period from April 29, 2000 to April 28, 2005.^[5]

In early April, the parties began negotiations for a new contract. The Union’s bargaining committee consisted of Joseph Hayosh, its lead negotiator, employee and Chief Steward Mike Goodreau, employee Herb Wilson, employee Lawrence Lewis (L. Lewis), and employee and Union recording secretary, Cliff Parmenter. The Respondent’s bargaining team included attorney David Gunsberg, Pinion, Rincher, and Ron Ruitt, Respondent’s controller. Hayosh testified that the parties met for bargaining eight times in April, twice in May, and once in June, August, September, October, and November. (GC Exh. 26).

Attorney Gunsberg, one of the Respondent’s negotiators, has represented the Respondent in previous contract negotiations with the Union. He testified that early on in the negotiations for the new contract, the Respondent presented the Union with economic and noneconomic proposals but that, with some exceptions, the parties were unable to reach agreement on a number of issues.^[6] Among the changes sought by the Respondent and opposed by the Union in the new contract was a blanket no-strike clause without the “health and safety,” and “production” exceptions, “super seniority” for layoff and recall purposes for employees in the skilled classifications, changes in certain work rules to reduce the number of steps needed before discharge could be imposed, future increases in health care premiums to be paid by employees, and changes in the wage and COLA structures. (Tr. 887; 944–945; 194).

On April 26, the parties agreed to extend the contract by 1 day, to April 29. On April 28, the Respondent presented the Union with its final proposal. (See, GC Exh. 8). Hayosh testified that when his bargaining committee was handed the proposal, as well as during a sidebar conversation with him and a mediator, Gunsberg stated that if the employees turned down the Company’s final proposal, there would be a lockout. Hayosh, however, told Gunsberg that the employees would not strike and would continue working even if they were to reject the Respondent’s final contract proposal. On April 29, Gunsberg faxed the Union a letter reiterating that the April 28 proposal was the Company’s final proposal, and that it reflected what the Respondent felt it needed to enter into a collective- bargaining agreement. In his letter, Gunsberg insisted that the Respondent would not agree to a contract with a “no strike” clause with exceptions for health and safety and production standards, despite the position allegedly taken by the Union during the April 27 negotiations that it intended to keep the exceptions to the no-strike clause and that said position was set in concrete. The letter further advised that if no agreement was reached by the start of the midnight shift on May 1, employees should not report for work. (CP Exh. 12).

Hayosh responded with a letter of his own dated April 29, disputing Gunsberg’s characterization of the Union’s position regarding the “no strike” clause, and noting that while it preferred to maintain the current exceptions to the “no strike” clause, the Union was “willing to consider the modifications you have proposed on this issue.” (CP Exh. 13). Gunsberg faxed Hayosh a letter that same day responding to certain assertions made by Hayosh during a phone conversation between the two, and reiterating that the Company’s final proposal was indeed final, that it viewed the final proposal as fair, that the restrictions previously placed on the Company under the expired contract were untenable, and that it was not willing to enter into a new contract with such restrictions. The letter stated that the Company was not willing to make any further concessions. Gunsberg also denied in his letter a claim purportedly made by Hayosh during their phone conversation that employees were told by supervisors that the lockout was to be a selective one, that is, it would apply only to certain unit employees. He pointed out that if no agreement was reached by 11 pm, Sunday, April 30, all unit employees would be locked out. (CP Exh. 14).

On April 30, the Union met with employees to vote on the Respondent’s contract proposal. At that ratification meeting, Hayosh told employees that if the Respondent’s proposal was not ratified, they would be locked out. (Tr. 621). The proposal was rejected by a vote of 62–2, after which Hayosh notified Pinion of the vote.

1. The lockout and subsequent negotiations

Following the union meeting, employees scheduled to work the 11 p.m. shift that day appeared at the facility, accompanied by Hayosh and the bargaining committee, to report for work. On arriving, they were met at the door by Pinion and Gunsberg, and some security guards retained by the Respondent through Huffmaster Security. Pinion told Hayosh and the employees that there would be no work without a contract. (Tr. 815). Pinion recalls that John McIntosh, a millwright employee, had a video camera with him and videotaped this exchange between him and the employees. Hayosh and the employees then went to their vehicles and retrieved signs reading, “UAW locked out,” and began picketing in front of the Respondent’s facility. Goodman explained that he alone made the decision to lock out the employees and that he did so in order to pressure the Union into signing a contract.^[7] Pinion testified, and Hayosh confirmed, that the Union was advised by attorney Gunsberg during negotiations that a lockout would ensue if no contract was reached.

Hayosh and several other employees testified that when the lockout began, they picketed several times a week between May 1 and July 1, and that, during that period, the security guards were always present, at least one of whom had a video camera and allegedly videotaped the employees’ activities. Hayosh, for example, recalls seeing a “couple” of guards with video cameras “pointed at the picket line.” Wilson testified to seeing one, and on occasion, two guards standing some 10 to 15 feet away with video cameras pointed directly at the picketers as they walked back and forth. Employee Paul Nowicki recalls seeing guards, mostly one at any single time, with video cameras filming from far away and from close-up positions the picketers and the traffic entering and leaving the plant. He claims that one of the guards, in fact, stood right in front of him about a foot away filming his face. L. Lewis recalled seeing one guard standing some 15 feet away taking panoramic type video of employees on the picket line. Employee Richard Sihler testified to seeing two guards with video cameras, that the guards were standing about a foot away, and that “they were putting the cameras in our face and videotaping us.” (Tr. 48; 203; 345–346; 395; 634).

Called as a witness by the Respondent, Huffman security’s senior field coordinator, Charles Young, confirmed that he used videographers at the Respondent’s facility during the Union’s picketing, that he did so without any request from the Respondent, that the guards videotaped vehicles entering and leaving the facility, and that its purpose was to protect against the possibility of assault against him, his guards, or damage to vehicles. He denied that any videographer ever got into the strikers’ faces. (Tr. 930–931). No videotapes were produced at the hearing, and no claim was made by Young or the Respondent that the videotapes do not exist or were not readily available for production. It would have been a simple matter for the Respondent to request from Young, and to produce at the hearing, the videotapes taken by the Huffman security guards during the time in question to ascertain just what the Huffman guards had recorded. Accordingly, I credit the mutually corroborative accounts of the various employee witnesses and am convinced that the videotaping by the Huffman guard(s) was not limited to the recording of traffic entering and/or leaving the facility but rather extended to the picket line activity engaged in by employees.

Between May 1, when the lockout began, and May 24, the parties’ next bargaining session, the Respondent sought to continue production by hiring some ten temporary replacement employees at $14.50/hr. to perform support functions such as banding up bundles, writing tags, loading coils, tasks generally performed by unit employees classified as hi-lo, bar blast, coil‑end, and crane operators. The Respondent also attempted to run four of its five production lines during one of its three shifts using management personnel to operate the machinery.

Pinion testified that, prior to the lockout, the Respondent drew up contingency plans to staff the plant in the event of a labor disruption that included placing help-wanted ads in local newspapers seeking individuals for the skilled positions of hi‑lo operators, schumag and machine operators, wean line machine operators, and overhead remote control crane operators. The ads, he contends, ran during the last week in April and the first week in May but were not very successful in drawing the skilled job candidates sought by the Respondent.

On May 24, the parties, as noted, met for another bargaining session. Goodman, Pinion, and Gunsberg were present for this meeting. Pinion recalls Goodman telling the Union that he wanted to end the lockout and urged it to sign the contract containing the Respondent’s April 28 final proposal. (Tr. 830). According to Pinion, while the Union did make some proposals during this meeting, the parties nevertheless remained far apart on major issues.

Soon after the May 24 meeting, Respondent hired additional temporary employees, and Goodman made a decision to recall some of its machine operators and some of its maintenance employees back to work. Goodman testified, credibly and without contradiction, that he did so because the Company was unable to meet its production demands with the temporary personnel it had hired and the limited production lines it was running, and because it had been unable to hire the skilled workers required to maintain full production and meet customer demands.

Goodman’s description of the production problems the Respondent experienced following the lockout was corroborated by Pinion. Thus, Pinion testified, credibly and without contradiction, that during normal production prior to the lockout, the Respondent ran three shifts, that on two of those shifts all five of its production (wean and schumag) lines were in operation, and that on the third shift, the Wean line and two schumag lines were run. He explained that during the first few weeks of the lockout, using, as previously discussed, management personnel to run the machines and temporary hires as support personnel, the Respondent was able to produce approximately 2500 tons of steel, or about one-fourth of its normal pre-lockout monthly production level of 10,000 tons.^[8] Further, according to Pinion, the Respondent also had in its inventory when the lockout began approximately 18,000 tons of steel that needed to be processed within 90 days before it began to “pit” or deteriorate. He testified that due to Respondent’s inability to continue normal production levels following the lockout, some 4000–5000 tons of that inventory was lost. (Tr. 820–821).

Goodman instructed Pinion to recall the skilled employees back to work, and Pinion, in turn, directed Rincher to begin recalling the maintenance (millwright) employees, and the wean and Schumag operators. Rincher testified that the first person he notified of the recall was Goodreau, the Union’s chief steward. He recalls phoning Goodreau at his home and leaving a message on his answering machine asking him to report for work, and then sending him a letter telling him to report for work at the next shift. (Tr. 754). Goodreau, he contends, never responded to the recall letter. However, when asked if he had been recalled, Goodreau answered, “Not that I know of.” He claimed to have no knowledge of being left a message on his phone answering machine notifying him of the recall, or receiving any letter to that effect. Yet, he admitted knowing that his name was on a list of people that had been recalled, and that, while he did not return to work, he was free to do so at any time. (Tr. 346; 358). Goodreau further admitted knowing before the recalls began that the Respondent was going to begin recalling skilled employees back to work. He did not, however, recall how he learned of the recall, when it was to begin, or who precisely was to be asked to return to work. (Tr. 375). I believe Pinion, and find that he indeed called and left a message for Goodreau on the latter’s answering machine instructing him to return to work, and that he followed up this phone call with a letter to Goodreau, as was done with the other employees who received recall notices. In all, approximately 30 employees were recalled to work, but only 14 of whom agreed to return. (Tr. 838). All recalled employees worked under the same terms and conditions of employment contained in the parties’ expired agreement.

In addition to Goodreau, testimony was adduced from several other employees regarding their recall notification. Employee Jason Porter was told by Rincher to report for work on June 1. When he asked if all the locked out employees were being recalled, Rincher told him only a “select few” were being recalled. Tony Duty received a call on May 28, asking him to report for work on June 1, and likewise asked Rincher if everyone else was being recalled. When Rincher answered only some employees were being recalled, he remarked, “You people can’t be serious,” and hung up. David Yerex received a letter on June 2, advising him to report for work on May 31. Yerex phoned Rincher that same day to obtain clarification, and was told to report for work that day, June 2, instead of the May 31 date shown on the letter. Although he told Rincher he would be at work, Yerex did not report, explaining that he felt that since all employees were locked out at the same time, they should all return to work at the same time. (Tr. 486).

Ron Jafolla testified Rincher left him a message on his home answering machine on or around May 28, and also received a letter the same day, asking him to report for work on June 1, and that he called Rincher back and told him he would be there. Wilson received a call from Rincher on his cell phone while walking the picket line on June 2, and told to report for work the following Monday. Wilson did not respond and simply hung up. He also received a letter on or about June 8, directing him to report for work.

Regarding Jafolla’s recall, the latter testified that on June 1, he and employees Hiep Van Huynh and Yefim Gorivodsky, both of whom were also recalled, went to the facility with their recall notices in hand and met with Rincher in his office. Ruit was also present at this meeting, and was later joined by Pinion. Jafolla recalls starting the conversation by stating that “it was good to hear” that Rincher was calling everybody back, and Rincher answering, “We’re not calling everybody back,” that the Company did not want the crane operators or the hi-lo drivers back. Rincher, he contends, further commented that the Union was lying to employees and that it was the Union that kept rescheduling and canceling the meetings. Pinion, according to Jafolla, added that he was sick of being bad mouthed by Hayosh, that Hayosh was a liar and was the reason why the parties did not yet have a contract. Pinion, he contends, went on to say that he did not care if employees stood outside picketing until Christmas or whenever, that he would be willing to rent an auditorium for all to watch the negotiations take place to prove he was not the one stalling the negotiations. At one point during the meeting, Jafolla told Rincher that he was being treated for stress and could not work, and provided a doctor’s note to that effect. He recalls telling Rincher that while he was unable to work due to illness, he did not want anyone taking his job. Jafolla then handed Rincher his recall notice and left. Jafolla did not return to work.^[9] (Tr. 522).

Rincher had a different recollection of his June meeting with Jafolla. He recalls Jafolla, accompanied by Huynh and Gorivodsky, came to see him on June 1, and that Ruit and Pinion were also present at this meeting.^[10] He recalls Jafolla providing him with a doctor’s note explaining his medical condition. Rincher also recalled Huynh being upset and complaining about the lack of information being provided regarding events at the facility, and asked if the Respondent had been postponing bargaining sessions, stating that Hayosh had made such a statement and had blamed Pinion for the cancellations and for everything that was going wrong. Pinion apparently became upset on hearing this. Rincher assured Huynh that the Company had not been canceling any meetings. He denied, however, that either he or Pinion told Jafolla or any of the other employees at the meeting that the Company did not want the crane operators or the hi-lo drivers back, but admits that had such a question been asked he, in all likelihood would have responded “No” because the Respondent at the time had no plans to call them back. (Tr. 767–768).

Other employees were apparently recalled in June and July. Wilson, for example, received a call from Rincher either on June 2 or 3, asking him to report for work to his position of “roto mag tester,” and a letter a few days later, with the same instructions. Employee Kenneth Lewis (K. Lewis) received a call from Rincher on July 2, asking when he might be able to return to work. K. Lewis asked if he would be returning as coil-end operator, the position he held before the lockout, and Rincher said no, that K. Lewis would be working as a schumag operator. K. Lewis had apparently held the position of Schumag operator for a couple of years some 6 years earlier. He then asked Rincher about other employees in the schumag operator classification who possessed greater seniority, and Rincher purportedly answered that said employees had not been recalled, and that he (Rincher) needed someone to operate the “4D” schumag machine, which processes more tonnage than any of the other machines.^[11] Rincher told K. Lewis that he could report for work on July 11. K. Lewis, however, told Rincher that a union meeting was scheduled for July 11, that he wanted to attend that meeting, and agreed to return to work on July 12, instead. Rincher agreed and K. Lewis reported for work on July 12, as a schumag operator. (Tr. 584–585).

Regarding the recall, Hayosh testified that he first heard of it from committee member Wilson, who reported receiving word from employees that they were being recalled. He contends that the Respondent gave no such prior notice to the Union before it began recalling locked out employees. Wilson testified to receiving several calls from employees advising that they had been asked to return to work and what they should do about it. He claims he in turn notified Wilson of the employee phone calls, and that the Union thereafter scheduled a meeting with employees to decide to what do. According to Wilson, during prior layoffs, the Respondent has notified the Union, usually through a committee member, of its intent to have a recall of laid off employees. As to whether the Respondent gave prior notice of the recall during the 2000 lockout, Wilson was vague in his answer, testifying only that he and other employees were instructed by the Union’s then chief steward, identified only as “Perry,” to report for work. Wilson admits that he had no personal knowledge of how the Union learned of the recall during the 2000 lockout. (Tr. 212). Under Article 8, Section 7 of the parties’ expired collective-bargaining agreement the Respondent was required to “notify the Bargaining Committee of all employees hired, to be laid off, or recalled to work.” (GC Exh. 6).

At a June 1 bargaining session, the Respondent notified the Union that it was recalling the schumag, wean, and maintenance employees, and, using a seniority list, identified which employees had been recalled. The Respondent did not identify which, if any, employees it intended to recall in the near future. Hayosh met with unit employees the following day to discuss the recall and testified that those employees who were asked to return to work requested that a letter be sent to the Respondent explaining that “until the unfair treatment or the threats and hostility had stopped, they weren’t going to report back to work.” On June 2, Hayosh prepared and the employees signed such a letter which was faxed to Goodman (Tr. 51; GC Exh. 11). Hayosh’s letter does not describe, identify, or spell out what the nature of the “unfair treatment,” “threats,” or “hostile” activity was that prompted the decision by the employees not to return to work.

In response to Hayosh’s June 2 letter to Goodman, Gunsberg sent Hayosh a letter, dated June 3, setting forth his recollection of what transpired during their June 1 meeting, a list of the employees who had been recalled for work, and a description of the recall procedure that had been used. (See, GC Exh. 12). In his letter, Gunsberg denied the claim in Hayosh’s June 2 letter that the Company had unlawfully threatened employees or was trying to “bust” the Union. He further averred that the Company had been bargaining fairly, honestly, and in good faith, but that the Union apparently disagrees with “most of the company’s economic and non-economic proposals.” Gunsberg went on to note that those recalled employees who declined to return to work were doing so based on their disagreement “over terms and conditions of a new collective bargaining agreement.” He explained that employees “who engage in a strike to enforce bargaining demands in negotiations over a new collective bargaining agreement are considered ‘economic’ strikers” by the Board and “may be permanently replaced.” He further explained that an employer may lawfully refuse to reinstate a striker who has been permanently replaced by the time the strike is ended, and that the Company believes it has the right to permanently replace economic strikers. Gunsberg closed the letter by requesting that the listed employees who received recall notices return to work immediately.

The parties met on several occasions between May 24 and August 9. At the May 24, meeting, the Union submitted a proposal (the fourth modified proposal) to the Respondent for consideration (GC Exh. 29), and at the June 1, meeting, submitted a fifth modified proposal (GC Exh. 31). In these proposals the Union purportedly withdrew, reduced, or modified certain of its prior proposals in an effort to achieve agreement with the Respondent. At the June 1 meeting, the Union proffered a sixth modified proposal (GC Exh. 30) which included reductions in shift premium pay, production bonuses, and COLA increases. On July 5, Gunsberg met with UAW official, John Uram, and received a settlement package from Uram that encompassed all of the Union’s prior proposals (GC Exh. 32). The Respondent made no counter proposals and continued to adhere to its April 28 final proposal as the basis for any agreement. While acknowledging that the Union made some concessions in its various proposals, the Respondent viewed them as nothing more than “slight adjustments . . . regarding several peripheral issues,” and that “no real progress was made” during these negotiations and in the various union proposals “regarding the significant issues keeping the parties from reaching agreement.” For example, while Uram, on behalf of the Union, was willing to discuss the issue of the no-strike clause, he was unwilling to remove the exceptions to the clause, as sought by the Respondent. (Tr. 997; R. Br. 13). Further, although the Respondent had sought to eliminate mandatory overtime when the seniority list fell below employees, the Union’s willingness to reduce the number from 70 to 50 fell short of the Respondent’s goal. Gunsberg recalled telling Uram at the end of their meeting that the “nickel and dimeing” of the proposals made by the Union did not solve any of the outstanding issues, and that when he (Uram) was ready to address them, to call him. The Respondent’s April 28 final offer was still on the table at that time and, had it been accepted by the Union, the lockout would have ended. (Tr. 901)

At some point between the start of the lockout and August 9, the Respondent realized through its recruiting efforts that it could hire as many individuals at $14.50/hour as it needed as support staff and train them in a relatively short period of time, e.g., from 1 day to a week. It further realized from its inability to recruit temporary replacements for its skilled employees that its skilled employees needed to be paid at a higher rate than that proposed in its April 28 final contract proposal. With the temporary employees hired during the lockout and the 14 skilled employees that returned to work pursuant to its recall, the Respondent, over a period of time according to Gunsberg, was able to return production to near normal levels. In light of these changed circumstances which allowed it to function at near normal levels despite the lockout, the Respondent decided to give the Union a new proposal, termed the “new paradigm” proposal, reflecting what it claims were the “new realities of the marketplace.” (R. Br. 15).

On August 9, the parties met at the Respondent’s request at which time the Respondent presented the “new paradigm” proposal to the Union.^[12] The “new paradigm” proposal did not alter any agreements reached by the parties prior to April 28. It did, however, alter the wage scale proposed for the unskilled and skilled employees in the April 28 proposal. Under the August 9 proposal, the Respondent combined several skilled job classifications with the nonskilled positions under a general support staff classification, lowered the wage rate for employees in this new classification to $14.50/hr, which is the rate at which it had been able to hire the temporary replacement employees during the lockout, and increased the pay for its skilled employees. (see, GC Exh. 27).

The parties disagree as to what occurred or was said at this meeting regarding the proposals. Gunsberg testified that after presenting the proposal to the Union, he spent some 15 minutes explaining, section-by-section, the differences between the “new paradigm” and the Company’s April 28 proposals, and that he made clear to the Union that this was not a “final” proposal. Pinion likewise recalled Gunsberg discussing with the Union the new changes in the proposal. (Tr. 872; 962). According to Gunsberg, when he asked the Union to discuss the proposal, McKnight told Gunsberg, “Shame on you.”

Hayosh and Wilson, however, claim that Gunsberg declined to discuss or explain the new proposal to them despite their request that he do so. Hayosh recalled that after presenting the Union with the proposal, Gunsberg stated, “This is the new paradigm, the new way we’re going to operate our plant,” and that when he asked Gunsberg to explain it, the latter replied, “It is what it is. You can look over it yourself.” Wilson likewise recalled that Gunsberg simply slid the proposal across the table, explaining that it was the new direction that the Company wanted to go, a new “paradigm”, and that, when Uram asked Gunsberg to explain the proposal, Gunsberg declined to do so and instructed him to read it. Hayosh initially claimed that Gunsberg never remarked that the new paradigm proposal was not a final proposal. However, he subsequently admitted being told this at the August 9 meeting when confronted with his own bargaining notes reflecting that Gunsberg did convey that fact to the Union. (Tr. 130–131). I credit Gunsberg and Pinion over Hayosh and Wilson and find that Gunsberg did discuss and go over with the union representatives the specifics of the Respondent’s August 9 “new paradigm” proposal. I also credit Gunsberg and Pinion and find that the proposal was never described or referred to as the Respondent’s final proposal. As noted elsewhere in this decision, neither Hayosh nor Wilson were particularly credible witnesses regarding other matters. As evident from his bargaining notes, Hayosh, as noted, was not being candid in asserting in his testimony that Gunsberg did not state that the new paradigm proposal was not a final proposal. (Tr. 132; 161; 163)

The parties met three more times in 2005, e.g., on September 26, October 18, and November 11. At the September 26 meeting, the Union presented a proposal reiterating that its July 5 settlement proposal was still on the table, offered to provide the Respondent with a written no-strike pledge in exchange for an end to the lockout, and proposed that all outstanding issues be submitted to “binding mediation or arbitration.” (GC Exh. 33). The Respondent rejected the proposal and, according to Gunsberg, sought unsuccessfully to bargain with the Union over the August 9 “new paradigm” proposal. Gunsberg claims that when the Union, at this September 26, and subsequent meetings, began submitting proposals based on the Respondent’s April 28 final proposal, he notified the Union that the April 28 proposal was no longer on the table, that it was gone, and that they should be discussing and bargaining over the August 9 proposal.

At the October 18 meeting, the Union resubmitted its September 26 proposal along with proposals which moved it closer to the Respondent’s position on other issues. (See, GC Exh. 34). Gunsberg testified that the Union’s October 18 proposal was again based the Respondent’s April 28 proposal, and that he, consequently, told Hayosh at the meeting that the Union “was in the wrong proposal, that’s not here,” and that they should be talking about the August 9 proposal. (Tr. 967). The parties followed a similar script at their November 11 meeting, with the Union submitting a proposal that largely incorporated and slightly modified past proposals. (See GC Exh. 35). According to Gunsberg, his response was the same, to wit, that the Union was in the “wrong proposal.”

On January 18, 2006, the Union sent the Respondent another proposal agreeing to accept the Company’s pre-lockout April 28 final proposal. (GC Exh. 15). By letter to Uram and Hayosh dated January 20, 2006, Gunsberg responded that he was “somewhat mystified” by the proposal because “the Company’s April 28, 2005 final proposal was withdrawn and replaced by the Company’s August 9, 2005 final proposal,” and that, because the April 28, offer was no longer on the table, the Union’s proposal to accept it is rejected and/or denied. He went on to advise the Union that the Company was “available to bargain for a new agreement at anytime and the current lockout would be terminated upon acceptance of the Company’s August 9, 2005 proposal, or an agreement reached by the parties on a variation thereof.” (GC Exh. 37). The lockout was still in effect at the time of the hearing.

The General Counsel and the Charging Party argue that the lockout of employees on May 1, was motivated by antiunion considerations and not for legitimate economic reasons, rendering it unlawful under Section 8(a)(3) and (1) of the Act. In support of thereof, they point to various threats, comments, and actions directed by Respondent’s supervisors towards employees which they claim serve as evidence of Respondent’s antiunion animus and reflects the true motivation for the lockout. Alternatively, it argues that even if found to be lawful when implemented, the lockout was rendered unlawful when the Respondent, on August 9, presented the Union with a regressive, bad faith proposal. (GC Br. 35).^[13]

2. Alleged unlawful and other improper statements

a. By Pinion

The first incident cited by the General Counsel dates back to an alleged 2003 conversation Pinion purportedly had with Wilson. According to Wilson, in late summer 2003, Pinion approached him at the Bay 3 work station, told him there was an important contract coming up in 2005, and what he, Wilson, thought might happen. Wilson responded that the Respondent had a good bunch of guys working there, that he did not see any problems, and that life would go on. However, Pinion, he contends, stated that he was dissatisfied with the work force and that he would like to just clean house, get rid of everybody, and start over. (Tr. 184). Pinion purportedly went on to say that the employees were older and set in their ways and that because of this, he wanted to “clean shop” so he could run the shop the way he wanted. Pinion, according to Wilson, added that he had tried to get rid of everyone during the 2000 lockout but was stopped by Respondent’s owner. Pinion ended the conversation by telling Wilson that he would never admit to having this conversation with him^[14] (Tr. 184–189; 294).

Pinion denied having any such conversation with Wilson. (Tr. 799–800). I credit his denial. I found Pinion to be a particularly credible witness. His demeanor was sincere, and I am convinced he testified honestly and truthfully regarding this and other matters. As to this alleged conversation, I find it improbable that Pinion, a management official, would have come right out and threatened Wilson, a union representative, with the discharge of unit employees. I find, instead, that this conversation is nothing more than a fabrication by Wilson and that it never occurred.

Pinion is also alleged to have threatened to discharge employees if they went on strike during a December 2004 conversation he and Rincher were having with union steward Goodreau in Rincher’s office. Goodreau testified that about 1 week before Christmas 2004, he went to Rincher’s office to discuss an absentee write-up that was issued to another employee, Otto. He recalls that Pinion, who was present, mentioned that the contract talks were coming up and asked Goodreau his view on what it would be like. Goodreau answered he did not know, that it depended on management, and that if the Respondent wanted it to be hard, it would be hard, if it wanted the negotiations to be easy, they would be easy, but that the Union was not looking for much. Pinion purportedly replied that he did not believe the Union had the support necessary for a strike. Goodreau claims he became irate and told Pinion that he did not know who Pinion was talking to but that he (Goodreau) was having a hard time keeping employees in the plant because of the poor treatment employees were receiving from Respondent. Goodreau admits that he was not being truthful in his assertion about employees being treated poorly, and made up the statement only because he had to say something. He contends that Pinion became upset at that point, slammed his fist on Rincher’s desk, and threatened that employees would never again see the inside of the shop if they went out on strike. (Tr. 339–340).

Pinion denied discussing the upcoming contract negotiations in December 2004, with any employees, or telling any employee, including Goodreau, that they would not be allowed into the shop again if they went out on strike. (Tr. 801–802). Rincher denied being at a meeting with Goodreau in late December 2004 during which the subject of the upcoming contract talks was discussed, or where Pinion questioned Goodreau about the support the union might have for a strike. Nor did he ever hear Pinion tell Goodreau during any such meeting that employees would not see the inside of the plant again if they went on strike. (Tr. 747–748).

I credit Pinion’s denial and find that he did not make the comments attributed to him by Goodreau. Rincher, who according to Goodreau was present and would have overheard any such remarks by Pinion, expressly denied Goodreau’s account. Pinion, as noted, was a generally credible witness and his calm and soft-spoken demeanor on the witness stand is inconsistent with someone who, as described by Goodreau, would have slammed his fist on the desk in a fit of anger or rage. Conversely, Goodreau was not very convincing.

Pinion is also alleged to have made a statement to Supervisor Perry Sanford, which the latter purportedly conveyed to locked out employee Richard Sihler at a June 28 funeral service for Sihler’s wife who passed away earlier that month. Sihler testified that he spoke with Sanford at the funeral and asked him if Pinion was going to bring any blast, coil end, or crane operators back. Sanford, he contends, answered that Pinion said “he ain’t bringing no fucking blast operators or crane operators or coil end operators back, and we were low-life people and we’re never coming back.” (Tr. 636). Sihler claims that he did not respond to Sanford’s comment and the conversation ended at that point.

Sanford testified he has known Sihler for some 20 years, and that when he learned Sihler’s wife had passed away, he and other supervisors took up a collection for Sihler, and that on June 28, he took the money and a condolence card he purchased and took it to give to Sihler at the funeral. He recalled that after giving Sihler the card and money, he and Sihler chatted for a few minutes about family and related matters, and that he then left. Sanford denied ever making the remarks attributed to him by Sihler about what Sanford may have said regarding the recall of coil end operators or crane operators, and denied that Pinion ever made such a statement to him, or that he would have ever used such language at a funeral.

I credit Sanford over Sihler. Sanford, who voluntarily went to pay his respects to Sihler over the death of his wife, did not strike me as someone who would have been so insensitive and callous as to have used such offensive language at the Sihler funeral. Accordingly, I find that Sanford made no such remarks to Sihler during his funeral visit.

b. By Giacherio

Machine Operator David Yerex testified to having a conversation with his immediate supervisor, Giacherio, in late April regarding the Respondent’s contract proposal. According to Yerex, several days before April 28,^[15] the day the Union was first presented with the Respondent’s final proposal, he found a copy of the proposal on a table next to the time clock as he was on his way to lunch. As he was reading it, he commented, presumably aloud, that he could not agree to its terms, to which Giacherio replied, “If you don’t take this proposal, you won’t be coming back.” (Tr. 480). Yerex was vague and confusing regarding where and when this conversation took place. On direct examination, Yerex stated that this conversation occurred during his lunch period which he described as occurring from 3–3:30 a.m., and that he was eating lunch “directly” before this conversation with Giacherio occurred. He contends that Giacherio proceeded to repeat his statement, although it is unclear what, if anything, Yerex may have said in response to Giacherio’s alleged first statement, or what may have prompted Giacherio to repeat his statement. On cross-examination, Yerex claimed that his conversation occurred as he was heading back to his work station following lunch, not, as suggested on direct examination, as he was eating lunch, and that Giacherio approached him as he was walking out of the cafeteria. He contends that Giacherio walked back with him to his machine and they engaged in a 5–10 minute conversation about the proposal.

Giacherio testified he was unaware that a lockout was to take place prior to its implementation. He recalls speaking with Yerex sometime before the lockout about the Respondent’s contract proposal and being asked by Yerex what would happen if the Union did not accept it. According to Giacherio, he responded to Yerex’s query by asking the latter what he thought would happen. Yerex purportedly answered that if there was no contract, “nobody would be there.” Giacherio explained that he had no idea what would happen and that hopefully there would not be a strike. (Tr. 674). Giacherio denied telling Yerex or any other employee that if he and the Union did not accept the Company’s proposal, they would not be returning to work or would lose their jobs (Tr. 656).

I accept Giacherio’s version as true. Yerex was vague and unconvincing regarding this alleged exchange with Giacherio. For example, despite claiming to have gotten and read the proposal a week or “a couple of days” before April 28, when advised on cross-examination that the proposal was first given to the Union on April 28, and asked how he could have had a copy of the proposal beforehand, Yerex fumbled for an answer, stating, “I read it at the end of May, or at the end of April. I guess it was on the 28th, then.” His vague and uncertain testimony in this regard, coupled with other inconsistencies in his account, lead me to doubt its reliability. Accordingly, Giacherio’s account of this encounter is credited.

c. By Rincher

Jafolla testified to several conversations he had with Rincher when first hired in March 2004, several months later in August or September 2004, and on June 1, and July 18, 2005. As to the 2004 conversations, Jafolla contends that during his initial hiring interview in March 2004, Rincher said to him, “Don’t ever cross me. I’m a vindictive motherfucker.” He contends that several months later, in August or September 2004, he and Rincher were discussing the discharge of employee Goodreau. When he asked Rincher, “You finally got him?” Rincher answered, “Yeah, remember what I told you in the interview.” Rincher recalled interviewing Jafolla, but denied making the statement attributed to him by Jafolla during that interview, or ever discussing Goodreau’s discharge with Jafolla or saying that he had gotten Goodreau. (Tr. 763–764)^[16]

The June 1 conversation was previously discussed, and occurred when Jafolla returned to work, accompanied by fellow employees Huynh and Gorivodsky, and met with Rincher. Jafolla contends that Rincher, in response to Jafolla’s remark about being glad that Rincher was calling back all the employees, commented that not everyone was being recalled, and that the Company did not want the crane operators or hi-lo drivers back. Rincher, as noted, denies making any such statement.

The July 18 conversation, which both Rincher and Jafolla agree occurred, took place in the parking lot of a health facility, the Powerhouse Gym. Jafolla contends that as he and his workout partner were leaving, he heard Rincher, who was nearby, calling him. When he went over to Rincher, the latter asked him what he was doing. Jafolla inquired as to what Rincher was referring to, and Rincher asked why he had not returned to work, that he, Jafolla, was going to lose his job. Jafolla purportedly replied, that he just couldn’t bring himself to cross the picket line, to which Rincher allegedly replied, “You’re all going to lose your jobs.” Rincher, he contends, added that the doors wouldn’t be open much longer, and that everyone who received phone messages and been recalled would, like the hi-lo drivers and crane operators, lose their jobs. Rincher went on to say that his only concern was his family, and that “we don’t need a union around here.” Jafolla contends that Rincher also made reference to the Respondent’s proposal, saying that if “we didn’t like the first proposal, wait until you see the second one. It’s going to get worse.” At the end of the conversation, which Jafolla estimates lasted some 5–10 minutes, Rincher told him that if he told anyone about their conversation, he would flatly deny it. (Tr. 526).

Rincher provided a much different account of the July 18 conversation. He recalled that as he was getting out of his car in the parking lot, he saw Jafolla with his friend, and called out to Jafolla, “What’s up?” Jafolla then left his friend and came over to Rincher. When Rincher asked how he was doing, Jafolla replied that he was doing all right but was “really stressed out” and didn’t know what to believe, and felt that the Union was “fucking him.” He went on to say that “he was not getting straight answers from anybody, and that he and his wife were having some issues because he won’t come back to work.” Jafolla then asked Rincher if he could return to work, and was told he could return anytime he wanted. When Jafolla asked how long he had, Rincher said, “I don’t know how long, the door is open for you right now. Just come back.” Rincher denied saying to Jafolla that a union was not needed, or that if the union did not like the Company’s first contract proposal, wait till it sees the second one. (Tr. 771–772).

I credit Rincher over Jafolla. Jafolla was not a credible witness. Jafolla, for example, contradicted himself in explaining why he did not return to work after being recalled (see fn. 9, supra). His changing testimony as to why he did not return to work, and his overall poor demeanor on the witness stand, leads me to reject his version of the conversations he purportedly had with Rincher. Thus, I find that Rincher never told Jafolla on June 1, that the Company did not want the crane operators or hi-lo drivers back, or stated, during their July 18 encounter at the Powerhouse gym, that those employees who were recalled but did not return to work would be losing their jobs.

Another statement attributed to Rincher allegedly occurred in January 2005, soon after employee and Schumag Operator Jason Porter submitted a vacation slip requesting time off for the first week in May. Porter contends that after turning in his vacation slip, he asked Rincher if the request would be approved, and Rincher purportedly answered, “You don’t need a vacation. You’ll already be out that week anyways.” Porter claims that Rincher was laughing and joking around when he purportedly made his remark. The lockout, as noted, went into effect May 1. Porter claims that when he asked Rincher for an explanation, Rincher just walked out without answering.

Rincher recalled having a brief discussion with Porter in January 2005, at his machine, regarding the latter’s vacation. His recollection is that Porter asked if his vacation request was going to be approved and Rincher, unaware or having forgotten about the request, told Porter to submit his request and it would be put through the proper channels. After returning to his office, Rincher found Porter’s request, checked to see if anyone else had requested vacation for the week in question, and then approved and returned the approved request to Porter. He denies telling Porter that he did not need to take vacation because he would not be working that week anyway, and testified that Porter did in fact receive his vacation. (Tr. 762).

I credit Rincher over Porter. Although polite and soft-spoken on the witness stand, Porter nevertheless seemed unsure and insecure in answering questions put to him. From a demeanor standpoint, Rincher came across as the more reliable and credible of the two. Accordingly, I accept Rincher’s testimony over Porter’s regarding the discussion they had about Porter’s May vacation.

d. By Morley

Porter further testified that on April 29, before employees voted on the Respondent’s proposal, Morley approached him at his machine and, out of the blue, asked if Porter could keep a secret. When Porter asked what type of secret, Morley purportedly told him, “You will be back.” Porter asked if he Morley was referring to the new contract, and Morley allegedly replied, “Well, not under the type of contract you’re under now but it’s a type of a contract.” Porter then asked if everybody was coming back, but Morley did not elaborate further. Morley, he contends, went on to comment that he was concerned about discussing this before the employee vote on the Company’s proposal, and went on to remark how impressed he had been with the Company’s new layout for the facility. Porter asked Morley what it was that impressed him, and Morley guardedly quipped, “Well, I said too much.” When Porter asked him to explain what he meant, Morley replied, “Well, if you mention my name, I will deny it,” referring to his prior comments. As he walked away, Morley allegedly remarked that if his comments changed Porter’s upcoming vote regarding the Respondent’s proposal, “so be it.” (Tr. 442).

Morley denied having any such conversation with Porter, or making the comments attributed to him by Porter. He also denied knowing of any new layout plan for the facility, or seeing any plan. Morley recalls speaking twice with Porter over the phone after the lockout, one of which involved a request by Porter to use Morley as a job reference. He was not asked about the substance of the second phone conversation with Porter. (Tr. 681–683; 696).

Crane Operator Mike Campeau also gave testimony regarding statements allegedly made to him by Morley. According to Campeau, in early April, some 3 weeks before the employee vote on the Company’s proposal, and as he was in his work area, Morley walked by him with a funny look on his face and remarked, “You know, boy, I’m really going to miss you, Mike.” Campeau simply looked at Morley but did not respond, and Morley continued on his way. Morley denied making such a statement to Campeau. (Tr. 598; 683).

The statements attributed to Morley by Porter and Campeau are not alleged in the complaint to be unlawful. Nevertheless, I credit Morley and find that he never made such statements to them. From a demeanor standpoint, Morley was a convincing and credible witness, while Porter and Campeau were not. Their assertions that Morley made the alleged statements to them out of the blue simply lacks the ring of truth. Porter’s assertion that he followed Morley’s “You’ll be back” statement with an inquiry about the new contract makes little sense to me. Further, Morley’s alleged statement to Campeau, to wit, that Morley was going to “miss” Campeau, even if found to have been made, is vague and subject to any number of meanings. Accordingly, I find that Morley never made the statements attributed to him by Porter and Campeau.

e. By Sanford

Tom Jewell is employed as a coil end operator with the Respondent. Sometime in February, Jewel was suspended, apparently for intentionally damaging the bar blast machine on which he was working. Regarding this matter, both Wilson and Goodreau testified that they, along with Jewell, were summoned to Rincher’s office and met with Sanford who advised them that Jewell was being suspended for 3 days for intentionally damaging a machine. (Tr. 181–182; 333–334). After some discussion, Wilson proposed that, instead of suspending Jewell, he be assigned to a nonproduction area. Sanford, he contends, indicated he did not have a problem with the suggestion but would have to consult with his superiors. Some 10 or 15 minutes later, Sanford returned from discussing the matter with Pinion and, according to both Wilson and Rincher, remarked, “write your fucking grievance, he’s going home.”

Goodreau claims that, later that same day, he spoke with several millwrights who told him that the machine Jewell was accused of damaging “was worn out and needed to be replaced anyway, “the parts were taken away the night before.” He contends that he and Wilson then went back to Rincher’s office shortly before 3 p.m., in an effort to change Respondent’s decision about Jewell’s suspension, and spoke to Pinion. He purportedly told Pinion what he had learned from the millwrights, stating that he could obtain written statements from the millwrights to that effect. Wilson claims Pinion told them that if they did that, “You know what will happen.” Wilson contends that Pinion subsequently explained his remark by commenting that he would fire any millwright who signed a letter saying that Jewell was not to blame for the damage to the machine. Goodreau’s version is that Pinion remarked that if he obtained statements from millwrights, he (Pinion) would fire every one of the SOB’s because he had a preventative maintenance sheet showing that the machine in question had been checked out the month before and was working fine. He contends that Rincher was also present during this conversation and that Wilson showed up a bit later and caught the tail end of the discussion. Goodreau claims that he then asked Pinion to return to him a grievance he had submitted on Jewell’s behalf, explaining that he had forgotten to include additional matters in the grievance. Pinion purportedly told him that if he filed the grievance, he (Goodreau) knew what was going to happen and that Goodreau would not like it. (Tr. 335–338). Although Pinion did not explain what he meant by his remark, Goodreau claims he understood what Pinion meant.

Goodreau testified that the next day, he observed Sanford talking to various millwrights in the shop, and, on one occasion, noticed S