Sonicraft v National Labor Relations Board Petition for writ of Certiorari

    No. 90-

IN THE
§>uprmte (Court of ttjr (Mnitr5 stairs

October Term. 1990

Sonicraft, Inc.,
Petitioner,

v.

National Labor Relations Board,
Respondent.

PETITION FOR WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE SEVENTH CIRCUIT

Garland W. Watt* 
GARLAND W. WATT 

& ASSOCIATES 
55 West Van Buren Street 
Suite 500
Chicago, Illinois 60605 
(312) 663-1440

Gerard C. SMETANA 
ABRAMSON & FOX 
One East Wacker Drive 
Chicago, Illinois 60601 
(312) 644-8500

Michael E. Avakian 
ABRAMSON & FOX 
1919 Pennsylvania Ave., N.W. 
Washington, D.C. 20006 
(202) 659-8687

Attorneys for Petitioner

* Counsel o f Record



QUESTIONS PRESENTED

Whether a dismissed unfair labor practice charge may be 
reinstated outside of the six-month period of limitations of 
NLRA section 10(b), contrary to the mandatory language of 
the statute and absent fraudulent concealment, as previously 
held by the Board in Ducane Heating Corp

a. Where some of the allegations are 
dismissed and other portions of the charge 
found meritorious, the dismissed allegation is 
otherwise permitted to continue.

b. Is the attempt to reinstate the "dead 
allegation" the same as impermissibly 
instituting an action without a charge, caused 
by the Board's post hoc claim of it being 
"closely related" to the pending portions of the 
charge, upon which a complaint had issued.

c. Is an exception possible to Section 10(b) 
under a "continuing violationTclosely related" 
theory, where the sole basis of the valid 
complaint alleging discriminatory recall of 
specific individuals is unrelated in theory to 
the previously dismissed portion of the charge, 
which was based on a prior mass layoff 
allegation antedating the recall allegation.

d. Is any holding based upon the "continuing 
violationTclosely related" theory prohibited in 
the instant case, where it was never asserted 
by the government or the Union as a timely 
defense either at the initial administrative 
hearing, at the initial appeal from the 
administrative hearing or as part of the initial 
Board remand instructions, as required by 
agency regulations.

Does the NLRB abuse its discretion when it reverses 
recently established rules under Section 10(b),



articulated in Ducane Heating Corp., by reference to 
factual differences that are not based on logic, caselaw, 
or references to the statute.

3. Whether an employer business justification defense relating 
to broad economic reasons for its action in an unfair la^or 
practice proceeding, and which reason is unrelatc o 
employee job performance, could be accorded the is 
Cove rather than the Transportation Management bur of 
proof standard, under which the government at all times 
maintains the burden of proof.

a. So that the government must demonstrate 
pretext by a preponderance of the evidence 
that the business justification reasons asserted 
by the employer would not have resulted in 
the layoffs, absent the allegation of union 
animus or union protected activity.

b. So that under the NLRA, as under Title 
VII, the government is forbidden from 
substituting its judgment for that of the 
employer in the asserted economic defense 
where the defense is unrelated to job 
performance.

4. Whether the Board can rely upon an employer's protected 
comments and speech under NLRA Section 8(c), as evidence of 
a discriminatory animus, if not in itself prohibited § 8(a)(1) 
conduct, for purposes of finding the only "newly" discovered 
evidence in support of its belated "closely related" unfair labor 
practice charge.

^onicraft, Inc. is a closety-held, non-public corporation that has no parent 
companies, subsidiaries or affiliates. A  Disclosure of Corporate Affiliations and 
Financial Interest was filed in the court of appeals.



Page

TABLE OF AUTHORITIES ............................................  iii

OPINIONS B E L O W ............................................................. 1

JU R ISD IC TIO N ................................................    2

STATUTES IN V O L V E D .........................................................2

STATEMENT OF THE C A S E ............................................... 3

A  Factual Background....................................................3
B. The Initial ALJ and Board Opinions ................. 6
C. The Board's D ecision..................................................8
d. The Court of Appeal's D ecision ...............................8

REASONS FOR GRANTING THE WRIT:

A  THE WRIT SHOULD BE GRANTED 
TO SETTLE THE CONFLICT BET­
WEEN THE CIRCUITS AND THIS 
COURT ON THE IMPORTANT STA­
TUTORY QUESTION WHETHER 
THE GENERAL COUNSEL LOSES 
JURISDICTION TO SUBSTANTIVE­
LY AMEND COMPLAINTS UNDER 
THE SECTION 10(B) STATUTE OF 
LIMITATIONS PERIOD TO COM­
PLAIN OF ACTS PREVIOUSLY DIS­
MISSED FOR LACK OF CAUSE BY 
THE GENERAL COUNSEL

TABLE OF CONTENTS

9



B. THE DECISION OF THE COURT OF APPEALS 
PLACES AN IMPROPER BURDEN OF PROOF 
ON THE EMPLOYER IN DISCRIMINATORY 
INFERENCE CASES AND REFUSES TO 
PLACE UPON THE BOARD THE BURDEN OF 
ASSERTING IN CONFORMITY WITH THIS 
COURTS DECISIONS IN WARDS COVE AND 
TRANSPORTATION M ANAGEMENT CORP 
THAT THE GENERAL COUNSEL HAS THE 
BURDEN TO PROVE THE EMPLOYER'S EC­
ONOMIC REASONS
WAS A PR E T E X T ......................................................  19

1. The Board's Refusal to Follow Any Disciplined 
Approach to a Burden of Proof Standard in Its 
Cases Raises Substantial Questions Of Importance
to Employers Under the A c t ....................................... 20

2. The Same Employer Burden Carried Under
Title VII to Articulate Legitimate Economic Rea­
sons Should Apply Under the NLRA Based Upon 
the Commonality of Purpose Between the Two 
S ta tu tes .............................................................................. 27

C O N CLU SIO N ..........................................................................35

APPENDIX:

1. Opinion of the United States Court of Appeals
for the Seventh C ircuit............................................. la

2. Decision of the National Labor Relations Bd............  8a
3. Decision of the Administrative Law Judge ..............  16a
4. Order of the National Labor Relations B o a rd .......... 42a
5. Decision of the Administrative Law Judge .................  45a



TABLE OF AUTHORITIES

CASES Page

Albemarle Paper Co. v. Moody,
422 U.S. 405 (1975) ...................................................  21

Boys Market, Inc. v. Retail Clerks Union, Local 770,
398 U.S. 235 (1970) ...................................................  27

California Pacific Signs,
233 N.L.R.B. 450 (1 9 7 7 )...........................................  13

DelCostello v. Teamsters,
462 U.S. 151 (1983) ..................................................  10

Ducane Heating Corp.,
273 N.L.R.B. 1389 (1 9 8 5 ) .....................................  10-14

First National Maintenance Corp. v. NLRB,
452 U.S. 666 (1981) ............................................  23, 27

Gagne v. Northwestern National Ins. Co.,
881 F.2d 309 (6th Cir. 1 9 8 9 )...................................... 31

Holo-Krome Co. v. NLRB,
134 L.R.R.M. 2686 (2d Cir. 1990) ................................ 22

Hyatt Corp. v. NLRB,
Nos. 89-6407 (6th C ir .) ...........................................................31

Local Lodge 1424, Machinists v. NLRB,
362 U.S. 411 (1960) ........................................  9, 10, 16



IV

TABLE OF AUTHORITIES (Continued)

CASES Page

Lorance v. A T  & T Technologies, Inc.,
109 S. Ct. 2261 (1989)..........................................  10, 21

McDonnell Douglas v. Green,
411 U.S. 792 (1973) ...................................................... 8

Metropolitan Life Insurance Co. v. NLRB,
380 U.S. 438 (1965) .................................................  18

Motor Vehicle Manufacturing Ass'n 
v. State Farm Mutual Automobile Ins. Co.,

463 U.S. 29 (1983) ......................................................  15

Mt. Healthy City Board o f Educ. v. Doyle,
429 U.S. 274 (1977) .................................................... 31

NLRB v. Dinion Coil Co.,
201 F.2d 484 (2d Cir. 1952)........................................  13

NLRB v. Electric Furnace Co.,
327 F.2d 373 (6th Cir. 1 9 6 3 ).............. ....................... 16

NLRB  v. Silver Bakery, Inc.,
351 F.2d 37 (1st Cir. 1965) ........................................  16

NLRB v. Transportation Management Corp.,
462 U.S. 393 (1983) .............................................passim

NLRB v. Wizard Method, Inc.,
897 F.2d 1233 (2d Cir. 1990)......................................  16



TABLE OF AUTHORITIES (Continued)

CASES Page

Price Waterhouse v. Hopkins,
109 S. Ct. 1775 (1989).....................................  26, 30, 33

Redd-I, Inc.,
290 N.L.R.B. No. 140 (1988).................................  10-13

Sinclair Refining Co. v. Atkinson,
370 U.S. 195 (1962) .................................................... 27

Sonicraft, Inc.,
276 N.L.R.B. 407 (1 9 8 5 )..................................................3

Stem Entertainment System, Inc.,
290 N.L.R.B. No. 167 (1988)...................................... 14

Texas Department o f Community Affairs v. Burdine,
450 U.S. 248 (1981) .................................................... 21

Village o f Arlington Heights v. Metropolitan Housing 
Development Corp.,
429 U.S. 252 (1977) .................................................... 25

Wards Cove Packing Co. v. Atonio,
109 S. Ct. 2115 (1989)...................................... 26, 31, 32

Wright Line, Inc.,
251 N.L.R.B. 1083 (1 9 8 0 ) ......................................passim

STATUTES

NLRA, 29 U.S.C. § 1 6 0 (b )............................................... passim



No.

IN THE SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1990

SONICRAFT, INC., Petitioner,

v.

NATIONAL LABOR RELATIONS BOARD, Respondent.

PETITION FOR WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE SEVENTH CIRCUIT

Sonicraft, Inc., the charged party before the National Labor 
Relations Board ("Board"), respectfully prays that a petition for 
writ of certiorari issue to review the decision and order of the 
United States Court of Appeals for the Seventh Circuit which 
enforced the Board's decision in the above styled case.

OPINIONS BELOW

The opinion of the Court of Appeals is reported at 905 F.2d 
146 (7th Cir. 1990). The decision of the National Labor 
Relations Board is reported at 295 N.L.R.B. No. 78, 133 
L.R.R.M. (BNA) 1139 (1989). Both decisions are reprinted in 
the attached appendix at pages la  and 10a, respectively. An 
unreported decision of the Board is reprinted at page 42a. The 
supplemental decision of the administrative law judge is reprinted 
at page 16a. The initial decision of the administrative law judge 
is reprinted at page 45a.



JURISDICTION

The judgment of the Court of Appeals was entered on June 
12, 1990. 8a. This Court has jurisdiction to review the judgment 
of the Seventh Circuit under 28 U.S.C. § 1254(1).

STATUTES INVOLVED

Section 10(b) of the National Labor Relations Act, 29 U.S.C. 
§ 160(b), provides in relevant part:

That no complaint shall issue based upon any 
unfair labor practice occurring more than six 
months prior to the filing of the charge with 
the Board and the service of a copy thereof 
upon the person against whom such charge is 
made, unless the person aggrieved thereby was 
prevented from filing such charge by reason of 
service in the armed forces, in which event the 
six-month period shall be computed from the 
day of his discharge. Any such complaint may 
be amended by the member, agent, or agency 
conducting the hearing or the Board in its 
discretion at any time prior to the issuance of 
an order based thereon.

Section 10(c) of the National Labor Relations Act, 29 U.S.C. 
§ 160(c), provides in relevant part:

No order of the Board shall require the 
reinstatement of any individual as an employee 
who has been suspended or discharged, or the 
payment to him of any back pay, if such 
individual was suspended or discharged for 
cause.

Section 8(c) of the National Labor Relations Act, 29 U.S.C. 
§ 158(c), provides:

The expressing of any views, argument, or 
opinion, or the dissemination thereof, whether



in written, printed, graphic, or visual form, 
shall not constitute or be evidence of an unfair 
labor practice under any of the provisions of 
this subchapter, if such expression contains no 
threat of reprisal or force or promise of 
benefit.

STATEMENT OF THE CASE

A. Factual Background

Petitioner Sonicraft, Inc., is a 100% minority owned company 
organized 24 years ago and is the largest Black-owned defense 
contractor in the United States. The Company employs mainly 
engineers involved in research, engineering, and development.

On December 11, 1981, an NLRB representation election 
was held among Petitioner's manufacturing employees. While the 
union initially prevailed in the election count, the results were 
subsequently set aside based upon objections to the election filed 
by Petitioner and sustained by the Board. Sonicraft, Inc., 276 
N.L.R.B. 407 (1985). On December 13, 1981, petitioner laid off 
50 of its 92 workers in its production department due to a severe 
shortage of materials. This resulted from a persistent negative 
cashflow, bank overdrafts, an inability of Petitioner to get further 
loans from its bank to cover payroll, and, as a result, an inability 
to get production out of the plant. Tr. 1652-54. To efficiently 
use its remaining resources, the company was compelled to layoff 
those employees not involved in the manufacture of finished 
deliverable products. 82a-83a.

On February 22, 1982, the Warehouse, Mail Order, Office, 
Technical, and Professional Employees Union Local 743 filed an 
unfair labor practice charge alleging that Sonicraft had violated 
the National Labor Relations Act by the layoff of fifty employees 
and had separately alleged failure to recall workers because of 
union activities. Since the election loss, the union has not further 
petitioned the Board to become a certified bargaining

3



representative of Petitioner's workers; neither has the union filed 
a refusal to bargain charge with the Board.

On April 29, 1982, the Regional Director dismissed all 
portions of the charge that alleged the layoff was unlawful 
because "the evidence is insufficient to show that the Employer 
laid off its employees because they voted to select Local 743, 
International Brotherhood of Teamsters as their collective 
bargaining representative and because they engaged in other 
union and/or protected activities or for reasons other than the 
economic ones advanced by the Employer." 48a; General 
Counsel Ex. 1(e). The General Counsel's Office of Appeals in 
Washington, D.C., affirmed the Regional Director's decision to 
dismiss the layoff charge on a request for reconsideration of the 
decision to dismiss, filed by the union. The Regional Director 
subsequently issued a complaint against Petitioner limited to the 
failure to recall four workers who were alleged to be union 
organizers.

On October 6, 1982, a hearing on the complaint began 
before Administrative Law Judge ("ALJ") James J. O'Meara, Jr., 
on the single alleged discriminatory failure to recall four workers. 
On December 1, 1982, seven weeks into the hearing, the counsel 
for the General Counsel of the Board moved to amend the 
complaint to allege that Sonicraft had violated the Act by the 
layoff of workers, one year earlier, on December 13, 1981. 
Counsel for the General Counsel alleged that the motion was 
based upon an employee affidavit received the previous Friday 
(alleging a telephone conversation with a manager that the layoff 
occurred because of the union vote; GC Ex. 8), statements on a 
tape recording of employee question-answer sessions recently 
subpoenaed, and upon certain economic data that had previously 
been deemed irrelevant.1 48a. 1

1The General Counsel's attorney argued to the A U  in support of the motion 
to amend, that the "strongest evidence received by the Regional Director...was 
a witness who is [sic] not available to the Charging Party or to us, until very late 
on Friday." Transcript at 123-24 (Nov. 30, 1982). The second ground relied

4



The ALJ denied the motion to amend as being untimely on 
several grounds, including lack of "fairness, due process," tr. at 
128, "bordering on an abuse of the Respondent in this case," tr. 
at 134,2 that the Section 10(b) statute of limitations "preclude 
his now bringing this charge, or re-instituting a complaint," tr. at 
125, "an abuse of discretion on my part" to allow the amendment, 
tr. at 123, and "the evidence...it's substantial that the company's 
financial position was precarious." Tr. at 198.3 Petitioner also

upon for the amendment was the employee question-answer statements of the 
Petitioner, transcribed from the subpoenaed tape recording, that the company 
had recently stipulated as accurate at the hearing for purposes of the single recall 
charge: "we took many weeks and many sessions of listening to that tape to be 
able to discern enough of it to have agreement on what was said." Tr. at 168 
(Dec. 1, 1982). The General Counsel alleged that the stipulation provided it with 
the first "direct evidence of illegal motivation for the entire layoff....during the 
investigation, we had testimony from several employees that during Mr. Jones' 
speech, he made several statements which would indicate illegal motivation," tr. 
at 185, but had dismissed it because "there was no direct evidence of illegal 
motivation, which is a critical element." Id.. The Region also argued the 
economic data received earlier was now insufficient for Petitioner to make out 
an economic defense, although "the Employer presented a lot of evidence of 
economic defense," tr. at 185, because previously "it would be irrelevant in the 
case as it was presented." Tr. at 168.

2The A U  was extremely concerned that the General Counsel had been using 
the two postponements in the trial of the case and the concomitant time in which 
to review material subpoenaed for the hearing, during an allowed postponement 
of the hearing, to result in unlawful discovery not permitted under Board rules, 
and using that discovery and an ongoing investigation based upon that discovery 
material, to amend the complaint. Tr. at 122. Counsel for the General Counsel 
even admitted Petitioner had a "right...not to be hit with an amendment because 
we have no opportunity to give them a chance to defend." Tr. at 127.

3The A U  queried the Board's counsel concerning Petitioner's obvious 
financial straits: "Isn't it. Could you as a lawyer honestly tell me it wasn't?" Tr. 
at 198 (Dec. 1, 1982). The A U , however, informed counsel for the General 
Counsel that he would grant the motion to amend if she could show that the 
Regional Director relied upon false data ("evidence in error") provided by the 
company. Tr. at 191. The General Counsel replied that "they represented to us 
during the investigation that all he [Jerry Jones] said was what was in the

5



argued that the postponements of the hearing requested by the 
Regional Director to amend and investigate was also "extremely 
prejudicial" because Petitioner's backpay liability would continue 
to accrue as the Regional Director investigates his case further. 
Tr. at 153. On a special appeal by the counsel for the General 
Counsel, the Board reversed the A U  and directed him to grant 
the mid-trial motion to amend. 49a. The Amended Complaint 
was filed on January 20, 1983.

On January 25, 1983, Sonicraft moved the Board for recon­
sideration of its decision as contrary to the clear and mandatory 
prohibition of the six-month limitations period established in 
Section 10(b) of the Act, which provides, "That no complaint 
shall issue based upon any unfair labor practice occurring more 
than six months prior to the filing of the charge with the 
Board...." 29 U.S.C. § 160(b). The Board denied the motion for 
reconsideration "without prejudice to Sonicraft's right to file 
exceptions." 49a.

On January 5, 1983, A U  O'Meara voluntarily recused 
himself from the case and a new A U , Robert A, Gianassi, was 
appointed to hear the remainder of the case. Sonicraft filed an 
answer to the amended complaint which preserved its objections 
to the amendment. 49a.

B. The Initial ALJ and Board Decisions

On February 14,1984, A U  Gianassi, who had not personally 
heard the trial evidence predating his arrival, issued his decision 
finding that Sonicraft had violated Sections 8(a)(1) and (3) of the 
National Labor Relations Act by the layoff and subsequent recall 
of employees by Sonicraft. 45a. His decision made no reference

prepared remarks." Tr. at 195. The A U  replied that, "Now, you know that 
more than that was said, because there was a question answer period." Id. 
Counsel for the General Counsel admitted "we had employee testimony during 
the investigation that several of the things which that tape in fact now shows were 
said." Tr. at 156.

6



to any legal burden of proof applicable to the case, such as Wright 
Line, 251 N.L.R.B. 1083 (1980) or NLRB  v. Transportation 
Management Corp., 462 U.S. 393 (1983). Exceptions were filed.

On March 27, 1985, the Board again remanded the case to 
the A U  "limited" to "addressing the propriety of an amendment 
to the Complaint relating to December, 1981, employee layoffs 
and subsequent recalls in light of Ducane Heating Corp., 237 
NLRB 1389 (1985)." 42a. In Ducane, issued after ALJ Gianassi's 
initial decision, the Board ruled that the statute had barred the 
General Counsel from resurrecting a dismissed charge in a 
complaint outside the statute of limitations period in Section 
10(b), except upon evidence of fraudulent concealment as its sole 
exception to § 10(b).

On December 11, 1985, A U  Gianassi issued a supplemental 
decision upholding his original findings on a wholly different 
theory (other than the application of Ducane Heating Corp. upon 
which the Board had remanded the case to him), viz., that the 
allegations in the amendment were "closely-related" to the 
properly filed charge concerning the alleged discriminatory recall, 
and therefore, the Board had jurisdiction to find the layoff was 
unlawful. 16a. Sonicraft argued that the closely-related doctrine 
had not been previously argued to the A U  by the General 
Counsel and it was contrary to the Board's remand order.4

4During the hearing on the amendment to which A U  Gianassi had not 
presided, the counsel for the General Counsel actually argued that the layoff and 
recall allegations were "substantially different." A U  O’Meara, had suggested that 
the Regional Director should file a second complaint, tr. at 203, rather than 
impair the ongoing hearing with the precipitous new allegations. Counsel for the 
General Counsel replied: "The cases are substantially different. The theories 
both of prosecution and defense, are substantially different, and I can imagine 
[sic] the complaining Respondent would do if after five days of hearing, we then 
attempted -  we would basically be doing it twice, Your Honor." Tr. at 169.

7



C. The Board's Decision

On exceptions filed by Petitioner, the Board in a 2-1 
Supplemental Decision and Order issued on June 15, 1989, 10a, 
found that the amendment was "closely related to the content of 
the original charge," 13a n.3, but not explaining why it was valid 
under Ducane Heating Corp., upon which it caused the case to be 
remanded to the A U  four years earlier. 42a. The Board , iso 
failed to enunciate any legal test for applying a burden of proof 
upon either the General Counsel or Petitioner. The Board 
majority also failed to disclose why it rejected Petitioner's 
business defense that it was required to layoff workers because its 
unrestricted bank account was depleted, 91a, and it had on hand 
an excessive six-month inventory of parts and subassemblies that 
could not be completed because of a shortage of certain other 
parts. Tr. 1671. The Board also affirmed the limited 
discriminatory recall holding.

Chairman Stephens dissented in part to that portion of the 
Board's decision relating to inclusion of the lay-off allegation, 
because the Regional Director had been earlier aware of all the 
facts "when he opted, within his statutory discretion, not to 
prosecute that aspect of the case," 13a. Chairman Stephens also 
dissented on fundamental grounds of fairness.

D. The Court of Appeal's Decision

Sonicraft filed a timely petition for review of the Board's 
Decision and Order under Section 10(f) of the National Labor 
Relations Act, 29 U.S.C. § 10(f). The circuit court, however, 
denied Petitioner's construction of the statute of limitations in 
section 10(b) that would bar resurrection of previously dismissed 
charges outside the six-month period on grounds not asserted by 
the Board. The circuit court also refused to find that Petitioner's 
business defense should have been decisive of the alleged unfair 
labor practice under NLRB v. Transportation Management Corp., 
462 U.S. 393 (1983) and the analytically similar business defense 
in disparate treatment cases under Title VII in McDonnell 
Douglas v. Green, 411 U.S. 792 (1973), because the General

8



Counsel failed to prove that Petitioner’s business reasons for the 
layoff were either untrue or pretextual. 6a. Rather, the Seventh 
Circuit concluded that cases neither cited nor relied upon by the 
Board would support the Board's use of the "closely related" 
theory in these circumstances, the circuit court also determined 
that an employer's business defense under Title VII was not 
applicable here, and without further explanation stated that 
Petitioner had not met its burden, without explanation (like the 
Board had not explained) as to what that burden was. 7a.

REASONS FOR GRANTING THE WRIT

A. THE WRIT SHOULD BE GRANTED TO 
SETTLE THE CONFLICT BETWEEN THE 
CIRCUITS AND THIS COURT ON THE 
IMPORTANT STATUTORY QUESTION 
WHETHER THE GENERAL COUNSEL 
LOSES JURISDICTION TO SUBSTAN­
TIVELY AMEND COMPLAINTS UNDER 
THE SECTION 10(B) STATUTE OF 
LIMITATIONS PERIOD TO COMPLAIN OF 
ACTS PREVIOUSLY DISMISSED FOR 
LACK OF CAUSE BY THE GENERAL 
COUNSEL

The decision below conflicts with the decisions issued by this 
Court concerning the bar of the statute of limitations under the 
National Labor Relations Act ("NLRA"). It has long been 
decided in the caselaw that the statute of limitations in the 
NLRA prohibits the Board from reaching back and permitting a 
complaint to be amended to encompass conduct beyond the six 
month period as violative of the Act. The "closely related" 
doctrine is one more attempt by the Board to accomplish such a 
feat.

In Local Lodge 1424, Machinists v. N LRB , 362 U.S. 411 
(1960), this Court ruled that Section 10(b) barred the Board from 
declaring an act charged beyond the six month period to be a

9



"substantive" unfair labor practice, although the facts could be 
used as evidence in a timely proceeding on another charge so 
long as the legality of the earlier event would not be decisive of 
the event properly charged. 362 U.S. at 416. In Machinists, the 
Court held that if the Board could rule the act of signing a 
bargaining agreement to be unlawful in a later charge filed 
outside the six-month period, "the Board's position would 
withdraw virtually all limitations protection," 362 U.S. at 425, and 
disserve the interest in "industrial peace" established by Congress, 
which the Congress proscribed "even at the expense of the 
vindication of statutory rights." 362 U.S. at 429. The Court 
found in the case that the policy of the Act prohibits the use of 
facts in this manner outside of the Section 10(b) period.

Recently, in Lorance v. A T & T  Technologies, Inc., 109 S. Ct. 
2261, 2268 (1989), this Court reaffirmed its view that Section 
10(b) of the NLRA prevents the Board from declaring an unfair 
labor practice of events beyond six-months.5 Quoting to 
Machinists v. NLRB, 362 U.S. at 417, the Court stated: "'[WJhere 
a complaint based upon that earlier event is time-barred,' we 
reasoned, 'to permit the event itself 'to cloak with illegality that 
which was otherwise lawful' 'in effect results in reviving a legally 
defunct unfair labor practice.'" Moreover, the Court in Lorance 
rejected use of the "continuing violation" doctrine to bend the 
statute of limitations under Title VII "to cure untimeliness," just 
as it had decided against the Board in Machinists. Id. n.4.6

5The Congress' section by section analysis of the 1972 amendments to section 
706(e) o f Title VII provides that it "would permit charges to be filed [under] a 
limitation period similar to that contained in the Labor-Management Relations 
Act, as amended (29 U.S.C. 160(b))." S.Rep. No. 92-415, 36-37 (1971). This 
six month period has been applied to both unfair labor practice charges and 
hybrid suits for breach of contract under § 301, 29 U.S.C. § 185, of the NLRA. 
Del Costello v. Teamsters, 462 U.S. 151 (1983).

^The Seventh Circuit's acceptance o f the "closely-related” doctrine rejects the 
prohibition of the "continuing violation" theory rejected by this Court in 
Machinists without considering the impact on the Court's Machinists doctrine.

10



In the present case, there is a significant question presented 
whether the Seventh Circuit, in substituting its own judgment 
about the rule of the National Labor Relations Board in Ducane 
Heating Corp., 273 N.L.R.B. 1389, 118 L.R.R.M. 1145 (1985), 
strictly construing the statute of limitations found in § 10(b) of 
the National Labor Relations Act, 29 U.S.C. § 160(b), was 
correctly applied in this case without any attempt by the Board 
on its own to reconcile Ducane, with the Board's subsequent 
decision in Redd-1, 290 N.L.R.B. No. 140 (1988), or reconciliation 
of the Board's rule with the rule of this Court in Machinists.

Ducane involved three charges. The first charge was 
brought and dismissed by the General Counsel on the allegation 
that an employee had been wrongfully suspended on two prior 
occasions. Later two further charges were filed alleging the same 
worker had been discriminatorily discharged. A Complaint was 
brought by the General Counsel on the latter two charges. The 
General Counsel then attempted to resurrect the dismissed 
"suspension" charge by revoking the earlier dismissal on the basis 
of "newly discovered evidence." 273 N.L.R.B. at 1390. The AT T 
then permitted the General Counsel to allege the earlier 
suspensions. On exceptions, the Board in Ducane Heating Corp., 
held consistently with the mandatory language of Section 10(b), 
29 U.S.C. 160(b), that "we shall treat withdrawn and dismissed 
charges alike and shall not allow the reinstatement of either 
beyond the 6-month limitations proviso absent special 
circumstances mentioned above (fraudulent concealment]." 273 
N.L.R.B. at 1391. Thus,

[T]he Regional Director contravened the purposes of 
the limitations proviso to Section 10(b) of the Act by 
reinstating a charge some ten months after McCrea's 
suspensions occurred. We note that, while the charge 
was timely filed on November 9, 1979, it was thereafter 
dismissed by the Regional Director, and no appeal from 
this dismissal was ever filed. We hold today that a 
dismissed charge may not be reinstated outside the six 
months limitation period o f Section 10(b) absent special 
circumstances in which a respondent fraudulently

11



conceals the operative facts underlying the alleged 
violation.

Ducane, 273 N.L.R.B. at 1390 (emphasis added).

To permit the General Counsel to resurrect either 
withdrawn or dismissed charges is inconsistent with this 
principle and should be permitted only where a 
respondent, in effect, forfeits its right to such assurances 
by engaging in fraudulent conduct. We must, as the 
majority in Winer, "re-strike the balance established by 
Congress when it added the proviso to Section 10(b)."

Ducane, 273 N.L.R.B. at 1391, quoting 265 N.L.R.B. at 1458.

The Board today cites to the split decision (2-1) in Redd-I, 
supra, to reach agreement with the administrative law judge 
below, adverse to Petitioner, that "the discriminatory mass layoff, 
the selections for layoff, and certain refusals for recall from layoff 
are 'closely related' to the outstanding timely filed charge." 12a 
n.2. In Redd-I, a charge was filed alleging the discriminatory 
discharge of one employee, but this charge was later withdrawn. 
Five months later another charge was filed alleging the discharge 
of eight other workers. Three months later the second charge 
was amended to name the worker in the first charge. The ALJ 
refused the amendment.

The Redd-I panel majority claimed that Ducane and Winer 
Motors, 265 N.L.R.B. 1457 (1982), was inapplicable because,

neither case involved an attempt to add closely related 
allegations to a pending charge. Rather each involved 
an attempt to reinstate the dead allegations themselves 
without reference to any other pending charge. Instead, 
we would apply the traditional Board test to determine 
if the untimely allegation is factually and legally related 
to the allegations of the timely charge, without regard to 
whether another charge encompassing the untimely 
allegation has been withdrawn or dismissed.

12



Redd-1, 129 L.R.R.M. at 1291 (footnote omitted).

Both Board cases state that withdrawn and dismissed charges 
will be treated alike, Ducane showing that both cannot be 
resurrected outside the six month period and Redd-I stating that 
they may be resurrected if "closely-related" to a timely charge. 
The Board fails to state why this distinction is significant, 
especially when section 10(b) makes no such distinction. Parties 
to Board cases are entitled to know what the statute means 
without such artificial distinctions attempted by the prevailing 
Board majority.7

This distinction is significant. In either case where the 
General Counsel exercises his discretion to dismiss a charge or 
where an untimely new charge is filed, that portion of the case is 
gone. To reinstate the events would be totally contrary to the 
statutory design. The Board in Redd-I or here, never shows a 
rationale to claim a justification for its view under the statute.8

7The Board in Redd-I alleges that Ducane is distinguishable because "the 
dead allegations " were "without reference to any other pending charge." 129 
L.R.R.M. at 1291. As demonstrated in the text, supra, the same union in 
Ducane filed each of the three charges involving the same employee; the first 
involving the employee's suspension and the latter two, the employee's discharge. 
Surely, the allegations in the discharge were "related" to the suspension, but the 
Ducane Board ruled that was a distinction without merit where the new charge 
is made more than six months after the initial occurrence. It was also on the 
basis o f Ducane that the Board in 1985 remanded this case to the A U  to 
consider the question whether to permit the layoff allegation to be amended in, 
because the A U  had relied on overruled case law, Le., California Pacific Signs, 
233 N.L.R.B. 450 (1977), in ruling against Sonicraft, 43a. That case was 
overruled in Ducane: "we reverse California Pacific Signs, supra, and Winer 
Motors, 265 NLRB 1457 (1982), to the extent they are inconsistent with our 
decision." Ducane, 273 N.L.R.B. at 1390.

8The A U  also seized upon footnote 9 in Ducane, 273 N.L.R.B. at 1391 n.9, 
a reason that the majority did not accept, where Member Dennis separately 
concluded that in light of the "manner in which this case was litigated," it was 
unnecessary to pass on the question whether employee McCrea's suspension was 
"closely related" to Robinson's layoff. By referring to NLRB  v. Dinion Coil Co.,

13



The events in the instant complaint relating to the alleged 
discriminatory recall of four workers by Petitioner, had nothing 
at all to do with the events which caused the layoff, neither in the 
business defense asserted by Petitioner or in the evidence in 
support thereof.

Consequently, there exists a discrete conflict within the 
Board's own caselaw concerning the application of section 
10(b).9 The meager attempt to distinguish Ducane in Redd-I 
creates a new Board rule of law with ramifications affecting the 
heart of the statutory policy struck by the Congress.10 In fact,

201 F.2d 484, 491 (2d Cir. 1952), she seeks to preserve the "closely related" 
doctrine for situations such as in Dinion Coil where an earlier discharge outside 
the 10(b) period was based upon the identical grounds articulated in a timely 
charge involving other workers. Member Dennis' footnote shows that if the 
closely related doctrine had been raised by the union in Ducane earlier, a fatal 
flaw in both Ducane and the instant case, she would have found that Robinson's 
layoff was closely related to McCrea's simultaneous suspension. But her remark 
did not concern the time-barred suspension of McCrea at issue in Ducane 
(Charge No. ll-CA-8748), which Member Dennis agreed was statutorily barred. 
Rather, Robinson's charge, No. ll-CA-8747, the existence of which, if it had 
been properly raised during the hearing of McCrea's timely dismissal charge 
(No.ll-C A-9044), Member Dennis might have determined it was closely related 
to McCrea's suspension charge that was time-barred and possibly might have 
revived McCrea's charge. In any event, this whole footnote amounts to a dissent.

Q
During the pendency o f the litigation involving Petitioner, seven Board 

Members have had the opportunity to consider the question presented. Four, 
Members Dennis, Hunter, Chairman Dotson and Chairman Stephens support the 
Ducane analysis. Three other Board Members, Devaney, Johansen and Cracraft, 
support the analysis in the instant case; the latter two participating in Redd-I and 
Steam Entertainment, infra.

10In Ducane, the Board left open only one door that would toll the 
limitations period provided by section 10(b) concerning dismissed charges: 
fraudulent concealment. In doing so, the Board indicated that "we would exceed 
our own authority were we to permit the General Counsel to ignore the statutory 
limitations proviso." 273 N.L.R.B. at 1391. This statement is consistent with the 
ruling of the Court in Machinists.

14



the recision of all real meaning for § 10(b) was implemented 
against small employers who could not afford to review the 
rulings in a court of appeals under § 10(f). Hence, the 
nationwide impact of Board law is developed by administrative 
fiat.

Indeed, this conflict was recognized by the Seventh Circuit 
in the opinion below. Rather than requiring the administrative 
agency to explain the inconsistency in its opinions, the court of 
appeals "forged" an explanation for the Board's decision sua 
sponte by its citation to another Board split decision (2-1) in Stem 
Entertainment System, Inc., 290 N.L.R.B. No. 167, 130 L.R.R.M. 
1147, 1149 n. 3 (1988). 5a. That rationale, if proper, was not the 
Board's rule used against Petitioner. Under its statutory authority 
to review decisions under NLRA section 10(f), the circuit court 
cannot make up the explanation for the Board. Moreover, the 
alleged support the circuit court found for the Board was 
anything but obvious where the Board never cited the case as 
authoritative.

The Board has abruptly changed its view of the statute of 
limitations in the instant case without discussing Ducane which it 
had ordered applicable earlier to the case. 43a. To change a 
longstanding view of the statute, if at all, in accordance with 
acceptable standards of discretion allowed by this Court, an 
agency must explain those reasons in the case to which the 
change is applied.11 Motor Vehicle Mfgs. Ass'n v. State Farm 
Mutual Automobile Ins. Co., 463 U.S. 29, 48 (1983). 11

11The "closely-related" doctrine approved by the Seventh Circuit as an 
explanation for the Board's ruling was never raised by any party (the General 
Counsel, Union, or Sonicraft) on the first appeal to the Board and the Board 
never addressed the applicability of the "closely-related" doctrine to the earlier 
dismissal of the discriminatory lay-off charge at the time it permitted the 
amendment to the unfair labor practice complaint. 42a. Section 102.42(2)(h) 
of the Board's Rules and Regulations, prohibits arguing any issue not raised: "No 
matter not included in exceptions or cross exceptions may thereafter be argued 
before the Board, or in any further proceeding." The rule was ignored here.

15



The position of the Board and the Seventh Circuit represent­
ed in the case at bar is also not parochial to the instant case, but 
conflicts with settled decisions in other circuits, such as NLRB v. 
Electric Furnace Co., 327 F.2d 373 (6th Cir. 1963) and NLRB v. 
Silver Bakery, Inc., 351 F.2d 37 (1st Cir. 1965). Moreover, the 
decision implicitly conflicts with a decision of the Second Circuit 
in NLRB  v. Wizard Method, Inc., 897 F.2d 1233 (2d Cir. 
1990).12

In Electric Furnace Co., supra at 375, the Regional Director 
withdrew a complaint and later sought to retract the withdrawal. 
Relying upon this Court's decision in Machinists v. NLRB, 363 
U.S. 411 (1960), the court found the act alleged barred by 
Section 10(b).

In Silver Bakery, Inc., supra at 39, the First Circuit held that 
the General Counsel was barred from resurrecting withdrawn 
charge allegations. In its refusal to enforce the Board's order, the 
Court stated:

[W]e can think of no good reason why the mere filing 
of a charge which is withdrawn with consent of the 
Board, so that no proceedings are pending, should leave 
in the Board a roving discretion to determine what so- 
called equities warrant the reinstitution of the 
proceedings without limit of time. The fact that the 
Board may feel that its discretion is benignly exercised 
cannot answer the clear purpose of a statute of 
limitations.

Similarly, it is a novel question whether the Board can 
conjure up a new doctrine thirty years after the decision in 
Machinists to "disrupt those valid reliance interests that § [10(b)]

12In Wizard Method, Inc., supra at 1236, the Second Circuit had before it the 
issue whether a dismissed charge could be reinstated outside the six-month 
period o f § 10(b). The Court found "merit to this contention," but the question 
was waived by the failure o f the employer to timely raise the defense.

16



was meant to protect," 109 S. Ct. at 2269, through an unrefined 
"closely related" theory relying upon the thinnest of evidence, i.e., 
an employer question-answer session (upon which the General 
Counsel had fully investigated) having the same effect of cloaking 
an event with illegality, otherwise lawful as a matter of law, as the 
"continuing violation" theory rejected by the Court in Machinists 
did. Using the "closely-related" doctrine to bootstrap its 
jurisdiction, the Board does nothing but carve for itself a 
deliberate exception to Section 10(b), contrary to the legislative 
will.

The ALJ used two different legal theories in holding that 
Petitioner had violated the Act. In alleging that the recalls were 
unlawful, the A U  addressed what he believed to be the union 
leaders' ability to effectively perform the jobs as basis for 
reinstatement by Petitioner. In finding the layoffs unlawful, he 
relied solely upon the employee speech given by Petitioner's 
President Jerry Jones.13 TJie two bases are unrelated because 
they are based upon two different premises, just as the General 
Counsel alleged, tr. at 169 (they are "substantially different). See 
also footnote 4, supra at 9.

Furthermore, the Board completely failed to consider or 
reconcile the ruling of this Court in Machinists, where the Court 
warned that "in light of the language and evident purpose of § 
10(b), only by a convincing showing that Congress did not intend 
the provision to bar attacks on collective agreements with unions 
lacking majority status unless brought within six months of their 
execution" could a doctrine breaking the six-month period be 
upheld. That "convincing showing" was not even attempted in

13Petitioner would argue that the claimed § 8(a)(1) conduct in the speech 
was protected under the Act, but in any event, the General Counsel was 
previously aware of the alleged § 8(a)(1) statement, having interviewed all the 
witnesses and having been given a copy of the speech at the time. However, he 
decided to dismiss the layoff allegation. 48a. The Region was also persuaded by 
Sonicraft's significant economic problems. See also Chairman Stephens's dissent 
that the Regional Director already had this information. 13a.

17



this case which could be the only mechanism for the Board to 
lawfully gain jurisdiction to consider the layoffs as an independent 
unfair labor practice.

The circuit court, likewise, refused to consider Petitioner's 
argument that the express language of section 10(b) creates a 
conflict with an utterly free right to amend charges by the Board’s 
General Counsel (in light of the consequences for administration 
of the Act and industrial practice, if dismissed charges can be 
resurrected at any time by the General Counsel), when the Act 
does not permit self-initiated charges by the Board.14

As in Metropolitan Life Ins. Co. v. NLRB, 380 U.S. 438, 444 
(1965), where counsel for the Board articulated a rationale for 
the Board's order which the Board had not itself explained, this 
Court rejected the post hoc argument: ”[f]or reviewing court's to 
substitute counsel's rationale or their discretion for that of the 
Board is incompatible with the orderly function of the process of 
judicial review." Consequently, the court of appeals was not 
empowered to enforce a Board decision by substitution of its 
rationale on the basis of cases not cited by the Board in its

14The legislative history is particularly clear on Congress' intent to foreclose 
consideration of practices outside the six month limitations period:

the conference agreement omits the provision of the House bill 
respecting the time within which a complaint must issue after a 
charge is filed, and retains the language of the Senate amendment 
that requires that charges be filed, and notice thereof be given, within 
6 months after the acts complained o f have taken place.

House Conf. Rep. No. 510 at 53, reprinted in I Legislative History o f  the LMRA 
at 557 (1959).

18



opinion and not raised by counsel for the Board on appeal. This 
situation happened here and is clear error.15

The question presented by Petitioner raises an important 
question under the NLRA that deserves this Court’s immediate 
attention: to what extent may the court of appeals assist 
prosecuting federal agencies and contravene express statutory 
language and intent. Moreover, if the Board's decision is en­
forced, the important repose reflected in Congress' short statutory 
limitations period to settle labor disputes will be abrogated and 
once again, these questions will reappear nationwide in the 
Board's cases in every circuit. Resolution of this question is 
essential to the fair administration of the Act.

B. THE DECISION OF THE COURT OF 
APPEALS PLACES AN IM PROPER 
BURDEN OF PROOF ON THE EMPLOYER 
IN DISCRIMINATORY INFERENCE CASES 
AND REFUSES TO PLACE UPON THE 
BOARD THE BURDEN OF ASSERTING IN 
CONFORMITY WITH THIS COURTS 
DECISIONS IN WARDS COVE AND TRANS­
PORTATION MANAGEMENT CORP., THAT 
THE GENERAL COUNSEL HAS THE 
BURDEN TO PROVE THE EMPLOYER'S 
ECONOMIC REASONS WAS A PRETEXT

This case presents an expected sequel to the decision of this 
Court in NLRB v. Transportation Management Corp., 462 U.S.

15The court of appeals felt differently:

The Board is not required to elucidate the obvious. And 
a case, albeit one that the Board failed to cite in the 
present case either in its opinion or its brief to us, expressly 
holds that Redd-I applies to dismissed as well as to 
withdrawn charges....The last link in the chain of prece­
dent from Ducane to the present case has been forged. 
5a (emphasis added).

19



393 (1983) and the Board's decision in Wright Line, 251 N.L.R.B. 
1083 (1980): improper burden shifting upon the employer in 
economic based business decisions which affect employment. In 
Transportation Management Corp., the Court gave its approval to 
a decision of the Board, that affected the burden of proof in an 
individual employee discharge case. Hence, the General Counsel 
was assigned a burden to demonstrate that union animus 
"contributed to the employer's decision" and the employer could 
assert an affirmative defense only "by demonstrating by a 
preponderance of the evidence that the worker would have been 
fired even if he had not been involved with the union." 462 U.S. 
at 393-94.

1. The Board's Refusal to Follow Any Disciplined 
Approach to a Burden of Proof Standard in Its Cases 
Raises Substantial Questions Of Importance to 
Employers Under the A ct

The problem facing employer's nationwide, properly 
illustrated here, arises from the Board's fundamental theoretical 
precept that there is no essential "distinction between a pretext 
case and a dual motive case....The conceptual problems to which 
this sometimes blurred distinction gives rise can be eliminated if 
one views the employer's asserted justification as an affirmative 
defense." Wright Line, 251 N.L.R.B. at 1084 n. 5. Consequently, 
the Board observed:

Thus, in a pretext situation, the employer's 
affirmative defense of business justification is 
wholly without merit. If, however, the 
affirmative defense has at least some merit a 
"dual motive" may exist and the issue becomes 
one of the sufficiency o f proof necessary for 
the employer's affirmative defense to be 
sustained.

Id.

20



This question presents the issue whether the burdens of 
proof and persuasion in employment discrimination cases are 
indeed different between cases arising under Title VII of the 
Civil Rights Act of 1964 and the National Labor Relations Act, 
when this Court has interpreted the Acts similarly, and actually 
referred to the comparison between constitutional burdens of 
proof in Transportation Management, a NLRA case, and the 
NLRA burden of proof in Wards Cove, a Title VII case, as "a fair 
one." Also Lorance v. A T & T  Technologies, Inc., 109 S. Ct. 2261, 
2267 (1989); Albemarle Paper Co. v. Moody, 422 U.S. 405, 418 
(1975).

In footnote 5 in Transportation Management Corp., 462 U.S. 
at 400, the Court found the analogy to the standards of proof 
under Title VII in Texas Dep't o f Community Affairs v. Burdine, 
450 U.S. 248 (1981), to have been "inapposite," because Burdine 
was a "pretext case." Transportation Management was a dual 
motive case.

However, the Board's requirement of "proof1 from the 
General Counsel in Wright Line was not explicitly one of proof 
in the expected sense, but was based on inference:

First, we shall require that the General Counsel make 
aprima facie showing sufficient to support the inference 
that protected conduct was a "motivating factor" in the 
employer's decision. Once this is established, the 
burden will shift to the employer to demonstrate that 
the same action would have taken place even in the ab­
sence of the protected conduct.

251 N.L.R.B. at 1089.

It is this "inference" of action based upon union activity that 
calls for this Court to revisit the issue. Because the Board has 
discarded the distinction between pretext cases and dual motive 
cases and has interpreted this Court's affirmance in 
Transportation Management Corp. to conclude that any type of 
evidence in the record can support an "inference" which will

21



satisfy an unfair labor practice,16 the Board need not apply 
standards of proof in individual cases as long as an inference of 
animus exists, regardless whether or not it arises from protected 
conduct.17 It may be acceptable for the Board to use its 
"inferential" standard where an employer acts on the basis of job 
performance. It is quite another to use an inference where the 
act is "caused" by a business justification unrelated to employee 
job performance. In fact, reference to Wright Line has been 
dropped almost completely from the Board's lexicon, including

16In the instant case, the A U  found the alleged animus in the question- 
answer session after the employer's presentation to the employees. The speech 
was found uncoercive, but the answers to specific questions were found coercive. 
Without conceding that the statements were anything but proper under Section 
8(c) o f the Act, the Board has the well-documented proclivity to find animus in 
an employer's lawful opposition to unionization. Representative of this problem 
is Holo-Krome Co. v. NLRB , 134 L.R.R.M. 2686, 2689 (2d Cir. 1990), where the 
Court denied enforcement of the Board's order based on the Board finding "sig­
nificant evidence demonstrating [Holo-Krome's] animus," including the fact that 
the Company "made known its opposition to union representation during the 
organizing campaign." In that case, several workers were layed off shortly after 
a union election based on legitimate economic reasons, and, just as in the instant 
case, the Board alleged unlawful employer motivation based upon its opposition 
to union organizing and certain alleged irregularities the employer made in 
recalling workers.

17The Second Circuit's decision in Holo-Krome Co., supra, also found that 
the Board's practice o f using an employer's protected speech as evidence of anti­
union animus was specifically targeted for elimination by Congress in the 1947 
amendments to the NLRA, H.R.Rep. No. 510, 80th Cong, 1st Sess., at 45, 
reprinted in I Legislative History o f  the NLRA, at 549:

The practice which the Board has had in the past of using speeches 
and publications of employers concerning labor organizations and 
collective bargaining arrangements as evidence, no matter how 
irrelevant or immaterial, that some later act o f the employer had an 
illegal purpose gave rise to the necessity for this change in the law.
The purpose is to protect the right of free speech when what the 
employer says or writes is not o f a threatening nature or does not 
promise a prohibited favorable discrimination.

22



any reference by the Board or the ALJ to that decision or 
Transportation Management in this case.

What this case presents to the Court is a demonstration that 
under the current interpretation of Transportation Management 
or Wright Line, the burden on the General Counsel in these 
cases, which is to demonstrate a decision was "in any way 
motivated by a desire to frustrate union activity," Transportation 
Management, 462 U.S. at 399, is such an easy "burden," that it is 
hard to discern that it is a burden of proof, and no court has ever 
found that the Board has not met the burden of proof under 
section 8(a)(3) because there is always some employer activity the 
Board can point to.

The difference between Transportation Management and 
Wright Line represented by the instant case, is the atypical 
situation not involving employee discharge or discipline, i.e., that 
the issue is not the usual case whether or not the worker is being 
disciplined by the employer for being absent or for developing a 
bad work record. Rather, the employer defense is a business 
justification based upon economic reasons.18 When this 
economic defense is asserted, the Transportation

18In First National Maintenance Corp. v. NLRB, 452 U.S. 666 (1981), this 
Court observed that there exist management economic prerogatives exempt from 
the duty to bargain and the Board's jurisdiction. An employer has certain 
"retained freedom to manage its affairs unrelated to employment," id. at 677, 
especially in "meeting business opportunities and exigencies," id. at 683, which 
exist to protect it from facing "harsh remedies forcing it to pay large amounts of 
backpay to employees who likely would have been discharged regardless of 
bargaining, or even to consider reopening a failing operation." Id. at 684. 
Accordingly, this Court concluded that the harm likely to be done to an 
employer's need to operate freely in deciding whether to shut down part of its 
business purely for economic reasons outweighs the incremental benefit that 
might be gained through the union's participation in making the decision...." Id. 
at 686. The same considerations recognize a lawful business defense in the 
NLRA itself. The circumstances identified in First National Maintenance should 
apply even more firmly when an employer for valid economic reasons reduces its 
operations in the absence of a certified union, such as Petitioner did.

23



Management/Wright Line standard does not quite work. This is 
why there is no articulation of such a standard by the Board here. 
This is also why there must be a real analysis of the burdens on 
both sides of the case.

Here, the only analysis attempted by the A U  was the 
substitution of his opinion as to the most efficacious manner of 
running the business, which is a forbidden analysis under the Act. 
Under the Wright Line approach in evaluating a business jus­
tification defense, disagreement cannot be the basis for the 
Board's refusal to allow its effect, but the basis would have to be 
clear evidence that the General Counsel has come forward with 
to prove the defense was not properly made or that the evidence 
is weak. In the instant case, the A U  does not dispute that 
Sonicraft had not had inventory problems or cashflow problems 
previously, and a negative cashflow every day of the preceding 
month, 88a n.14, but his view of the employer's timing in 
implementing the layoff would be different.19

The design of the Act also shows that the government bears 
the burden of proof when its foundation for jurisdiction turns 
upon employer protected speech under Section 10(c). In 
Transportation Management Corp., the Court found that the 
legislative history was silent on situations where "muted motives" 
may exist for an employer act. However, the Court also plainly 
concluded that the "for cause" proviso to the Act "was a reaction 
to the Board's readiness to infer antiunion animus from the fact 
that the discharged person was active in the union." 462 U.S. at 
401 n.6.

In fashioning an appropriate test in these cases, given 
recognition of the deference the Board received in Transportation 
Management, it has become far too easy for the government to 
meet its "burden" by simply making an assertion of union animus

19The General Counsel and Petitioner agreed to a joint expert witness and 
accountant to review Sonicraft's economic position. That testimony was ignored 
by the ALL

24



claiming that the timing of a few statements had a discriminatory 
purpose that would forever cloud proper management action. 
Since the Wright Line test pretends that the Board "does not shift 
the ultimate burden" from the General Counsel to a respondent 
to prove an unfair labor practice, 251 N.L.R.B. at 1088 n .ll, and 
the Board's adoption of the Mt. Healthy test "should not be 
viewed as a repudiation of the well-established principles and 
concepts which we have applied in the past," 251 N.L.R.B. at 
1089, the "dominant motive" test abandoned in Wright Line 
highlights a mechanism which can both protect an employer's 
freedom to manage its business and also the General Counsel's 
duty to protect employees. In that test,

it is the General Counsel who, in addition to 
establishing a prima facie showing of unlawful 
motive, is further required to rebut the 
employer's asserted defense by demonstrating 
that the discharge would not have taken place 
in the absence of the employees' protected 
activities.

Wright Line, 251 N.L.R.B. at 1087.

The Board claimed the "dominant motive" theory was "es­
chewed" by the Court in Village o f Arlington Heights v. Metro­
politan Housing Development Corp., 429 U.S. 252, 287 (1977), a 
First Amendment case which held that where a government 
employee was denied rehire in part because of his exercise of 
constitutional rights and in part for permissible reasons, the 
employer should have been given the chance to show that it 
would have reached the same question in the absence of 
protected conduct:

However, it is made abundantly clear in Mt. Healthy 
(and was specifically reiterated in Arlington Heights) 
that after an employee or, here, the General Counsel 
makes out a prima facie case of employer reliance upon 
protected activity, the burden shifts to the employer to

25



demonstrate that the decision would have been the
same in the absence of protected activity.

Petitioner reiterates this combined Board test in pretext and 
mixed motive cases because this is the rubric the Board uses in 
Wright Line (without conceding that Petitioner had any antiunion 
motive). For this reason, we think that the Court's Price 
Waterhouse v. Hopkins, 109 S. Ct. 1775 (1989) and Wards Cove 
Packing Co. v. Atonio, 109 S. Ct. 2115 (1989) analysis is useful 
because Title VII and the NLRA have always moved in tandem. 
In Wards Cove, 109 S. Ct. at 2126, for example, the majority 
explained that an employer's "burden of producing evidence of a 
business justification for his employment practice....should have 
been understood to mean an employer's production-but not per­
suasion-burden. C/., e.g., NLRB v. Transportation Management 
Corp., 262 U.S. 393, 404 n. 7, 103 S.Ct. 2469, 2475, n.7, 76 
L.Ed.2d 667 (1983)." The court below rejected Petitioner's 
argument that if the production of business reasons in a disparate 
impact case under Title VII is a sufficient defense, these same 
reasons are also sufficient to dispel a similarly claimed inference 
of discriminatory intent under the NLRA. Petitioner believes this 
is the reason the Court in Wards Cove referred to Transportation 
Management in reestablishing the model for disparate impact 
under Title VII as not placing a burden of "persuasion" on the 
employer, but rather one of production of "valid reasons," that, in 
the circumstances of the instant case, the workers would have 
been layed off regardless of union activity. Transportation 
Management, 462 U.S. at 400.

The answer to this question made by the Court in the equal 
employment field was that the government always shouldered the 
burden. Now, the same burden should be placed on the 
government under the NLRA, because it is impossible for an 
employer to defend itself in a situation such as presented in this 
case, where even though the employer has a legitimate business 
justification, the employer is placed in a position of having all of 
the burdens (the burden to prove its business defense, the burden 
to dispel the "inference" of discrimination arising from the 
General Counsel's prima facie case, and the alternative burden to

26



disprove that the action would have been taken regardless of 
discrimination, i.e., the "mixed-motive" situation), and the 
government never articulates how the employer failed to meet 
the burden except for substituting its own business judgment to 
show the company was aware of cash shortages and inventory 
problems earlier, but had not yet taken such severe action 
(because the confluence of severe economic consequences had 
yet to occur).20 So, whenever the Board states that an 
employer has not met its "burden," it is simply adopting the prima 
facie "inference" from review of the A U 's treatment of the case.

2. The Same Employer Burden Carried Under Title 
VII to Articulate Legitimate Economic Reasons Should 
Apply Under the NLRA Based Upon the Commonality 
of Purpose Between the Two Statutes.

In requesting review of the commonality between the tests 
under Title VII and the NLRA we recognize that the Board 
insists that its burden of proof standard has been held for many 
years and will argue it is a permissible construction under the Act 
in light of Transportation Management. In view of the manner in 
which the test has since been interpreted by the Board, the 
question should be reexamined, just as the Court has reexamined 
issues under the NLRA in Boys Market, Inc. v. Retail Clerks 
Union, Local 770, 398 U.S. 235 (1970) and Sinclair Refining Co. 
v. Atkinson, 370 U.S. 195 (1962), in determining that injunctive

20Consequently, whenever an employer attempts to maintain its business and 
employee workforce during difficult economic periods, and the economic trigger 
point is finally reached, the Board will "infer" adverse intent. See e.g., First 
National Maintenance, 452 U.S. at 685, where the Court observed how an 
employer's management of initial economic problems, such as bargaining to 
reduce labor costs with a union, does not forever prevent the employer from 
later taking unilateral action to close a portion of its business for legitimate 
economic reasons. Although the Court's review was in connection with § 8(a)(5) 
of the Art, here Petitioner is similarly "faced with harsh remedies forcing it to pay 
large amounts of backpay to employees who likely would have been discharged 
regardless o f bargaining, or even to consider reopening a failing operation," 
estimated at $10 million. Id. at 684-85.

27



relief was also available to remedy a breach of a collective 
bargaining agreement rather than just damages under § 301, 29 
U.S.C. § 185.21 22

This case, then, is symptomatic of the result in Wright Line, 
where because the Board has blurred the distinction between 
pretext and dual motive cases in footnote 4, the Board simply 
views all cases as requiring the General Counsel to present some 
evidence of union activity and action, such as the 50 layoffs here 
and the union activity (discriminatory recall of four workers), and 
at that point shifting to the employer the heavy burden of 
showing business justification, which can be cast aside by the 
Board's "inference" of discrimination presented in the prima facie 
case.“  If this is not what the Board intends, then it should be 
required to articulate why the business proof presented by 
Petitioner was not true. Of course, in Transportation 
Management, the Court did not approve of the Board's 
abandonment of the distinction between dual motive and pretext 
cases; the Court did recognize that the differences were apparent 
in its reference to Burdine, but inapplicable to the case. 462 U.S. 
at 400 n.5.

21Member Jenkins in his concurring opinion in Wright Line, 251 N.L.R.B. at 
1091, recognized that there was an inherent problem with the standard being 
adopted in that case, and he was open to reexamining the issue in the future: 
"This standard may suffice for most cases. However, there may remain a residue, 
perhaps small, o f cases of mixed motive or cause...I f  experience shows it to be 
inadequate in application, modification may be required." (Emphasis added).

22In the instant case, the General Counsel identified no such business factor 
asserted by Petitioner that was improper. Since it is unlikely that in these 
situations a "smoking gun" will exist, the Board will always make its decision 
based upon an inference of discrimination. This inferential basis of decision, is 
akin to the disparate impact test under Title VII, where the allegation of a 
decision based upon union activity is much like a statistical case of race or sex 
discrimination.

2 8



When the Board is dealing with economic defenses unrelated 
to job performance, a different test is necessary in the Labor Act, 
just as this Court determined necessary under Title VTI. 
Transportation Management was a garden variety § 8(a)(3) case 
dealing with a discharge based upon alleged unsatisfactory job 
performance and Wright Line also dealt with a single employee 
and his job performance; but those discrete situations are totally 
different from situations where outside economic forces drive 
management decisionmaking. This latter situation should require 
a different balance of proof. The burden of proof should be 
articulated and it should be the Ward's Cove burden that the 
General Counsel must come forward with a specific motivating 
causal factor and prove the alleged discriminatory factor, rather 
than just being able to take a broad brush approach and require 
the employer to attempt to dispel all reasons.

Given the fact that the Board has total leeway in presenting 
its prima facie case, a fair responsibility would be for the General 
Counsel to bear the burden on the backside of the case. The 
employer, therefore, should only have the burden of coming 
forward with the business defense, and once it has presented its 
evidence, the General Counsel must show that the defense is 
pretextually false. This burden should be struck in this case, as 
to the second class of cases recognized by the Court in footnote 
5 in Transportation Management, viz., pretext cases, but not 
considered at that time.

In the case at bar, the Administrative Law Judge, the Board, 
and the Seventh Circuit failed to explain why the financial reason 
produced by Petitioner was not a real economic and non-dis- 
criminatory basis for Petitioner’s action at the time of the "mass" 
layoff. In Petitioner's view, we met the burden of proof under 
either Transportation Management or McDonnell Douglas, but 
neither test was applied.23

^ T h is case represents the Board adjusting its decisions to the prevailing 
winds. There is no explanation of any evidentiary burden of proof, or its basis 
in the statute, by either the Board or the A U  to the parties in this case. The

29



Moreover, Transportation Management did not prescribe 
what showing of illegal motivation the General Counsel must 
make in order to shift the burden to the employer. According to 
the Board's Wright Line doctrine, 251 N.L.R.B. at 1089, the 
General Counsel must simply make a showing "sufficient to 
support the inference" that protected activity was a motivating 
factor. In recent opinions, this Court has rejected this position.

First, in Price Waterhouse v. Hopkins, 109 S. Ct. 1775 (1989), 
the Court revisited the dual motive/burden shifting question in 
the context of Title VII and explained its analysis in 
Transportation Management. According to the plurality opinion, 
Transportation Management stands only for the proposition that 
once the General Counsel proves "[t]he employer is a 
wrongdoer," then "[i]t is fair that [the employer] bear the risk that 
the influence of legal and illegal motives cannot be separated, 
because he knowingly created the risk and because the risk was 
created not be innocent activity but by his own wrongdoing." Price 
Waterhouse, 109 S. Ct. at 1790, quoting Transportation
Management, 462 U.S. at 403.

According to Justice O'Connor (concurring), "the strong 
medicine of requiring the employer to bear the burden of per­
suasion on the issue of causation" is only justified where there is 
"direct evidence that an illegal criterion was a substantial factor 
in the decision." Id. at 1796. Only where the General Counsel 
had made "this type of strong showing of illicit motivation" is the 
fact finder "entitled to presume that the employer's discriminatory 
animus made a difference to the outcome." Id. Consequently, 
the "strong medicine" of a shifting burden is only permitted where 
there is a "strong showing" by "direct evidence" that illegal 
discrimination was "a substantial or motivating factor."

real question presented here, is what the applicable standard is, an answer the 
Board will continue to refuse to provide so long as the courts of appeal are 
willing to enforce Board decisions without any such explanation of the proper 
standard.

30



While Price Waterhouse arose in the Title VII context, this 
is no reason to doubt that the appropriate analysis of dual 
motive/burden shifting cases under Title VII should be identical 
to that under the NLRA. First, both Transportation Management 
and Price Waterhouse borrowed their rationale from Mt. Healthy 
City Board o f Educ. v. Doyle, 429 U.S. 274 (1977), a First 
Amendment case. Thus, both Transportation Management and 
Price Waterhouse depend for their analysis upon a case which did 
not ease the plaintiffs burden of proving illegal motivation but 
which recognized an affirmative defense for the employer where 
the plaintiff had made a strong showing of illegal motivation. 
The Sixth Circuit in Gagne v. Northwestern National Ins. Co., 881 
F.2d 309 (6th Cir. 1989), a Title VII case, has interpreted the 
Price Waterhouse decision of this Court as follows:

[T]he Price Waterhouse Court specifically 
admonished that the new standard would apply 
only in the limited circumstances where the 
employee produced direct evidence that the 
adverse employment decision at issue was the 
result of "mixed motives" on the part of the 
employer and that, although the employer 
acted in part because of legitimate, non- 
discriminatory justifications, an impermissible 
discriminatory animus was a substantial 
motivation for its action.

Id. at 315.24

Furthermore, in consideration of the reasoning in Wards 
Cove, 109 S. Ct. at 2126 (1989), this Court has yet to resolve the 
question whether the Board's proper burden of proof under the 
Act is to disprove by pretextual evidence, under the similar rule

24Petitioner is aware of another case which is pending that might ultimately 
address the same burden shifting question presented in the instant case: Hyatt 
Corp. v. NLRB, Nos. 89-6407, 90-5697 (6th Cir.). More cases are expected to 
arise as the Board refuses to follow this Court's burden shifting analysis.

31



in disparate-treatment cases where intent must be proven, the 
employer's "assertion that the adverse employment action or 
practice was based solely on a legitimate neutral consideration." 
The Seventh Circuit absolutely refused to consider the merits of 
this business defense advanced by Petitioner. Consequently, the 
Seventh Circuit's opinion is silent on this important point which 
should have been part of its "substantial evidence" review of the 
Board's decision under § 10(f), 29 U.S.C. § 160(f), of the Act.

Under the "for cause" limitation of the Act itself, which 
prohibits a finding of an unfair labor practice, 29 U.S.C. § 160(c), 
the Board and the Circuit Court should not reject the employer's 
legitimate business defense without an explanation, the 
absence of which occurred in the instant case. This Court has 
also previously explained in employment cases that the federal 
court's and agencies may not substitute their views for the 
business decisions of employers: "In evaluating claims that
discretionary employment practices are insufficiently related to 
legitimate business purposes, it must be borne in mind that courts 
are generally less competent than employers to restructure 
business practices, and unless mandated to do so by Congress they 
should not attempt it.' Fumco Construction Corp. v. Waters, 438 
U.S., at 578, 98 S.Ct., at 2950." Wards Cove, 109 S. Ct. at 2127, 
(quoting Watson v. Fort Worth Bank & Trust, 108 S. Ct. 2777, 
2791 (1988)(emphasis added)). Consequently, this issue stands 
properly poised on this record.

Neither the Seventh Circuit nor the Board articulated why 
petitioner's defense of its management decisions, by the produc­
tion of nondiscriminatory economic reasons for the lay-off, was *

“̂ In  Wright Line, 251 N.L.R.B. at 1088 n .l l ,  the Board also recognized that 
not all acts o f an employer are inherently destructive of employee rights, such as 
an employee's discharge.

32



not legitimate economic evidence.26 All the evidence was 
unrebutted. The Seventh Circuit simply remarked, "[t]he 
company had the burden of persuasion, and failed to carry it." 
7a. The A U  stated Sonicraft had "fail[ed] to overcome the 
General Counsel's showing of discriminatory motivation," 93a, a 
responsibility an employer has no responsibility to rebut.27

The Board's footnote opinion completely refused to address 
Petitioner's business defense that the confluence of real negative 
cashflow and inventory problems caused it to implement the lay 
off. The A U , in turn, did not find that Sonicraft's negative cash 
flow position "almost continuously from June 1980 through 
December 1981," was not a truthful basis for the layoff decision. 
90a. Sonicraft's articulation of its defense should have been 
sufficient. See Price Waterhouse v. Hopkins, 109 S. Ct. 1775, 1788 
1989)("after a plaintiff has made out a prima facie case of 
discrimination under Title VII, the burden of persuasion does not

“6The A U  opined that "[t]he evidence does not show a severe problem 
either in inventory or in cash flow that would justify such a precipitous and far 
reaching layoff." 93a. Clearly, the A U  did not claim there was no cashflow or 
inventory problem, but in his opinion, it was not severe enough. That call was 
for management to make, not the government substituting its own post hoc value 
judgment, or refuting management's view of the tension under which the decision 
arose, even if erroneous. Cf. 91a (the statement that "Jones’ testimony ...is thus 
refuted by the documentary evidence.") with Tr. at 1584 (A U  not permitting 
company president to relate his opinion of the demeanor of the company 
treasurer's statements to him to show financial crisis: "The crisis or the urgency 
would be hard evidence. Sustained.").

27Section 10(c) o f the Act expressly requires that violations be proved by a 
"preponderance of the evidence." Transportation Management, 113 L.R.R.M. at 
2860. "The Board's allocation of the burden of proof is clearly reasonable in this 
context." Id. at 2861. However, in Price Waterhouse, 109 S. Ct. at 1794, Justice 
Brennen's opinion explains that in the partnership committee process, there was 
no "direct evidence" that the discriminatory motive "had played a role in the 
decision." Hence, even under the mixed-motive model, the burden shifting does 
not occur without direct evidence of discrimination, of which there is none in the 
case at bar.

33



shift to the employer to show that its stated legitimate reason was 
the true reason."28

It would be inconceivable that if Title VII was patterned 
after the NLRA, as this Court has repeatedly stated, that the 
manner in which the employer presents its independent business 
reasons as its defense, will be different under each statute. This 
difference, if it is permitted to continue, will create terrible 
uncertainty in an employer's presentation of its "affirmative 
defense" in all areas of employment law. Furthermore, it is 
inconceivable that the majority in Wards Cove and Price 
Waterhouse, by citing to Transportation Management, could have 
been referring to anything but that prior "cases" always left the 
ultimate burden of proof on the Plaintiff or General Counsel to 
demonstrate pretext, and the Court was empowered by law to so 
place the burden on the parties.

2Q
Price Waterhouse, 109 S. Ct. at 1796, White, J.; concurring, explained,

In a mixed motive case, where the legitimate motive found would 
have been ample grounds for the action taken, and the employer 
credibly testifies that the action would have been taken for the 
legitimate reasons alone, this should be ample proof. This would even 
more plainly be the case where the employer denies any illegitimate 
motive in the first place but the court finds that illegitimate, as well 
as legitimate, factors motivated the adverse action.

34



CONCLUSION

WHEREFORE, Petitioner respectfully requests that the 
Court grant a writ of certiorari to the Seventh Circuit to review 
these important questions central to the administration of the 
National Labor Relations Act.

Garland W. Watt* 
GARLAND W. WATT & 

ASSOCIATES 
West Van Buren Street 
Suite 500
Chicago, Illinois 60605 
(312) 663-1440

September 10, 1990

Respectfully submitted,

Gerard C. Smetana 
ABRAMSON & FOX 
One East Wacker Drive 
Chicago, Illinois 60601 
(312) 644-8500

Michael E. Avakian 
ABRAMSON & FOX 
1919 Pennsylvania Ave., N.W. 
Washington, D.C. 20006 
(202) 659-8687

Attorneys for Petitioner 
*Counsel of Record

35



UNITED STATES COURT OF APPEALS 
FOR THE SEVENTH CIRCUIT

SONICRAFT, INCORPORATED.
Petitioner,

v.
NATIONAL LABOR RELATIONS BOARD,

Respondent,

and WAREHOUSE. MAIL ORDER, OFFICE, 
TECHNICAL & PROFESSIONAL EMPLOYEES 

UNION LOCAL 743. INTERNATIONAL 
BROTHERHOOD OF TEAMSTERS,

Intervening Respondent.

Nos. 89-2458, 89-2694

May 9, 1990, Argued
June 12, 1990, Decided

ON PETITION for Review and Cross-Application for 
Enforcement of an Order of the National Labor Relations Board.

Before: POSNER and FLAUM, Circuit Judges, and Will, 
Senior District Judge.1

POSNER, Circuit Judge. The Labor Board asks us to 
enforce, and the Sonicrafl corporation asks us to set aside, an 
order by the Board (295 N.L.R.B. No. 67 (June 15, 1989)) Finding 
that Sonicraft violated the National Labor Relations Act by 
threatening economic retaliation against its workers during a 
representation election campaign and by carrying out the threat 
after the union (despite the company's threats) won the election. 
The retaliation operated as follows. The company laid off 50 of 
the 92 employees in the bargaining unit just two days after the 
election, and quickly began recalling all but those employees who 
had been vocal supporters of the union -- the latter being placed

11 Ion. Hubert L. Will, of the Northern District of Illinois, sitting by designa-



2a

on a "no-no list" and either never recalled or recalled later than 
they would have been but for their support of the union.

The principal issue is the statute of limitations. The Act 
provides, in section 10(b), that "no complaint shall issue based 
upon any unfair labor practice occurring more than six months 
prior to the filing of the charge." 29 U.S.C. § 160(b). The election 
campaign, the election, and the layoffs took place in 1981. Early 
in 1982, within the six months permitted by the statute, the union 
filed with the Board a charge encompassing all the allegations 
later included in the complaint issued by the Board's General 
Counsel. On April 29, the Regional Director (a subordinate 
official in the General Counsel's office) dismissed the charge 
insofar as it alleged that the layoff had been unlawful and issued 
a complaint limited to pre-election intimidation and to the 
sequence in which certain employees had been recalled after the 
layoffs that followed the election. The union appealed the 
dismissal of the layoff portion of the charge to the General 
Counsel, the final authority for the issuance of complaints by the 
Board, but without success. However, additional evidence coming 
to light, on December 1 the General Counsel moved the 
administrative law judge presiding over the case for permission to 
file an amended complaint restoring the allegations about the 
layoff, and after an appeal to the Board the amendment was 
allowed and the amended complaint was issued on January 20, 
1983. The General Counsel's motion had come almost a year 
after the layoff had taken place and more than six months after 
the selective recalls: too late, according to Sonicraft. The Board 
disagreed, ruling in the decision under review that because the 
restored allegations were closely related to the allegations that 
had been retained, section 10(b) did not bar the amendment.

In addition to establishing a period of limitations, section 10(b) 
authorizes the Board to amend a complaint at any tiipe before 
entering its final order. There is nothing here or elsewhere in the 
Board's statutes or rules about relation back; but the usual rule, 
codified for example in Rule 15(c) of the Federal Rules of Civil 
Procedure, is that, for purposes of determining whether the



statute of limitations has run, an amendment to a complaint 
relates back to the original complaint if it arises out of the 
dispute that gave rise to the original complaint. Displaying its 
usual preference for common law over express rulemaking, the 
Board has long had a doctrine, parallel to that of Rule 15(c), that 
an amendment which is "closely related” to the original charge 
relates back to the date of the original complaint. NLRB v. 
Complas Industries, Inc., 714 F.2d 729, 732-33 (7th Cir. 1983) 
(per curiam); NLRB v. Dinion Coil Co., 201 F.2d 484, 491 (2d 
Cir. 1952). The allegations in this case concerning the layoffs are 
closely related to the allegations of discriminatory recall; the 
recalls began only four days after the layoffs, and the layoffs and 
the recalls were the one-two punch in the company's scheme of 
retaliation. The company points out, however, that in Ducane 
Healing Corp., 273 N.L.R.B. 1389. 1391 (19S5), enforced without 
opinion, 785 F.2d 304 (4lh Cir. 1986), a three-member panel of 
the Board ruled that a dismissed or withdrawn charge "ceases to 
exist" and therefore cannot be revived outside the six-month 
limitations period unless the respondent is guilty of fraudulent 
concealment; the Board, however, declined in this case to rule 
that Sonicraft had been guilty of that. One of the panel members 
in Ducane.found it unnecessary to decide whether the reinstate­
ment of one of the dismissed charges might be supportable under 
the "closely related" doctrine, id. at 1391 n. 9; the other two 
members did not mention the issue.

If Ducane stood alone, we would have the unfortunate, and 
unfortunately not uncommon, situation in which the Board limits 
or even repudiates a precedent in silence. For in deciding that 
the layoff charges were not time-barred in this case, the Board 
did not attempt to distinguish Ducane. And although one 
member of the panel in Ducane had thought it unnecessary to 
decide whether the closely-related doctrine might permit the 
General Counsel to reinstate a dismissed charge, the majority 
opinion (which is to say all but note 9) did not respond to the 
suggestion and could be thought, by the sweeping language it 
employed, to have confined the closely-related doctrine to cases



4a

in which the belated amendment adds an allegation not previously 
dismissed or withdrawn.

But Ducane does not stand alone. In Redd-IInc., 290 N.L.R.B. 
No. 140, 129 L.R.R.M. 1229, 1231 (1988), the Board limited 
Ducane to "an attempt to reinstate the dead allegations them­
selves without reference to any other pending timely charge." 
Sonicraft argues that this is not a reasoned distinction, because 
dead is dead; and it adds that Redd-I involved withdrawn rather 
than, as in both this case and Ducane, dismissed allegations. Our 
view is different. Apart from footnote 9, Ducane makes no 
reference to the closely-related doctrine; and an administrative 
agency, unlike a court, is not permitted to over-rule its doctrines 
in silence — it must explain itself. Motor Vehicle Mfgs. Ass'n v. 
State Farm Mutual Automobile Ins. Co., 463 U.S. 29, 48, 57 
(1983); Wilkins v. Sullivan, 889 F.2d 135, 141 (7th Cir. 1989); 
International Union, UA W  v. NLRB, 802 F.2d 969, 974 (7th Cir. 
1986); Local 1384, UAW v. NLRB, 756 F.2d 482, 492 (7th Cir. 
1985); Continental Web Press, Inc. v. NLRB, 742 F.2d 1087, 
1093-94 (7th Cir. 1984); Lynch v. Dawson, 820 F.2d 1014, 1021 
(9th Cir. 1987). (This of course is the heart of Sonicraft's argu­
ment.) The presumption is therefore that the closely-related 
doctrine survived Ducane, and Redd-I makes this explicit. The 
distinction between related and unrelated allegations makes 
perfectly good sense and does not violate the principle, urged by 
Sonicraft, of the finality of death. A dismissed allegation stays 
dead, all right, but the complaint is not confined within the 
boundaries of the original charge.

It is true that in this case the complaint was amended after the 
hearing (that is, the trial) before the administrative law judge 
began. So belated an amendment could violate a respondent's 
right to a fair hearing. But the issue in this case is not procedural 
fairness. Sonicraft does not argue that the last-minute amendment 
of the complaint impaired its ability to defend itself; and there is 
no general rule cutting off the time for amending a complaint. 
Compare Fed. R. Civ. P. 15(b), which permits an amendment that 
conforms the complaint to the evidence to be made even after



5a

judgment. Sonicraft argues, rather, that the amendment was 
barred by the statute of limitations -- and would have been even 
if made months earlier. We reject the argument. If the allegations 
concerning the motive for the layoffs had not been included in 
the union’s charge, the complaint could have been amended on 
December 1, 1982, to add them, without running afoul of section 
10(b); as we said, they grow out of the same retaliatory scheme, 
which had two stages -- layoff, followed by selective recall. The 
only possible significance of the dismissal of a closely related 
charge is that it might lull a respondent into thinking he didn't 
have to worry any longer about defending himself against that 
charge. But this possibility depends on the rule; after Redd-1 it is 
plain that he does still have to worry, provided the dismissed 
allegations are closely related to the remaining ones. The trial 
began on October 6, 1982, long before the decision in Redd-I, or 
for that matter in Ducane. (The delays in this proceeding have 
been appalling.) But Sonicraft does not argue that the belated 
amendment of the complaint impeded its defense, or prejudiced 
it in any other way.

Redd-I involved a withdrawn charge; this case, like Ducane, 
Involves a dismissed one. The Board applied Redd-I in the 
present case without remarking this difference. Is this, perhaps, 
an example of the Board's changing course without explanation? 
It is not. The only conceivable difference between withdrawal and 
dismissal is that the latter action might have a greater lulling 
effect, since reinstatement would require the General Counsel to 
change his mind. But Sonicraft docs not argue lull. The Board is 
not required to elucidate the obvious. And a case, albeit one that 
the Board failed to cite in the present case either in its opinion 
or in its brief to us, expressly holds that Redd-I applies to 
dismissed as well as to withdrawn charges. Stem Entertainment 
System Inc., 290 N.L.R.B. No. 167, 130 L.R.R.M. 1147, 1149 n. 
3 (Sept. 23, 1988). See also Columbia Textile Services Inc., 293 
N.L.R.B. No. 127, 131 L.R.R.M. 1241, 1242 (May 15, 1989). The 
last link in the chain of precedent from Ducane to the present 
case has been forged.



6a

The merits of Sonicraft's challenge to the Board's order require 
little discussion. Sonicraft attacks the findings of the administra­
tive law judge with great vigor and pertinacity, but the evidence 
that the layoffs and selective recalls were motivated by hostility 
to the union and its supporters is overwhelming and also supports 
the inference of intimidation that the administrative law judge 
drew from catnpaign statements that in another setting might be 
thought within the bounds of lawful campaign rhetoric. This was 
a straightforward case; it is a pity that it has taken eight years to 
resolve.

We reject, finally, Sonicraft's contention that Wards Cove 
Packing Co. v. Atonio, 109 S. Ct. 2115 (1989), abrogates the 
Labor Board's long-standing rule, endorsed in NLRB  v. Transpor­
tation Management Corp., 462 U.S. 393 (1983), that once the 
General Counsel shows that hostility to unionization was a factor 
in a layoff, the company has the burden of persuading the Board 
that the layoff would have occurred anyway. The issue in Wards 
Cove was the burden of persuasion in disparate-impact cases 
under Title VII of the Civil Rights Act of 1964 - precisely cases 
in which discriminatory animus is not shown, making questionable 
the doctrine, repudiated by that decision, that once an innocent 
practice is shown to burden a protected group disproportionately, 
the burden of persuasion shifts to the employer to show that the 
practice is necessary to his business. If analogies to the present 
case are to be sought in civil rights law, the closest will be found 
in Price Waterhouse v. Hopkins, 109 S. Ct. 1775, 1788 (1989), 
which holds that in a mixed-motive case the burden of negating 
causation is on the employer. In fact that is the same rule as the 
rule of Transportation Management, cited approvingly in Hopkins, 
109 S. Ct. at 1788; and as no one suggests that Wards Cove 
overruled Price Waterhouse, we may assume that Transportation 
Management survives Wards Cove as well.

It is true that Wards Cove cites Transportation Management for 
the proposition that certain civil rights cases that might have 
appeared to shift the burden of persuasion to the employer really 
had meant only to shift the burden of production to him, leaving



7a

ihc burden of persuasion on the plaintiff, the employee, cor­
responding to the General Counsel of the Labor Board in the 
present case. 109 S. Ct. at 2126. But the Court seems to have 
been referring to a fine-spun distinction in Transportation 
Management, found also in Price Waterhouse, rather than 
repudiating either decision. Transportation Management explains 
that the burden of proving the employer's hostility to the union 
never shifts, but that even if the General Counsel carries that 
burden the employer can defend by showing that the discharge or 
layoff would have taken place anyway, for noninvidious reasons. 
In other words, the employer has an affirmative defense (no 
causation), as to which of course he bears the burden of persua­
sion, but so far as the main case is concerned the burden of 
persuasion never shifts. And it is, we think, this constancy of the 
burden of persuasion in the plaintiffs case that the Court in 
Wards Cove was pointing to by its "cf. e.g." reference to Transpor­
tation Management. We do not think that the reference was 
intended to revolutionize labor law. Once the General Counsel 
in our case demonstrated the company's hostility to the union's 
attempt to organize its workers, the company could defend only 
by showing that it would have made the layoffs anyway. This was 
an affirmative defense. The company had the burden of persua­
sion, and failed to carry it.

Sonicraft raises other issues, but they are singularly without 
merit and it is merciful to pass over them in silence. The Board's 
order will be 

ENFORCED.



8a

UNITED STATES COURT OF APPEALS 
FOR THE SEVENTH CIRCUIT

JUDGMENT - WITH ORAL ARGUMENT

DATE: June 12, 1990

Before: Honorable Richard A. Posner, Circuit Judge 
Honorable Joel M. Flaum, Circuit Judge 
Honorable Hubert L.Will, Senior District Judge1

No. 89-2458, 89-2694

SONICRAFT, INCORPORATED,
Petitioner,

NATIONAL LABOR RELATIONS BOARD,
Respondent,

and

WAREHOUSE, MAIL ORDER, OFFICE, TECHNICAL & 
PROFESSIONAL EMPLOYEES UNION LOCAL 743, 
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, 
CHAUFFERS, WAREHOUSEMEN AND HELPERS,

Intervening Respondent.

Petition for Review and Cross-Application 
for Enforcement of an Order of the 
National Labor Relations Board *

h lo n . Hubert L. Will, Senior District Judge for the Northern District of 
Illinois, is sitting by designation.



9a

This cause was heard on the record from the above men­
tioned National Labor Relations Board, and was argued by 
counsel.

On consideration whereof, IT IS ORDERED AND AD­
JUDGED by this Court that the decision of the National Labor 
Relations Board be, and the same is hereby, ENFORCED, with 
costs, in accordance with the opinion of this Court filed this date.



10a

UNITED STATES OF AMERICA 
BEFORE THE NATIONAL LABOR RELATIONS BOARD

SONICRAFT, INC.

and

WAREHOUSE, MAIL ORDER, OFFICE, TECHNICAL 
& PROFESSIONAL EMPLOYEES UNION LOCAL 743, 
INTERNATIONAL BROTHERHOOD OF TEAMSTERS

Case 13-CA-22020

June 15, 1989; Amended February 28, 1984

SUPPLEMENTAL DECISION AND ORDER

By Wilford W. Johansen, Member; Dennis M. Devaney, Member; 
James M. Stephens, Chairman

OPINION: On February 14, 1984, Administrative Law Judge 
Robert A. Giannasi issued the attached decision. The Respon­
dent filed exceptions and a supporting brief, and the General 
Counsel and the Charging Party each filed a brief supporting the 
judge's decision.

On March 27, 1985, the Board remanded the case to Judge 
Giannasi to address the propriety of an amendment to the com­
plaint relating to December 1981 employee layoffs and subse­
quent recalls in light of Ducane Heating Corp., 237 NLRB 1389 
(1985), a decision that had issued after Judge Giannasi's decision.

On December 11, 1985, Judge Giannasi issued the attached 
Supplemental decision. The Respondent filed exceptions and a 
supporting brief, and the General Counsel and the Charging 
Party filed answering briefs.



11a

The National Labor Relations Board has delegated its authority 
in this proceeding to a three-member panel.

The Board has considered the decision and the record in light 
of the exceptions and briefs and has decided to affirm the judge's



12a

rulings, findings,2 and conclusions,3 to modify the remedy,4 and

2The Respondent has excepted to some of the judge's credibility findings. 
The Board’s established policy is not to overrule an administrative law judge's 
credibility resolutions unless the clear preponderance 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 the absence of exceptions, we adopt pro forma the judge's findings that 
the Respondent did not violate Sec. 8(a)(1) by Supervisor Rufus Denson's 
questioning employee Oliver Harper on the day of the representation election 
about how he was going to vote and by Company President Jerry Jones' 
references to layoffs during his November 25 address to assembled employees. 
We note that any violations found regarding either incident would be cumulative 
and not affect the remedy or the Order.

As the parties have had the opportunity to brief the 10(b) issues of this case 
fully before Judge Giannasi and before the Board, we deny the Respondent's 
August 10, 1984 motion to strike portions of the General Counsel's and the 
Union's briefs addressing these issues and, in the alternative, for leave to file a 
reply brief.

As to the judge's analysis of the 10(b) issue in his supplemental decision, we 
find, in agrement with the judge, that the discriminatory mass layoff, the selec­
tions for layoff, and certain refusals of selection for recall from layoff are "closely 
related" to the outstanding timely filed charge. See Redd-1, Inc., 290 NLRB No. 
140 (Sept. 16, 1988). In his dissent, Chairman Stephens agrees that the 
allegations raised the timely filed charge and allegations of the complaint amend­
ment arc all closely related. The dissent relies, however, on procedural due 
process and fairness concerns in concluding that the complaint prior to 
amendment did not put the Respondent on notice that it would have to defend 
against mass layoff, layoff selection, and recall selection allegations because the 
latter groups of allegations had been set forth in the original charge but had been 
dismissed prior to hearing. As stated in Redd-1, it is the function not of the 
charge but of the complaint to give notice to a respondent of specific claims 
made against it. See NLRB  v. Font Milling Co., 360 U.S. 301, 307-308 (1959); 
sec also NLRB v. Atlas Linen Supply, 322 F.2d 216, 219 (6th Cir. 1963), cert, 
denied 376 U.S. 951 (1964) ("a complaint may be amended to conform to proof 
adduced on the hearing"). In the absence of a showing of surprise that would



13a

to adopt the recommended Order.

ORDER

The National Labor Relations Board adopts the recommended 
Order of the administrative law judge and orders that the 
Respondent, Sonicraft, Inc., Chicago, Illinois, its officers, agents, 
successors, and assigns, shall take the action set forth in the 
Order.

CHAIRMAN STEPHENS, dissenting in part.

In accordance with the views expressed in my dissenting 
opinions in Redd-1, Inc., 290 NLRB No. 140 (Sept. 16, 1988), and 
Kannkis Co., 293 NLRB No. 50 (Mar. 29, 1989), I would find the 
complaint allegations regarding the December 1981 employee 
layoffs and subsequent failures to recall to be barred by Section 
10(b) of the Act except for the allegations concerning discrimina­
tory failures to recall four individuals named in the original 
complaint.1 Even though the complaint allegations regarding 
the layoffs and large group of subsequent recalls may be "closely 
related" to the allegations raised in the timely filed charge, the 
sequence of charge filings and withdrawals here is such that the 
Respondent would not reasonably have believed at the expiration * 4

have hampered presentation of the Respondent's defense at hearing after the 
complaint was amended, we find that the Respondent has suffered no denial of 
due process. See Redd-I, supra, slip op. at 6-7. As we reject the 10(b) defense 
based on the judge's findings, consistent with the Board's analysis in Redd-I, that 
the allegations in the complaint amendment are closely related to the content of 
the original charge, we find it unnecessary to reach the fraudulent concealment 
issue on which the judge alternatively based his rejection of the 10(b) defense.

4
Interest will be computed in the manner prescribed in New Horizons for the 

Retarded, 283 NLRB No. 181 (May 28, 1987).

'in all other respects I join my colleagues in affirming the judge and adopting 
his recommended Order.



14a

of the 10(b) period that it might have to litigate allegations 
pertaining to the December 1981 discharges and subsequent 
refusals to recall, except for the four referred to above.

The original charge, filed February 22, 1982, alleged that the 
Respondent violated the Act by laying off employees and there­
after refusing to recall employees for discriminatory reasons. On 
April 29, 1982, the Regional Director sent a letter to the Union 
staling that he was refusing to issue a complaint on that aspect of 
the charge that alleged that the original layoff was unlawful but 
that the "dismissal is not intended to affect . . . allegations 
concerning [Respondent's] failure to recall certain employees 
which are alleged in the complaint." The complaint, which issued 
the same day, contained several 8(a)(1) and (3) violations 
concerning the refusal to recall or reinstate employees Arm­
strong, Barlow, Lynch, and Sherron. Thus, when the 10(b) 
period had run in June 1982, the Respondent knew that the 
Regional Director had considered, and rejected, claims that the 
Respondent had unlawfully laid off employees in December 1981 
and subsequently refused to recall them as a group and the 
Respondent would not reasonably have contemplated litigating 
those matters. I

I also disagree with the judge's finding that the Respondent 
fraudulently concealed operative facts underlying the alleged 
violation that would warrant reinstatement of the original charge 
allegations outside the 6-month limitations period of Section 
10(b). As stated in my dissenting opinion in Kanakis, there may 
be cases in which the General Counsel should be allowed to toll 
Section 10(b) where fraud is perpetrated against his or her office; 
however, this is not such a case. Here, following a timely charge 
alleging a mass layoff and subsequent refusal to recall employees, 
the Regional Office commenced an investigation of the allega­
tions. From the start, the Regional Office was aware of the 
operative facts concerning the alleged violation -- that there was 
a mass layoff on the heels of a union victory in a certification 
election. Furthermore, during the investigation, the Regional 
Office interviewed various employees witnesses who stated that



15a

Respondent's president had threatened to lay off employees if the 
union was voted in. Although the Regional Office sought, as part 
of its investigation, to obtain a series of tape recordings of 
question-and-answer sessions between the Respondent's president 
and its employees that, when played during the course of the 
trial, confirmed that the Respondent did indeed unlawfully 
threaten to layoff employees, the Respondent did not turn them 
over during the investigation, asserting that the tapes were 
"indecipherable." Based on its investigation, the Regional Office 
decided not to prosecute the mass layoff and subsequent refusal 
to recall allegations of the complaint.

The General Counsel now asserts, and the judge found, that 
the Respondent's failure to turn over the tape recordings of the 
question-and-answer sessions constitutes fraudulent concealment 
warranting the reinstatement of the original charge allegations 
outside the 6-month limitations period of Section 10(b). Because 
the Regional Director was aware of all the operative facts 
underlying the alleged violations when he opted, within his 
statutory discretion, not to prosecute that aspect of the case 
concerning the mass layoff and subsequent refusals to recall 
employees to work,2 I do not believe that there has been any 
fraudulent concealment from the General Counsel that would 
warrant equitable relief from Section 10(b).

2
It is also noteworthy that the Respondent's inaccurate statement about the 

clarity of the tape recording in no way contradicted the testimonial evidence 
supporting the charge.



16a

UNITED STATES OF AMERICA 
BEFORE THE NATIONAL LABOR RELATIONS BOARD 

DIVISION OF JUDGES

SONICRAFT, INCORPORATED

and

WAREHOUSE, MAIL ORDER, OFFICE, TECHNICAL 
& PROFESSIONAL EMPLOYEES UNION LOCAL 743, 
INTERNATIONAL 
BROTHERHOOD OF TEAMSTERS

Case 13-CA-22020 

SUPPLEMENTAL DECISION 

(Decision After Remand)

ROBERT A. GIANNASI, Administrative Law Judge: My 
original decision in this case issued on 14 February 1984. I found 
that Respondent violated Section 8(a)(1) of the Act by making 
various statements and threats and Section 8(a)(3) and (1) of the 
Act by virtue of its mass layoff of some 50 employees in Decem­
ber of 1981 for discriminatory reasons. Alternatively, I found that 
Respondent discriminatorily selected 8 employees for layoff and 
discriminatorily refused to recall 10 employees in a timely 
manner. I also rejected Respondent's contention that Section 
10(b) of the Act precluded litigation of an amendment to the 
Complaint concerning conduct which was the subject of a charge 
partially dismissed by the General Counsel and which occurred 
more than 6 months before the amendment. The original charge 
alleged as unlawful the layoffs and the refusal to recall the laid- 
off employees, as well as a number of Section 8(a)(1) allegations 
and "other acts." The General Counsel issued Complaint on four 
of the refusals to recall and certain Section 8(a)(1) violations, and 
dismissed the mass layoff allegation. Citing new evidence, the 
General Counsel thereafter granted the charging party's request



17a

for reconsideration, revoked his partial dismissal and sought to 
amend the Complaint to include the allegations which had earlier 
been dismissed. My rejection of the Respondent's Section 10(b) 
argument was compelled by interim orders of the Board in this 
case, which not only permitted, but required, litigation of the 
Complaint amendment. See my original decision at pp. 3-7 for a 
full exposition of the procedural history of the case.

On 11 January 1985, the Board issued its decision in Ducane 
Healing Corporation, 273 NLRB No. 175, in which it overruled 
California Pacific Signs, Inc., 223 NLRB 450 (1977) and Winer 
Motors, Inc., 285 NLRB 1457 (1982), two cases the Board 
presumably relied upon when it decided that the amendment in 
this case was proper. On 27 March 1985, the Board remanded 
the instant case to me "for the limited purpose of addressing the 
Section 10(b) issues relating to the complaint amendment 
pertaining to the December 1981 employee layoffs in question in 
light of Ducane Heating." By July 1985 I had received briefs from 
all parties and reply briefs from the General Counsel and the 
Respondent. Based on those briefs, an analysis of the applicable 
authorities, and a reconsideration of the relevant evidence, 
including the demeanor and credibility of the witnesses, I make 
the following findings and conclusions.

Before Ducane Heating, Board law clearly permitted an amend­
ment to a Complaint based on charges that had earlier been 
dismissed by the General Counsel, so long as the original charges 
had been timely filed and the General Counsel discovered new 
evidence concerning the dismissed charge. See California Pacific 
Signs, Inc., supra. In this case, the then General Counsel set aside 
his partial dismissal because, during the trial, the discovery of new 
witnesses and consideration of material obtained by subpoena 
justified granting charging party's request for reconsideration of 
the earlier decision not to litigate the layoff issue. Respondent 
argued that since the General Counsel had dismissed the allega­
tion that the December 1981 layoffs were unlawful, that part of 
the charge was extinguished and, since no charge involving the 
layoffs existed, the December 1982 amendment was barred by



18a

Section 10(b). That view was rejected by the Board twice in this 
case. See also Mourning v. N LRB , 505 F.2d 421, 424 (C.A.D.C., 
1974)(the 6-month limitations period of Section 10(b) runs 
against a charging party, not the General Counsel); and NLRB v. 
Complas Industries, Inc., 714 F.2d 729, 734 (C.A. 7, 1983) ("The 
six month limitation period applies only to the filing and service 
of a charge and not to the issuance or amending of a complaint," 
citing NLRB v. Font Milling Co., 360 U.S. 301, 307 (1959)).

In Ducane Heating, the Board held that "a dismissed charge 
may not be reinstated outside the 6-month limitations period of 
Section 10(b) absent special circumstances in which a respondent 
fraudulently conceals the operative facts underlying the alleged 
violation. Where there is a fraudulent concealment, the limita­
tions period begins to run when the charging party knows or 
should have known of the concealed facts.” (slip op. p. 6).1

A. The Fraudulent Concealment Issue

The General Counsel and the Union allege that there was 
fraudulent concealment in this case sufficient to provide an 
exception to the Ducane Heating rule because (1) During the 
investigation of this case, Respondent declined to provide tape 
recordings of question-and-answer sessions between President 
Jerry Jones and employees and represented that the tapes were 
"undecipherable." When the tapes were later provided pursuant 
to subpoena, one of them -- that relating to the 25 November 
session — was clearly audible and provided evidence of unlawful *

hn Ducane Heating, the Board did not discuss the principles in the Mourning 
or Complas cases or whether the new rule was to be applied retroactively. 
Normally, the extinguishment of a cause of action by a new interpretation of a 
statute of limitations warrants a careful analysis of retroactive or prospective 
application. See Chevron Oil v. Huson, 404 U.S. 97, 106 (1971); Landahl v. PPG 
Industries, Inc., 746 F.2d 1312, 1314-1316 (C.A. 7, 1984); Gray v. OPM, No. 
84-5052, August 19,1985, C.A.D.C., slip op. pp. 16-17.1 do not view the remand 
order as permitting a discussion of these issues here.



19a

conduct and motive; and (2) Respondent's 29 March 1982 
position statement submitted to the Regional Office during the 
investigation contained material that later proved incorrect and 
incomplete.2

Initially, I must say that I have difficulty in determining what 
the Board means by fraudulent concealment in this context. In 
Ducane the Board stated "the limitations period begins to run 
when the charging party knows or should have known of the con­
cealed facts." However, both in this case and in Ducane, the 
charging party filed a timely charge. The operative facts in this 
case - that a mass layoff had occurred — were clearly known by 
the charging party at the time it filed the charge. The General 
Counsel decided not to litigate the mass layoff issue based on his 
initial investigation. Ducane holds that, even though a charging 
party has filed a timely charge, the General Counsel cannot 
revive a dismissed charge after the Section 10(b) period has run. 
The thrust of the Board's holding in Ducane is that the General 
Counsel's action or inaction caused the limitations period to run. 
I therefore assume that Ducane refers to fraudulently concealed 
facts which, if not concealed, might have caused the General 
Counsel initially not to dismiss the charge.3

Respondent argues that what is relevant in determining 
fraudulent concealment is the knowledge of the "adversely 
affected" party, here the charging party, and not the General 
Counsel, citing numerous authorities. See e.g. Wisconsin River 
Valley, District Council (Skippy Enterprises, Inc.), 211 NLRB 222, 
226 (1974). Since, in Ducane, the Board first applied the Section 
10(b) limitations period to the General Counsel, it is not

^Tie Respondent actually submitted several position statements but the one 
upon which the General Counsel focuses was that of 29 March 1982. (See G.C. 
Exh. 4, 4(b) and Resp. Exh. 65.)

Respondent is presently represented by different counsel from counsel who 
represented it during the investigation and trial.



20a

surprising that the prior authorities would speak of fraudulent 
concealment in terms of the charging party's knowledge. And 
since, in Ducane, the charging party had filed a timely charge, 
when it spoke of fraudulent concealment, the Board must have 
referred to the knowledge of the General Counsel. See also 
Winer Motors, supra, 265 NLRB at 1458 n. 12 and accompanying 
text, where the Board defined fraudulent concealment as conduct 
which causes the charging party either to withdraw a timely filed 
charge or not to file one at all.

Thus, although, in Ducane, the Board spoke in terms of 
fraudulent concealment, it appears more likely that the Board 
meant to address the issue of misrepresentation by a respondent 
during the General Counsel's investigation. I am unsure of the 
exact contours of the so-called fraudulent concealment or 
misrepresentation exception when the charging party has filed a 
timely charge and the statute of limitations is applied to the 
General Counsel. Its definition is essentially a matter for the 
Board. However, I believe it is appropriate in this case to apply 
at least some of the criteria that are applied in fraudulent 
concealment cases which toll the statute of limitations for the 
charging party. Thus, the evidence allegedly concealed by 
misrepresentation must not only be material but must not have 
been discoverable by the exercise of due diligence. See, ILGW 
v. NLRB (McGloughlin Mfg. Carp.), 463 F.2d 907, 921-923 
(1972); Amcar Div., ACF Industries, Inc., v. NLRB, 592 F.2d 422, 
429-431 (C.A. 8, 1979); NLRB v. Don Burgess Const. Corp., 596 
F.2d 378, 382-384 (C.A. 9, 1979). See also, Duff-Norton Co., 275 
NLRB No. 93 (1985) and Northwest Towboat Ass'n, 275 NLRB 
No. 24, (1985)(slip op. p. 4).4

^The fraudulent concealment exception is, of course, an equitable doctrine 
read into all federal statutes of limitations. As the Supreme Court has stated: 

Where a plaintiff has been injured by fraud and "remains in ignorance 
of it without any fault or want of diligence or care on his part, the bar 
of the statute does not begin to run until the fraud is discovered, 
though there be no special circumstances or efforts on the part of the



21a

Turning first to the alleged misrepresentation relating to the 
tape recordings, I note that the record shows that President 
Jerry Jones made three speeches to assembled employees. Texts 
of Jones' prepared remarks were turned over to the General 
Counsel during the investigation. However, on two of these oc­
casions, there were discrete question-and-answer periods after the 
speech. The meetings were taped by the Respondent. When the 
tape recording of the 25 November meeting was produced 
pursuant to subpoena during the hearing in this case, the General 
Counsel was able for the first time to listen to the tapes. He 
concluded that Jones' remarks were unlawful and bore on the 
motive for the 11 December layoffs. He then sought to amend 
the complaint to add Section 8(a)(1) allegations and the mass 
layoff allegations initially dismissed. I found that Jones did indeed 
make two unlawful threats of retaliation, including one that the 
employees might be sent home or laid off (see my decision at pp. 
19-20 and 21). These threats demonstrated unlawful motive for 
the layoffs.

The General Counsel alleges that the Respondent made 
serious misrepresentations about the tapes during the investi­
gation. In analyzing this issue, I accept the testimony of Board 
agent Edward Klaeren that, during the investigation. Respon­
dent's agents refused his request for the tapes and told him, 
falsely, that the tapes were not understandable. Klaeren testified 
that he asked Respondent's Attorney Bettye Kitch and President 
Jerry Jones for the tapes of Jones' remarks to employees at group 
meetings. Actually, only two of the meetings were taped. Kitch 
first said she would "consider" the request, but then told Klaeren 
that the tapes could "not be deciphered" and that she would try 
to get an expert to decipher them. Kitch also said she had

party committing the fraud to conceal it from the knowledge of the 
other party."

Holmberg v. Armbrecht, 327 U.S. 392, 397 (1946), quoting from Bailey v. Glover, 
88 U.S. (21 Wall.) 342, 348 (1894).



22a

listened to the tapes and "all she could hear were telephones 
ringing in the background" and that parts had been "taped over." 
Klaeren testified that he never was offered the tapes and never 
heard them. Kitch and Jones testified that Klaeren was offered 
the tapes and actually listened to portions of both of them. Kitch 
testified that "all of us decided it was very difficult to understand."

I credit Klaeren's testimony. I found him to be the more 
candid and credible witness and his testimony survived vigorous 
cross-examination. I had earlier found Jones not to be a reliable 
witness on other very significant matters in this case. (See my 
original decision at pp. 25-31 and p. 18 n. 10.) I found him no 
more reliable when testifying about this issue. And Kitch 
appeared to me to be tailoring her testimony to fit her litigation 
theory. The testimony from Respondent's agents that the tape 
was not understandable also flies in the face of reality. I listened 
to the 25 November tape and, except for a few words and a taped 
over segment, Jones' remarks were clearly understandable. 
Indeed, the parties were able to agree to a transcription which 
was received in evidence as G.C. Exh. 3. I find it implausible that 
an experienced field examiner like Klaeren, if he had heard any 
part of the 25 November tape, would have agreed with Jones and 
Kitch that it was "very difficult to understand." Nor do I believe 
that Klaeren would have listened to only a portion of the 25 
November tape, as Kitch and Jones testified. It seems more 
likely that, if given the opportunity, he would have listened to all 
or a substantial portion of it and, in so doing, he undoubtedly 
would have concluded that the tape was understandable.

In addition to falsely representing that the 25 November tape 
was undecipherable, the Respondent made certain exculpatory 
representations about the 25 November qucstion-and-answer 
period in its 29 March 1982 position statement. Thus, the 
statement asserts that "at no time during the two question and 
answer sessions" did Jones "state or imply that the Company had 
never had a layoff" or state that "if the Union gets in, there 
probably would be a layoff." (GC Exh. 4(b) page 2) This was 
apparently the substance of charges made by employee witnesses



23a

during the investigation. Actually, the tape revealed, and I found, 
that Jones made these very statements. He pointedly told 
employees that he had avoided layoffs in the past (see my 
decision pp. 19-20) and he suggested layoffs if the Union won the 
election (if he had to "talk with" the Union it would "mean 
probably" employees "going home," see my decision pp. 19 and 
21).

It is true, of course, that, before dismissing the mass layoff 
allegation, the General Counsel had available the results of inter­
views with employee witnesses who related what Jones said at the 
question-and-answer session of 25 November. But the inves­
tigator's report to the Regional Director (Resp. Exh. 66, p. 14) 
states that "the union witnesses are not in agreement as to what 
they heard." Thus, the General Counsel accepted the Respon­
dent's benign representations of what Jones had said. Indeed, the 
failure to listen to the tape was crucial because the investigator 
had transcripts of Jones' prepared remarks, and he concluded that 
Jones would not have made unlawful remarks during a question- 
and-answer period after his speech that were at odds with his 
prepared remarks. The investigator stated (at p. 14 of his report) 
as follows:

As the Union points out, regardless of what Jones 
may have read from the scripts, he may have deviated 
from the script or he may have [made] some of the 
alleged remarks during the question and answer sessions 
which followed the speeches (Jones claims he did not 
have such a session after the final speech on December 
10, 1981. While this is entirely possible, I find it 
unlikely. Jones made it a point to tell his listeners that 
he was reading the speeches because he was under 
certain restraints. Jones had the benefit of both experi­
ence (a 1971 election campaign) and of labor counsel 
(who read and approved his speeches). Thus, I find it 
unlikely that he would have deviated during the reading 
or that he would have answered questions with answers



24a

which were, if said, so obviously contradictory or 
inconsistent with what he had just read minutes before.

I conclude that the investigator's failure to focus on the question- 
and-answer period and to assess accurately Jones' remarks therein 
was attributable, in great part, to the Respondent's misrepresenta­
tions about what Jones had said and its false statement that the 
tapes of his remarks were undecipherable.

In addition, the investigator's acceptance of the Respondent's 
assertions directly affected his recommendation that the General 
Counsel not issue a complaint on the layoff issue. He stated, 
"[n]or does the fact that in the past the Employer may have 
moved employees around from job to job support an unlawful 
motivation.. . . "  (Resp. Exh. 66, p. 15). Yet, as the tape and my 
findings make clear (decision p. 21), Jones explained that moving 
employees from job to job instead of laying them off was a 
benefit which would be halted if the Union won the election. I 
found this statement unlawful and reflective of an unlawful 
motive for the layoffs. There is no way, in my opinion, that the 
General Counsel could have concluded that Jones' statement was 
not reflective of an unlawful motive had he had the tape 
recording during the investigation.5

Indeed, even though I only found two specific violations in Jones' remarks 
during the question-and-answer period, the General Counsel urged that other 
references by Jones to possible layoffs were also unlawful. (See my decision pp. 
19-20). Even though I found no violation in these other references, the question 
was certainly a debatable one. Moreover, on this issue, The General Counsel 
need not succeed on the merits. The question is whether a complaint would 
have issued. Thus, the General Counsel may not only have believed that these 
additional references to layoffs were violations of the Act, but he may also have 
considered that references to no layoffs in the past were incongruous in view of 
actual layoffs 3 weeks later. At the very least, these references might have 
tended to buttress the credibility of employee witnesses whose testimony was not 
originally accepted.



25a

Thus, Respondent's misrepresentations — that the tape was 
undecipherable and that Jones did not make unlawful remarks 
during the question-and-answer period — were material and they 
influenced the General Counsel's decision not to issue complaint 
on the mass layoff issue. Nor did the General Counsel exhibit a 
lack of due diligence in accepting the representations of Respon­
dent's counsel. When an attorney -- who has certain ethical 
obligations -- represents that a tape is undecipherable when it is 
not, how is a public prosecutor supposed to react? Must he or 
she, in every case, use an investigatory subpoena to see if the 
attorney is telling the truth? I think not. By the same token, 
must he or she issue complaint based on what is viewed as 
uncertain testimony of employee witnesses when the respondent 
denies that any unlawful remarks were made and a tape of what 
happened -- the best evidence -- is misrepresented as being 
undecipherable and is not provided? The answer it seems to me 
is the same. The General Counsel may have been naive in 
relying on the representations of Respondent's counsel but I 
believe that the real blame lies with the Respondent. In reaching 
this conclusion, I am mindful of the District of Columbia Circuit's 
admonishment concerning fraudulent concealment in ILGWU v. 
NLRB (McGloughlin Mfg. Co.), supra, 463 F.2d at 923, that

[w]hen a clue is passed over by so many competent 
individuals, the fair inference is that exercise of reason­
able diligence does not assure its notice and that lack of 
such diligence is not the explanation for its nondiscem- 
ment. A more likely explanation is simply that the clue 
was sufficiently hidden so that it was capable of nondet­
ection even given reasonable diligence. To be sure, 
once the clue is uncovered, its significance seems patent 
and its discovery is easy, but it is not a new phenome­
non that the seemingly obvious becomes so only after its 
discovery has eluded a good many others. Hindsight 
does not convict these others of want of reasonable 
diligence.



26a

I find that the General Counsel's dismissal of the mass layoff 
allegations was influenced by Respondent's misrepresentations 
concerning the 25 November tape and what was said by Jones in 
the question-and answer-period on that occasion. In these cir­
cumstances, the Respondent's misrepresentations tolled the 
Section 10(b) statute of limitations as it might have applied to the 
General Counsel. Accordingly, the General Counsel's subsequent 
reversal of his dismissal decision was not violative of Section 
10(b) and the Complaint amendment was proper.

The General Counsel and the Union make other contentions 
of misrepresentation with respect to the 29 March position state­
ment. While the Respondent shaded its assertions and discussion 
of evidence in the position statement to its own ends, I do not 
find that Respondent made any other material misrepresentations 
which could not have been uncovered by the exercise of due 
diligence.

The General Counsel alleges that certain supervisory jus­
tifications of layoff selections were provided by the Respondent 
in its 29 March 1982 position statement. She alleges, however, 
that those justifications run counter to employee job evaluations, 
which were much more reliable because they were prepared 
about one week before the layoff. But, she continues, the more 
reliable evaluations were not provided to the Region during the 
investigation and were not mentioned in the position statement. 
I cannot conclude that the Respondent's reliance on the layoff 
justifications and failure to provide the evaluations amounts to 
misrepresentation or fraudulent concealment. The General 
Counsel surely knew the difference between layoff justifications 
and pre-existing employee evaluations. The Investigatory Report 
to the Regional Director (Resp. Exh. 66) makes it clear at p. 16 
that the General Counsel knew that the supervisory justifications 
were "made after the selections for layoff' (emphasis in original). 
If the General Counsel wanted more objective evidence of 
employee performance before the layoff, he could have asked



27a

employees whether they were evaluated and, given an affirmative 
answer, he could have asked for those evaluations.6

The General Counsel also alleges that the Respondent 
submitted "limited production sales figures" with its position 
statement in support of an alleged "cash flow crisis." The General 
Counsel alleges that more complete sales figures submitted at 
trial refuted Respondent's contention that little or no revenues 
were being received during the critical period before the layoff. 
The more complete sales figures showed fluctuating revenues 
over a longer period of time. Although Respondent's sales figures 
were perhaps incomplete, their interpretation was a debatable 
matter. It was obvious that Respondent was a defense contractor 
who had access to certain advance payments from the govern­
ment. And there was nothing in Respondent's presentation of 
the salesfigures which would have prevented the General 
Counsel, by the exercise of due diligence, from inquiring about a 
broader set of figures. Moreover, the existence of several other 
bank accounts which were in a positive position effectively 
refuted the alleged cash flow crisis in Respondent's regular 
account. The position statement mentioned that Respondent was 
able to cover overdrafts in the regular account by using funds 
from another account. Accordingly, I do not believe that the

6It is true, as the General Counsel suggests, that certain of the original 
written justifications had their dates altered to reflect that they were prepared the 
day of the layoff rather than the next day. For example, it appears that the 
original written justifications prepared by Supervisor Dorothy Jones had their 
dates altered. They were not provided in the position statement because they 
were "apparently misplaced," according to Respondent's attorney Kitch. These 
documents were later provided pursuant to subpoena and used to impeach Jones. 
There is no contention that these documents were significantly different from the 
justifications provided in the position statement, although, of course, they were 
different from the pre-layoff employee evaluations. The General Counsel in brief 
makes reference to these original justifications, but makes no specific allegations 
in connection with the failure to provide them. In any event, I fail to see how the 
failure to provide the originals had any impact on the investigation or the initial 
decision not to issue complaint on the layoffs.



28a

Respondent's sales figures contained any particular misrepresenta­
tion about Respondent's cash flow situation which would toll the 
statute of limitations as it might apply to the General Counsel.

In sum, I have found that, on one particular issue. Respondent 
made material misrepresentations that the General Counsel could 
not have uncovered through due diligence and that would have 
affected his initial decision not to litigate the mass layoff issue. 
Thus, the statute of limitations was tolled until discovery of the 
true facts. Since the amendment to add the mass layoff allegation 
to the complaint came after such discovery during the trial of this 
case, the amendment was proper and not violative of Section 
10(b) of the Act.7

B. The "closely related" Issue

The General Counsel and the Union also urge that the 
amendment allegations must be sustained because they are 
"closely related" to the original Complaint allegations. Member 
Dennis made specific reference to the "closely related" doctrine 
at footnote 9 of the Ducane decision. I find that the amendment 
in this case is indeed "closely related" to the original complaint 
allegations and thus must be sustained under well settled 
authorities that predate Ducane.

In NLRB v. Dinion Coil Co., 201 F.2d 484, 491 (C.A. 2, 1952), 
cited by Member Dennis in Ducane, the court reviewed authori­

s e  Respondent argues that it should not be faulted in this case for having 
cooperated with the General Counsel during the investigation because there is 
nothing that requires it to submit any evidence to the General Counsel in the 
absence of a subpoena. The Respondent's argument misses the mark. The issue 
here is not whether a respondent should cooperate during an investigation. The 
issue rather is whether the statute of limitations applies when a General Counsel 
dismisses a charge based on misrepresentations during an investigation. Had 
Respondent not cooperated at all, the General Counsel would have been unlikely 
to have dismissed the charge since the dismissal was based primarily on assertions 
in the Respondent's position statement.



29a

ties on the issue and rejected the contention that Section 10(b) 
precludes the amendment to a complaint based on a timely filed 
charge simply because the amendment comes more than 6 
months after the alleged unlawful act. The court summarized 
settled law as follows:

(1) A complaint, as distinguished from a charge, need 
not be filed and served within the six months, and may 
therefore be amended after the sue months. (2) If a 
charge was filed and served within six months after the 
violations alleged in the charge, the complaint (or 
amended complaint), although filed after the six months, 
may allege violations not alleged in the charge if (a) 
they are closely related to the violations named in the 
charge, and (b) occurred within six months before the 
filing of the charge.

See also NLRB v. Hotel Conquistador Inc., .398 F.2d 430, 433 
(C.A. 9, 1968); NLRB v. Braswell Motor Freight Lines, 486 F.2d 
74.3, 746 (C.A. 7, 1973); NLRB v. Complas Industries, Inc., 714 
F.2d 729, 734 (C.A. 7, 1983); Kelly-Goodwin Hardwood Co., 269 
NLRB 33, .36-37 (1984), enforced in a memorandum opinion, 
Nos. 84-724.3 and 84-7351 (C.A. 9, May 7, 1985). As the Board 
has stated:

It is well settled that the timely filing of a charge tolls 
the time limitation of Section 10(b) as to matters subse­
quently alleged in an amended charge which are similar 
to, and arise out of the same course of conduct, as 
those alleged in the timely filed charge. Amended 
charges containing such allegations, if filed outside the 
6-month 10(b) period, are deemed, for 10(b) purposes, 
to relate back to the original charge. This practice is 
wholly consistent with the statutory scheme, which 
establishes the charge merely as a vehicle for setting in 
motion the Board's investigatory machinery and, addi­
tionally, affords the Board leeway to issue a complaint



30a

on grounds other than those specifically set forth in the 
charge. [Footnotes omitted.)

Kelly-Goodwin, supra, 269 NLRB at 36-37.

The so-called "closely related" doctrine is broadly construed to 
give meaning to public rights. The relationship between the 
existing charge and the amendment allegations "need be close 
enough only to negate the possibility that the Board is proceeding 
on its own initiative rather than pursuant to a charge." NLRB v. 
Central Power & Light Co., 425 F.2d 1318, 1321 n. 3 (C.A. 5, 
1970).8 Thus, in Kelly-Goodwin, the allegations in the original 
charge involved different sections of the Act than those in the 
amended charge. And, in Braswell, amended allegations involved 
discharges at different and widely scattered locations of the same 
employer. The Seventh Circuit nevertheless approved the 
amendment, stating as follows:

The practices complained of all occurred within the 
same general time period, a one to two month span of 
time. Although different locals were involved at each 
location, they were all members of the International 
Brotherhood of Teamsters. When the testimony 
concerning the specific unfair labor practices is viewed 
in the context of the respondent's past relationship with 
the teamsters, it is clear that the company's conduct at 
the three locations was part of an overall plan to resist

g
Sec also Font Milling, supra, 360 U.S. at 307, where the Court approved the 

issuance of a complaint which contained allegations "related to conduct alleged 
in the charge and developed as one aspect of that conduct" while the proceeding 
was pending before the Board. In that case, as here, the Regional Director had 
dismissed the charge, but apparently an appeal was still pending before the 
General Counsel when the Regional Director reversed his decision to dismiss the 
charge. In any event, the Court stated that "[a) charge filed with the Labor 
Board is not to be measured by the standards applicable to a pleading in a 
private lawsuit. Its purpose is merely to set in motion the machinery of an 
inquiry." Ibid.



31a

organization by the Teamsters. Too, the specific allega­
tions in the complaint with respect to the Atlanta and 
Jackson terminals were of the same class and character 
as those set out in the original charge. Thus, we 
conclude that the respondent's conduct at its Atlanta 
and Jackson terminals was properly before the Board. 
486 F.2d at 746.

In all of the cases, there is a recognition that Section 10(b) is no 
impediment to the amendment of a complaint or charge which 
involves incidents that are "similar to and arise out of the same 
course of conduct as those alleged in the timely filed charge." 
Kelly-Goodwin, supra.

Under these well settled principles, it seems clear to me that 
the amended allegation here was sufficiently related to the 
undismissed portion of the charge which spawned the Complaint. 
The amendment involved the layoff and refusal to recall all 
employees, the same discriminatory basis and section of the Act 
that undergirded the four refusals to recall that were the basis for 
the original Complaint. Both allegations involved the same 
employer and the same unit and arose out of the same campaign, 
which ended in a union victory in the election of 11 December. 
They are also closely related in time. The layoffs were an­
nounced on Sunday 13 December, but some employees were 
recalled within a few days -- two were recalled on Tuesday 15 
December. Supervisor Cora Robinson testified that a "couple of 
days" after the layoff, a shipment arrived at the plant that 
required the recall of employees. And another supervisor stated 
that President Jerry Jones was "upset" because the union had won 
the election, that Jones had a list of union supporters and said 
"these people would definitely not be coming back to work" (See

Q
At the time of my original decision, the Board had upheld the validity of this 

election. Upon reconsideration, in a supplemental decision and order, the Board 
overturned the election results and ordered a hew election. 276 NLRB No. 44 
(24 September 1985).



32a

decision pp. 13 and 24). Moreover, the Complaint also alleged 
that numerous statements and threats both before and after the 
layoffs illustrated Respondent's unlawful motive and independent­
ly violated Section 8(a)(1) of the Act. The layoffs were certainly 
related to those allegations. Finally, since the laid-off employees 
were recalled at different dates, it was virtually impossible to 
determine which, if any, employees were discriminatorily recalled 
without considering all the recalls as well as the original reason 
they were laid off. Surely the reason for the layoffs provided a 
backdrop to explain the reason for the recalls and, since some 
recalls took place within days of the layoff, the question lingers 
why a layoff occurred in the first place. For all of these reasons, 
I find and conclude that the allegation that all the employees 
were discriminatorily laid off and denied recall is "similar to" and 
"arises out of the same course of conduct" as the allegation that 
four laid-off employees were discriminatorily denied recall "as of 
December 14," the day after the layoff itself.

Even if the mass layoff allegation were found to be insuffi­
ciently related to the allegations of the original Complaint, the 
failure to recall all the laid-off employees certainly was closely 
related to the allegations of the original Complaint. The 
amendment alleged not only that 50 employees were discrimina­
torily laid off but also that they were discriminatorily denied 
recall. Since the original Complaint alleged that four employees 
were not recalled for discriminatory reasons, the failure to recall 
the other 46 is sufficiently related to the original Complaint 
under Kelly-Goodwin and its antecedents. As I have indicated, a 
number of laid-off employees were recalled within days of the 
layoff and the president of Respondent vowed that union 
supporters would not come back to work. Since Respondent 
began recalling some laid-off employees shortly after the mass 
layoff, it is appropriate to consider the recall issue under the so- 
called selection theory, which I analyzed at pp. 32-41 of my decision.

In considering Respondent’s defense on this issue, I note that 
it is based solely on application of the Section 10(b) statute of 
limitations. (See p. 38 of its brief). Respondent does not allege



33a

that there is something inherently wrong with the General 
Counsel's revival of a dismissed charge or that it was prejudiced 
by the General Counsel's amendment in this case. Indeed, the 
amendment was approved before either Winer Motors or Ducane 
was decided; thus, as I stated in my earlier decision. Respondent 
could not have been prejudiced because the law in existence at 
that time permitted the amendment. Here, as in Kelly-Goodwin, 
"the Respondent's argument is addressed only to the validity of 
the complaint under Section 10(b) of the Act, and raises no 
question of unfairness with respect to the preparation and 
litigation of its case." (269 NLRB at 36). Compare NLRB v. 
Hotel Conquistador, supra, 398 F.2d at 433 with NLRB v. 
Complas, supra, 714 F.2d at 73.

More specifically, Respondent contends that Ducane meant to 
overrule Kelly-Goodwin and that Kelly-Goodwin "cannot stand in 
light of Ducane." These are basically contentions that are better 
addressed to and by the Board. But I doubt very much that the 
Board overruled a case that it did not cite or discuss. Nor do I 
believe that the Board intended to overrule sub silentio not only 
a case, but the entire well settled court approved doctrine upon 
which it was based. Indeed, Kelly-Goodwin was decided after the 
Board's Winer Motors decision which applied Section 10(b) to 
withdrawn charges and which, according to Respondent, presaged 
Ducane. Rather, I believe that the Board left open the applica­
tion of Kelly-Goodwin and its antecedents to this situation 
because the issue was never raised in Ducane}®

Since the "closely related" doctrine predates Ducane and was 
not addressed by the Board in that decision, it must be presumed 
to be compatible with Ducane. I believe that it is. The "closely 
related" doctrine recognizes that new allegations may be amended 10

10Thc Board also did not pass on Delta Metals, Inc., 236 NLRB 1665 at n. 
2(1978), and Ace Drop Cloth Co., 178 NLRB 665 n. 1 (1969), where the "closely 
related" doctrine was applied even though the time-barred allegations had 
previously been dismissed.



34a

into an existing case even though they were time barred by 
Section 10(b). There, as here, there were other viable charges 
which matured into complaint allegations thus permitting the 
General Counsel to bring time-barred allegations into existing 
litigation. There is no difference -- in terms of the Section 10(b) 
rationale of Ducane -- between allegations in a dismissed charge 
which "ceases to exist" (slip op. p. 8) and allegations which were 
never made part of a charge. If the latter time-barred allegations 
can properly be amended into a case pursuant to the "closely 
related" doctrine -- as the cases clearly hold -- then the former 
should also be susceptible to amendment if they likewise are 
"closely related." The policy behind Section 10(b) -- that stale 
allegations should not be litigated after records are lost and 
memories dim — applies equally to both types of cases.11

Thus, there is no reason, based on the application of Section 
10(b), to treat any differently a "closely related" allegation which 
has previously been dismissed from one that has not. Nothing 
either in the statute or in the Ducane decision itself suggests that 
there is anything inherently wrong with the General Counsel's 
revival of a dismissed charge. The Board's decision in Ducane 
Heating was not based on procedural or due process consider­
ations. Its decision is based solely on the application of the 6- 
month statute of limitations period of Section 10(b). To illustrate 
this point, in Ducane itself, the Board approved reconsideration 
by the General Counsel of a previously dismissed charge even 
though the ultimate decision to go to complaint took place more 
than 6 months after the conduct alleged to be unlawful. The 
Regional Director's original dismissal was affirmed by the General 11

11Thc purpose of the Section 10(b) limitations period is to prevent respon­
dents from being "brought to book upon stale charges" and to bar litigation over 
past events "after records have been destroyed, witnesses have gone elsewhere, 
and recollections of the events in question have become dim and conused." Local 
Lodge No. 1424 1A.M. v. NLRB (Bryan Mfg. Co.), .362 U.S. 411, 419 and 425 
(1960), quoting from the legislative history and NLRB v-. Pennwoven, Inc., 194 
F.2d 521, 524 (C.A. 3, 1952).



35a

Counsel but the charging party filed a motion for reconsideration 
which the General Counsel ultimately granted. The Board thus 
specifically approved the General Counsel's revival of a dismissed 
charge after the limitations period had run, requiring only that 
the charging party's motion for reconsideration be filed or 
accepted within the Section lOfb) period. (See slip op. p. 4, 
discussing the Robinson charge) 2

Application of the "closely related" doctrine to a previously 
dismissed charge does no greater violence to Section 10(b) than 
the Board's approval of the revival of the dismissed Robinson 
charge in Ducane. In both situations, the General Counsel's 
ultimate decision to include the dismissed allegations in the 
complaint takes place outside the Section 10(b) limitations 
period. However, in both situations, Section 10(b) is not violated. 
In Robinson, Section 10(b) was satisfied because the charging 
party's motion for reconsideration was filed and accepted within 
the Section 10(b) period. Here, Section 10(b) is satisfied because 
a "closely related," viable and undismissed charge was filed within 
the Section 10(b) period.* 13

1 O
Compare the Mourning decision of the District of Columbia Circuit cited

supra.

13The instant case is factually distinguishable from Ducane in two other 
significant respects. In Ducane the General Counsel dismissed those portions of 
a charge (1 l-CA-8748) which involved two suspensions of employee McCrea. 
However, there, unlike here, there was no appeal by the charging party of the 
dismissal and the General Counsel sua sponte revoked his earlier dismissal. 
(Ducane, slip op. p. 6) Here, the charging party appealed the original dismissal 
and "requested reconsideration" by the Regional Director of his earlier dismissal 
(see my original decision at p. 3). It would appear that these differences would 
warrant not applying Section 10(b) in this case. A party who docs not appeal the 
dismissal of a charge is similar to the party who has withdrawn its charge. When 
a charging party has thus acknowledged that no charge exists, the respondent 
may rightly assume that after 6 months have passed ii need not defend against 
that charge. By the same token, where a General Counsel sua sponte revives the 
non-appealed charge, it appears that a public official is proceeding on his or her



36a

Application of the "closely related" doctrine in this case also 
leaves untouched the essential holding in Ducane, based as it is 
on Section 10(b). Thus, whether or not a charge has been 
dismissed, where other charges against a respondent have resulted 
in the issuance of a complaint, the respondent knows that it will 
be going to trial. A consequence of going to trial is that new 
evidence may come to light and that "closely related" -  but not 
unrelated - allegations may be litigated by amendment even 
though the Section 10(b) period has run.* 14 On the other hand, 
when all charges against a respondent are dismissed, no trial is 
contemplated and the respondent can be assured that the 
dismissed charges may not be revived after the Section 10(b) 
limitations period has passed.

Finally, there is every equitable reason to apply the "closely 
related” doctrine in this case. First of all, if it is not applied, 
employees would lose a cause of action through no fault of their 
own or of the charging party who espoused their interests. The 
charging party appealed the partial dismissal to the General 
Counsel and was precluded by law from obtaining court review of 
that determination. See Vaca v. Sipes, 386 U.S. 171, 182 (1967). 
Thus, even though the charging party did everything required of 
it by Section 10(b) of the Act and pressed the matter as far as

"own initiative" -  a procedure contrary to the statutory scheme. I realize that, 
however meritorious these factual distinctions might be, the Board's Ducane 
holding is broad enough to envelope them, absent application of the "closely 
related" doctrine. However, when one applies the "closely related" doctrine, 
consideration of these factors might serve to distinguish Ducane. For the General 
Counsel's sua sponte revival o f the unappealed, previously dismissed charge in 
Ducane appears to pierce the outer limits of the "closely related" doctrine. See 
NLRB  v. Centra] Power A Light, supra.

14Cf. Millwright A Machinery Erectors, Local Union 720,214 NLRB No. 219 
(1985) (time barred amendment and original charge "not closely related and did 
not arise out of the same course of conduct" because they "were separate and 
distinct acts, carried out at different times, for different reasons").



37a

permissible, the employees would still be without a remedy. On 
the other hand, the Respondent has not suffered any prejudice. 
At the time of the amendment, Board law clearly permitted the 
amendment under Section 10(b). The amendment came during 
the trial of a "closely related" issue when neither the lapse of time 
nor the loss of memory or records hindered Respondent's 
defense. Respondent had no difficulty retaining records since it 
needed and used them in connection with the recall case, and, in 
any event, had preserved them by submitting position statements 
with copious attached documents and data. Respondent vigor­
ously contested the issues presented by the amendment and 
suffered none of the adverse consequences suggested by the 
policy reasons underlying application of Section 10(b). Thus, if 
the allegation in the amendment is, as I have found, "closely 
related" to the timely filed charge which spawned the Complaint, 
the fact that the conduct occurred 111/2 months rather than 6 
months before the date of the amendment should not preclude 
litigation of such a "closely related" allegation.

In sum, I conclude that my findings with respect to the 
discriminatory mass layoff and the discriminatory selection of 
employees for layoff are still viable because they were based on 
amended allegations "closely related" to the original Complaint 
allegations. I also conclude that my findings with respect to the 
discriminatory refusal to recall specific employees are still viable 
because they too were based on amended allegations "closely 
related" to the original Complaint allegations.

Dated, Washington, D.C. 11 December 1985

APPENDIX A

Unit employees laid off on December 13, 1981:

Karen Adams 
Lula Armstrong 
Della Balark 
Ernest Barlow



Faye Beeks 
Linda Berryhill 
Frederica Bishop 
Lionel Bland 
Ozell Buchanan 
Ronald Cason 
Lydia Cuevas 
Fred Dorsey 
Mary Durham 
Oliver Harper 
Eva Y. Henry 
Bernice Hill 
Callie Hollins 
Talma Jackson 
Lavcrne Jackson 
Earline Leavy 
James Lewis, Jr. 
Elaine Lindsay 
Weader Lynch 
Mae Rose Kelly 
Annie Moody 
Yolanda Morgan 
David Morrison 
Johnnie Murphy 
Clara Nash 
Frank L. Nissen 
Annette M. Payne 
Jerome Pogue 
Laura Porter 
Jonathan Rhodes 
Georgia Robinson 
AJyce M. Seay 
Lillie Seals 
Mattie Shaw 
Vivian Shaw 
Marion Sherron 
Cheryl Shorty 
Osie Perkins



39a

Mary L. Smith 
Marcie Staine 
AJice Thompson 
Bernice Wells 
Beverly White 
Nellie Wilson 
Patricia Wines 
Helen Woodard

APPENDIX B

NOTICE TO EMPLOYEES 
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD AN AGENCY OF 
THE UNITED STATES GOVERNMENT

AFTER A TRIAL AT WHICH ALL SIDES HAD AN 
OPPORTUNITY TO PRESENT EVIDENCE AND STATE 
THEIR POSITIONS, THE NATIONAL LABOR RELATIONS 
BOARD FOUND THAT WE HAVE VIOLATED THE NA­
TIONAL LABOR RELATIONS ACT, AS AMENDED, AND 
HAS ORDERED US TO POST THIS NOTICE.

WE WILL NOT threaten employees with layoffs, loss of 
benefits or other forms of reprisal for voting for the Union in a 
representation election.

WE WILL NOT interrogate employees about their union 
activities and those of other employees.

WE WILL NOT attempt to enlist or enlist the aid of employ­
ees in polling other employees as to their union activities.

WE WILL NOT create the impression that union activities are 
under surveillance.

WE WILL NOT inform our employees that they will not be 
recalled to work because of their union activities.



40a

WE WILL NOT lay off, refuse to recall, or otherwise dis­
criminate against employees with regard to their hire, tenure of 
employment, or any term or condition thereof, because of their 
union activities or in order to limit or discourage union activities.

WE WILL NOT in any other manner interfere with, restrain 
or coerce our employees in the exercise of their Section 7 rights.

WE WILL offer those employees laid off as a result of our 
unlawful conduct, as found by the Board, who have not already 
been recalled or rehired to their previous jobs, immediate and full 
reinstatement to their former jobs, or, if those jobs no longer 
exist, to substantially equivalent positions, without prejudice to 
their seniority or other rights and privileges, and WE WILL make 
them and all other laid off employees whole for any loss of 
earnings, benefits or compensation connected with their employ­
ment status which they may have suffered as a result of our 
unlawful action.

WE WILL remove and expunge from our records and files any 
notations dealing with the layoffs of the employees found to have 
been discriminated against by the Board and notify them in 
writing that this has been done and that evidence of such layoffs 
will not be used as a basis for future personnel actions.

SONICRAFT, INC.

(Employer)

Dated By
(Representative) (Title)

THIS IS AN OFFICIAL NOTICE AND MUST NOT BE 
DEFACED BY ANYONE

This notice must remain posted for 60 consecutive days from 
the date of posting and must not be altered, defaced, or covered 
by any other material. Any questions concerning this notice or



41a

compliance with its provisions may be directed to the Board's 
Office. 200 West Adams Street, Suite 800, Chicago, Illinois 
60606-5208, Telephone 312-353-7597.



42a

NOT TO BE INCLUDED 
IN BOUND VOLUMES

Chicago, IL

UNITED STATES OF AMERICA 
BEFORE THE NATIONAL LABOR RELATIONS BOARD

SONICRAFT, INC.

and Case 13-CA-22020

WAREHOUSE, MAIL ORDER, OFFICE 
TECHNICAL AND PROFESSIONAL EMPLOYEES 
UNION, LOCAL 743, INTERNATIONAL 
BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, 
WAREHOUSEMEN AND HELPERS OF AMERICA

ORDER REMANDING TO ADMINISTRATIVE LAW
JUDGE

On 14 February 1984 Administrative Law Judge Robert A. 
Giannasi issued a decision in this proceeding. In his decision, the 
judge, inter alia, relied on the Board’s decision in California 
Pacific Signs, 233 NLRB 450 (1977) in resolving whether the 
complaint amendment pertaining to certain December 1981 
employee layoffs is time-barred by Section 10(b). The judge 
allowed the complaint amendment, finding it was timely under 
Section 10(b). Subsequently, on 11 January 1985, the Board 
issued its decision in Ducane Heating Corp.y 273 NLRB No. 175 
(11 January 1985), which overruled California Pacific Signs. On 
June 4, 1984, the Respondent filed exceptions to the judge’s 
decision, including his 10(b) findings, and a supporting brief. The 
General Counsel and the Charging Party each filed a brief in re­
sponse to the Respondent's exceptions. The Respondent filed a 
motion to strike certain portions of the General Counsel's and 
Charging Party's briefs. The General Counsel filed a response 
and opposition to the Respondent's motion. The Respondent



43a

filed a reply to the General Counsel's response and opposition 
to Charging Party's motion.

On 14 February 1985 the General Counsel filed a Motion to 
Remand Proceeding To The Administrative Law Judge For 
Further Findings Of Fact and Conclusions Of Law. By his 
motion, the General Counsel submits that, in view of Ducane, the 
Board should remand the case to the judge for resolution, based 
on the current record of all issues concerning the propriety of the 
complaint amendment in question, including, but not limited to, 
the issue of fraudulent concealment of evidence and the applica­
bility of the "closely related" theory. On 1 March 1985 the 
Respondent filed an opposition to the General Counsel’s motion. 
The Respondent contends that a remand of this case is not 
necessary to decide the questions raised by the General Counsel’s 
motion. The Respondent further contends that the General 
Counsel’s motion constitutes an attempt to file a belated excep­
tion to the judge's decision and to litigate a theory concerning 
timeliness of the amendment not previously raised before the 
judge.

The Board having duly considered the matter,

IT IS ORDERED that the proceeding is remanded to 
Administrative Law Judge Robert A. Giannasi for the limited 
purpose of addressing the Section 10(b) issues relating to the 
complaint amendment pertaining to the December 1981 employ­
ee layoffs in question in light of Ducane Heating Corp., supra.

IT IS FURTHER ORDERED that the judge shall take 
whatever appropriate action is necessary to resolve these issues 
concerning the complaint amendment, including the establishment 
of a briefing schedule for the parties, if they desire to file briefs 
to the judge further addressing these issues.

IT IS ALSO ORDERED that the judge shall prepare and 
serve on the parties a supplemental decision setting forth the 
resolution of such credibility issues, findings of fact, and conclu­



44a

sions of law, and recommended order with respect to these issues 
relating to the complaint amendment in question. After service 
of such supplemental decision on all parties, the provisions of 
Section 102.46 of the Board's Rules and Regulations shall be applied.

Dated, Washington, D.C., 27 March 1985.

By direction of the Board:

Joseph E. Moore

Associate Executive Secretary



45a

JD-51-84 
Chicago, II

UNITED STATES OF AMERICA 
BEFORE THE NATIONAL LABOR RELATIONS BOARD 

DIVISION OF JUDGES

SONICRAFT, INC.

and 13-CA-22020

WAREHOUSE, MAIL ORDER, OFFICE, TECHNICAL 
& PROFESSIONAL EMPLOYEES UNION LOCAL 743, 
INTERNATIONAL BROTHERHOOD OF TEAMSTERS

DECISION

Statement of the Case

ROBERT A. GLANNASI, Administrative Law Judge: This case 
was tried for 24 days beginning on October 6, 1982 and ending on 
May 24, 1983 in Chicago, Illinois. The first seven days of hearing 
were held before Administrative Law Judge James J. OMeara. 
On January 5, 1983, Judge OM eara withdrew from the case, and, 
on that date, the case was assigned to me. The Complaint, as 
amended several times, alleges that Respondent violated Section 
8(a)(1) of the Act by virtue of certain threats, interrogations and 
statements of coercion. It also alleges that Respondent violated 
Section 8(a)(3) and (1) of the Act by discriminatorily laying off 
some 50 employees 2 days after the Charging Party Union 
(hereafter, the Union) had won representation rights in a Board- 
conducted election and by thereafter refusing to reinstate or 
recall those employees for the same discriminatory reason. 
Respondent denies the substantive allegations in the Complaint 
and strongly urges procedural objections to the major amendment 
to the Complaint because it contained a part of the Union's 
charge which the Regional Director earlier had decided against



46a

including in the original Complaint. The parties filed briefs and 
reply briefs totalling 398 pages which I have read and considered.

Based upon the entire record, including the testimony of the 
witnesses and my observation of their demeanor, I make the 
following:

Findings of Fact

I. The Business of Respondent

Respondent, an Illinois corporation, maintains its office and 
principal place of business at 8859 South Greenwood, Chicago, 
Illinois where it is engaged in the research, development and 
manufacture of electronic and electro-mechanical systems. 
Respondent also operates a facility at 9501 South Dorchester 
Avenue in Chicago, Illinois. During a representative one year 
period. Respondent, in the conduct of its operations, shipped 
goods and materials valued in excess of $ 50,000 from its facilities 
in Illinois directly to points located outside the State of Illinois. 
Accordingly, I find, as Respondent admits, that it is an employer 
engaged in commerce within the meaning of Section 2(2), (6) and 
(7) of the Act.

Respondent, a minority-owned business which has been in 
operation since 1966, is essentially headed by Jerry Jones, its 
majority stockholder, who also acts as its President, General 
Manager, Chairman of the Board and Director of Marketing. 
Respondent employs a large complement of engineers as well as 
production and office personnel. All products manufactured and 
services performed by Respondent are pursuant to specific 
contracts with particular buyers. These contracts are almost 
exclusively with the federal government, particularly the Depart­
ment of Defense. Thus, almost all of Respondent's revenue is 
derived from the United States Government. Approximately one- 
third of this revenue is the result of contracts for the manufacture 
of specific products; the remainder is derived from the sale of 
engineering services in the form of research and development.



47a

Respondent receives aid from the Small Business Administration 
and has had various loan agreements with the First National 
Bank of Chicago from about 1968 through the period covered in 
this proceeding.

II. The Labor Organization

The Union is a labor organization within the meaning of 
Section 2(5) of the Act.

III. Procedural Background

1. The representation case

On October 7. 1981, the Union filed a petition with the Board 
seeking an election among the Respondent's employees. On 
Friday December 11, 1981, a Board-conducted election was held 
in the following unit:

All full time and regular part-time production, maintenance and 
warehouse employees employed by Respondent at its Chicago 
facilities, but excluding office clericals, engineers, draftsmen, 
technicians, guards and supervisors as defined in the Act.

The employees voted for Union representation by a vote of 45 to 
35. There were no challenged ballots. The Respondent did, 
however, file objections to the election which were overruled. 
The Union was certified by the Board on July 16, 1982. Respon­
dent declined to recognize and bargain with the Union and, on 
July 8, 1983, the Board issued a decision finding that Respon­
dent's refusal to bargain with the Union was violative of Section 
8(a)(5) and (1) of the Act. The decision of the Board is reported 
at 266 NLRB No. 189.1

]The case was on appeal to the Seventh Circuit Court of Appeals but, on 
January 4, 1984, the Court granted the Board's motion to withdraw its 
enforcement petition, without prejudice, "to permit further consideration by the



48a

2. The unfair labor practice proceeding

On February 22,1982, the Union filed a charge alleging certain 
violations of the Act, including an allegation that Respondent had 
violated the Act by laying off employees on December 13, 1981, 
and thereafter refusing to recall employees for discriminatory 
reasons. On April 29, 1982, the Regional Director sent a letter 
to the Union stating that he was refusing to issue a complaint on 
that aspect of the charge which alleged that the original layoff 
was unlawful. He indicated that "this dismissal is not intended to 
affect . .  . allegations concerning [Respondent's] failure to recall 
certain employees which are alleged in a Complaint issued in this 
case on this same date." The Union appealed the Regional 
Director's action to the General Counsel's Office of Appeals in 
Washington, D.C. The General Counsel affirmed the "Regional 
Director's partial refusal to issue complaint” in a letter dated May 
28, 1982. Thereafter, on July 7, 1982, the General Counsel 
denied the Union's request for reconsideration of his earlier 
decision. Thus, the General Counsel's original Complaint herein, 
which issued on April 29, 1982, alleged certain violations of 
Section 8(a)(1) of the Act as well as the violation of Section 
8(a)(3) limited to the refusal to recall or reinstate employees 
Lulu Armstrong, Ernest Barlow, Weader Lynch, and Marion 
Sherron.

When the trial opened before Judge O'Meara, the General 
Counsel was permitted to amend the Complaint to allege two 
other violations of Section 8(a)(1) of the Act by President Jerry 
Jones. Several days into the trial, counsel for the General 
Counsel, citing new evidence obtained through the recent inter­
view of an employee witness and in response to a subpoena of 
Respondent's records - primarily the production of a tape 
recording of a pre-election speech by President Jerry Jones, 
sought to amend the Complaint further by alleging that the 
original layoffs were unlawful. Thus, on December 1, 1982, the

Board."



49a

Regional Director sent a letter to the Union's counsel stating that 
"upon consideration of new evidence presented, I have granted 
your request for reconsideration and hereby revoke my partial 
dismissal in the above-captioned case, dated April 29, 1982." The 
same day, a written motion to amend the Complaint was submit­
ted, alleging, inter alia, that Respondent laid off approximately 30 
employees on December 13, 1981, and failed and refused to 
recall them for discriminatory reasons in violation of Section 
8(a)(3) and (1) of the Act.

Judge O'Meara denied the December 1 motion to amend the 
Complaint. The General Counsel requested special permission 
to appeal the ruling and filed a brief in support of the appeal. 
The Respondent filed a statement in opposition. On December 
8, 1982, the Board issued a telegraphic order granting the 
General Counsel's request for special permission to appeal, 
reversed the Administrative Law Judge, and directed him to grant 
the motion to amend. The motion to amend was subsequently 
granted.

On January 25, 1983, Respondent moved the Board for en 
banc reconsideration of its decision approving the amendment of 
the Complaint, relying particularly on the Board's decision in 
Winer Motor's Inc., 265 NLRB No. 185, which had issued on 
December 16, 1982. On February 7, 19S3, the Board denied 
Respondent's motion "without prejudice to Respondent’s right to 
renew its contentions through the filing of an appropriate 
exception . . . "

When I took over this proceeding, I was confronted with a 
number of motions and subpoena issues all relating to the 
contested amendment to the Complaint. Granting Respondent's 
request in this respect, I directed that the General Counsel 
specify the employees discriminated against. Counsel for the 
General Counsel provided a list of such employees which turned 
out to number 50 instead of the "approximately 30" alleged in the 
amendment. In addition, the Respondent was permitted to file 
an answer to the amended Complaint which preserved its



50a

objections to the granting of the amendment. In an attempt to 
rebut Respondent's procedural objections as set forth in its 
answer to the amended Complaint, the Union sought the General 
Counsel's permission to allow the Board investigator to testify. 
The Regional Director apparently also made a similar request. 
In two separate telegraphic orders dated March 4, 1983, the 
General Counsel granted his permission for the Board investiga­
tor to testify in this proceeding. In pertinent part, the General 
Counsel's telegram permitted the investigator to testify "with 
respect to whether the evidence relied upon by counsel for the 
General Counsel was previously offered and/or provided to Board 
Agent Klaeren during the investigation of the charge." The 
General Counsel also answered an earlier request by the Respon­
dent for material contained in the investigatory file and permitted 
Respondent to obtain "copies of all material, if any, in the case 
file indicating whether the Regional Director was aware or should 
have been aware, at the time the disputed allegations were 
dismissed, of the evidence now relied upon in amending the 
Complaint to include those same allegations." During the hearing, 
counsel for the General Counsel resisted turning over some parts 
of the investigatory file. However, after an in camera inspection 
of the file and in view of the General Counsel's grant of permis­
sion for the investigator to testify and his partial waiver of any 
confidentiality interests in the file, I ruled that the entire 
investigatory file be turned over to the Respondent.

After the completion of the case on the merits, I took evidence 
on the procedural issue raised by the Respondent concerning the 
propriety of the amendment to the Complaint. The evidence 
took the form of testimony by the Board investigator, Edward 
Klaeren, Respondent's president, Jerry Jones, and its attorney, 
Bettye Kitch, as well as the introduction of documentary evidence 
from the Board's investigatory file.

3. The propriety of the amendment

Respondent asserts that a major portion of the Complaint in 
this case -  the allegation that the December 1981 layoff was



51a

unlawful — should be dismissed because it became part of the 
formal litigation herein by virtue of an amendment which violated 
Section 10(b) of the Act. Respondent contends that the 
amendment was improper because the General Counsel had 
earlier decided against proceeding on the layoff issue and his 
subsequent change of position occurred more than 6 months after 
the layoff herein. The General Counsel and the Charging Party, 
on the other hand, contend that a valid charge was filed within 6 
months of the layoff, and, although part of it was not included in 
the original complaint, Section 10(b) was fully complied with.2

The most important facet of this issue is the Board's role in 
deciding it. The Board itself reversed Judge O'Meara and 
ordered the Complaint amended. It was well presented with 
voluminous briefs discussing the Section 10(b) issue as well as the 
applicable case law. Again, on motion for reconsideration, after 
the Board handed down its decision in the Winer Motors case, the 
Board considered the entire issue in the context of Winer Motors, 
approved the amendment, and, in effect, ordered me to proceed 
with he hearing of the legality of the layoffs. Although the 
Board's order had an ambiguous cast on it -- permitting Respon­
dent to raise the issue on exceptions, it seems to me that the 
Board made the determination that, in this case, the amendment 
was proper and that Winer Motors did not apply. Accordingly, I 
believe that I am bound by the Board's determination that the 
amendment was proper.

Contrary to Respondent's contention, the Board's determi­
nation appears to be consistent with Board and Court precedent. 
Winer Motors is distinguishable from the present case. In that 
case, the Board held that the reinstatement of a withdrawn 
charge was inconsistent with Section 10(b) of the Act because 
after a voluntary withdrawal of a charge no charge existed and

2
Section 10(b) of the Act provides, inter alia, that "no complaint shall issue 

based upon any unfair labor practice occurring more than 6 months prior to the 
filing of the charge with the Board . . . "



52a

more than 6 months had elapsed since the events alleged to be 
unlawful had occurred. Member Zimmerman's swing vote for the 
majority in Winer Motors makes clear that the situation involving 
the reinstatement of a dismissed charge, or, more precisely, a 
reversal by the General Counsel of his initial determination not 
to issue a Complaint, warrants a different result. The Board thus 
did not overrule California Pacific Signs, Inc., 233 NLRB 450 
(1977), which recognizes the General Counsel's virtually unlimited 
discretion to proceed on such charges after he has initially 
refused to issue Complaint on them. Member Zimmerman's 
rationale is that, in this situation, a valid charge has been filed, 
and, technically, the strictures of Section 10(b) have been 
complied with. This seems an even stronger case than California 
Pacific Signs because the General Counsel did not dismiss the 
entire charge but proceeded to Complaint on only part of it, and, 
at trial, amended the Complaint to bring in the remainder of the 
charge.

There seems to be no authority for the proposition that 
Section 10(b) runs against the General Counsel in circumstances 
where the Charging Party has done all that is required under 
Section 10(b) (sce, Local Lodge No. 1424,IA.M . (Bryan Mfg. Co.) 
r N.L.R.B., 362 U.S. 411 (I960)) and where the Charging Party 
has consistently pressed for full litigation before the Board. The 
General Counsel does not initiate charges but has exclusive 
statutory authority with respect to the investigation and issuance 
of Complaints. This point is illustrated by Mourning v. N.L.R.B., 
505 F.2d 421 (1974), where the District of Columbia Circuit 
upheld the reversal by the General Counsel of his initial decision 
to refuse to issue a complaint despite the Board's disagreement. 
In that case the charging party, Robert Mourning, through his 
attorney, filed a motion for reconsideration by the General 
Counsel of his initial refusal to issue a complaint on the basis of 
newly discovered evidence. Because a similar motion had been 
previously filed and denied, the General Counsel's Office of 
Appeals treated this as a "second motion for reconsideration" and 
denied it on the basis of the Board's decision in Forrest Industries, 
Inc., 168 NLRB 732 (1967). Over two years later, pursuant to



53a

Mourning's further requests through his attorney, the General 
Counsel reopened Mourning's appeal, reversed his earlier 
decisions and issued a complaint in Mourning's behalf. In an 
answer and motion to dismiss presented to the Administrative 
Law Judge, the employer argued that Forrest Industries had been 
properly applied by the General Counsel when he had refused to 
entertain the "second motion for reconsideration." The Adminis­
trative Law Judge rejected this argument, but the Board reversed 
the Administrative Law Judge on appeal and dismissed the 
complaint, holding that Forrest Industries prevented the General 
Counsel from prosecuting the case. On Mourning's petition for 
review to the District of Columbia Circuit, the Court reversed 
and remanded to permit the General Counsel to re-file the 
complaint on behalf of Mourning. 505 F.2d at 423.

The Court rejected the contention that a general policy of 
laches precluded the General Counsel's reversal of position and 
emphasized that Section 10(b) acts as a statute of limitations with 
respect to the conduct of a charging party and not the General 
Counsel. Id. at 424, nn. 9 and 10. As the Court stated, "To 
permit the General Counsel to negligently cause the elimination 
of the charging party's rights would raise very fundamental 
questions about the nature of the charging party's 'rights' upon 
suffering the effects of an unfair labor practice and the nature of 
the General Counsel's prosecutorial responsibilities." Ibid. See 
also, Bryant Chucking Grinder Co. v. N.L.R.B., 389 F.2d 565, 568 
(C.A. 2, 1967), cert, denied, 392 U.S. 908 (1968).

This is not to say that the General Counsel's reversal of an 
initial decision not to proceed to Complaint on part of a charge 
may not raise problems of fairness or procedural due process. 
For example, the Board has dismissed complaint allegations 
because those allegations could have and should have been 
litigated in prior unfair labor practice proceedings. See, Jefferson 
Chemical Co., 200 NLRB 992 (1972) and I.T.T. Lighting Fixtures, 
Division o f IT T  Corp., 267 NLRB No. 116 (1983). The instant 
case, however, is different and contains no elements of unfairness 
or lack of due process so far as I can determine. There was, in



54a

this case, no prior unfair labor practice litigation during which the 
mass layoff issue could have been litigated. The General Counsel 
obtained certain evidence by virtue of subpoena actions during 
the initial stages of this litigation, and, upon studying it, rescinded 
his earlier decision not to include certain matters in the Com­
plaint. When the Complaint was amended, full opportunity was 
given to the Respondent to prepare its defense and to answer the 
new Complaint allegations. Not only was the layoff issue 
presented in the amendment reasonably related to the recall from 
layoff issue in the original Complaint, but evidence of the former 
was effectively intertwined with evidence of the latter. Finally, 
both at the time of the General Counsel's refusal to go to 
complaint on the layoff issue and at the time of the amendment, 
Board law was quite clear that the General Counsel had broad 
and unlimited discretion in this area. It is thus difficult to see 
how Respondent suffered any cognizable prejudice.

In any event, as noted above, in the posture of the case before 
me, I believe that the Board has spoken and has ruled, consistent 
with Winer Motors and California Pacific Signs, that the General 
Counsel acted within his statutory discretion when he decided to 
proceed on the layoff aspect of the Union's charge by amendment 
even though he had earlier indicated he would not proceed to 
complaint on this issue.

IV. The Alleged Unfair Labor Practices

A. Background: The Union Campaign, the Election and the
Layoff

The Union began its organizing campaign on August 28, 1981, 
when Union Representative Roy Blake and other officials began 
distributing union literature and authorization cards in front of 
Respondent's 88th Street facility. That same day, President Jerry 
Jones distributed a letter to employees urging them not to sign 
union authorization cards. The Union, however, obtained a 
sufficient number of cards to support a petition for an election, 
which was filed on October 7, 1981. Thereafter, the employees



55a

were flooded with literature from both the Union and the 
Respondent on the advisability of voting for union representation. 
During the campaign, Blake and other union representatives 
distributed literature or solicited employee support near Respon­
dent's premises about once a week. The Union also held three 
general meetings for employees.

On September 29, the Union held its first general meeting for 
Respondent's employees at a local restaurant. During that 
meeting, several employees volunteered to serve on an employee 
organizing committee whose purpose was to solicit the signature 
of authorization cards, promote the Union and provide informa­
tion about Respondent's campaign efforts. During the campaign, 
the committee met several times at Blake's home. The commit­
tee members were Lula Armstrong, Ernest Barlow, Weader 
Lynch, Annette Payne, Alyce Seay, Marion Shcrron and Bernice 
Wells. Eva Henry, James Lewis, Cheryl Shorty and Helen 
Woodard attended some of the meetings and worked closely with 
the committee.',

Respondent's president, Jerry Jones, made three speeches to 
assembled employees on company time, urging them to vote 
against union representation. These speeches were delivered in 
Respondent's cafeteria, a rather small room with six tables, which 
were removed for the speech, chairs and vending machines. The 
first speech was delivered on November 25, the second on 
December 3, and the third on December 10, the day before the 
election. Two of the speeches were followed by question-and- 
answer periods. Two of the sessions were taped. The two tapes 
were subpoenaed for use in this proceeding. One of the tapes 
was not decipherable, but the other, that of November 25, which 
was partially erased, was transcribed and both the transcription 
and the tape itself were received into evidence.

'^Several other employees attended the first committee meeting but did not 
attend any others or thereafter work with the committee.



56a

The Union won the election, which was held at Respondent's 
facilities on Friday, December 11. The vote count was held on 
Friday afternoon in the cafeteria and it revealed that 45 employ­
ees had voted for union representation and 35 against. Jerry 
Jones and a number of other officials of Respondent and the 
Union were present. Also present were employees Lula Armstr­
ong, Ernest Barlow and Marion Sherron, who had served as the 
Union's election observers. That evening, after work, a group of 
union supporters met for a "victory celebration" at a local pub. 
Those attending were union observers Armstrong and Barlow and 
employees Eva Henry, Weader Lynch, Annette Payne, Alyce 
Seay, Bernice Wells and Helen Woodard. Two other nonunion 
employees, Durrell (Skip) Smith, who several employees believed 
was the son of Supervisor Cora Robinson, and Clayton Starks, 
appeared at the pub, stood or seated themselves separately from 
the celebrants and observed them for a time.4

On Sunday December 13, Respondent laid off 50 of the 92 
employees in the election unit. The employees were called at 
home by supervisors who came into the plant on Sunday for this 
purpose. Only one nonunit employee was laid off and no super­
visors were laid off or demoted.5 The laid off employees 
received letters, dated December 14, informing them that the 
layoffs were indefinite; on December 18, they were notified that 
their insurance coverage had been terminated effective December 
15.

Several employees were recalled within days after the layoff. 
A larger number were recalled in February 1982. Thereafter, a

4Neither Smith nor Starks was included in the December layoff, but they had 
either quit or been terminated by the time of the hearing. Neither testified in 
this proceeding.

5Thc nonunit employee who was laid off was a technician, Bruce Hickman, 
who also served as one of Respondent's election observers. There was no 
evidence as to why he was laid off.



57a

number of new employees were hired. Between February 1982 
and February 1983, Respondent hired about 10 new employees 
classified as "storeroom clerk" or "janitor." In February 1983, 
Respondent rehired Lula Armstrong, Wcadcr Lynch and Alyce 
Seay, after requiring them to pass a three part test which was 
different and more difficult than that which had been required at 
the time of the employees' initial hire. The new testing program 
was apparently implemented sometime after December 1982. 
None of the existing employees was required to pass the test. No 
other laid off employees returned to work, and, beginning in 
March 198.3, Respondent hired a number of new employees for 
unit positions and was continuing to do so at the time of the 
hearing.

B. Allegations of Coercion and Evidence of Union Animus 
and Unlawful Motive

The General Counsel relied on a number of statements made 
and incidents engaged in by Respondent's officials which were 
alleged as violative of Section 8(a)(1) of the Act as well as 
several other statements and incidents, which, although not 
alleged as independent violations, were alleged to show Respon­
dent's animus against the Union and its unlawful motivation for 
the layoffs. Except for the November 25 remarks of Jerry Jones, 
which were tape-recorded, the other statements and incidents 
involve conflicts in testimony which I am called upon to resolve. 
I have resolved these credibility conflicts by considering not only 
the cold record but also the demeanor of the witnesses -- the 
facial impressions, the inflection of voice, the halting or straight­
forward character of speech and other intangibles which are dif­
ficult to articulate but form the basis of a trier of fact's observa­
tion of witness demeanor at a hearing.

1. Cora Robinson's statements to employee Henry

In September 1981, Supervisor Cora Robinson had a conversa­
tion with employee Eva Henry near Robinson's desk. Robinson 
said that she "had heard that Faye [Becks] and [Henry] were



58a

Union organizers."6 Henry asked from whom Robinson had 
heard this information. Robinson said she "had her ways of 
finding out." Robinson also asked if Henry had been to any union 
meetings or had signed a union card. Henry replied "yes" to both 
questions. In another conversation during the same day, Robin­
son asked Henry if she knew how the "girls on her line" were 
voting. When Henry said she did not, Robinson asked her to ask 
them how they were voting. Henry gathered five employees 
together for this purpose, but did not actually question them. 
Robinson later asked for a report and Henry said, "everything's 
OK."

The above is based upon the testimony of Henry. Cora 
Robinson essentially denied the statements attributed to her. I 
credit Henry's testimony. Henry impressed me as an honest 
witness whose testimony survived vigorous cross-examination. 
Robinson, on the other hand, testified that she had been fired by 
Respondent for lying about whether her son had been employed 
by Respondent. At the hearing there was an issue as to whether 
Respondent had learned the identity of certain prounion 
employees because Durrell (Skip) Smith, who some employees 
believed was Robinson's son, was present at the victory celebra­
tion after the Union won the election and whether he reported 
this fact to Robinson. Robinson denied that Smith was her son, 
although she conceded that employees thought him to be her son. 
She testified that former employee Durrell Robinson was her son 
-- although at one point in her testimony, she made a momentary 
slip and named Smith as her son. She also testified that, in 
February of 1982, President Jerry Jones or Plant Manager Willie 
Taylor asked her whether Durrell Robinson was her son and she 
denied it. According to Robinson, when they found out the 
truth, she was shown her son's birth certificate and fired. 
Robinson was unable to identify where her son worked and there

6Henry testified only to the name Faye, but documentary evidence confirms 
that the only Faye among the employees was Beeks. Robinson supervised both 
employees.



59a

is no other evidence that a Durrell Robinson was ever employed 
by Respondent. I found Robinson's testimony on this point 
totally unbelievable. Why would Respondent investigate or be 
concerned about the employment of Robinson's son in February 
of 1982 when, according to Robinson, he had been employed 
only a short period of time and had not been employed for some 
4 months? And what reason would Robinson have to lie about 
the employment of her son? Contrary to Robinson's testimony, 
there appears to be no rule against employing children or other 
relatives of employees at the plant. Jerry Jones' son and stepfa­
ther were employees and Dorothy Jones' daughter and Jerome 
Jones’ wife also worked at the plant. There was testimony that 
Dorothy Jones had told employee Weader Lynch that Cora 
Robinson had informed management officials of the celebration 
and identified its participants. Robinson’s evasive and dissembling 
testimony not only lends credence to this testimony, but also casts 
considerable doubt on Robinson's own reliability as a witness.

In accordance with the credited testimony, I find that Robinson 
unlawfully interrogated Henry about her union activities, sought 
to enlist her aid in polling employees as to their union activities 
and created the impression that Respondent had the union 
activities of employees under surveillance. These were not 
isolated violations. There were several interrogations and they 
were interspersed with a request to engage in polling and a 
statement which indicated that Respondent had ways of finding 
out about union activities. Accordingly, I find that, by virtue of 
Robinson's statements and conduct, Respondent violated Section 
8(a)(1) of the Act.

2. Rufus Denson's statements to employee Harper

One day in November 1981, just before lunch, while he was 
working at his punch press in the machine shop, employee Oliver 
Harper was approached by his supervisor, Rufus Denson. 
Denson, who had no work-related reason for approaching 
Harper, asked Harper how he felt about having a union. Harper 
stated that he was once "a member of the UAW" and stated that



60a

he did not have anything against labor unions. Denson said he 
had been a member of the Teamsters Union and had been a 
union steward. He said, however, that labor unions were "no 
good" and caused "confusion and problems." Denson also 
mentioned a book he had about the Teamsters Union which he 
wanted to show Harper, but could not because of the election. 
At some point during this conversation, apparently after the first 
question, Jerome Jones, the son of President Jerry Jones, and 
Robert Freeman, Jerry Jones' stepfather, walked over and 
remained for the rest of the conversation. They nodded assent 
to some of Denson's remarks.7

Later, about one week before the election, in the afternoon, 
Denson approached Harper and fellow employee, Bertram Hayes, 
at their work station. He asked them how they were going to 
vote. Harper described this as a "kind of funny question." Harper 
said he did not know but that he would vote in his "best interest." 
Hayes also told him he did not know. Denson thereafter stated 
that "if the Union did get in" Jerry Jones could "either move the 
company, hire new employees or lay off the employees he had" 
and that the employees "would be the ones to not have a pleasant 
Christmas and be in the unemployment line."

Harper testified that Denson also approached him, on the day 
of the election, "smiled in a joking way" and said, "[H]ow are you 
going to vote? You can tell me." Harper responded, "I really don't 
know."

The above is based on the testimony of Harper, who impressed 
me as a candid and reliable witness. He placed the conversations 
in context and testified in meaningful detail. His candor was 
demonstrated by his admission that he could not place in context 
or give detail about the speeches of Jerry Jones and that he had

7
Freeman did not testify about this matter. Jerome Jones denied being 

present at any such conversation, but I found him not to be a reliable witness 
and do not credit his denial.



61a

less experience than other employees in the machine shop. This 
was significant because it would have been in his interest to 
demonstrate his flexibility -- which was supported by his experi­
ence at other jobs before coming to Sonicraft -- in order to 
bolster his case that he was discriminatorily laid off.

Supervisor Denson denied that he questioned Harper about his 
union activities. He testified to a conversation, about a week 
before the election, between him and Harper in the presence of 
Hayes, but denied asking "how anybody was going to vote." 
Denson also testified that, after one of President Jones' speeches, 
Harper called him over to the place where Hayes and Harper 
were working and asked if "the company was going to move or 
have a layoff, because there had been rumors of it." According to 
Denson, he told Harper "anything was possible." Hayes also 
testified about the latter conversation but did so only briefly and 
in a conclusory manner. He testified that he did not hear 
Denson discuss with Harper how the latter would vote and he 
denied that Denson had ever asked him, Hayes, that question. 
Hayes did not give any other details about the conversation and 
said nothing about who initiated the conversation or whether 
there was any discussion about layoffs or a move.

Denson did not impress me as a reliable witness. Nor did he 
testify in as detailed or candid a manner as did Harper. Further, 
in a very significant piece of testimony, Denson was shown to 
have contradicted himself concerning another prounion employee 
under his supervision, Ernest Barlow, whose selection for layoff 
was alleged to be discriminatory. Denson first testified that 
Barlow had never performed any spray painting and he denied 
telling anyone that Barlow had performed such work. Yet, in a 
memorandum dated August 21, 1981, Denson had indicated that 
Barlow was "doing spray painting" and sought a raise for Barlow. 
Denson's effort to explain this inconsistency did not reflect 
favorably on his reliability as a witness.

In accordance with my assessment of the evidence and the 
witnesses set forth above, I credit Harper's account of the



62a

conversations in November of 1981 and on the day of the 
election. As to the conversation which took place one week 
before the election, I must take into account Hayes' version. He 
denied hearing Denson question Harper as to how he would vote 
in the election and denied that he himself was questioned by 
Denson. This is directly contrary to Harper who testified that 
both employees were questioned. I have no reason to reject 
Hayes' testimony. He was not effectively cross-examined on this 
point and had no reason to testify falsely. Thus, even though I 
was impressed generally by Harper, it is possible that he was 
mistaken about the interrogation portion of the conversation, and 
I find that the General Counsel has not proved by a preponder­
ance of the evidence that Denson questioned Harper in the 
conversation which took place one week before the election. 
However, I do credit Harper's version of that part of that same 
conversation that dealt with a possible layoff rather than Den­
son's version. It is obvious from the testimony of both Harper 
and Denson that there was some discussion of a possible layoff. 
Hayes did not testify about such a discussion. He corroborated 
neither Hayes nor Denson on this score. In these circumstances, 
I view Hayes' testimony, limited as it was, as having no signifi­
cance in determining what was said about possible layoffs in the 
conversation between Harper and Denson one week before the 
election.

In accordance with the credited testimony, I find that, in 
November 1981, Denson unlawfully interrogated employee 
Harper as to how he viewed unions and how he would vote in 
the upcoming election. The interrogation was followed by a 
discussion by Denson of the "trouble" with unions, and, thereaf­
ter, Respondent's production manager and the president's son 
joined Harper and Denson. No purpose for the questioning was 
given and no assurances against reprisals were offered. In all the 
circumstances, I find that the interrogation was coercive. In 
addition, I find that Denson's statement that Respondent would 
lay off employees or move the plant if the employees selected the 
Union constituted a violation of Section 8(a)(1). Since the



63a

statement was not based on economic considerations it amounted 
to an unlawful threat of reprisal.

I do not find a violation, however, in Denson's questioning of 
Harper the day before the election about how he was going to 
vote. Harper's own testimony strongly suggests that the question 
was a simple one followed by no further discussion about the 
union campaign and was done in a joking manner. In these 
circumstances, I do not find that the question amounted to a 
coercive interrogation and I shall dismiss this portion of the 
Complaint.

3. Dorothy Jones' statements to employee Lynch in 
November and December of 1981

Sometime in November of 1981, employee Weader Lynch had 
a conversation with her supervisor, Dorothy Jones, at Jones' desk. 
Jones asked if Lynch had attended the union meeting held the 
night before. Lynch said that she had. Jones also asked if 
employee James Lewis had attended the meeting. Lynch said he 
had not and asked why Jones was asking about him. Jones said 
that Lewis was being "watched by personnel" because of his union 
activities. She also said that Lynch should watch herself and that 
she and Lewis should stay busy. She was told to pass the 
message on to Lewis and she did.

On the day of the layoff, Sunday December 13, 1981, Lynch 
was notified of her selection by Rufus Denson who told her that 
she was being laid off because of "lack of materials." Lynch said 
she did not understand because there was "plenty of work" when 
she left work on Friday. She also questioned why her supervisor 
had not called her. Denson replied that there were so many calls 
that he was helping out. That day or the next. Lynch called 
Jones at home. When Lynch questioned her about who was kept 
and who was not, Jones said "it wasn't up to her to determine 
who was being kept." Jones told Lynch that Cora Robinson had 
given Jerry Jones a list of the people who had attended the 
victory celebration on Friday night after the election results had



64a

been announced. She also said that Jones was very upset 
"because the union had won" and that Jones said that "these 
people would definitely not be coming back to work." Lynch 
replied that she did not believe that Cora Robinson followed the 
group as Jones reported, but that she noticed that Robinson's son 
was present at the victory celebration.

The above was based on the testimony of Lynch. Jones denied 
that she had engaged in any of the above-mentioned conversa­
tions. I credit Lynch's version of both conversations. She 
impressed me as an honest witness who was employed by 
Respondent when she testified and was testifying against her 
employer's interests. Her testimony also survived vigorous cross- 
examination. Jones, on the other hand, seemed to me not to 
have been a candid witness. In observing her demeanor, I 
thought she was holding something back. For example, her 
denial that she even talked to Lynch about the layoff seems to 
me implausible. Lynch was one of Jones' group leaders and she 
was notified of her layoff by a different supervisor. It is thus 
plausible that Lynch would have sought direct confirmation from 
her own supervisor, Jones. Jones' failure to confirm even this 
aspect of Lynch's testimony calls into question her reliability as a 
witness. Moreover, Lynch's testimony concerning Jones' wanting 
to have Lynch back is confirmed by Jones' own testimony that, in 
February of 1982, she had recommended the recall of Lynch but 
that her superiors overruled her. That Jones would have been so 
frank with Lynch is not unusual since Lynch had greater seniority 
than Jones at the plant, and, according to uncontradicted 
testimony, had supported Jones when some employees exhibited 
resentment that she had been appointed a supervisor from 
outside Respondent. This created a "bond" between the two, 
and, indeed, Jones had attended a party for Lynch shortly before 
the layoff.

Also adversely reflecting on Dorothy Jones' credibility is the 
fact that certain documents which she prepared after the layoffs 
attempting to justify her selection of some union adherents for 
layoff were inconsistent with performance reviews or evaluations



65a

prepared by her a week or two before the layoff. The justifica­
tions were prepared on December 14, the Monday after the 
layoffs, but they were clearly altered to reflect the date of 
December 13, the Sunday when the layoffs took place. These 
justifications were attached to a position statement submitted by 
Respondent’s counsel, Bettye Kitch, to the Regional Director 
during the original investigation of this case. They were intro­
duced at the hearing by the General Counsel to impeach Jones' 
testimony and they do just that. For example, on December 4, 
Jones rated Lula Armstrong "excellent" on productivity; on 
December 14 she rated her "good." On December 9, she rated 
Weader Lynch "excellent" as to productivity and attendance; on 
December 14, she rated her "good" on productivity and depen­
dability. On December 4, she rated Annette Payne "excellent" on 
productivity; on December 14, the rating had changed to "good." 
And, on December 4, she rated AJyce Seay's productivity "good," 
but, on December 14, she rated it "fair." Since the performance 
evaluation forms specifically listed four ratings -- excellent, good, 
fair, unsatisfactory -  and since so little time elapsed between the 
different ratings, it is unlikely that these discrepancies were 
inadvertent mistakes. The post-layoff justifications were submit­
ted with Respondent's position statement; the pre-layoff evalua­
tions were not even mentioned in the statement.

In accordance with my credibility determination, I find that 
Jones unlawfully questioned Lynch about her union activities and 
those of employee Lewis. Such interrogation was unaccompanied 
by assurances against reprisal and there was no purpose given for 
the questioning. Thus, the interrogation violated Section 8(a)(1) 
of the Act. I also find that Jones' statement to Lynch that Lewis 
was being "watched by personnel" because of his union activities 
and Jones' subsequent comment that Lynch should watch herself 
and that she and Lewis should stay busy created an unlawful 
impression that the employees' union activities were under 
surveillance, in violation of Section 8(a)(1). Furthermore, these 
remarks added to the coercive circumstances surrounding the 
interrogation, particularly since Lynch, as a group leader, was told 
to, and actually did, report the message to Lewis. In addition, I



66a

find that Jones' statement in December of 1981 that employees 
would not be coming back to work because Jerry Jones was upset 
with the outcome of the union election not only reflected 
Respondent's union animus and its motivation for the layoffs, but 
also constituted an independent violation of Section 8(a)(1). See 
Rogers Mfg. Co., 228 NLRB 882, 886 (1977); Circus Circus, 244 
NLRB 880, 884 (1979), enf. in pert, part, 646 F.2d 403 (C.A. 9, 
1981).

4. Robert Freeman's remark to employee Durham

Employee Mary Durham testified that, on Monday morning, 
December 14, she went to the plant and learned that she was one 
of the laid off employees. She talked to Production Supervisor 
Robert Freeman and asked permission to go to her work station 
to pick up her personal belongings. According to Durham, as 
Freeman accompanied her to her work station, Durham asked 
why the employees were laid off. Freeman replied that work was 
slow, "plus the Union came in."

Freeman admitted to having a conversation with Durham about 
her being on the layoff list and escorting her to her work station 
but denied saying anything more to her. I credit the testimony of 
Durham. She reaffirmed her testimony during cross-examination. 
Moreover, I believe it plausible that she asked Freeman why the 
employees were laid off. She had not been notified of the layoff 
as the others had the day before and she would naturally have 
been curious about it. Freeman seemed to me the kind of person 
who, at the time and in the circumstances of the moment, would 
have made an unguarded but revealingly truthful response to 
Durham. On the other hand, as a witness, Freeman seemed less 
than candid not only on this issue but also on other issues such 
as his denial that he intentionally observed union officials passing 
out literature. His effort to counter this allegation by stating that 
it was his normal practice to take his coffee outside the plant was 
strained. In addition, I thought his testimony concerning the 
recall of two employees for the packaging department was vague 
and evasive. Finally, Freeman was Jerry Jones' stepfather and I



67a

perceived, in his demeanor, a reluctance to give testimony 
adverse to Respondent's interests.

In accordance with my credibility determination, I find that 
Robert Freeman did indeed tell employee Mary Durham that a 
reason for the layoff of December 13 was because "the Union 
came in." No allegation was made that the statement constituted 
a violation of Section 8(a)(1), but it was alleged that it bears on 
Respondent's motivation for the layoff. I agree. Freeman was 
part of management and, as production manager, he was privy to 
the deliberations undertaken by Respondent to effectuate the 
layoff. Cora Robinson testified that she discussed her selections 
both for layoff and recall with Freeman. And, according to Jerry 
Jones, he talked with Freeman in early December about the 
conditions which led to the layoff.

5. Jerome Jones' statements to employees and union
representatives

The General Counsel, relying on the testimony of several 
employee witnesses and that of Union Representative Roy Blake, 
alleges that the son of President Jerry Jones, Jerome Jones, a 
clerical employee who is alleged to be an agent of Respondent, 
made statements which show Respondent's union animus and its 
unlawful motivation for the December 1981 layoffs. Three 
separate incidents are relied upon. First, it is alleged that Jerome 
Jones had an altercation with Blake while Blake was distributing 
union literature to employees and revealed the Respondent's 
opposition to unions. Second, it is alleged that Jones told a 
fellow clerical employee, Hameeda Bahah, that his father was 
going to lay off employees and actually did lay off employees 
because of union activities.8 Third, it is alleged that Jones told * I

Q
I do not accept Bahah's testimony. Her testimony was quite vague on cross- 

examination and she appeared to harbor some personal animus toward Jerome 
Jones and toward Respondent for having discharged her. Jones himself was not 
a reliable witness, particularly when pitted against Blake and Bcrryhill, who were



68a

employee Linda Berryhill that his father would lay off employees 
"if the Union gets in." These allegations require certain credibility 
determinations because Jerome Jones denied making the 
objectionable statements. But a more significant threshold issue 
is presented because Respondent denies that Jerome Jones is an 
agent and disputes whether his statements can be used to show 
Respondent's animus or motivation.

On the issue of agency status, and, more particularly, on the 
question of whether the remarks of Jerome Jones are reliable 
indicators of Respondent's motive, I agree with Respondent. 
The crucial and determining factor in establishing the nature of 
an agency relationship is the scope of authority, actual or ap­
parent, conferred upon the alleged agent by his superiors. See 
F & D Enterprises, Inc., 251 NLRB 1199, 1207 (1980). In turn, 
the reliability of any statement that an agent might make 
concerning company policy depends on its relationship to matters 
over which he has been granted authority. See, 4 Wigmore, 
Evidence, section 1078 (Cladboume rev. 1972 & Supp. 1983).

Jerome Jones began working for the Respondent in June 1978. 
At the time of the election, he was a bid clerk earning $ 7.50 per 
hour. His job involved receiving government bid solicitations, 
recording them in a log, and notifying his father and other 
management officials that they had been received. If a bid 
decision was made, he would coordinate the assimilation of 
information from various departments and present it to his father. 
However, he had no voice in the decision making process and 
generally checked the assembled information for accuracy only. 
There is no evidence that he utilized independent judgment in 
any of his responsibilities. Nor is there any evidence that he had

impressive witnesses. Jones' testimony about his encounter with Blake was 
implausible and his denial that he was present at the vote count after the election 
was counter to the credible testimony of several witnesses. Nevertheless, as 
between Bahah and Jones, two unreliable witnesses, I cannot sustain the General 
Counsel's version of their conversations.



69a

any responsibility in the area of employee relations. He was a 
clerical employee who worked in a different area than the 
production employees. It appears that his contact with produc­
tion employees was minimal. It is, of course, true that employees 
knew he was the president's son. However, he was a married 
adult who did not live at home, and, so far as the record shows, 
received no special help from his father. He had no financial 
interest in Respondent and was not, so far as the record shows, 
privy to management decisions or deliberations.

The General Counsel relies on several rather neutral pieces of 
evidence such as the fact that Jerome attended one or two of his 
father's campaign speeches and that he was present with his 
father when the ballots were counted in the union election. I do 
not view this evidence as significant in showing agency status, at 
least insofar as attributing to Respondent the statements of 
Jerome Jones. The General Counsel has not alleged that 
Jerome's statements were violative of Section 8(a)(1). Thus, 
whether the employees reasonably believed that Jones was 
expressing management policy or were, in fact, coerced by his 
statements is not at issue here. Compare, Airborne Freight Corp., 
263 NLRB No. 181 (1982). The central issue here is whether 
Jerome Jones' statements were a proper reflection of Respon­
dent's animus and motivation. I think not. Jones was merely a 
clerical employee; he was neither a part of management nor was 
the position he occupied related to labor relations. Thus, it 
cannot be implied that these statements reflect information to 
which he was privy during the normal course of his employment. 
Furthermore, there is no independent evidence that he was a 
party to, or informed of the nature of, the deliberations prior to 
the layoff, dealing with the union campaign or the layoff itself. 
Nor is there any indication that at any point Jerome Jones was 
taken into management's confidence.

It therefore follows that Jerome’s statements could be consid­
ered reliable only because he is the son of Jerry Jones. The 
Board, however, has held that "family relationship is but one of 
the factors to be considered" in determining the existence of an



70a

agency relationship. Aircraft Plating Company, Inc., 213 NLRB 
664 (1974) (emphasis added.) Thus, a simple father-son relation­
ship, without some other indicia of managerial responsibilities or 
identity, is not sufficient to establish agency. See, Byrd's Terrazzo 
& Tile Co., 227 NLRB 866, 867 (1977). I therefore find that, 
without more, the familial relationship of Jerome and Jerry Jones 
is insufficient to establish the agency of Jerome for the purpose 
of imputing his statements to the Respondent. Jerome's state­
ments could have been based on speculation or on his own 
perceptions of unions or of the harm they might have on his 
father's operation. Whatever strands of evidence must be put 
together to determine Respondent's motivation for the layoffs, 
Jerome Jones' statements to employees are not, in my view, 
particularly reliable indicators of such motivation and I do not 
rely on such statements.

6. William Robinson's statement to employee Shorty

Employee Cheryl Shorty testified that she was not informed of 
the layoff on Sunday and, when she learned about it from other 
employees, called the plant. She spoke to Dorothy Jones about 
why she was selected for layoff. Jones indicated that it was 
because of her absenteeism. Shorty protested that her absentee­
ism had been primarily due to excused medical absences including 
surgery and hospitalization. Jones responded that she "was doing 
what she was told to do" and that, if it were up to her, Shorty 
would still be there. I credit this testimony of Shorty. It is 
compatible with the credited testimony of Lynch wherein Dorothy 
Jones similarly protested that she had nothing to do with the 
selections.

Shorty also testified that she thereafter called Personnel 
Director Bill Robinson to protest her selection for layoff. In the 
course of a long conversation with Robinson, she asked him why 
all the union supporters had been laid off. According to Shorty, 
after some hesitation and unrelated comments, Robinson did 
admit, "You know the reason why you was laid off. They use like 
a word 'economics'-----[W]e [were] here to help you all and we



71a

[were] going to change things. But you all just took matters into 
your own hands."

Robinson denied making the comment, although he did 
concede that he and Shorty had a lengthy telephone conversation 
on December 14. This is a difficult credibility determination. 
Shorty seemed like an honest witness. She also seemed like the 
type of person who would insist on an explanation for the layoff 
from someone like Robinson. On the other hand, Robinson tes­
tified only about this one incident. He was not cross-examined 
by counsel for the General Counsel and only briefly by counsel 
for the Union. Although Robinson did give an unusual embel­
lishment to some of his answers when denying he made the 
statements attributed to him, I am not persuaded that this makes 
him an unreliable witness. Moreover, I find it hard to accept the 
fact that Robinson would have made such an unguarded and 
blatantly offensive comment in view of his position and his 
demeanor. It is more likely that Shorty testified to what she 
believed had happened rather than what Robinson had said. 
Accordingly, I do not credit Shorty's testimony concerning her 
conversation with Robinson.

7. Jerry Jones' remarks in a pre-election speech

On November 25, Jerry Jones gave a prepared speech to the 
approximately 90 unit employees, who had been assembled in the 
Respondent's cafeteria. His purpose was to express opposition 
to their voting for union representation. The speech was 
composed by a member of Respondent's management staff. Its 
presentation was followed by a period of some 45 minutes during 
which Jones responded to various employee questions.9

Q
Both the speech and the subsequent queslion-and-answer period were 

recorded by a management official. The tape, which contained a gap of 
approximately 10 minutes because Jones had recorded over and thus erased that 
portion, and a written transcript were submitted into evidence. The transcript 
was stipulated as authentic, but, thereafter, Respondent contended that there



72a

After being greeted by restrained applause, Jones commenced 
reading from his prepared text. Among other things, he informed 
the employees that he had been told "that at least one of you 
went to a union meeting before you even started working here . 
. . [and] that at least one of you was actually a union organizer 
and [sic] that will soon leave the company, rather than actually 
intending to stay here." The first description fit employee Alyce 
Seay, who several weeks before, had attended a union meeting 
after being hired but before actually starting work. As Jones 
made this statement, a number of employees looked in Seay's 
direction.10

were four statements in the transcript that were erroneous. I have carefully 
listened to the tape several times. Three of the four contested statements are 
not at crucial points in the tape. The other, which appears at page 25 of the 
transcript, deals with whether the word "compete" should be "fulfill" as 
Respondent alleges. On this point, I agree with Respondent. As Respondent 
has suggested, I have paid particular attention to the actual tone and manner of 
Jones’ remarks as well as the employees' reactions thereto in order to evaluate 
not only the possible coercive nature of Jones' statements, but the general 
atmosphere of the meeting. See Electric Motors and Specialties, Inc., 149 NLRB 
1432, 1439 (1964).

Respondent contends that the laughter and chuckling which is audible on the 
tape reflects a friendly, jocular atmosphere. I disagree. Serious matters were 
being discussed. Employees were being addressed in a formal setting by the chief 
operating official of Respondent. And Jones' voice rose on several occasions. 
Except for a few instances where the words spoken were inherently disarming or 
humorous, such as Jones' reference to himself as being "ugly," much of the 
laughter seemed to me to be nervous laughter normally used by people to 
dissipate tension, particularly since the context or the words used would not 
normally result in laughter.

10Jones acknowledged that he personally inserted this particular statement 
into the prepared text after being given this information by either William 
Robinson or Yvonne Shelton, officials in the personnel office. At one point in 
his testimony, he denied any knowledge of the actual identity of the person, 
asserting that he had been informed only that it was "an employee" and that he 
had taken no steps to determine who this person was. At another point,



73a

Upon the completion of his prepared remarks, Jones initiated 
a question-and-answer period. In response to an employee's 
question concerning Jones' statement in his prepared remarks 
about the possible freezing of wages during contract negotiations, 
Jones noted that such negotiations are, in most cases, "lengthy." 
He then added, "(A]nd I don't want to say how long this might be 
'cause I don't know . . . but that means we cannot raise your 
salary [or] benefits . . .  during that whole year." Another employ­
ee observed that an employee suggestion box might be an 
appropriate vehicle for improving certain unsafe conditions at 
Respondent's plant, adding, "I'm not no union organizer or 
anything like that." Jones responded that he too was concerned 
about safety and he further stated, "I also have another dilemma. 
I can close off that part of the [inaudible] and lay off some folks, 
too . . . You know I can hear all kinds of complaints from 
everybody. . . . Okay, I'm trying as best we can to offer some 
employment and do within. . . . [W]e can get into hassles about 
all kinds of things all the time and I think the Company tries to 
do its best about them. . . . [I]f you have some real concerns . . 
. you tell me."

Thereafter, an employee commented that Jones often appeared 
in the work areas "lookfing] mean." Jones began his response in 
a light hearted vein, noting that perhaps he was "just ugly." He 
then observed, "We're not making our production goals." At this 
point, the employees began to protest and Jones interjected "Hey, 
wait a minute, let me tell you some other things about it — there's 
some other things you should think about. Although we're not 
doing and most companies probably would have had some layoffs 
. . . we have kept everybody. On the other hand, you got to 
understand it puts me under a lot of pressure, because I'm paying 
you and I shouldn't." In connection with Jones' observation that

however, he testified: "Later on I found out that the person that I was referring 
to here was somebody else," thus indicating that he did have someone in mind 
when he made this statement. Jones' testimony on this point was contradictory 
and evasive.



74a

the employees were not meeting production goals, one person 
noted that the employees were often forced to work without 
proper tools and equipment. Jones admitted that this was true, 
but added, "Now the one thing that you know, you should know 
and I can't promise this will last forever, but you have not been 
laid off as a result of it and nothing else, okay? . . .  [Y]ou got to 
look at the benefits as well as the problems." Later on, an 
employee complained about being assigned to tasks other than 
those for which she had been hired. William Robinson attempted 
to explain that this was due to "things [being] really slow." Jones 
then interrupted, "[M]aybe we're going about things the wrong 
way," and added, "Maybe people would rather go home." Jones 
also said that he was doing what he thought he would like 
"people to do to me" and concluded, "I mean if that’s not what 
you want, we can do it differently, you know"

In response to another question Jones stated that he was more 
concerned about his competitors than about the Union. Howev­
er, in the course of his answer, he told the employees that they 
had to put what he had said before "in perspective" and discussed 
the impact of a union victory. He said that the employees were 
"gonna probably, if [the Union] get[s] in, suffer more than the 
Company." He then explained that he currently moved employees 
from their normally assigned jobs to others when work was slow. 
However, if the Union were selected, he would "have to ask the 
Union if I can move you from here to here. I don't want to get 
into that. On the other hand, if you don't mind going home, 
maybe we should -  you know. Because that's what [it] would 
mean probably what will have to happen."

Thereafter, in answer to a question about whether Jones would 
have given the employees more benefits if he was able, Jones 
stated that Respondent had lost money in the past but that "now 
we're trying to come back and you said you may think things are 
really g rea t. . . [ . ]  The Company is making money hand over fist, 
let me tell you the reason is that I went out and borrowed some 
money that I got to pay back. . . .  That's why you see something 
like that happening because I'm trying to get things so that we



75a

can create some more jobs -- so we can do some more things." 
Continuing to respond to the question of whether he would grant 
benefits, Jones stated as follows:

I may not if there's a union. And the reason is simple.
OK? I don't ~ if you decide that you want the Union 
representing you, then you don't need me. I'm going to 
fight everything, the law, everything as much as I can.
You don’t need me anymore. You said I want this man 
here to represent me. Well, let him get for you what he 
can get. I'm not going to offer you anything, alright, 
cause you already said, hey, I want him to do it, so let 
him do it. OK. It's that simple and I'm gonna tell you.
I'm gonna take as hard a line - I'm gonna fight every bit 
I can. cause I've already told you, you know, and we 
don't have no misunderstanding about it.

The General Counsel and the Union contend that the afore­
mentioned statements made by Jones included threats of reprisal 
for choosing union representation and remarks which created the 
impression that the employees' union activities were under 
surveillance, all in violation of Section 8(a)(1) of the Act. 
Respondent essentially disputes that any of these statements 
amounted to a violation.

Alleged Impression of Surveillance

Jones' statement that "he had been told" that an employee had 
attended a union meeting prior to starting work with the Respon­
dent and that another was a "union organizer" created the 
impression that the employees' union activities were under 
surveillance by Respondent and thus violated Section 8(a)(1). All 
union meetings were held away from Respondent's premises. 
Thus, absent some explanation by Jones as to the source of this 
information, it would be reasonable for the employees to assume 
that their union activities were being monitored by the Respon­
dent. See, Redwing Carriers, Inc., 216 NLRB 530, 536 (1976). 
The coercive effect of these statements was demonstrated by



76a

some employees' looking at one specific employee and by the 
express disclaimer of union activity mentioned by a subsequent 
employee questioner.

Alleged Threats of Reprisal

It is alleged that Jones threatened to lay off employees and 
take other reprisals if the Union won the election. On several 
occasions during the question-and-answer period Jones referred 
to the fact that he had avoided layoffs in the past, but that such 
layoffs were possible if Respondent's position on safety, job 
assignments and production were not followed. However, Jones' 
statements came in response to questions by employees complain­
ing about the Respondent's position on these subjects. Jones 
simply stated that the employees had a choice of being laid off or 
working in the allegedly unsafe conditions, accepting different 
assignments and increasing production. In short, Jones was 
taking a hard economic line in response to their complaints. He 
was saying, in effect, "take the jobs as they are." There was little 
if any reference to the Union in Jones' remarks in this respect 
and I do not find anything unlawful in most of his responses to 
employee questions even though they may have contained 
references to the possibility of a layoff.

In two instances, however, Jones' remarks did relate rather 
specifically to the Union and what he would or would not do with 
respect to employee benefits and working conditions in response 
to the Union. In these instances, Jones crossed the line between 
lawful and unlawful comment. The first was Jones' statement that 
the employees "would suffer" more than Respondent if the Union 
won representation rights. He explained that he currently moved 
employees from job to job when work was slow, but that he did 
not want to talk with the Union before doing so, and, therefore, 
if you don't mind going home, maybe we should -- you know. 

Because that's what [it] would mean probably what will have to 
happen." A fair reading of these remarks is that, if the Union 
were selected, the employees would "suffer" and lose benefits -



77a

for example, the ability to work in slow periods -- which they 
enjoyed in a nonunion environment.

The second instance was Jones' statement in response to 
questions relating to employee benefits. It was clear that both 
the questioner and Jones were talking about benefits Jones could 
afford. He specifically told employees that he "may not" grant 
benefits "if there's a union." He followed this remark by stating, 
"[I]f you decide that you want the Union representing you then 
you don't need me . . . You said I want this man here to 
represent me. Well, let him get for you what he can get. I'm not 
going to offer you anything, all right, cause you already said . . . 
I want him to do it, so let him do i t . . . . "  A fair reading of these 
remarks is that Jones threatened that he would not grant 
unspecified benefits to employees if the Union won representa­
tion rights.

Jones' observation that the employees would suffer more than 
the Company if the Union prevailed, combined with his explana­
tion that he would then no longer be able to move employees 
from their normally assigned jobs when work was slow, thus 
resulting in their being sent home, as well as his statement that 
he might not, if the Union were elected, grant employees those 
benefits he could afford amounted to improper threats of 
retaliation and thus violated Section 8(a)(1). Jones' statements, 
which suggested detrimental treatment of employees, were 
neither couched in, nor based on, reasonably objective facts 
which were beyond his control. Rather, Jones made it clear that 
the forthcoming consequences would be the product of his own 
action, taken as a result of a union election victory. As such, the 
statements were overt threats of retaliation, and thus violative of 
the Act. See N.L.R.B. v. Gissel Packing Co., 395 U.S. 575, 619 
(1969). Furthermore, the fact that they were made in response 
to employee inquiries or observations at a meeting whose sole 
purpose was to permit Jones to express his opposition to 
unionization is of crucial import. In Gissel, supra, the Supreme 
Court made clear that, in analyzing the coercive impact of 
employer statements, the Board must focus on ”[W]hat did the



78a

speaker intend and the listener understand?" Id. at 619. Accord: 
N.L.R.B. v. Federbush, 121 F.2d 954, 957 (C.A. 2, 1941) (L. 
Hand). The Court also observed, in Gissel, that an employer who 
has control over the employer-employee relationship "and 
therefore knows it best, cannot be heard to complain that he is 
without an adequate guide for his behavior. He can easily make 
his views known without engaging in 'brinkmanship' when it 
becomes all too easy to 'overstep and tumble [over] the brink,' 
Wausau Steel Corp. v. N.L.R.B., 377 F.2d 369, 372 (C.A. 7th Cir. 
1967). At the least he can avoid coercive speech simply by 
avoiding conscious overstatements he has reason to believe will 
mislead his employees." Id. at 620. Jones' remarks did not meet 
the test of Gissel for protected speech.11

8. Dorothy Jones' February 1982 statements 
to employees Henry and Lynch

Employee Eva Henry was among the employees recalled in 
February of 1982. Upon her return to work she had a conver­
sation with Dorothy Jones. Jones asked Henry how Weader 
Lynch, Henry's friend, was doing. Henry replied that Lynch was 11

11 It is unclear whether it is alleged that other parts of Jones' statements are 
unlawful because neither the General Counsel's nor the Union's brief is a model 
of clarity on this point. For example, there is a reference in the General 
Counsel's brief about Jones' failure explicitly to deny a rumor which was brought 
to his attention by an employee who asked if it were true, as rumored, that 
Respondent would close the plant if the Union won the election. In its brief, the 
Respondent answers an anticipated argument by asserting that Jones' remarks in 
this respect were not improper. I am uncertain as to whether this issue is before 
me, but, assuming it is, I find no violation. It is open to inference that Jones, 
who reacted to the question by saying that it put him on the spot, did not go out 
of his way to put the rumor to rest as he should have. However, the thrust of 
his response seemed to be that he had so much invested in the operation that he 
would not close it down. I think the employees would reasonably have under­
stood this to have been his intended response. Accordingly, I do not find that 
Jones’ response to the question dealing with the rumored plant shutdown was 
unlawful.



79a

fine and asked when she would be recalled. Jones replied that 
she "needed help" and that she had "submitted Weader's name" 
several times "to come back to work." Several days later, Henry 
again asked Jones when Lynch would be returning to work. 
Jones shook her head and replied that Lynch, "wasn't coming 
back.” When Henry asked why, Jones replied that Lynch was on 
a "no-no list." Henry relayed this information to Lynch.

On or about February 17, 1982, Lynch called Jones to verify 
the information. Lynch asked Jones "if there was a list." Jones 
replied that "there were two lists, one of people who would come 
back and one of people who would not come back." Jones 
admitted that she had submitted Lynch's name "to the office" but 
that her superiors had overruled her. Jones also stated that she 
had discussed Lynch's possible recall with Willie Taylor, and that 
Taylor had told Jones that Respondent "had received phone calls" 
about Lynch's participation "in union activities." Jones told Lynch 
that she had also discussed Lynch with Assistant Personnel 
Administrator Yolanda Shelton. Shelton told Jones that "Jerry 
Jones' lawyer had advised [Respondent] against calling [Lynch] 
back because she was a troublemaker and affiliated with the 
Union." Jones argued that Lynch's "work performance and 
conduct at work was good" and that her union activities shouldn't 
be held against her, but Shelton replied that "she had nothing to 
do with it" and "was doing what she was told."

A few days later. Lynch called Shelton. She asked what criteria 
had been used to select employees for retention and recall. 
Shelton replied that flexibility was the primary factor. Lynch 
explained that she had been a group leader and, as such, was one 
of Respondent's most flexible employees. Shelton replied that 
she knew that but that Respondent, at that lime, did not need 
any group leaders. Lynch asked to return to work as a "line girl," 
a regular employee. Shelton said that she would have to talk to 
Personnel Manager Bill Robinson. Shortly thereafter, Lynch 
called Robinson. He told her that the recall decision was that of 
Dorothy Jones and Willie Taylor. Lynch told him that she had 
already spoken with Jones and that Jones had no objection to her



80a

recall and had, in fact, already submitted her name for recall. 
Robinson told Lynch that he would "get back to her." Robinson, 
however, never contacted Lynch.

The above was based on the testimony of Lynch and Henry 
whom I credit on this issue. Their testimony was credited in a 
previous portion of this decision and it meshed on this issue. 
Jones conceded that she talked to both employees and that she 
had indeed recommended that Lynch be recalled. This tends to 
support Lynch's testimony. Moreover, I have discussed at length 
in a previous part of this Decision the reasons why Jones did not 
impress me as a reliable witness. There is no reason to treat her 
testimony about this issue as having any greater reliability. For 
example, Jones testified that Lynch asked no question about the 
fact that she was not recalled. However, in view of Lynch's 
position as a group leader, I believe that she would have ques­
tioned Jones on this matter. The undisputed fact that Lynch then 
called Shelton and Bill Robinson, seeking recall, supports the 
view that Lynch pressed the matter of her reemployment. I also 
credit Lynch's testimony that she was willing to return to work as 
a regular employee as her friend Eva Henry had done. This is 
confirmed by her determined effort to get reemployed, and, 
indeed, she was eventually reemployed as a rank-and-file 
employee.

In accordance with my credibility determination, I find that 
Jones' statements to Lynch and Henry reflect Respondent's union 
animus with respect to both the reason for the original layoff and 
the subsequent recalls.

C. Analysis of the Alleged Discriminatory Mass Layoff

The timing of the layoffs strongly supports a finding of discrimi­
nation. The layoffs were decided upon over the weekend 
immediately after the Board election. The announcement that the 
Union had won the election was made near the end of the 
workday on Friday. The employees were called at home on 
Sunday and told not to report for work on Monday. President



81a

Jerry Jones did not even await a written report of an inventory 
taken on Saturday which allegedly caused him to decide that 
employees had to be laid off. He acted only on a verbal report 
from Materials Manager Irene Glatter. And, except for one 
person. Respondent limited its layoff to production employees 
who voted in the union election despite the fact that it employed 
an equal number of office and engineering employees. No 
supervisors were affected. Thus, by the next working day after 
the election results were announced, Respondent had effectuated 
an "indefinite" layoff of over 50 percent of the employees in the 
election unit.12

Respondent's animus against the Union had been expressed on 
several occasions prior to the election and unfair labor practices 
were committed by various supervisors. Supervisor Denson 
threatened the very action which took place — a layoff -- if the 
Union won the election. The day after the layoffs. Production 
Supervisor Freeman admitted that they had taken place in part 
because "the Union came in." In a pre-election meeting with 
employees. President Jerry Jones made two unlawful threats of 
loss of benefits if the employees selected the Union. One of 
those benefits mentioned by Jones was the ability of employees 
to work during slow periods. His statement that employees would 
"suffer" more than Respondent if the Union won the election 
proved prophetic. In addition. Supervisor Dorothy Jones told 
employee Weader Lynch that Respondent had found out about 
a victory celebration among union supporters after the election 
results were announced, that Jones was upset about the union 
victory and that he said that those employees would not be 
coming back to work. This shows that Respondent was interested 
in retaliating against the celebrants -- all of whom were laid off - 
- because of the election results. Indeed, not only did the layoff 
reach all of the union victory celebrants but it also reached all of

12The precipitous nature of the layoffs is also shown by the rather immediate 
recall, within days, o f about 7 employees and the recall of another 13 employees 
in February. These recalls are discussed in the next section of this Decision.



82a

the union election observers. As shown elsewhere in this Deci­
sion, there is evidence that Respondent discriminatorily selected 
a number of these employees for layoff, including two highly 
regarded group leaders, Eva Henry and Weader Lynch. This 
evidence gives meaning to the timing and the number of the 
layoffs and demonstrates a prima facie showing of discriminatory 
motive.

In the face of this evidence, Respondent has failed to show 
that the layoff -- in such numbers and with such alacrity — would 
have taken place absent the selection of the Union by the 
employees. Respondent’s defense, based primarily on the tes­
timony of Jerry Jones, is as follows: At the beginning of Decem­
ber 1981, Jones learned that an official of Respondent's bank had 
called about overdrafts in two of its bank accounts. On Decem­
ber 3, 1981, Jones also learned that there was an accumulation of 
nearly completed products and requested an immediate inventory. 
Apparently there were many products that were not ready for 
shipment either because they had defective parts or because 
there was a shortage of parts necessary for their completion. 
Jones decided that the weekly scrap report he utilized was inade­
quate and he directed that a new reporting system be instituted 
to better inform him of the status of his inventory. According to 
Jones, shipping completed products would alleviate an alleged 
cash flow problem because Respondent was paid when products 
were shipped. From December 3 to December 11, Respondent 
was able to cover the overdrafts, and, on December 12, the day 
after the election, an inventory was finally taken. According to 
Jones, on the day of the inventory, he received a verbal report 
which revealed that $ 700,000 worth of products could be 
completed in short order and shipped. As a result, Jones decided 
that he would stop building new subassemblies and simply 
complete those that were almost ready for shipment. He 
therefore decided to lay off over 50 percent of his production 
work force. He implemented this decision on Sunday by calling 
in his front-line supervisors, having them decide which employees 
to retain and having them notify those who were to be laid off.



83a

Jones, amplified in part by Secretary-Treasurer Barbara Birth- 
wright. Materials Manager Irene Glatter and Production Manager 
Willie Taylor, suggested that certain parts problems and the 
inability to pay vendors contributed to the Respondent's decision 
to lay off employees. I found these suggestions unpersuasive. 
The evidence is overwhelming that parts problems had plagued 
Respondent since at least October of 1981. Respondent's own 
witnesses testified to this effect and documentary evidence shows 
that Respondent had not met its production goals on the 
products that had parts problems attributed to them. These parts 
problems were discussed at weekly production meetings and no 
personnel reductions were undertaken as a result. Indeed, Jones 
testified that, in the past, he had always dismissed the option of 
a layoff "because we don't like to have layoffs and we generally 
try to avoid layoffs." This was also the thrust of some of his 
remarks to employees in the November 25 pre-election meeting.

Likewise unpersuasive is the suggestion that an unusual 
inability to pay vendors was a motivating factor in the layoffs. 
Barbara Birthwrighl's testimony concerning such difficulties is 
belied by documentary evidence. Monthly reports submitted by 
Respondent to its bank show that Respondent's accounts payable 
were lower in December than they had been for some 5 months 
and they were also lower than the first 2 months of 1982. And 
its net sales and gross profits remained relatively constant during 
this period. Both Birthwright and Glatter testified concerning a 
threat from a vendor against Glattcr's life if he was not paid. But 
when Jones found out about the threat, he directed that the 
vendor be paid immediately and he was. It is hard to see how 
this incident in and of itself was indicative of a serious cash flow 
problem or forced the layoff of employees.

Stripped of the above subsidiary contentions, Respondent's 
defense is basically that two problems, surplus inventory, particu­
larly in nearly finished products, and cash flow difficulties 
combined to cause it to decide to lay off half its production 
workers. And, as Respondent pointed out in one of its briefs -- 
although identifying the inventory problem as a parts problem: "If



84a

one of these factors had been present without the other, as had 
occurred to a lesser extent in times past, perhaps a layoff might 
not have been necessary." An analysis of Respondent's defense, 
however, reveals nothing that would have required the layoff of 
such a great number of employees on such short notice in the 
absence of the Union's election victory and thus it fails to 
overcome the General Counsel's prima facie case of discrimina­
tion.

I turn first to the inventory problem. An essential ingredient 
of Jones' rationale for the layoffs rests on his testimony — and 
that of Birthwright and Glatter -- concerning their consultations 
on December 3, 1981, a date some 8 days before the union 
election, when, according to Jones, the inventory problems first 
caused him some concern. However, an analysis of Jones' 
testimony reveals serious flaws and inconsistencies that reflect 
adversely on his credibility and ultimately weaken Respondent's 
explanation for the layoff.

Jones testified that in a December 3 meeting between him, 
Glatter and Birthwright, Birthwright suggested laying off employ­
ees, and that he took the decision under advisement. Later, he 
testified that both Birthwright and Glatter had mentioned a layoff 
"several times prior" to the December 12 meeting in which he 
made the final decision to effectuate a layoff. The suggestion 
here was that layoffs were considered well before the union 
election as a component of Respondent's economic problems. 
However, neither Glatter nor Birthwright supported Jones on this 
point even though they testified about their December 3 meeting 
with Jones and at length about their concerns over cash flow and 
inventory problems prior to December 12. Both Birthwright and 
Glatter testified to having had separate meetings with Jones on 
December 3 and Birthwright specifically testified that she could 
not remember making any recommendations to Jones on 
December 3. Similarly, Glatter's testimony indicates that the first 
mention of layoffs was made by Birthwright at the December 12 
meeting. Thus, Jones was not corroborated and indeed contradict­



85a

ed in his attempt to show that his pre-election deliberations with 
Birthwright and Glatter specifically dealt with layoffs.

A second major conflict revolves around the December 3 
request by Jones that an inventory be taken. Jones testified that 
on this date he was told by Birthwright and Glatter that the 
earliest an inventory could be taken was on December 12. The 
suggestion here was that the specific date for the inventory was 
decided well before the election results were known and that it 
was keyed to a concern over an accumulation of inventory. 
However, neither Glatter nor Birthwright support Jones on this 
point. Glatter testified that, on December 3, she did not mention 
a specific day for the inventory. Nor did Birthwright, in her 
testimony about the December 3 meeting, mention a specific day 
for the inventory. Indeed, both Birthwright and Glatter testified 
rather clearly that the specific date for the inventory was decided 
some 2 days before December 12, when it was actually taken.

A third incongruity in Jones' testimony about the December 3 
meeting deals with his own reaction to his tour of the production 
floor on that date. He testified that he discovered a great number 
of completed sub-assemblies with defective parts; he estimated 
that there were a "couple hundred thousand dollars worth of 
completed units." He then told Birthwright and Glatter that he 
wanted a new reporting system which would give him a "better 
feel for the total amount of materials on the floor" and that the 
so-called scrap report that he received weekly was inadequate. 
Indeed, Jones testified that he was extremely annoyed by the 
inadequacy of the reporting system and that he brought it to the 
attention of Birthwright and Glatter in such a manner that they 
were "almost in tears." Yet there is scant evidence that the 
reporting system was ever changed or augmented. Jones later 
testified that, as of the time of his testimony in April of 1983, a 
new reporting system was "undergoing change now." Apparently, 
only part of the new report was prepared, and, as of April 1983, 
he had seen only one or two such reports. None was produced 
at the hearing. However, Jones was still receiving the weekly 
scrap report which, in December of 1981, he had told Glatter and



86a

Birthwright to change or augment. Thus, early in his testimony, 
Jones clearly stated that he needed a new reporting system to 
help him decide how much inventory he had on hand so that he 
knew "what goes out from the store room." Yet, after a year and 
one half, he still did not have such a system in effect This 
renders suspect Jones' alleged concern over the accumulation of 
inventory. Had he been truly concerned about this problem he 
would have implemented the changes he suggested in December 
of 1981. Indeed, his lack of concern, or even explanation, for his 
failure to follow through on this new reporting system contrasts 
sharply with his precipitous layoff decision, which was allegedly 
based on inventory problems.

Several other factors render unpersuasive Respondent's 
economic justification based on the accumulation of inventory. 
First of all, a full formal inventory is normally taken in May of 
each year by Irene Glatter and her staff. She had taken such an 
inventory in May of 1981. Jones allegedly directed an inventory 
to be taken on December 3, 1981. It was not taken until 
December 12, the day after the election, and Jones did not await 
the written inventory report from Glatter. He acted only on her 
verbal report before effectuating the layoff on Sunday, even 
though Glatter informed him that her verbal report "was based 
solely on what I'd seen" and she would follow it up with a 
"precise" report on Monday, the next working day. Secondly, 
Jones initially suggested that he was concerned that he get the 
completed sub-assemblies on the production floor ready for 
shipment because this was the only way he could get paid. Later, 
it became apparent that Respondent, essentially a government 
contractor, was able to obtain payments from the Federal 
Government — in the form of progress payments and advance 
payments — during the production process even before shipment. 
Respondent was apparently able to cover its overdraft situation 
in early December with such payments. Birthwright testified that 
she covered the payroll account overdraft in December 1981 by 
contacting the Department of Defense and obtaining a progress 
payment in the amount of about $ 117,000.



87a

Thirdly, and perhaps most importantly, the so-called inventory 
problem was not apparent in the documentary evidence. In 
materials prepared by a certified public accountant and intro­
duced into evidence in this proceeding, a large, rather stable, 
inventory figure appears from the end of September 1981 
through the end of March 1982. There was a slight decrease of 
about 4 percent in December but a much greater decrease in 
inventory — about 45 percent -- took place in April of 1982. No 
unusual personnel decisions were undertaken in April and indeed 
employees had been recalled in February. Thus, not only was 
there no significant accumulation of inventory in December of 
1981, but it does not appear that there is any discernible relation­
ship between the inventory figures in the documentary evidence 
and employment. This evidence, which was submitted by 
Respondent, shows that there was not an unusual inventory 
problem at the time of the layoffs.

I turn now to the Respondent's cash flow situation. According 
to Jones, there was a cash flow problem in December of 1981 
and this contributed to his decision to lay off half of his produc­
tion employees. The evidence, however, fails to show that the 
alleged cash flow problem in December 1981 was significantly 
different from the cash flow problems Respondent had experi­
enced in the past.

Cash flow analysis statements prepared by an independent 
public accountant from Respondent's books and records were 
placed into evidence by the Respondent itself. These statements 
relate only to the Respondent’s regular bank account,13 but 
they show that Respondent had a negative cash flow position in 
that account almost continuously from June 1980 through 
December 1981. Indeed, even after December 1981, Respondent 
continued to suffer deficit daily balances in its regular account. 
The pattern shown by this documentary evidence. Respondent's

13In some of the testimony and the documentary evidence this account is 
also referred to as the general account.



88a

Exhibit 51, is that, on various days throughout the 2-year history 
covered by the evidence, Respondent was in a negative position 
in its regular account, but it was able to cover its deficits by 
intermittent or periodic infusions of cash.14

14Respondent was in a negative cash position in its regular account each and 
every day from January 1, 1980, through May 29, 1980. Thereafter, the figures 
are as follows:

Month/Year 
June 1980 
July 1980 
August 1980 
September 1980 
October 1980 
December 1980 
January 1981 
February 1981 
March 1981 
April 1981 
May 1981 
June 1981 
July 1981 
August 1981 
September 1981 
October 198 
November 1981 
December 1981 
January 1982 
February 1982 
March 1982 
April 1982 
May 1982 
June 1982 
July 1982 
August 1982 
September 1982 
October 1982 
November 1982 
December 1982

Number of days 
in negative position

19
24
25 
24 
24 
2
24 
21 
21 
8 
21 
27 
15
17
25
18 
SO
20 
18 
2 
3 
11 
2 
18 
21 
13 
12 
2 
11 
13



89a

Other evidence confirms that the Respondent's cash situation 
as reflected in its regular account at the time of the layoff was no 
worse than it was in the past. Barbara Birthwright testified that 
Respondent's regular bank account was in an overdraft position 
on the books more than 50 percent of the time in October and 
November 1981 and at least 25 percent of the time at the bank. 
Documentary evidence bears this out. Respondent's Exhibit 51 
shows that, in the month of November, Respondent was in a 
deficit position on every single day, up to a maximum of over a 
quarter of a million dollars at the end of the day on November 
11. In December 1981, Respondent was in a less severe deficit 
position, and, indeed, had, by virtue of an infusion of receipts of 
some $213,000 on December 4, managed to get the regular 
account into a positive cash position. Reference to Respondent's 
bank statements for the regular account confirms this view. 
Respondent had been in an overdraft position at the bank on 
November 6, 9, 10, 12, 24, 25, 27 and 30, 1981. Respondent's 
bank statements also show overdrafts in October of 1981 and in 
other months both in 1980 and 1981. However, the bank 
statements show that Respondent's regular bank account, if 
anything, was in better shape at the time of the layoff than it was 
in the past. Thus, Respondent was in an overdraft position for 
the first 3 days of December, but on December 4, after two large 
credits, the regular bank account was in surplus where it re­
mained throughout December. On the last banking day before 
the layoff -- December 11, 1981 -- Respondent had a surplus at 
the bank of some $ 23,000 in its regular account.

Despite the evidence of deficits and overdrafts in the regular 
account both in November 1981 and in earlier periods, which 
appeared to be worse than those existing at the time of the 
layoff, there is no evidence that Respondent considered layoffs 
as a result of such deficits and overdrafts. This renders unpersua- 
sivc Respondent's reliance on whatever difficulties were present 
in the regular account in early December to effectuate the layoff



90a

on December 13. Those difficulties had been resolved about a 
week before by an infusion of cash into the regular account.15

Even more significant, however, is the fact that Respondent's 
regular account, which was almost continuously in a negative 
position, and its payroll account do not give the complete picture 
of Respondent's cash flow situation. Respondent had numerous 
other bank and cash accounts. There was no evidence that these 
other bank accounts were in an overdraft position at the bank or 
in a deficit position on the books. Indeed, documentary evidence 
submitted to Respondent's bank on a monthly basis showed that 
the cash on hand from all accounts was in a positive or surplus 
position at all times throughout 1981 and 1982. From January 
1980 to December 1982, Respondent's overall cash account was 
in a negative position only once ~ in March 1980. An analysis of 
these documents, which have some inherent reliability because 
they were provided monthly to Respondent's bank as required by 
its loan agreement, fail to show a significant overall cash flow problem.15

15Jones also referred to overdrafts in Respondent's payroll account. Checks 
are apparently drawn on that account and covered by a deposit from the regular 
account every 2 weeks. That account was in overdraft briefly twice in December 
of 1981. The overdrafts were covered within short order through an infusion of 
cash. It appears that the payroll account serves as a clearing account and that 
the status of the payroll account is ultimately reflected in the status of the regular 
account. Respondent focused, in its defense, on the precariousness of its regular 
account, and the only bank statement relating to the payroll account submitted 
by Respondent was that for December 1981.

1^These documents also show that Respondent's net worth position improved 
significantly throughout 1981, even though it continued to be in a negative 
position until July 1982, after it received a 5700,000 payment from a claim it had 
against the United States, a claim which it had used to secure a loan of about 
half a million dollars in July of 1981. Also, Respondent's gross profits and net 
income were in a positive position throughout 1981, although by the end of 1981 
its net income had dipped.



91a

It is true that most of the Respondent's other bank accounts, 
which were in surplus, were restricted, that is, their monies could 
be used only to pay expenses on certain contracts and the checks 
had to be approved or countersigned by a Government offi­
cial.17 Yet it is clear that funds from these accounts or 
revenues from these accounts or from other sources were 
available to Respondent because it was able to cover overdrafts 
by drawing upon them. In other words, whether one focuses on 
the overdrafts at different periods since June 1980 or simply in 
the months of November and December 1981, Respondent was 
able to, and did, come up with the cash to cover its overdrafts. 
It is obvious that these funds were made available to Respondent 
by the United States either from progress or advance payments 
on existing contracts or they came from the surpluses in the 
restricted accounts. The pattern of Respondent's operations, as 
I have perceived it by analyzing the documentary evidence, is that 
its infusion of revenue from government contracts was intermit­
tent and irregular. At times, the regular account or the payroll 
account may have been low or even in deficit or overdraft, but 
Respondent's overall cash position was not in deficit and it was 
not in deficit in November or December 1981.

Jones’ testimony concerning the severity of cash flow problems 
in December of 1981 is thus refuted by the documentary evi­
dence. Moreover, his testimony on this aspect of the case does 
not really address the substance of the cash flow situation. He 
simply testified that his banker told him that no more overdrafts 
would be permitted. Jones admitted that he had been warned by 
his banker about overdrafts "at various times during our com­
pany's association with the bank." He had even had an entire 
payroll returned in the past -- a situation that did not occur in 
December of 1981. However, Jones testified that the December 
1 call from his banker was different from past warnings since it

1 According to documentary evidence, Respondent had a total of 12 cash 
accounts. Four were unrestricted. Of the eight restricted accounts one covered 
J-boxcs and another covered amplifiers; others covered specific job numbers.



92a

raised fears that the bank was "taking action that might close us 
down." He also suggested that the bank might withdraw or ter­
minate its loan agreement and cause Respondent to "go out of 
business." I consider this testimony exaggerated. There was no 
evidence to support Jones' testimony that Respondent's loan 
agreement was in jeopardy of being terminated. And the 
documentary evidence on Respondent's cash flow position refutes 
the suggestion that the bank's decision to stop overdrafts in 
Respondent's unrestricted accounts had the impact that Jones 
mentioned in his testimony. Nor is Jones' testimony supported by 
other evidence. Jones testified that he asked another official of 
Respondent, a Judge Watt, to intercede with the bank. But it is 
unclear what if anything happened as a result. Neither Watt nor 
the banker was called to testify. There was no documentary 
evidence to show that the December 1 call from the banker 
involved any particular sanction. And there is no evidence that 
this particular problem required the layoff of employees. In 
short, Jones' testimony shows that he was warned by his banker 
to avoid overdrafts in the future, but this testimony does not 
establish that Respondent had a cash flow problem that required 
the layoff of over half of its production workers.

Nor does the decision to lay off such a large number of 
employees on such short notice make sense in view of other 
evidence in this case which suggests that Respondent believed it 
had a sound financial future. In October of 1981, Respondent 
hired a significant number of new employees, and, in December 
of 1981, it was working on an amended proposal for a large 
government contract, which it later obtained. In addition, at the 
time of the layoffs, Respondent had a one million dollar claim 
against the United States -- $700,000 of which was realized in 
July 1982. And, in the summer of 1981, Respondent had agreed 
to a new lease for additional space for its production facilities.18

l O
On July 1, 1981, Respondent agreed to a new lease for additional space 

for its production facilities at the 95th Street building. The lease, which was to 
terminate on January 31,1984, consisted of three phases. During the first phase,



9.3a

Finally, on December 7, just several days before the election and 
the layoff. Respondent instituted wage increases for 64 of the 92 
unit employees.19 These raises ranged from 11 to 55 cents per 
hour. Respondent thus had a fundamental soundness which, 
together with the complete failure of support for its inventory 
and cash flow defense, makes it highly unlikely that it would have 
laid off such a great number of employees on such short notice 
under ordinary circumstances.

In analyzing all of the evidence, I believe that Respondent has 
failed to prove, in response to the General Counsel's showing of 
discriminatory motivation, that it would have laid off indefinitely 
over 50 percent of its production employees in the absence of the 
Union's election victory on December 11. The evidence does not 
show a severe problem either in inventory or in cash flow that 
would justify such a precipitous and far reaching layoff. Thus, the 
entire mass layoff was unlawful without regard to whether 
individual employees were known or suspected union advocates. 
See N.L.R.B. v. Link Belt Co., 311 U.S. 584, 602 (1941); Majestic 
Molded Products Inc. v. N.L.R.B., 330 F.2d 603, 606 (C.A. 2,

which commenced on July 1, Respondent was to occupy 16,080 square feet of 
the building at a cost of $2680 per month. During the second phase, beginning 
October 1, Respondent was to occupy an additional 20,554 square feet at a total 
rent of $6106 per month. And during the final phase, which was to commence 
no later than April 1,1982, Respondent was to occupy the entire building, 60,125 
square feet, at a total rent of $10,020.83 per month. Thus, Respondent chose 
to assume a significant, progressive, long-term obligation, presumably based on 
existing and projected government contracts. Indeed, the evidence indicates that 
Respondent honored its payment commitment under the lease even though it did 
not expand its operation from the original 16,080 square feet until sometime in 
1982.

19Of the remaining 28, 18 had received increases in September, October or 
November of 1981. Thus, 82 members of the unit had received increases within 
3 months of the layoff.



94a

1964); N.L.R.B. v. Rich's Precision Foundry, Inc., 667 F.2d 613, 
628 (C.A. 7, 1981).20

D. Analysis of the Alleged Discriminatory Selection of 
Union Adherents for Layoff and Recall

The General Counsel alleges that individual employees were 
discriminatorily selected for layoff and discriminatorily denied 
recall, even assuming that the Respondent had a valid economic 
reason for the general layoff. Although I have found the general 
layoff unlawful, I shall make additional findings under the 
selection theory which was fully litigated at the hearing. In this 
connection, I dismissed some 31 employees from the selection 
theory aspect of the Complaint at the conclusion of the General 
Counsel's case because a prima facie case of a violation was not 
made out.

Of the remaining 19 alleged discriminatees, 5 engaged in few, 
if any, union activities which would have targeted them for 
discriminatory treatment. Thus, Karen Adams' only apparent 
union activity was her attendance at the first general union 
meeting. The only activity of Marcia Staine and Johnnie Murphy 
was their attendance at the general union meetings. The General 
Counsel cites evidence that Supervisor Cora Robinson told 
employee Eva Henry that she had heard that Beeks was a union 
organizer. However, neither Beeks nor the other employees 
mentioned above testified in this proceeding and there is no 
evidence that they even signed cards. Another employee, Mary 
Durham, did testify, but her union activities were limited. She 
attended one union meeting and took literature from union

20While the Respondent correctly asserts that those employees retained after 
the layoff may have included some union supporters, this does not detract from 
the finding that the decision to lay off employees en masse was discriminatorily 
motivated. For "it is well established that a discriminatory motive, otherwise 
established, is not disproved by an employer's proof that it did not weed out all 
union adherents."Nachman Corp. v. N.L.R.B., 337 l'2d  421, 424 (C.A. 7,1964).



95a

officials outside the plant at a time when, as Durham testified, no 
official of Respondent was present. Based on the limited 
evidence of union activity offered above, I cannot conclude that 
the General Counsel has made out a prima facie case that 
Respondent discriminatorily selected these employees for layoff 
because of their union activities.

Three other employees, Frank Nissen, Cheryl Shorty and Linda 
Berryhill, participated to a somewhat greater degree in the union 
campaign. Shorty signed a union authorization card and attended 
some organizing committee meetings. However, there is no 
evidence that Respondent's officials talked to her about the 
Union or mentioned her name to other employees in connection 
with union activities. Berryhill also signed a union card. The 
General Counsel alleges that she "spoke up" during Jones' 
November 25 meeting with employees. However, there is 
nothing in her remarks or those of Jones that would have 
identified her as a union supporter. She simply complained about 
certain working conditions and she disclaimed being a "union 
organizer." In Nissen's case, the General Counsel offers no direct 
evidence. Nissen did not testify and he was not identified as 
having engaged in any union activity. The General Counsel con­
tends, however, that Respondent alleged, in its exceptions to the 
Regional Director's Report on Objections to Election, that 
Nissen was an agent of the Union. This was based on employee 
affidavits obtained by the Regional Director during his investiga­
tion after the election. I do not consider the evidence described 
above to be sufficient to establish a prima facie case that 
Respondent discriminatorily selected Shorty, Berryhill and Nissen 
for layoff because of their union activities.

As to the 11 remaining alleged discriminatees under the so- 
called selection theory, there is sufficient and compelling evidence 
that they were known or suspected union leaders and that they 
were singled out for discriminatory treatment. Three, Lula 
Armstrong, Ernest Barlow and Marion Shcrron, were the Union's 
election observers. Most were organizing committee members 
and Armstrong, Barlow, Eva Henry, Wcader Lynch, Annette



96a

Payne, Alyce Seay, Bernice Wells and Helen Woodard attended 
the Union's victory celebration. Dorothy Jones stated that news 
of this celebration reached Jerry Jones and that he expressed the 
view that the participants would not be working for Respondent. 
Henry, Lynch and Oliver Harper were subjects of unfair labor 
practices by Respondent's supervisors in circumstances which 
showed that they were known or suspected union supporters. 
Seay was identified during a meeting by President Jones. James 
Lewis, who had signed a union card and attended both general 
and committee meetings, was identified by Dorothy Jones as one 
whose union activities were being watched. Jones also stated that 
there was a list being kept of union supporters, that Lynch, for 
one, was on that list, and that she would not be recalled because 
of her union activities. In view of Respondent's other unfair 
labor practices, its expressed union animus and the timing of the 
layoffs immediately after the Union's election victory, the above 
evidence sufficiently establishes that -- at leastprima facie -  these 
11 leading union employees were discriminatorily selected for 
layoff and were not recalled from layoff for the same discrimina­
tory reason, even assuming that Respondent's economic defense 
would have supported the layoff of some employees.

Respondent's explanations for the selection of the union 
adherents for layoff are based essentially on the testimony of 
Supervisors Denson, Robinson and Dorothy Jones. I note that 
Respondent's witnesses testified that several criteria were used to 
retain employees: competence, experience, productivity, flexibility 
and attendance. Useful to the analysis of this issue is the fact 
that certain employee performance reviews or evaluations -- most 
of them prepared shortly before the layoff in early December of 
1981 -- were introduced into evidence. These evaluations 
reflected the breadth of experience of its employees and their 
competence, in an objective setting -  prior to the layoffs.21 I 
therefore place greater emphasis on these documents than I do

21Cora Robinson testified that she went over the performance reviews of the 
employees under her supervision before making her selections for layoff.



97a

on the testimony of Denson, Robinson and Dorothy Jones, whose 
testimony was shown to be unreliable in other parts of this 
Decision and whose testimony on the selection of particular 
employees was often conclusory and occasionally inconsistent 
Based on my consideration of all of the evidence, including the 
demeanor of the witnesses, I find that most of the 11 employees 
were the specific objects of discrimination: 8 were improperly 
selected for layoff; and 10 were improperly denied recall.

I turn first to employees Barlow and Harper who were super­
vised by Denson. They were among the six or seven employees 
in the machine shop, which was located at the 95th Street facility. 
Barlow was a machine operator who had been employed since 
May 7, 1980. He was highly regarded. In August of 1981, he was 
promoted to utility man by Denson with an increase in pay, 
effective September 1, of about 20 percent. Harper had been 
hired on September 3, 1981, and he received a "good" evaluation 
on December 8, 1981. Both men were active in the union 
campaign, but Barlow was more of a leader since he passed out 
union cards, talked about the Union and acted as an election 
observer.

Several employees were retained in Denson's department: silk 
screener Thelma Cotton and machine operators Bertram Hayes 
and Warren McCullum, as well as Johnnie Pullum, who had been 
on sick leave since November 9, 1981. Hayes was clearly a more 
experienced and valued employee than Barlow. However, both 
McCullum and Pullum had barely more seniority than Barlow -- 
actually, by virtue of his loss of time because of sick leave, Pullum 
had less overall experience - and they would not likely have been 
retained over Barlow under ordinary circumstances. In Barlow’s 
last evaluation, Denson listed his attendance record as "excellent" 
and noted that he worked "well without supervision." Of course, 
Barlow had been promoted to utility man in September with a 
substantial raise. McCullum had an attendance problem that led 
to his discharge in June of 1982. He was earning a dollar an 
hour less than Barlow at the time of the layoffs, a figure that 
clearly and objectively shows the relative value of the two men



98a

prior to the layoff. Pullum was making 37 cents per hour less 
than Barlow, and, not only was he on sick leave at the time of 
the layoff, but it is clear that his was a terminal illness. He 
returned to work in February of 1982 for about 3 weeks. He 
died shortly after completing this 3-week stint. Indeed, Barlow 
was so flexible -- he did spray painting and coated PC boards -  
that it is possible that he would have been retained even over 
Cotton if non-discriminatory reasons had been utilized in the 
layoff selections. In any event, he clearly was superior to 
McCullum and Pullum. Based on the above analysis of objective 
evidence, I cannot accept Denson's testimony that he selected 
Barlow for layoff because of his lesser seniority and lack of 
flexibility. In addition, as I have indicated earlier, Denson's 
testimony on the very issue of Barlow's qualifications was shown 
to have been inconsistent and therefore unreliable.

Accordingly, I find that Respondent discriminatorily selected 
Barlow for layoff in December 1981. Moreover, I find that 
Barlow was discriminatorily denied recall when he was not 
recalled instead of Pullum in February of 1982 and when 
McCullum was discharged later in 1982. At neither point, nor at 
any time thereafter, was any consideration given to recalling 
Barlow. By March of 1982, Respondent had taken the position 
that Barlow was a union agent and it was seeking to overturn the 
election partially because of some of his actions and conduct. I 
find that Respondent's failure to recall Barlow was motivated by 
the same discriminatory reason which caused him to be selected 
for layoff in December -- his prounion activities.

Harper's situation is different. He was the least senior and 
experienced machinist. Moreover, there is no evidence that new 
machinists were hired or that other employees performed work 
in the machine shop after the layoff which Harper could have 
performed. If there was more work available, as there was when 
Pullum returned to work in February of 1982 and when Mc­
Cullum was discharged, Barlow, a more senior and experienced 
machinist, would have been recalled before Harper. In these



99a

circumstances, I find that Harper was not unlawfully selected for 
layoff and was not unlawfully denied recall.

The remaining nine union adherents were classified as wirer- 
solderers or assemblers under Dorothy Jones and Cora Robinson. 
The explanations of Jones and Robinson for not retaining group 
leaders Eva Henry and Weader Lynch were limited to statements 
that the other group leaders who were retained were more 
senior, experienced and competent. However, this does not 
provide an adequate answer because both were outstanding 
employees, as their evaluations and job positions clearly show. 
Their breadth of experience, and therefore their flexibility, is 
confirmed not only by their evaluations but also by their own 
detailed and uncontradicted testimony. No reasons were offered 
why they were not retained as rank-and-file employees. They 
clearly had more experience and were more highly regarded than 
retained employees, some of whom had been hired in the summer 
of 1981 and had been trained by Henry and Lynch. Not only 
were these former group leaders not retained over less qualified 
people, as they should have been at the time of the layoff, but 
they were not recalled when obviously less qualified people were 
recalled to jobs for which they were clearly qualified. Dorothy 
Jones' statements to Henry and Lynch demonstrate that Lynch 
was not recalled because of her union activities. Accordingly, I 
find that Respondent not only discriminatorily selected Lynch and 
Henry for layoff, but also discriminatorily refused to recall them, 
on and after December 14, 1981.

Of the remaining seven employees, three -- Wells, Sherron and 
Helen Woodard ~  were assemblers under the supervision of Cora 
Robinson. Her explanation for the selection of these employees 
was basically that the specific jobs they were doing before the 
layoff no longer needed to be performed. This explanation, 
however, does not take into account the factors of flexibility and 
competence that were supposedly important in the selection 
process. Robinson did not discuss the comparative abilities of 
those assemblers who were retained and Respondent did not 
submit their evaluations for comparison purposes. All six



100a

assemblers who were retained by Respondent had less seniority 
than Helen Woodard and Sherron, some considerably less. 
Moreover, Woodard and Sherron had been recommended for and 
received pay increases after their December 1981 evaluations. 
They were rated "excellent" and "good" in the two assembly 
portions of the evaluations and were rated as having "good" 
attendance records. In contrast, Respondent retained employees 
under Robinson's supervision who were apparently less highly 
regarded. According to Cora Robinson, one of the factors she 
considered in retaining employees was attendance. Yet Respon­
dent retained assembler Yvonne Woodard and employee Albert 
McFadden, both of whom worked under Cora Robinson. 
According to their most recent evaluations, introduced into 
evidence by the Union and the General Counsel, both had atten­
dance problems. On September 3, 1981, Yvonne Woodard was 
denied a full increase in salary because of attendance problems. 
Her attendance was rated "unsatisfactory" in both February and 
September of 1981. McFadden's December 1981 evaluation also 
mentioned that his attendance needed improvement. Indeed, 
Cora Robinson testified that in mid-October 1981 she placed 
McFadden on 60 days’ probation for "excessive tardiness." Thus, 
McFadden would still have been on probation at the time of the 
layoff. Since there is nothing in the record to indicate that 
Yvonne Woodard engaged in any union activity and McFadden's 
activity was confined to attending the first union meeting, their 
retention over that of more dependable prounion employees is 
unusual and contrary to Respondent's expressed standards for the 
retention of employees.

After analyzing the above evidence, I find that Sherron and 
Woodard would not have been selected for layoff but for their 
union activities. Wells' situation is somewhat different. She was 
the most junior assembler and, although her December 1981 
evaluation was mostly "good," I cannot conclude that she was 
more competent than the more senior and experienced employ­
ees retained. I therefore do not find that she was unlawfully 
selected for layoff.



101a

I turn now to employees Armstrong, Seay and Payne, wirer- 
solderers under the supervision of Dorothy Jones. She too 
seemed to focus on the specific job duties of particular employees 
selected for layoff without regard to the acknowledged factors of 
flexibility and competence. Thus, Jones testified that she laid off 
Lula Armstrong because she was a "new" employee who was short 
on productivity and flexibility. However, in her December 4, 
1981 evaluation of Armstrong -- just one week before the layoff - 
- Jones had rated her "excellent" as a solderer and "excellent" in 
production. Armstrong was also rated in the assembly and 
harness fabrication categories, thus confirming her flexibility. 
Jones also noted that Armstrong "is a steady worker and has the 
abilities to learn fast." Although Armstrong was a "new" employ­
ee, having started work on July 20, 1981, two other wirer-solder- 
ers -- Guider and Barbara Williams -- who had been hired on July 
7, 1981, just 2 weeks before Armstrong -- were retained. There 
is no evidence of their flexibility, competence or productivity and 
their evaluations were not placed into evidence. Indeed, Jones 
apparently retained an employee named Debra Hasty who had 
been hired in October of 1981 and who thus was "newer" than 
Armstrong. Hasty was fired in February of 1982. With the 
exception of Barbara Williams' attendance at the first union 
meeting, there is no evidence that these three retained employees 
participated in any union activities. In these circumstances, I find 
that Respondent has not shown that Armstrong would have been 
selected for layoff notwithstanding her union activities and thus 
has failed to rebut the General Counsel's showing of antiunion 
discrimination.22

2 *>
■“In its brief. Respondent also asserts that Armstrong was laid off because 

of a "lack of experience and knowledge in key skills required for completing J- 
boxes.” Respondent arrives at this position by juxtaposing Armstrong's testimony, 
in which she admitted that she had "no experience building harnesses for the J- 
box" and "had never wired or soldered PC boards," with that of Dorothy Jones 
and Cora Robinson, who asserted that these were the only tasks which needed 
completion as of December 13. However, both of these skills involved comple­
tion of subassemblies. And, as I have previously noted, one of the basic positions



102a

According to Jones, she selected Annette Payne for layoff 
because she was a new employee whose work dealt with the large 
J-box but not the small J-box. There was really no adequate 
explanation as to why experience with one J-box and not the 
other was a disqualifying factor for the retention of employees. 
Indeed, most of Jones' testimony about the specific jobs of 
particular employees selected for layoff is of questionable import 
because flexibility was considered a significant factor in the 
retention of employees and there is no evidence concerning the 
flexibility of the employees retained. Moreover, Respondent's 
evaluations made no distinction between work on the large J-box 
or the small J-box, and, because they were prepared before the 
layoffs, they are a more reliable indicator of the breadth of 
experience deemed significant by Respondent than after-the-fact 
testimony by Jones. Payne's evaluation shows she was rated 
"excellent" as a solderer and in production. On her December 4, 
1981 evaluation, Jones noted she was "adaptable and a very good 
worker." Although, here again, Payne was hired on July 13, 1981, 
Guider and Williams were hired just one week before and their 
evaluations were not placed into evidence by Respondent. Nor 
did Jones or any other official of Respondent testify about their 
competence, experience or flexibility. Payne was much more 
senior than Hasty, the retained employee who was fired a few 
months later, and she was regarded highly enough to be recalled 
in February of 1982. In these circumstances, Respondent has 
failed to show that Payne would have been laid off notwithstand­
ing her union activities.

of Respondent throughout these proceedings has been that no new subassemblies 
were to be completed after December 13. Moreover, in her testimony, Jones did 
not refer to this lack of skill as a basis for Armstrong's layoff. She instead 
testified only about Armstrong's purported lack of flexibility and productivity. In 
view of this obvious inconsistency in Respondent's positions as well as Jones' lack 
of reliance in her testimony on Armstrong's inability to perform the aforemen­
tioned tasks, I reject these factors as a legitimate justification for the layoff of 
Armstrong.



103a

Jones also testified that Alyce Seay was laid off because she 
was a new employee and there was no need to perform the par­
ticular job that she was doing before the layoff. Seay was indeed 
hired on September 30, 1981. Her evaluation shows that she was 
rated "good" in soldering and production. Although Respondent 
has not shown that the retained wirer-solderers were more 
competent than Seay, they were all more senior. The least senior 
employee retained had 2 months' more experience than Seay. 
Nor was her evaluation outstanding. Moreover, Payne and 
Armstrong would have been retained before her. Thus, I believe 
it is unlikely that Seay would have displaced either of these 
employees or any of the other more experienced employees even 
assuming a non-discriminatory selective process had been used. 
Accordingly, I find that Seay was not discriminatorily selected for 
layoff.

James Lewis testified that his main job was "mechanical 
assembly," which he performed 75 percent of the time. He also 
operated a device called the "wave solder machine." He also 
testified that he trained an employee named Melvin Olive to "do 
the mechanical assembly on the junction box." Olive did not 
operate the wave solder machine. However, Olive was retained 
and Lewis was laid off. Lewis had been employed by Respondent 
since August 19, 1980. Olive had been employed since the same 
date. No reason was given for the retention of Olive, who was 
classified as an assembler, and no comparison was made between 
Lewis and Olive or the other less senior employees who were 
retained over Lewis. And Hasty, a less senior employee who was 
later discharged, was retained over Lewis.

Lewis appears to have had broad experience. He was rated in 
a number of different categories by Dorothy Jones in her 
December 4, 1981 evaluation of him. He was rated "good" in 
most of these categories, including production, but was rated 
"fair” in one soldering category. However, Jones said that Lewis 
was "adaptable" and had the ability "to learn new job[s]." Neither 
Jones, his last immediate supervisor before the layoff, nor any 
other official of Respondent gave a reason for the selection of



104a

Lewis for layoff. However, in its brief, Respondent refers to 
Jones' testimony that Lewis "had the habit" of leaving his work 
place and that she warned him once about this. I am unable to 
accept this testimony as showing why he was selected for layoff. 
Jones never specifically testified that this was the reason why 
Lewis was selected for layoff. And Lewis' December 4 evaluation 
contains no adverse comments about his leaving his work station. 
Lewis credibly and candidly testified that he was in a group of 
employees who were verbally warned about leaving their work 
stations on one occasion. There is, however, no evidence to show 
that this was thought to be a significant matter by Respondent or 
that it adversely reflected on Lewis' work record. Indeed, Lewis 
was recommended for a raise, which he later received, shortly 
before he was laid off. Since there was no showing why Lewis, 
a more experienced employee was laid off and another employee 
whom Lewis had trained was kept, or why less senior or experi­
enced employees were retained over him. Respondent has failed 
to rebut the General Counsel's prima facie showing that Lewis 
was discriminatory selected for layoff.

According to Cora Robinson, "a couple of days" after the layoff 
a shipment of U-22 connectors arrived at the plant and "some 
soldering" and "some assembly" work was required to be per­
formed because of that shipment. She testified that sub-assem­
blies were built at this time and that these were then transferred 
to Dorothy Jones' group of employees for completion. Robinson 
was unable to testify as to how many employees were needed for 
these functions, but the record shows that, on December 15, 
Respondent recalled assemblers Karen Adams, who had worked 
for Respondent only since July 18, 1981, and Jerome Pogue, who 
was hired on August 5, 1981, and, in the next few days, recalled 
assembler Georgia Robinson, whose seniority dated from January 
2, 1981, and wirer-solderers Mae Rose Kelly, Beverly White and 
Yolanda Morgan. Kelly and White had been hired in October of 
1981 and Morgan had been hired on September 28, 1981. 
Respondent also recalled employee Ronald Carson, who had 
been employed since August 3, 1981, in a job category called 
"material/kit control." His last evaluation, dated December 7,



105a

1981, shows that his job involved "component prep." No one 
testified as to why he was recalled or what he did after he was 
recalled. Dorothy Jones' testimony is somewhat different than 
that of Robinson. She testified that she had need for employees 
White, Kelly and Morgan because certain switches were discov­
ered in a storeroom and that these swatches had to be wired and 
soldered to the small J-boxes.23 24

Even assuming that Respondent had a good business reason to 
select prounion employees Armstrong, Lewis, Payne, Woodard 
and Sherron for layoff, its failure to recall them was unlawful. 
They all had considerable seniority over many of the employees 
actually recalled and a comparison of their latest evaluations with 
those of the employees recalled shows that they had greater

23Respondent took the position that Karen Adams and Jerome Pogue were 
recalled within days after the layoff because they had some experience in 
packaging work and that they were needed to perform such work. However, this 
was not their main function before the layoff and there is no evidence that they 
continued doing only packaging work after they were recalled. Indeed, Pogue 
returned to production work. Moreover, if experience, competence and flexibility 
were criteria in the layoff of December 13, they would likely have been factors 
in the recall of employees 2 or 3 days later. Yet neither Adams, who could not 
perform soldering, nor Pogue, who had been hired just 4 months before, would 
have been recalled under those criteria.

24The substance of Dorothy Jones’ and Robinson's testimony was that the 
recalled employees were the only ones skilled in particular positions which 
became available in December and February. However, at no time in their 
testimony concerning the recall of employees did Robinson and Jones refer to the 
benchmarks of competence, experience, productivity, flexibility and attendance, 
which Respondent's witnesses had originally asserted were the factors to be 
utilized in determining which employees were to be retained. Documentary 
evidence in the form of typed memoranda from Dorothy Jones to Respondent's 
personnel office, which were apparently written after the recalls, indicate that 
these factors were indeed utilized, at least in the cases of Lula Armstrong and 
Annette Payne. Thus, as in the case of the layoffs, I find the performance review 
evaluations, which were prepared before the fact, to be a more accurate 
reflection of the skills and competence of the employees in question.



106a

experience and were more highly regarded than those recalled. 
Recalled assemblers Adams, Pogue and Robinson had less 
seniority than assemblers Woodard and Sherron, and Pogue had 
had attendance problems, which were mentioned in his December 
7, 1981 evaluation. Moreover, Sherron had been given an 
"excellent" rating for her assembly work whereas Robinson and 
Pogue were only rated "good" in this category. Nor was there any 
evidence that Robinson or Pogue was involved in any union 
activity. Finally, none of the ten assemblers ultimately recalled 
had more seniority with the Respondent than Woodard and 
Sherron, and some had been employed with the Respondent only 
a matter of months prior to the layoff. As for the wirer-solderers, 
Kelly, White and Morgan had less seniority than Armstrong, 
Lewis and Payne and their evaluations showed that the latter 
were more highly regarded. Armstrong and Payne, for example, 
received "excellent" ratings for both "production" and "soldering," 
whereas Kelly received only a "good" for production and Morgan 
and White were rated "good" in both production and soldering. 
Lewis, who had received "good" marks in these categories, had a 
broader experience in different kinds of soldering than did the 
three employees recalled. It also reflects adversely on Dorothy 
Jones' credibility that she emphasized the lack of seniority of 
employees when making selections for layoff but when it came to 
recalling employees just a few days after the layoff she demon­
strably overlooked seniority.

Accordingly, in the first round of recalls, Armstrong, Lewis, 
Payne, Woodard and Sherron were not recalled and less compe­
tent and experienced employees were recalled. In view of the 
evidence that these individuals were known union adherents, I 
find that they were not recalled for the same discriminatory 
reasons that resulted in their selection for layoff.

In February 1982, six assemblers and seven wirer-solderers 
were recalled. Henry and Payne who had been discriminated 
against to this point were among those recalled. Thus, there 
were 11 additional positions to be filled. But the other discrimin- 
atees were not recalled to these positions. An analysis of the



107a

evaluations and the seniority of the employees involved confirms 
that the discriminatees had greater experience and competence 
than those recalled. Surely, at this point, at least Lynch, a group 
leader who had made clear her willingness to return as a rank- 
and-file employee, should have been recalled. Dorothy Jones, 
herself, had recommended that she be one of the employees 
recalled. Yet Lynch was not recalled and the credited testimony 
conclusively shows that Respondent refused to recall Lynch 
because of her union activities. It is likely that this expression of 
Respondent's union animus explained the failure to recall other 
union adherents at this time.

As to AJyce Seay, a wirer-solderer who had been employed 
since September 30, 1981, and Bernice Wells, an assembler 
employed since September 21, 1981, I cannot find that, by virtue 
of seniority, experience or competence, they were more highly 
regarded or qualified than the employees recalled in December 
1981. However, with regard to the February 1982 recalls, I reach 
a different conclusion.

In February, Respondent recalled six assemblers. An analysis 
of the evaluations and the seniority of all employees involved 
reveals that Bernice Wells had greater experience and compe­
tence than three of those recalled. In her December 1981 
evaluation. Wells was rated "good." Although the only production 
category in which she was rated was "assembly, mechanical," her 
supervisor, Cora Robinson, specifically noted that she was "very 
flexible" and recommended her for an increase, which she 
received on December 7. Among those assemblers recalled in 
February was Nettie Wilson. Wilson received an evaluation 
similar to that of Wells -- she was rated good and the only 
production category in which she was rated was "assembly, 
mechanical." However, the evaluation contained no special 
annotation concerning her flexibility, and Wilson did not begin 
working with the Respondent until October 12, 1981, almost 3 
weeks after Wells. Assemblers Callie Hollins and Clara Nash also 
were recalled in February 1982. Both started working with 
Respondent after Wells: Hollins began on October 21, 1981;



108a

Nash on September 28. Both received good evaluations in 
December, but, unlike Wells, neither was rated in the "assembly, 
mechanical" category. Thus, Wells was employed by Respondent 
longer than any of the three recalled employees and was appar­
ently more experienced than Hollins and Nash. It is true that the 
three recalled employees were, unlike Wells, supervised by 
Dorothy Jones. However, there was no reason given why 
assemblers from one line could not be recalled to work on the 
other line. In any event, Robinson also had an assembly position 
available on her line in February 1982. Respondent chose to 
recall Ossie Perkins, who was not only less senior than Wells, but 
was actually a wire solderer, and who, on her December 1981 
evaluation, was not even rated in any of the assembly categories. 
Lastly, although it is clear, as previously noted, that Wells was 
active in the Union, there was no evidence introduced which 
suggested that the three recalled employees took any part in the 
union campaign. Accordingly, I find that Wells would have been 
recalled in February 1982, but for her union activity.

I next turn to AJyce Seay. As I previously noted, Respondent 
also recalled seven wirer-solderers in February. Because two of 
these recalls involved Henry and Payne and because wirer- 
solderer Perkins actually assumed assembler duties, only four 
wirer-solderers positions were available. Earline Leavy, Ozell 
Buchanan, Elaine Lindsay, and Alice Thompson were recalled to 
fill these vacancies. Based on the evaluations of all of these 
employees, which are in evidence, I am convinced that Leavy, 
Buchanan and Lindsay were properly recalled instead of Seay. 
Each had been employed by the Respondent only slightly longer 
than Seay, but their evaluations clearly indicated that they were 
more competent, highly regarded and flexible. Thompson, 
however, presents a somewhat different situation. She began 
working with Respondent on October 5,1981, approximately one 
week after Seay. Like Seay, she was supervised and evaluated by 
Dorothy Jones. Seay received a "good" performance review in 
December. She was rated in both the "harness fabrication" and 
"soldering wire connection" categories. Thompson also received 
a "good" performance review in December. However, Thompson



109a

oldering, wire connection" category, 
that she chose Thompson for recall 
< excellent" wire solderer. Yet Seay 
i Thompson in their last evaluations, 
byed longer and, according to the 
flexible, Respondent's selection of 
jary to its own standards. Moreover, 
ant in union affairs. On the other 
of any evidence indicating any such 
Accordingly, I find that Seay would 
ary 1982, but for her union activity.

discriminatorily selecting employees 
Ernest Barlow, Lula Armstrong, 

xadard, James Lewis and Marion 
oriminatorily refusing to recall them 
inion activities, Respondent violated 
he Act. Respondent also violated 
y discriminatorily failing to recall 
i Alyce Seay in February 1982.

yer engaged in commerce within the 
and (7) of the Act.

an is a labor organization within the 
le Act.

loyees with layoffs, loss of benefits 
if they selected the Union in the 
ogating its employees about their 
other employees; by attempting to 
5 in polling other employees as to 
orming an employee that certain 
fled to work because of their union 
npression that its employees' union



110a

activities were under surveillance, 
Section 8(a)(1) of the Act.

4. By laying off some 50 products 
13, 1981, because of the Union's vie 
1981 representation election and to t 
Respondent has violated Section 8(a)

5. By discriminatorily selecting for li 
select for recall employees Lula A 
Marion Sherron, Eva Henry, Wead< 
Helen Woodard, and James Lewis 
activities, Respondent has violated So 
Act.

6. By refusing to select for recall i 
Bernice Wells because of their union 
violated Section 8(a)(3) and (1) of th

7. The above are unfair labor pra 
within the meaning of Section 2(6) ar

8. Except as found herein. Respond 
other unfair labor practices alleged in

The Remedy

I shall recommend that Responden 
desist from engaging in the conduct foi 
post an appropriate notice. I shall also 
dent be ordered to offer reinstatemen 
were unlawfully laid off or denied 
Respondent will also be ordered t< 
employees who have suffered any Iosj 
due to the unlawful actions of Resp



111a

computed as provided in F. W. Woolworth Co., 90 NLRB 289 
(1965) and Florida Steel Corp., 231 NLRB 651 (1977).25

ORDER26

Respondent, Sonicraft, Inc., its officers, agents, successors and 
assigns, shall:

1. Cease and desist from:

(a) Threatening employees with layoffs, loss of benefits and 
other forms of reprisal for voting for the Union in a representa­
tion election.

(b) Interrogating employees about their union activities and 
those of other employees.

(c) Attempting to enlist or enlisting the aid of employees in 
polling other employees as to their union activities.

(d) Creating the impression that union activities are under 
surveillance.

(e) Informing employees that they would not be recalled to 
work because of their union activities.

(0 Laying off, refusing to recall, or otherwise discriminating 
against employees with regard to their hire, tenure of employ­

25 See generally, Isis Plumbing 4  Heating Co., 138 NLRB 716 (1962).

26In the event no exceptions are filed as provided by Section 102.46 of the 
Rules and Regulations of the National Labor Relations Board, the findings, con­
clusions, and recommended Order herein shall, as provided in Section 102.48 of 
the Rules and Regulations, be adopted by the Board and become its findings, 
conclusions, and Order, and all objections thereto shall be deemed waived for all 
purposes.



112a

ment, or any term or condition thereof, because of their union 
activities or in order to limit or discourage union activities.

(g) In any other manner interfering with, restraining or 
coercing its employees in the exercise of their Section 7 rights.

2. Take the following affirmative action necessary to effectuate 
the policies of the Act:

(a) Offer to those employees laid off as a result of Respon­
dent's unlawful conduct as found herein, who have not already 
been recalled or rehired to their previous jobs, immediate and full 
reinstatement to their former jobs, or, if those jobs no longer 
exist, to substantially equivalent positions, without prejudice to 
their seniority or other rights and privileges, and make them and 
all other laid off employees whole for any loss of earnings, 
benefits or compensation connected with their employment status 
which they may have suffered as a result of Respondent's 
unlawful action in the manner set forth in the section entitled 
herein "The Remedy."27 28

(b) Remove and expunge from its records and files any nota­
tions dealing with the layoffs of the employees found to have 
been discriminated against herein and notify them in writing that 
this has been done and that evidence of such layoffs will not be 
used as a basis for future personnel actions.

(c) Post at its Chicago, Illinois facilities, copies of the notice 
attached hereto and marked "Appendix B. Copies of this

27The employees unlawfully laid off are listed in Appendix A to this 
Decision.

28In the event that the Board's 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 JUDGM ENT OF THE UNITED STATES



113a

notice shall be provided by the Regional Director for Region 13, 
and be duly signed by Respondent's authorized representative and 
posted immediately upon receipt thereof, and be maintained by 
it for 60 consecutive days thereafter, in conspicuous places, 
including all places where notices to employees are customarily 
posted. Reasonable steps shall be taken by Respondent to insure 
that said notices are not altered, defaced, or covered by any other 
material.

(d) Preserve and, upon request, make available to the Board 
or its agents, for examination and copying, all payroll records and 
all other records necessary or appropriate to analyze the amounts 
due employees under this Order.

(e) Notify the Regional Director for Region 13, in writing, 
within 20 days from the date of this Decision, what steps 
Respondent has taken to comply herewith.

IT IS FURTHER ORDERED that those allegations of the 
complaint not found to be sustained are hereby dismissed.

COURT OF APPEALS ENFORCING AN ORDER OF THE NATIONAL 
LABOR RELATIONS BOARD."