Camaco Lorain Manufacturing Plant

National Labor Relations Board - Board Decisions

Apr 29, 2011

356 N.L.R.B. 1182 (N.L.R.B. 2011)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
356 NLRB No. 143
1182
Camaco Lorain Manufacturing Plant and United Au-
tomobile, Aerospace and Agricultural Imple-
ment Workers of America, UAW, Region 2-B.
Case 8–CA–36785
April 29, 2011
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS BECKER
AND HAYES
On September 28, 2009, Administrative Law Judge
Keltner W. Locke issued the attached supplemental deci-
sion.1 The General Counsel filed exceptions and a sup-
porting brief.2
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the supplemental decision
and the record in light of the exceptions and brief and has
decided to affirm the judge’s rulings, findings,3 and con-
clusions only to the extent consistent with this Supple-
mental Decision and Order.
The judge discredited the testimony of employee An-
dre Cheers. Having affirmed the judge’s credibility find-
ings, we adopt the judge’s findings that the Respondent
did not violate Section 8(a)(1) by coercively interrogat-
ing Cheers, creating the impression that his union activi-
ties were under surveillance, or threatening him that em-
ployees’ union activities were futile. For the reasons
stated below, however, we reverse the judge’s supple-
mental decision and find that the Respondent violated
Section 8(a)(1) by coercively interrogating employees
Alejandro Velazquez and Raphy Vargas, creating the
impression that Velazquez’s and Vargas’ union activities

1 On May 2, 2007, Judge Locke issued a bench decision and certifi-
cation in this case, recommending that the complaint be dismissed. On
December 18, 2008, the two sitting members of the Board issued an
order remanding the case to Judge Locke for further findings, analysis,
and conclusions. 353 NLRB 605 (2008). In their order, the members
instructed the judge, among other things, to provide “a new legal analy-
sis of each issue.” They expressed no opinion as to the merits of the
contested complaint allegations. Id. at 608. Having considered the
matter, as a three-member panel, we reaffirm the earlier decision to
remand the case.
2 There are no exceptions to the judge’s finding that the Respondent
violated Sec. 8(a)(3) and (1) by suspending employee Sam Serrano on
May 25, 2006, because of his union support and activities.
3 The General Counsel has excepted to some of the judge’s credibil-
ity findings. The Board’s established policy is not to overrule an ad-
ministrative law judge’s credibility resolutions unless the clear prepon-
derance 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.
were under surveillance, and discharging Serrano be-
cause he engaged in protected concerted activity.4
I. INTERROGATIONS
In the spring of 2006,5 there was a short-lived effort,
led by Serrano, to organize the Respondent. As part of
that effort, several employees, including Velazquez and
Vargas, attended a union meeting at a local restaurant.
The next morning, Supervisor Lewie Jones asked Ve-
lazquez, “How was the meeting?” Velazquez did not
respond. Jones asked Vargas, “How was the meeting
yesterday?” Vargas responded that he did not know
what meeting Jones was talking about. These encounters
took place on the production floor. Neither Velazquez
nor Vargas had attended any other meeting the previous
day, either at or away from the workplace. Further, there
is no evidence that either was an open union adherent.
In assessing the lawfulness of an interrogation, the
Board applies the totality of circumstances test adopted
in Rossmore House, 269 NLRB 1176, 1178 fn. 20
(1984), affd. sub nom. HERE Local 11 v. NLRB, 760
F.2d 1006 (9th Cir. 1985). This test involves a case-by-
case analysis of various factors, including those set out in
Bourne v. NLRB, 332 F.2d 47, 48 (2d Cir. 1964): (1) the
background, i.e., whether the employer has a history of
hostility toward or discrimination against union activity;
(2) the nature of the information sought, i.e., whether the
interrogator appears to have been seeking information on
which to base taking action against individual employ-
ees; (3) the identity of the interrogator, i.e., his or her
placement in the Respondent’s hierarchy; (4) the place
and method of the interrogation; and (5) the truthfulness
of the interrogated employee’s reply. As to the fifth fac-
tor, employee attempts to conceal union support weigh in
favor of finding an interrogation unlawful. See, e.g.,
Sproule Construction Co., 350 NLRB 774, 774 fn. 2
(2007); Grass Valley Grocery Outlet, 338 NLRB 877,
877 fn. 1 (2003), affd. mem. 121 Fed. Appx. 720 (9th
Cir. 2005). The Board also considers whether the inter-
rogated employees are open and active union supporters.
See, e.g., Gardner Engineering, 313 NLRB 755, 755
(1994), enfd. as modified on other grounds 115 F.3d 636
(9th Cir. 1997). These factors “are not to be mechanical-
ly applied”; they represent “some areas of inquiry” for
consideration in evaluating an interrogation’s legality.
Rossmore House, supra, 269 NLRB at 1178 fn. 20.

4 The General Counsel alleged that the Respondent discharged Ser-
rano because he engaged in union and/or protected concerted activities,
in violation of Sec. 8(a)(3) and (1). As stated above, we conclude that
Serrano’s discharge violated Sec. 8(a)(1). We find it unnecessary to
pass on the 8(a)(3) allegation because such a finding would not materi-
ally affect the remedy.
5 All dates refer to 2006 unless otherwise indicated.
CAMACO LORAIN MFG. PLANT 1183
Applying these factors, the judge found that there was
no history of employer hostility toward or discrimination
against union activity, and that Jones did not appear to be
seeking information on which to base disciplinary action.
The judge found that Jones’ status as a “first-line super-
visor” and the fact that he questioned Velazquez and
Vargas on the production floor also supported dismissal.
The judge acknowledged that the employees’ “reluctance
to disclose whether they attended a union organizing
meeting” weighed in favor of finding the interrogations
coercive, but he found this factor insufficient standing
alone to render Jones’ questioning unlawful. Thus, the
judge concluded that the interrogations were lawful. We
disagree.
Regarding the interrogator’s identity, Jones was a stat-
utory supervisor. He possessed authority to evaluate
employees and to determine who would get wage in-
creases. Importantly, there was no level of supervision
or management between floor supervisors like Jones and
the Respondent’s general manager, Mike Allen. The
Board has found questioning undertaken by supervisors
similarly situated to Jones to be unlawful. Moreover, the
location of the interrogation—the employees’ work area
on the production floor—added to its coercive tendency
in the circumstances of this case. Absent evidence that
Jones had an office or other formal “locus of authority”
at the plant, the production floor was his “locus of au-
thority.” Jones used his authority on the production floor
to probe employees’ union activities with questions
about their attendance at a union meeting outside the
workplace. The Board has found interrogations unlawful
under similar circumstances. See, e.g., Central Valley
Meat Co., 346 NLRB 1078, 1087 (2006) (finding unlaw-
ful an interrogation by a department foreman on the “kill
floor” of a slaughterhouse ).
Finally, Velazquez’s and Vargas’ reactions to Jones’
questions evince the coercive nature of the questioning.
As stated, neither Velazquez nor Vargas was an open
union supporter. See Gardner Engineering, supra, at
755. When questioned, Velazquez remained silent and
Vargas responded untruthfully. The judge acknowledged
that their attempts to continue to conceal their support of
the Union weigh in favor of finding the questioning un-
lawful. See Sproule Construction Co., supra, 350 NLRB
at 774 fn. 2; Grass Valley Grocery Outlet, supra, 338
NLRB at 877 fn. 1. For these reasons, we find that the
Respondent violated Section 8(a)(1) of the Act by coer-
cively interrogating Velazquez and Vargas about their
union activity.
II. IMPRESSION OF SURVEILLANCE
We further find that the Respondent, through Jones’
questioning, violated Section 8(a)(1) by creating the im-
pression that Velazquez’s and Vargas’ union activities
were under surveillance. In determining whether a
statement or question created an unlawful impression of
surveillance, the Board considers “whether, under all the
relevant circumstances, reasonable employees would
assume from the statement in question that their union or
other protected activities had been placed under surveil-
lance.” Frontier Telephone of Rochester, Inc., 344
NLRB 1270, 1276 (2005), enfd. mem. 181 Fed. Appx.
85 (2d Cir. 2006) (citing Flexsteel Industries, 311 NLRB
257 (1993)); Schrementi Bros., 179 NLRB 853 (1969).
The judge found that the Respondent’s employees “open-
ly discussed” the union organizing meetings and that at
least one employee “kidded” Jones about them and invit-
ed him to attend. Finding that “a reasonable employee
likely would conclude that [Jones] learned of the Union
meeting lawfully,” the judge dismissed this allegation,
relying on Frontier Telephone, supra.
In Frontier Telephone, during a union organizing drive
at the respondent’s Rochester, New York call center, an
employee shared with a supervisor an online posting
from an internet website used by employees to discuss
union issues. 344 NLRB at 1275. Several days later, in
response to another employee’s question about what the
supervisor thought of the organizing drive, the supervisor
acknowledged knowing about the website. An employee
testified that he was intimidated by this remark because
he assumed that the website was inaccessible to man-
agement. Id. Nonetheless, the Board found that the su-
pervisor did not create an impression of surveillance,
reasoning that the employees had no basis for believing
the website was private and secure, any subscriber to the
site could show its contents to anyone else, there was no
evidence that subscribers were told to maintain its secre-
cy, and the employees’ organizational activities had be-
come public and were generally known to everyone at
the call center. Id. at 1276.
Frontier Telephone is distinguishable. First, the union
organizing effort here was in its infancy and limited to a
handful of employees. It was undertaken covertly, in
keeping with the organizer’s instruction to Serrano to
“keep it as quiet as possible,” and it was promptly halted
when it became clear that the Respondent, through Jones,
had become aware of employees’ union activities. Se-
cond, and contrary to the judge’s finding that “employ-
ees” openly discussed union meetings, the only record
evidence of any such discussion is Jones’ testimony con-
cerning a conversation between himself and one employ-
ee, Danielle Harris. There is no evidence that other em-
ployees knew about this conversation. Finally, the speci-
ficity of Jones’ question to Vargas, revealing that he
knew that the union meeting had been held “yesterday,”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1184
further demonstrates its coerciveness. Under these cir-
cumstances, reasonable employees in Velazquez’s and
Vargas’ position would assume from Jones’ questions
that their attendance at union meetings had been placed
under surveillance.6
III. DISCHARGE OF SERRANO
In August, General Manager Allen initiated an incen-
tive program in the 191/192 cell area, where Serrano
worked alongside employees Tammy Potts, Ronald
James, and Carl Doman. Initially, the program was con-
fined to this area, but Allen intended to expand it if it
proved successful. Under the program, the four employ-
ees each would receive an additional $1 per hour incen-
tive pay if, as a team, they consistently produced at least
60 parts per hour on both the driver and passenger cell
machines, with no bad parts.7 Allen met with Serrano,
Potts, James, and Doman to introduce and explain the
incentive program. After Allen left, the four employees
discussed and criticized the program among themselves.
They agreed that Serrano could not consistently make 60
parts per hour on the driver cell because the machines are
inconsistent and regularly break down, and because the
driver cell requires inserting and positioning 11 or 12
parts while the passenger cell requires only 5 parts.
Thus, they agreed that they could not make 60 parts per
hour as a team. At no time did Allen indicate that the
employees might be disciplined if they did not meet the
60-parts-per-hour target.
Over the next 2 weeks, Serrano’s production fell short
of 60 parts per hour. Allen approached Serrano early on
August 23 to discuss his production numbers. Jones was
on vacation; leadman Frank Dellipoala was supervising
the 191/192 cell area employees. Present during Allen’s
conversation with Serrano were, among others, Potts and
Dellipoala. According to Dellipoala, whom the judge
credited,8 Allen asked Serrano why his production num-

6 Member Hayes would adopt the judge’s finding that the Respond-
ent did not create an impression of surveillance. In so doing, he relies
on the judge’s finding that union meetings were a topic of discussion in
the workplace, and he agrees with the judge that under Frontier Tele-
phone, supra, this allegation should be dismissed.
Chairman Liebman relevantly dissented in Frontier Telephone, but
for the reasons stated above, she nonetheless agrees that Frontier Tele-
phone is distinguishable from this case, which presents even more
compelling facts for finding an impression of surveillance violation.
7 The driver cell is used to weld driver-seat frames, and the passen-
ger cell to weld passenger-seat frames.
8 The specifics of what was said during this conversation were in
dispute at the hearing. The judge expressly credited Dellipoala’s ac-
count, stating that “[t]o the extent that Dellipoala’s testimony conflicts
with that of Serrano or other witnesses, I resolve such conflicts by
crediting Dellipoala.” Further, the judge observed that, along with
Dellipoala’s testimony, that of Allen, Serrano, and Potts “paint[s] a
fairly consistent picture of what transpired.” In recounting the facts
bers would fluctuate up and down. Serrano responded,
“[I] come[ ] in in the morning, [I] feel[ ] good . . . later
on in the day I get tired, and this is too much work and
I’m not going to do it.” Dellipoala could not recall any
further details of the conversation. According to Allen,
Serrano “admitted” that he “wasn’t going to bust his butt
to make any more” and that it was “not worth the buck.”
Allen testified that it “broke [his] spirit” when Serrano
said making 60 parts per hour was not “worth the buck”
in front of everyone. Serrano testified that he told Allen
that he and “a lot of people . . . do not feel the dollar is
enough” because given “how the machines run,” he
could not consistently produce 60 parts per hour on the
driver cell. Corroborating this testimony, Potts testified
that in response to Allen’s warning that Serrano had
“better start producing more parts,” Serrano told Allen
that he (Serrano) did not agree on the dollar of incentive
pay and that he “wasn’t the only one that didn’t agree on
it.”
Later that day, Dellipoala told Serrano that he thought
Serrano was fired and that Serrano “should have lied” to
Allen that morning. Serrano responded that he told the
truth about his inability to operate the driver cell at 60
parts per hour and would accept the consequences.
Dellipoala testified that he knew Serrano could not run
the machine fast enough to hit 60 parts per hour, and he
conceded that neither could he. That afternoon, Allen
terminated Serrano for having a “bad attitude.” Allen
testified that he did not immediately terminate Serrano
because he wanted to give him a chance to apologize for
his comment. When Serrano failed to do so, Allen ter-
minated him. Allen testified that he would terminate any
employee for slowing down production or refusing to
perform work.
Roughly 2 weeks later, on September 8, employee Je-
sus Lopez intentionally slowed production and said that
he would not make any parts. Allen had Lopez written
up and suspended for the day. On September 14, accord-
ing to an incident report, Lopez was “hampering” pro-
duction by running 10 parts when it was possible for him
to run 40. On September 15, Lopez was terminated for
insubordination when he refused a supervisory order to
stop running bad parts.
Under the Wright Line9 test, the General Counsel must
first prove, by a preponderance of the evidence, that the
employee’s protected conduct was a motivating factor in
the employer’s adverse employment action. See Don-

relevant to Serrano’s discharge, we accordingly rely on Dellipoala’s
testimony and the nonconflicting testimony of Allen, Serrano, and
Potts.
9 Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 622 F.2d 899
(1st Cir. 1981), cert. denied 495 U.S. 989 (1982).
CAMACO LORAIN MFG. PLANT 1185
aldson Bros. Ready Mix, Inc., 341 NLRB 958, 961
(2004). The General Counsel satisfies this burden by
showing that (1) the employee was engaged in protected
activity, (2) the employer had knowledge of the protected
activity, and (3) the employer bore animus toward the
employee’s protected activity. Id. Animus may be in-
ferred from circumstantial evidence, including timing
and disparate treatment. Tubular Corp. of America, 337
NLRB 99 (2001). If the General Counsel meets his bur-
den, the burden of persuasion “shift[s] to the employer to
demonstrate that the same action would have taken place
even in the absence of the protected conduct.” Wright
Line, supra at 1089.
Applying Wright Line, the judge found that Serrano
had engaged in protected activity and that the Respond-
ent knew of that activity; there are no exceptions to these
findings. The judge found, however, that the General
Counsel did not prove, by a preponderance of the evi-
dence, a connection between Serrano’s protected activity
and his discharge. Alternatively, the judge concluded
that even assuming otherwise, the Respondent met its
affirmative defense by showing that it would have dis-
charged Serrano for being unwilling or unable to meet its
production standards. Crediting Dellipoala, the judge
found that Serrano “didn’t always want to work”; credit-
ing Allen, he found that other employees were able to
make 60 parts per hour on the driver cell. Ultimately,
however, he found that it did not matter whether Serra-
no’s failure to do likewise was owing to inability or un-
willingness. Serrano had not met the standard and said
he would not meet it. “An employer,” the judge con-
cluded, “need not keep on the payroll an employee who
both failed to measure up and who predicts his continu-
ing failure to measure up.”
While the proposition stated by the judge may be valid
in other circumstances, the record here demonstrates that
the Respondent did not consistently act in conformity
with that proposition. As stated above, within a few
weeks of Serrano’s discharge, employee Lopez repeated-
ly engaged in conduct more egregious than Serrano’s and
was treated more leniently. First, Lopez intentionally
slowed down production and said that he would not
make any parts. He was not discharged. Rather, Allen
had Lopez written up and suspended for the day. Next,
Lopez hampered production by running 10 parts when it
was possible for him to run 40. Again, Lopez was not
discharged. The Respondent merely prepared an incident
report. Only after Lopez refused to obey a supervisory
order to stop running bad parts was he finally discharged
for insubordination. Thus, Lopez refused to perform his
normal duties and was given two opportunities to correct
his behavior. Serrano was terminated immediately for
refusing to hit an incentive target that he and others
viewed as unrealistic; he was given no second or third
chance.
The Respondent’s disparate treatment of Serrano as
compared to Lopez supports an inference that animus
against Serrano’s protected concerted activity was a mo-
tivating factor in his discharge. It also refutes the Re-
spondent’s defense that it would have immediately dis-
charged Serrano even in the absence of that activity.
Accordingly, we find that by discharging Serrano, the
Respondent violated Section 8(a)(1) of the Act.
IV. AMENDED REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act. Specifically, having
found that the Respondent has violated Section 8(a)(3)
and (1) by suspending Sam Serrano and Section 8(a)(1)
by discharging him, we shall order the Respondent to
offer Sam Serrano full reinstatement to his former job or,
if that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other
rights or privileges previously enjoyed, and to make him
whole for any loss of earnings and other benefits suffered
as a result of his suspension and discharge. Backpay
shall be computed in accordance with F. W. Woolworth
Co., 90 NLRB 289 (1950), with interest at the rate pre-
scribed in New Horizons for the Retarded, 283 NLRB
1173 (1987), compounded daily as prescribed in Ken-
tucky River Medical Center, 356 NLRB 6 (2010).
ORDER
The National Labor Relations Board orders that the
Respondent, Camaco Lorain Manufacturing Plant, Lo-
rain, Ohio, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Coercively interrogating employees about their un-
ion membership, activities, sympathies, and/or support.
(b) Creating the impression that it is engaged in sur-
veillance of its employees’ union or other protected con-
certed activity.
(c) Suspending any of its employees because they en-
gage in union or other protected concerted activity.
(d) Discharging any of its employees because they en-
gage in protected concerted activity.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1186
(a) Within 14 days from the date of this Order, offer
Sam Serrano full reinstatement to his former job or, if
that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other
rights or privileges previously enjoyed.
(b) Make Sam Serrano whole for any loss of earnings
and other benefits suffered as a result of the discrimina-
tion against him, in the manner set forth in the amended
remedy section of this decision.
(c) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(d) Within 14 days from the date of this Order, remove
from its files any reference to Sam Serrano’s unlawful
suspension and discharge and, within 3 days thereafter,
notify Serrano in writing that this has been done and that
the suspension and discharge will not be used against
him in any way.
(e) Within 14 days after service by the Region, post at
its Lorain, Ohio facility copies of the attached notice
marked “Appendix.”10 Copies of the notice, on forms
provided by the Regional Director for Region 8, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places, including
all places where notices to employees are customarily
posted. In addition to physical posting of paper notices,
notices shall be distributed electronically, such as by
email, posting on an intranet or an internet site, and/or
other electronic means, if the Respondent customarily
communicates with its employees by such means.11 Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material. If the Respondent has gone out of
business or closed the facility involved in these proceed-
ings, the Respondent shall duplicate and mail, at its own
expense, a copy of the notice to all current employees
and former employees employed by the Respondent at
any time since April 27, 2006.

10 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
11 For the reasons stated in his dissenting opinion in J. Picini Floor-
ing, 356 NLRB 11 (2010), Member Hayes would not require electronic
distribution of the notice.
(f) Within 21 days after service by the Region, file
with the Regional Director for Region 8 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

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

WE WILL NOT coercively question you about your union
membership, activities, sympathies, and/or support.
WE WILL NOT create the impression that we are en-
gaged in surveillance of your union or other protected
concerted activity.
WE WILL NOT suspend any of you because you engage
in union or other protected concerted activity.
WE WILL NOT discharge you because you engage in
protected concerted activity.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, within 14 days from the date of the Board’s
Order, offer Sam Serrano full reinstatement to his former
job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
any other rights or privileges previously enjoyed.
WE WILL make Sam Serrano whole for any loss of
earnings and other benefits resulting from his suspension
and discharge, less any net interim earnings, plus inter-
est.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful suspension and discharge of Sam Serrano, and WE
WILL, within 3 days thereafter, notify him in writing that

CAMACO LORAIN MFG. PLANT 1187
this has been done and that the suspension and discharge
will not be used against him in any way.

CAMACO LORAIN MANUFACTURING PLANT

Cheryl Sizemore, Esq., for the General Counsel.
Richard R. Mellott, Jr., Esq. (Trigilio & Stephenson, P.L.L.),
for the Respondent.
Tom Zmarzek, for the Charging Party.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
KELTNER W. LOCKE, Administrative Law Judge. Although I
conclude that Respondent violated Section 8(a)(3) and (1) by
suspending an employee for engaging in union and protected
concerted activities, I further conclude that Respondent did not
violate the Act when it discharged the employee later.
Procedural History
This case began on September 18, 2006, when the United
Automobile, Aerospace and Agricultural Implement Workers
of America, UAW, Region 2–B, which I will refer to as the
“Union” or the “Charging Party,” filed the initial charge in this
case. The Union amended this charge on November 30, 2006.
After an investigation, the Regional Director for Region 8 of
the National Labor Relations Board issued a complaint and
notice of hearing dated November 30, 2006. In doing so, the
Regional Director acted for the General Counsel of the Board,
whom I will refer to as the “General Counsel” or the “govern-
ment.”
The General Counsel amended the complaint and notice of
hearing, which I will call the “Complaint,” once before and
once during the hearing. Respondent filed timely answers to
the Complaint and its amendments.
On March 13, 2007, a hearing opened before me in Cleve-
land, Ohio. The parties presented evidence on March 13 and
14, 2007, and counsel argued the case orally on March 15,
2007. On March 16, 2007, I issued a bench decision pursuant
to Section 102.35(a)(10) of the Board’s Rules and Regulations,
followed by a Certification of Bench Decision issued in accord-
ance with Section 102.45 of the Rules and Regulations.
The General Counsel filed exceptions and a supporting brief,
and the Respondent filed an answering brief.
On December 18, 2008, the Board issued an Order Remand-
ing the case to me. See Camaco Lorain Mfg. Plant, 353 NLRB
605 (2008).
As instructed by the Board, I afforded counsel the opportuni-
ty to file briefs, which I have read and considered.
The Order Remanding directs me, in part, to “provide a writ-
ten decision addressing each of the contested complaint allega-
tions.” (Emphasis added.) The Board’s use of the phrase “con-
tested complaint allegations” rather than the narrower phrase
“remanded issues” indicates to me that the Board seeks a full
new decision rather than only a decision addressing the re-
manded issues. For clarity, I will list and summarize the re-
manded issues under a separate heading below, but otherwise,
the decision will resemble an initial decision to comply with the
Board’s instructions.
Remanded Issues
The full meaning and significance of the remanded issues
will become apparent later, when the contested complaint alle-
gations are discussed. However, it may benefit clarity to list
the issues now, so that they may be kept in mind as the decision
proceeds. The Board remanded the following issues:
1. Did Supervisor Lewie Jones violate Section 8(a)(1) of the
Act on April 26, 2006, by asking employees Vargas and Ve-
lazquez about a meeting—specifically, “How was the meet-
ing?”—in apparent reference to a union organizing meeting the
previous day? In applying the criteria set forth in Rossmore
House, 269 NLRB 1176 (1984), I am to consider whether the
employees’ responses—one a denial and the other silence—
should weigh in favor of a finding of unlawfulness pursuant to
Bourne v. NLRB, 332 F.2d 47, 48 (2d Cir. 1964), Sproule Con-
struction Co., 350 NLRB 774, 774 fn. 2 (2007), and Grass
Valley Grocery Outlet, 338 NLRB 877, 877 fn. 1 (2003).
2. Did the evidence establish that employees had joked with
Supervisor Jones about the union meeting?
3. Did Jones’ question to Vargas and Velazquez—“How was
the meeting?”—unlawfully create an impression of surveil-
lance?
4. Were the protected activities of employee Samuel Serrano
a substantial or motivating factor in Respondent’s May 30,
2006 decision to suspend Serrano for 3 days? In considering
this issue, I am to take into account the testimony of Human
Resources Manager Karin Mayfield that the decision to sus-
pend Serrano was a “team decision.”
5. Does other evidence support a finding that animus entered
into Respondent’s decision to impose this discipline? Other
evidence to be considered includes the timing of the suspension
and Serrano’s meeting with Human Resources Manager May-
field on the day Jones initiated the decision to discipline Serra-
no.
6. Did Supervisor Jones or lead man Frank Dellipoala report
Serrano’s alleged threat to Human Resources Manager May-
field? If it was Jones, does that affect the finding that Re-
spondent would have disciplined Serrano even in the absence of
protected activity?
7. Did employee Daniel Clarkston tell Supervisor Jones that
he (Clarkston) was going to punch Human Resources Manager
Mayfield? If so, what distinguishes this conduct from Serra-
no’s conduct which resulted in disciplinary action?
8. The Board concluded that Serrano did not make any
statement during a meeting at which General Manager Mike
Allen introduced an incentive program designed to increase
production. Allen testified that he discharged Serrano for
comments made to him on the production floor. The Board
directed me to make credibility findings regarding this conver-
sation and to determine how these findings affect my conclu-
sion that Serrano’s discharge was lawful.
Admitted Allegations
In its answers to the complaint and its amendments, Re-
spondent admitted a number of allegations. Based on those
admissions, I find as follows:
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1188

The Union filed the charge and amended charges, and Re-
spondent received copies of them, as alleged in paragraphs
1(A) through 1(D) of the complaint, as amended.
Respondent, a Delaware corporation with an office and place
of business in Lorain, Ohio, manufactures automotive seat
frames. At all material times Respondent, which meets the
Board’s standards for the exercise of jurisdiction, has been an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
During all times relevant to the allegations in the complaint,
the following individuals were Respondent’s supervisors within
the meaning of Section 2(11) of the Act and its agents within
the meaning of Section 2(13) of the Act: General Manager
Mike Allen, Human Resources Manager Karin Mayfield, and
Supervisor Lewie Jones.
At all material times, the Union has been a labor organiza-
tion within the meaning of Section 2(5) of the Act.
Contested Allegations
Complaint Paragraph 6
The subparagraphs of complaint paragraph 6 allege that in
April 2006 Respondent, by its supervisor, Lewie Jones, made
unlawful statements to employees, more specifically, that Jones
interrogated employees about their union activities, created the
impression that the Respondent was engaged in surveillance of
their union activities, and stated that such union activities
would be futile.
The record establishes that some time in the first part of
2006, employee Samuel Serrano contacted the Union, and re-
ceived instructions on how to organize Respondent’s produc-
tion workers. Serrano and five other employees attended a
meeting with a union organizer on April 26, 2006. This meet-
ing took place at a Denny’s restaurant in Lorain, Ohio, where
Respondent’s plant is located.
An employee, Andre Vinson Cheers, testified that the day af-
ter the meeting at Denny’s, Supervisor Jones asked him how
the meeting went. Also, according to Cheers, Jones requested
that Cheers work late and then told him, “You’re smarter than
Sam [Serrano]. You’ve been around here longer than him.”
According to Cheers, Jones added that there was not going to
be a union in the plant that employees tried it before, “and peo-
ple got fired.”
However, I do not credit Cheers’ testimony, which Jones de-
nied. Respondent had discharged him and resentment over that
termination would incline him, if anything, to bend his testimo-
ny in a way that hurt Respondent. Jones also had been dis-
charged, but testified in a way that did not offer him any satis-
faction of revenge.
Another employee Alejandro Velazquez testified that after
he returned from the union organizing meeting at Denny’s res-
taurant, Supervisor Jones came up to where he was working
and asked “How was the meeting?” Velazquez did not answer
but continued to work. Jones never asked him again about any
type of union meeting,
Jones denied making the statement in question. Therefore, I
must determine which testimony should be credited. At the
time of the hearing, Velazquez remained employed by Re-
spondent. Therefore, it was not in his interest to give testimony
which might result in a finding adverse to Respondent. That
factor militates in favor of finding Velazquez’ testimony to be
credible.
Respondent, however, had discharged Jones before the date
of the hearing. Although Jones did not manifest any hostility
towards his former employer, it would be reasonable to con-
clude that he would not be inclined to slant his testimony in
favor of a company which had discharged him. Thus, any bias-
ing effect of employment status would be about equal for both
Velazquez and Jones. Therefore, it provides no basis for de-
termining which testimony more likely is reliable.
Similarly, my observations of the demeanor of both witness-
es do not help decide which testimony to credit. Both witness-
es appeared to be telling the truth.
Jones particularly impressed me because of his willingness
to admit when he did not know the answer to a question. In
other respects, he seemed candid almost to the point of blunt-
ness. In view of this candor, I would be reluctant to conclude
that Jones untruthfully denied asking about the meeting because
personal pride prompted him to conceal a possible unfair labor
practice.
In sum, both witnesses seemed to be reliable and any credi-
bility resolution necessarily would entail too much guesswork
for comfort. However, more than one witness testified that
Jones asked about the union meeting, which makes it more
likely that Jones made the statement in question.
Thus, another employee, Raphy Vargas, testified that Jones
asked him a similar question. According to Vargas, the day
after the meeting, Jones approached him and asked, “How was
the meeting yesterday?” Vargas replied that he did not know
what meeting Jones was talking about, and Jones did not say
anything else.
Vargas also remained employed by Respondent and the rec-
ord provides no reason to believe that he harbored a grudge
against his employer or its management. There is no reason to
doubt the truthfulness of his testimony.
Therefore, based on the testimony of Velazquez and Vargas,
I conclude that Jones did ask employees how they enjoyed the
meeting. Now, I must determine whether Jones’ questions
interfered with, restrained, or coerced employees in the exercise
of their Section 7 rights, either by constituting unlawful inter-
rogation or by creating the impression among employees that
Respondent had placed their union activities under surveillance.
First, I will consider whether Jones’ questions constituted un-
lawful interrogation.
In Rossmore House, 269 NLRB 1176 (1984), affd. sub nom.
Hotel Employees Union Local 11 v. NLRB, 760 F.2d 1006 (9th
Cir. 1985), the Board applied the standards articulated by the
court in Bourne Co. v. NLRB, 332 F.2d 47 (2d Cir. 1964). The
Bourne test factors are as follows:

1. The background, i.e. is there a history of employer hostility
and discrimination?
2. The nature of the information sought, e.g. did the interroga-
tor appear to be seeking information on which to base taking
action against individual employees?
CAMACO LORAIN MFG. PLANT 1189
3. The identity of the questioner, i.e. how high was he in the
Company hierarchy?
4. Place and method of interrogation, e.g. was employee
called from work to the boss’s office? Was there an atmos-
phere of “unnatural formality”?
5. Truthfulness of the reply.

See also Mediplex of Danbury, 314 NLRB 470, 472 (1994).
Donaldson Bros. Ready Mix, Inc., 341 NLRB 958 (2004).
With respect to the first Rossmore House factor, the record
does not establish a history of employer hostility or discrimina-
tion. Although the record includes references to a previous
settlement, the government did not offer any settlement agree-
ment into evidence, so it is not possible to determine whether
such an agreement, if it exists, includes a nonadmissions clause.
In Painters District Council 9 (We’re Associates), 329
NLRB 140, 143 (1999), the judge noted that informal settle-
ment agreements and formal settlement stipulations containing
nonadmission clauses cannot be used to establish a proclivity to
violate the Act. Thus, the only type of settlement agreement
that can be used to establish proclivity to violate the Act is a
formal settlement, without a nonadmission clause. See Team-
sters Local 122, 334 NLRB 1190, 1192 (2001).
There is no indication that Respondent ever entered into a
formal settlement without a nonadmission clause. Accordingly,
I conclude that the record does not establish any history of em-
ployer hostility or discrimination.
As to the second Rossmore House factor, the record does not
establish that Jones was seeking information on which to base
disciplinary action.
Jones was a first–line supervisor, not a member of higher
management. Additionally, he asked the questions in the
workplace, in what might be called the “employee’s domain”
rather than in a locus of authority. Thus, the third and fourth
Rossmore House factors also militate against a finding of coer-
cive interrogation.
The Board’s Order Remanding directed me, in applying the
criteria set forth in Rossmore House, above, to consider wheth-
er the employees’ responses—one a denial and the other si-
lence—should weigh in favor of a finding of unlawfulness pur-
suant to Bourne v. NLRB, 332 F.2d 47, 48 (2d Cir. 1964), and,
particularly, the Board’s recent decisions in Sproule Construc-
tion Co., 350 NLRB 774, 774 fn. 2 (2007), and Grass Valley
Grocery Outlet, 338 NLRB 877, 877 fn. 1 (2003).
In Sproule Construction, the Board followed the framework
set out in Rossmore House, above, to determine whether, under
all the circumstances, the interrogation reasonably tended to
restrain, coerce, or interfere with rights guaranteed by the Act.
The Board found that the questioning “was coercive given that
(a) the questioning occurred while the applicants were seeking
employment; (b) the applicants sought to conceal their support
for the Union; (c) the Respondent offered no legitimate expla-
nation for the questioning; and (d) the questioning occurred in
the context of serious unfair labor practices.” 350 NLRB 774
fn. 2 (2007) (Emphasis added).
Thus, the Board regarded the employees’ reluctance to reveal
their union support as one indication that the questioning was
coercive. Presumably, if the interrogation did not have a coer-
cive effect, the employee would feel more comfortable discuss-
ing his union activity and would therefore be more likely to do
so. Following Sproule Construction, I conclude that the em-
ployees’ reluctance to disclose whether they attended a union
organizing meeting weighs in favor of finding that the interro-
gation was coercive.
The Board also directed that I examine whether the evidence
establishes that employees had joked with Supervisor Jones
about the union meeting. In its Order Remanding, the Board
stated, in part:

The judge found that Jones credibly testified that some em-
ployees had joked about the Union. In fact, however, Jones
named only one such employee: employee Danielle Harris.
Jones [Harris] did not testify, and there appears to be no other
record evidence suggesting that Vargas or Velasquez (or any-
one other than Harris) had ever joked with Jones about union
meetings. Moreover, Vargas, whom the judge appears to
have credited, expressly testified that Jones did not question
him in a joking manner. The judge does not address this con-
trary testimony. We therefore remand the interrogation and
impression of surveillance allegations to the judge for further
analysis.

Employee Raphy Vargas testified that sometime in April
2006, Sam Serrano invited him to attend a union organizing
meeting at Denny’s Restaurant in Lorain, Ohio. Vargas went to
this meeting and, according to his testimony, stayed for 3 to 5
minutes.
Vargas further testified that the next day, Supervisor Jones
asked, “How was the meeting yesterday.” According to Var-
gas, he replied that he did not know what Jones was talking
about, and Jones did not say anything else to him. Although
Vargas testified that “the rest of the employees” were present
when Jones asked the question, Vargas did not identify any
other employee by name and also did not indicate the number
of employees present.
When the General Counsel asked Vargas if Jones ever ques-
tioned him again about the Union, Vargas answered “No.”
The Board’s Order Remanding, quoted above, stated that
Vargas “expressly testified that Jones did not question him in a
joking manner.” The Order Remanding referred to Vargas’
testimony as “contrary testimony.” It may be helpful to quote
the relevant portion of Vargas’ testimony verbatim. On direct
examination, Vargas testified as follows:

Q. What did Mr. Jones say to you?
A. How was the meeting yesterday?
Q. Did he say anything else?
A. No.

Vargas returned to this subject briefly during his cross–
examination:

Q. And Mr. Jones said to you how was the meeting; cor-
rect?
A. How was the meeting, yeah?
Q. Did he say so in kind of a joking fashion?
A. Well, he just asked me, you know, normal, how was the
meeting yesterday?
Q. Did he threaten your job at all?
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1190
A. No.

Jones testified as follows:

Q. Did you ever ask Raphy Vargas how was the meeting
back in April of ‘06?
A. I’m going to say, to the best of my recollection, I don’t
think I’ve ever talk[ed] to Raphy about a union ––
Q. It doesn’t stick ––
A. –– let alone asking how the meeting went.
Q. It doesn’t stick in your mind at all that you said that?
A. No.

Thus, Jones did not squarely deny having made the state-
ment, but only testified that he did not recall it. Accordingly, I
find that Jones did make the statement which Vargas attributed
to him. Additionally, I find that Jones asked the question in his
normal tone of voice.
The Bench Decision and Certification noted that the employ-
ees, rather than Jones, initiated the joking. I based this finding
on Jones’ testimony. For the reasons stated in the Bench Deci-
sion and Certification, including my observations of Jones
while he testified, I concluded that he was a reliable witness
and that his testimony should be credited. Because of my reli-
ance on Jones’ testimony, which I credit on this point, I contin-
ue to find that employees joked about the union meetings at
Denny’s Restaurant and that employees, not Jones, initiated the
joking.
However, the Board directed me to determine whether the
evidence established that employees had joked about the meet-
ing with Jones. Based on Jones’ uncontradicted testimony,
which I credit, I find that employee Danielle Harris told Jones
about the union organizing meetings and joked with him about
them. Specifically, Jones testified that Harris “would rub my
belly and say I’d––I’ll meet you at Denny’s in a laughing way.”
Jones’ testimony suggests that at some point, someone invit-
ed him to attend one of the organizing meetings. This unnamed
individual may have been Harris.
Jones’ testimony that employees reacted with amusement to
Serrano’s union organizing efforts appears plausible in the
rather unusual circumstances of this case. Jones testified that
he did not believe Serrano had the “clout” to persuade employ-
ees to unionize. In most cases, I would doubt the reliability of
such a comment, but most cases do not involve a union organ-
izing effort by an employee who engaged in bizarre workplace
behavior.
For example, uncontroverted evidence establishes that, to
make a point, Serrano sometimes would lie on the floor and
move in such a way that one witness referred to it as the “ga-
tor.” In view of such behavior, it isn’t difficult to believe that
employees made jokes at Serrano’s expense. Employees who
had witnessed Serrano’s strange antics in the workplace very
plausibly might regard his union organizing efforts with
amusement.
In the Certification of Bench Decision, I noted that the Board
long has held that in determining the coerciveness of an inter-
rogation, the Board applies an objective standard which consid-
ers the speaker’s intent irrelevant. Even if a supervisor claimed
that he only had been joking, that excuse fails to cleanse state-
ments of their coercive effect, because employees can still de-
tect the threat behind the smile and be affected by it.
After acknowledging that well-established principle, I rea-
soned that the unusual facts of the present case warranted a
distinction. In attempting to make this distinction, I did not
focus on the supervisor’s intent in making the statement be-
cause that intent still remained irrelevant. Rather, I considered
whether the employees who heard the question would regard it
as a genuine attempt at humor without other intent, or would
view it as coercive interrogation in disguise. Concluding that
the employees reasonably would regard the question as a joke, I
reasoned that the interrogation was noncoercive.
That analysis suffers from at least two flaws, one a matter of
law and the other of fact. Legally, my reasoning cut with too
fine a knife. It paid lip service to the principle that in determin-
ing the coerciveness of an interrogation, the Board applies a
strictly objective standard focusing on how the allegedly coer-
cive statement reasonably would affect employees’ willingness
to engage in protected activities. After acknowledging that
principle, however, I transgressed it by considering what effect
Supervisor Jones’ question actually had on the two employees.
My reasoning assumed that I could take into account that the
employees believed the supervisor to be joking and still subject
his statement to an objective analysis. In effect, I was “objec-
tively” determining whether Jones’ question reasonably would
have a coercive effect on employees who believed that the su-
pervisor was asking it in jest.
To follow the Board’s principle that it looks only to the ef-
fects a statement reasonably would have on employees, the
judge must assume hypothetical employees who are average
and, indeed, faceless. The moment I added a specific character-
istic to the hypothetical employees—namely, that they knew
the supervisor was joking—the analysis started becoming sub-
jective because it had begun to focus on specific individuals,
the employees who actually heard the supervisor’s words. It is
true that I went only a little bit down this path, taking into ac-
count only that the employees believed the supervisor to be
joking, but going a “little bit” down this path was going too far.
I erred.
Additionally, the credible evidence was insufficient to sup-
port my conclusion that the two employees believed Jones to be
joking. My error thus was factual as well as legal.
As discussed further below, employees indeed joked about
the Union organizing effort and at least one employee, Harris,
joked to Supervisor Jones about it. However, those facts do not
establish that Jones gave the appearance of joking or that em-
ployees reasonably would perceive him to be joking. Whatever
merriment Jones may have felt inside, the evidence is insuffi-
cient to establish that employees perceived it.
Now, I will perform a Rossmore House analysis untainted by
these errors. The first four Rossmore House factors still weigh
against finding an unlawful interrogation. The record does not
establish a history of employer hostility or discrimination. It
also does not establish that Jones was seeking the information,
or that he appeared to be seeking the information, as a basis for
taking action against employees. Jones was not high in the
management structure and the interrogation did not take place
in a locus of authority.
CAMACO LORAIN MFG. PLANT 1191
Thus, only the fifth Rossmore House factor weighs in favor
of finding that the question was coercive and therefore unlaw-
ful. Accordingly, I adhere to my conclusion that Jones’ ques-
tion did not constitute an unlawful interrogation.
The Board also directed that I determine whether Jones’
question to Vargas and Velazquez—“How was the meet-
ing?”—unlawfully created an impression of surveillance.
Causing employees to believe their union activities are being
watched obviously would interfere with, restrain and coerce
them in the exercise of Section 7 rights.
In determining whether an employer has unlawfully created
the impression of surveillance of employees’ union activities,
the Board asks whether, under all the relevant circumstances,
reasonable employees would assume from the statement in
question that their union or other protected activities had been
placed under surveillance. Waste Management of Arizona, 345
NLRB 1339 (2005), citing Flexsteel Industries, 311 NLRB 257
(1993); Schrementi Bros., Inc., 179 NLRB 853 (1969).
As the Board explained in Frontier Telephone of Rochester,
344 NLRB 258, 264 (2005), its essential focus has always been
on the reasonableness of the employees’ assumption that the
employer was monitoring their union or protected activates.
The Board applies an objective standard in assessing the rea-
sonableness of a particular statement. Stated another way, the
Board examines the facts and determines what message a rea-
sonable employee would understand the statement to convey.
In Frontier Telephone of Rochester, above, the employees
had used a website to help their organizing campaign. A su-
pervisor told an employee that he was aware of a message that
another employee had posted on a page at this website. After
examining the statement and its context, the Board concluded
that a reasonable employee hearing the supervisor’s remark
would assume that the supervisor had learned about the em-
ployee’s message lawfully rather than as a result of having
placed the employees’ union activities under surveillance.
Therefore, it dismissed this allegation.
The present facts appear to fall within the Frontier Tele-
phone of Rochester precedent. At work, employees openly
discussed the Union organizing meetings and at least one em-
ployee kidded Supervisor Jones about them. An employee
even invited Jones to attend. In these circumstances, a reason-
able employee likely would conclude that the supervisor
learned of the Union meeting lawfully, rather than as the result
of surveillance.
It may be noted that the fact that employees discussed the
Union openly in the workplace is not itself determinative. Oth-
er circumstances may still lead a reasonable employee to con-
clude that management had placed workers’ union activities
under surveillance. Thus, in Rogers Electric, Inc., 346 NLRB
508, 509 (2006), the Board noted that it has found that an em-
ployer creates an impression of surveillance when it monitors
employees’ concerted protected activity in a manner that is “out
of the ordinary,” even if the activity is conducted openly. See,
e.g., Loudon Steel, Inc., 340 NLRB 307, 313 (2003).
The present record does not establish either that Respondent
was acting in an “out of the ordinary” manner to observe em-
ployees or that the employees had any reason to form such a
belief. Accordingly, I conclude that Supervisor Jones’ question
did not create an unlawful impression of surveillance. There-
fore, I recommend that the Board dismiss this allegation.
The complaint also alleges that in about April 2006, Re-
spondent, by Supervisor Lewie Jones, made statements of fu-
tility regarding employees’ union activities. This allegation
rests on the testimony of employee Andre Cheers, who attribut-
ed to Jones a statement that there was not going to be a union in
the plant, that employees tried it before “and people got fired.”
Jones denied making such a statement.
For the reason discussed above, I have not credited Cheers’
testimony. Accordingly, I conclude that Jones did not make the
statement in question. Therefore, I recommend that the Board
dismiss this allegation.
8(a)(3) Allegations
Suspension of Serrano
Paragraph 7(B) of the complaint, as amended, alleges that on
or about May 30, 2006, the Respondent suspended employee
Sam Serrano. Paragraph 7(D) alleges, in pertinent part, that
Respondent took this action to discourage employees from
engaging in protected, concerted activity and/or because Serra-
no formed, joined, and/or assisted the Union and engaged in
protected concerted activity. Respondent does not dispute that
it suspended Serrano, but denies that it did so for the unlawful
reasons alleged.
Serrano began work for Respondent as a production employ-
ee in 2004. At some point, Serrano began complaining to Re-
spondent’s human resources director, Karin Mayfield, about
how his supervisor, Lewie Jones, treated employees. Serrano
made one such complaint to Mayfield the day before his May
30, 2006 suspension. Serrano’s complaint to Mayfield will be
discussed later in this decision.
The next day, a lead man, Frank Dellipoala, reported to Su-
pervisor Lewie Jones that he had seen Serrano throwing his
hands up and down in the air while standing by a machine.
According to Dellipoala, when he asked Serrano what was
wrong, Serrano said that he wasn’t going to complain any more
to the human resources director. Dellipoala quoted Serrano as
saying words to the effect that he was “about to go off. This
may be his domain in here, but it’s mine out there. Lewie is
going to pay.”
Delliapoala gave testimony to this same effect at the hearing.
Although Serrano consistently has denied making this state-
ment, my observations of the witnesses lead me to credit
Dellipoala’s testimony. Therefore, I conclude that Serrano did
say the words Delliapoala attributed to him.
After Supervisor Jones received this report from Dellipoala,
he contacted Human Resources Manager Mayfield. According
to Mayfield’s testimony, which I credit, Jones wanted to dis-
charge Serrano.
Later that day, Mayfield called Dellipoala into her office.
Also present were Supervisor Jones and one of Respondent’s
managers, Athanasios (Tom) Koutsorellis. Dellipoala de-
scribed what Serrano had said and then left the meeting. Based
on Dellipoala’s testimony, which I credit, I find that Mayfield
did not ask him about Serrano’s union activity.
Mayfield then called Serrano into her office. Jones and
Koutsorellis also were present. Mayfield asked Serrano about
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1192
the statement Dellipoala had attributed to him and, according to
Serrano, he denied making it. Nonetheless, Mayfield told Ser-
rano he was suspended for the remainder of that day and for the
3 following days.
The complaint alleges that this suspension of Serrano violat-
ed Section 8(a)(3) and (1) of the Act. In considering this alle-
gation, I will follow the framework established by the Board in
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982). Under Wright
Line, the General Counsel must establish four elements by a
preponderance of the evidence. First, the government must
show the existence of activity protected by the Act. Second,
the government must prove that Respondent was aware that the
employees had engaged in such activity. Third, the General
Counsel must show that the alleged discriminatees suffered an
adverse employment action. Fourth, the government must es-
tablish a link, or nexus, between the employees’ protected ac-
tivity and the adverse employment action. More specifically,
the General Counsel must show that the protected activities
were a substantial or motivating factor in the decision to take
the adverse employment action. See, e.g., North Hills Office
Services, 346 NLRB 1099, 1101 (2006).
In effect, proving these four elements creates a presumption
that the adverse employment action violated the Act. To rebut
such a presumption, the respondent must persuade by a prepon-
derance of the evidence that the same action would have taken
place even in the absence of the protected conduct. Wright
Line, 251 NLRB 1083, at 1089; Hyatt Regency Memphis, 296
NLRB 259, 260 (1989), enfd. in relevant part 939 F.2d 361 (6th
Cir. 1991). See also Manno Electric, Inc., 321 NLRB 278, 280
fn. 12 (1996).
In its Order Remanding, the Board instructed me to deter-
mine whether the protected activities of employee Serrano were
a substantial or motivating factor in Respondent’s May 30,
2006 decision to suspend Serrano for 3 days. In considering
this issue, I am to take into account the testimony of Human
Resources Manager Karin Mayfield that the decision to sus-
pend Serrano was a “team decision.”
Additionally, I must determine whether other evidence sup-
ports a finding that animus entered into Respondent’s decision
to impose this discipline. Other evidence to be considered in-
cludes the timing of the suspension and Serrano’s meeting with
Human Resources Manager Mayfield on the day Jones initiated
the decision to discipline Serrano.
First, I will analyze the significance of Mayfield’s testimony
that it was a “team decision” to suspend Serrano. She testified
“Well, we discussed it and ultimately we all supported it.”
Mayfield did not identify specifically the composition of the
“human resources team” which made this decision. Although it
is possible that others participated in the decision besides May-
field, Koutsourelis, and Jones—the three persons present when
Serrano was interviewed—the record does not establish such
participation. Therefore, I will assume that only Mayfield,
Koutsourelis, and Jones took any part in that decision.
In its Order Remanding, the Board stated that it “appears
from the record that Jones (who allegedly interrogated Vargas
and Velazquez) may have been instrumental in that decision.”
The Boar’s use of the word “appears” rather than some more
conclusive phrase (such as “the record establishes”) leads me to
believe that the Board did not make a definite, binding finding
on this issue but rather desired more analysis based on the evi-
dence. In my view, the record establishes, at most, that Super-
visor Jones attended the meeting at which the “human resources
team” made the decision to discipline Serrano
Respondent’s brief on remand states that there “is no evi-
dence that Jones was a member of the ‘team’ or had any re-
sponsibilities in Human Resources at Camaco.” However,
determining whether or not this supervisor was a member of the
“human resources team” in some official sense, does not get to
the heart of the Board’s concern. The pivotal question does not
turn on Jones’ status as a team “member” but on how much
Jones participated in the decision-making process which result-
ed in Serrano’s suspension. Thus, even if Jones had some offi-
cial-looking certificate listing him as a member of the human
resources team, that would not matter if he took no part in the
decision making. Conversely, even if Jones never attended a
human resources team meeting before and never attended an-
other one later, if he was present at this particular meeting and
contributed to the discussion regarding Serrano, I must consider
how and to what extent he affected the outcome.
Although the record does not reveal with numerical precision
the extent to which Jones participated in the decision to sus-
pend Serrano, it certainly suggests that Jones’ role in that deci-
sion was greater than de minimis. Based on Mayfield’s testi-
mony, which I credit, when Jones first came to Mayfield con-
cerning what Serrano had said, Jones wanted to discharge May-
field. So, even if Jones expressed no opinion at all when the
“human resources team” deliberated, Mayfield already knew
that Jones sought the imposition of discipline.
Moreover, Mayfield’s testimony that “we discussed it and ul-
timately we all supported it” indicates that Jones did participate
to some extent in the decision-making process and ultimately
agreed to suspend Serrano. Considering that Jones initially
wanted Serrano fired, it would seem quite unlikely that he ever
tried to influence the “team” to impose no discipline at all.
The record does not establish that either Mayfield or
Koutsourelis knew about Serrano’s attempts to organize a un-
ion at the time the “team” decided to suspend him. However,
because Jones was a supervisor and agent of Respondent within
the meaning of Sections 2(11) and (13) of the Act, respectively,
his knowledge of Serrano’s protected activities may be imputed
to Respondent as a matter of law. Moreover, as discussed be-
low, Serrano engaged in other protected activity and Mayfield
was aware of it.
In its Order Remanding, the Board directed that I consider
the timing of the suspension and Serrano’s meeting with Hu-
man Resources Manager Mayfield on the day Jones initiated
the decision to discipline Serrano. Citing Real Foods Co., 350
NLRB 309, 311 (2007), and Davey Roofing, Inc., 341 NLRB
222, 223 (2004), the Board observed that the suspicious timing
of an adverse employment action in relation to protected activi-
ty can support an inference of unlawful motivation. The Board
quoted parts of Jones’ testimony indicating that the supervisor’s
attitude towards Serrano changed for the worse after Serrano
began his union activities.
CAMACO LORAIN MFG. PLANT 1193
Specifically, Jones testified that Serrano had started out as
“probably one of my most favorite employees” but that in early
spring 2006 “the tables turned.” In its Order Remanding, the
Board observed that Serrano had begun his union organizing
activity shortly before this time period.
When Supervisor Jones described the change in Serrano’s at-
titude and performance, he did not mention Serrano’s union
activities. Instead he testified that “out of the blue” Serrano
changed from a “focused” employee (presumably meaning
focused on his work) to an unfocused employee. Specifically,
Jones testified as follows:

He worked hard, he was focused. And, out of the blue, just
like everything, the tables turned, you know. He wasn’t fo-
cused.

Thus, Jones’ “tables turned” remark, in context, does not re-
fer to Serrano’s protected activities but rather to his dedication
to, or concentration upon, his work. Indeed, in both the sen-
tence before the “tables turned” phrase and the sentence after
that phrase, Jones used the word “focused.” Before the change,
Serrano was focused and afterwards he was not.
No evidence extrinsic to Jones’ testimony sheds any light on
what Jones meant by the “tables turned” remark. Accordingly,
I must rely on context to ascertain the most likely meaning.
The context, however, does not suggest that Jones had in mind
Serrano’s Union activities. To the contrary, the context, as
quoted above, indicates that Jones’ words described a decline in
the attention Serrano paid to his job duties.
Under what circumstances would it be fair and logical to
separate the “tables turned” phrase from its setting in Jones’
testimony and consider it, in isolation, to suggest antiunion
motivation? Doing so requires an assumption that Jones did
not mean what he said.
Sometimes, the Board does conclude that a supervisor said
one thing while meaning another. These instances typically
concern a supervisor’s comments to employees about a union.
A supervisor may use facially innocent words to conceal an
unlawful threat, but the words cannot sound entirely innocent
because if they did, the employees would not discern the hidden
threat at all. The Board, applying an objective standard, can
determine what a typical employee reasonably would under-
stand the message to be.
However, Supervisor Jones had no reason to sneak a covert
threat into his testimony. From the witness stand, he was not
talking to employees about unionization. Even assuming for
the sake of analysis that Jones desired to dissuade employees
from organizing—a doubtful assumption, considering that Re-
spondent had discharged Jones well before the hearing—the
courtroom would not provide him an opportunity.
In other words, no basis exists for assuming that Jones would
intend the words of his testimony to convey something other
than their obvious meaning. Specifically, Jones would have no
other reason to describe Serrano as “focused” before the “tables
turned” and not “focused” afterwards except to explain that
Serrano had stopped paying attention to his duties.
Could Jones have been using the phrase “tables turned” as a
euphemism for “began a union organizing drive?” In the ab-
sence of credible extrinsic evidence indicating that Jones really
meant the latter, I would not construe his testimony to mean
something so different from the obvious import of the words.
A judge isn’t free to make words mean whatever he chooses
them to mean at a particular moment.
Quite possibly, Serrano’s interest in his job duties may have
fallen at the same time his interest in organizing a union in-
creased. Indeed, some kind of dissatisfaction with working
conditions easily could prompt both changes simultaneously.
However, even if Serrano stopped attending to his job perfor-
mance at the same time he began focusing on unionization, the
concurrence of these events in time provides no logical basis to
interpret Jones’ testimony in a strained way.
As Serrano’s supervisor, Jones would evaluate the quality of
Serrano’s work on a continuing basis. Jones had a legitimate
reason to monitor how carefully Serrano was paying attention
to his job duties. Considering that the supervisor bore respon-
sibility for the quality of the work performed under his supervi-
sion, Jones naturally would be concerned when Serrano stopped
focusing on his work and might well have taken this change
personally.
As the Board noted, Jones wasn’t always an easy supervisor.
That, too, is consistent with the conclusion that Jones set high
standards for his employees and regarded as apostasy a work-
er’s change from focused to indifferent. If so, there would be
nothing surprising about Jones’ use of the “tables turned” ex-
pression to describe the change in Serrano.
As the Board noted, under some circumstances, unlawful
motivation may be inferred from suspicious timing. However,
when a judge draws such an inference, he risks the logical error
described by the Latin phrase post hoc ergo propter hoc. The
sequence of events might reflect a connection, but on the other
hand, it might not. If the record includes other evidence of
animus, it increases the likelihood that the timing of events
reflects unlawful motivation. On the other hand, if the record
does not contain evidence of animus apart from timing, draw-
ing an inference from timing may be risky, unreliable, and in-
appropriate.
Jones’ “tables turned” remark cannot justify drawing an in-
ference from timing because it had nothing to do with protected
activity. In other respects, the record does not warrant such an
inference.
On the other hand, two other things Jones said on the witness
stand concern me. Jones testified that Serrano had turned on
him “like a pit bull.” This description suggests misconduct
more active than merely paying insufficient attention to work
duties. Jones also testified that “rather than focus on his work,
[Serrano] was trying to create problems, so to speak, for me on
a daily basis.” That phrase “trying to create problems” possibly
might refer to Serrano’s union organizing efforts or other pro-
tected activities.
Jones explained that Serrano “used performance as a tool to
get attention.” Although the exact meaning of this statement
isn’t clear, it doesn’t manifestly pertain to any protected activi-
ty.
However, Jones also said that Serrano “wasn’t happy with
the way the plant was working and, you know, he would write
everything down in big letters on the board for everybody to
see and, you know, just––just trying to be extremely difficult.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1194
Under certain circumstances, the statute might protect this ac-
tivity, if the words Serrano wrote on the board “for everybody
to see” pertained to employees' wages, hours, or working con-
ditions.
Serrano’s actions obviously irritated Jones. However, “un-
lawful motivation” entails more than being annoyed at some-
one. It involves not only a desire to take an adverse employ-
ment action against someone because of protected activity but
also a willingness to break the law to accomplish that end. The
fact that Jones believed Serrano was “trying to create prob-
lems” does not compel the conclusion that Jones would be will-
ing to violate federal law if necessary to achieve that objective.
Although Jones’ testimony that Serrano was “trying to create
problems” and was “trying to be extremely difficult” raises
concerns, it does not, by itself, justify inferring unlawful moti-
vation from the timing of events. Serrano began his union ac-
tivity in late February or early March 2006, and the record sug-
gests that Jones became aware of it some time in April, if not
earlier. However, Respondent did not suspend Serrano until
May.
In some instances, even a delay of this length will not render
it inappropriate to infer unlawful motivation from the timing. If
a respondent has manifested antiunion animus in other ways, it
may be reasonable to conclude that disciplinary action coming
that long after protected activity (or, more precisely, that long
after the employer became aware of the protected activity) was
an example of such animus in action. The present record, how-
ever, does not provide other substantial evidence of animus.
As the time span increases between the date an employer be-
came aware of protected activities and the date of disciplinary
action, so does the possibility that the two events merely are
coincidental. Although coincidence in time between union
activity and discipline is one factor the Board may consider,
mere coincidence is not sufficient evidence of animus. Neptco,
Inc., 346 NLRB 18, 20 (2005), citing Chicago Tribune Co. v.
NLRB, 962 F.2d 712, 717–718 (7th Cir. 1992). Based on the
present record, I conclude that inferring animus from the timing
of the particular events discussed above would not be appropri-
ate.
The Order Remanding also directed me to consider Serrano’s
meeting with Human Resources Manager Mayfield on the day
he was suspended. The Board stated, in part, that the “judge’s
decision. . .does not mention undisputed evidence that Serrano
met with Mayfield about Jones’ treatment of employees earlier
on the very day that Jones initiated the discipline of Serrano.
The General Counsel contends that the record supports an in-
ference that Serrano’s protected complaints to Mayfield played
a role in Jones’ decision to recommend discipline against Ser-
rano.”
This meeting took place the day before Mayfield informed
Serrano that he was being suspended. An unpleasant encounter
with Supervisor Jones prompted Serrano to go to the human
resources manager’s office. Serrano asked Mayfield for “cor-
porate information,” presumably meaning the name and address
of a corporate official to whom a complaint could be addressed.
He explained to Mayfield that he wanted this information “so
that ways I could get a petition together and we will get Lewie
Jones out of here.”
Serrano testified that Mayfield said “you know what, that is
just too many complaints on Lewie . . . we’ve got to do some-
thing about this right now.” According to Serrano, Mayfield
told him to go back to work and that she would talk with Gen-
eral Manager Mike Allen. Serrano further testified that later in
the day, Mayfield came to him and reported that “everything
was handled,” that she had talked with General Manager Allen,
who was very upset with Jones, and that Allen was taking care
of it.
Without doubt, Serrano engaged in protected activity when
he asked Mayfield for information he needed to send an em-
ployee petition to corporate management. The word “petition”
itself suggests a document signed by more than one person.
Serrano’s use of the word “we” when he said “we will get
Lewie Jones out of here” also implied that Serrano was acting
for employees other than himself or at least was seeking to
initiate group action. In either case, Serrano’s effort enjoyed
the Act’s protection. Kvaerner Philadelphia Shipyard, 347
NLRB 390, 392 (2006), citing NLRB v. City Disposal Systems,
465 U.S. 822 (1984). It is well-settled Board law that the “ac-
tivity of a single employee in enlisting the support of his fellow
employees for their mutual aid and protection is as much ‘con-
certed activity’ as is ordinary group activity.” Cibao Meat
Products, 338 NLRB 934 (2003).
Moreover, even apart from Serrano’s use of the word “we,”
Human Resources Manager Mayfield reasonably would have
understood that Serrano was acting for other employees be-
cause other employees also had complained about Supervisor
Jones’ practice of swearing and yelling. Such conduct certainly
affected working conditions. Circulating and signing a petition
concerning working conditions and sending it to higher man-
agement clearly falls within the Act’s protection. Igramo En-
terprise, Inc., 351 NLRB 1337 (2007).
The very close proximity of this protected activity to man-
agement’s decision to suspend Serrano indeed raises some sus-
picion concerning Respondent’s motivation, but I am not sure
that the timing, standing by itself, would warrant drawing an
inference of animus. However, the timing does not stand by
itself.
During the hearing, the General Counsel sought to amend the
complaint to add an allegation that Respondent had violated
Section 8(a)(1) of the Act by maintaining a rule prohibiting
employees from discussing their compensation with each other.
The rule no longer was in effect. Applying the principles
which the Board articulated in Redd–I, Inc., 290 NLRB 1115,
1118 (1988), I denied the General Counsel’s motion to amend
the complaint.
However, as the General Counsel argued during the hearing,
evidence regarding this rule still remains relevant to the issue of
Respondent’s motivation. Indeed, it is quite relevant because it
shows that Respondent had tried to chill the very same type of
action which Serrano was trying to start, namely, employees
discussing among themselves one of their conditions of em-
ployment.
Serrano clearly communicated to Human Resources Manag-
er Mayfield that he intended to engage in such a discussion
with other employees, because he told her that he wanted to
circulate a petition protesting the way Supervisor Jones dealt
CAMACO LORAIN MFG. PLANT 1195
with employees. Obviously, Serrano could not encourage em-
ployees to sign such a petition without first discussing it.
There is no logical reason to believe that Respondent would
be less hostile to employee discussions about this particular
working condition—the unpleasant environment created by
Supervisor Jones’ swearing and yelling—than it was to em-
ployee discussions about their wages.
The fact that Respondent suspended Serrano almost immedi-
ately after management learned that he intended to discuss
working conditions with employees appears more sinister in
light of the previous work rule prohibiting similar discussions.
Accordingly, I conclude that unlawful motivation appropriately
may be inferred from the timing of these two events, Serrano's
disclosure to Mayfield that he intended to solicit employees to
sign a petition about working conditions and his subsequent
suspension, and I draw such an inference.
Therefore, I further conclude that the General Counsel has
established all of the initial four Wright Line elements. The
credited evidence proves that Serrano engaged in union activi-
ty. It also establishes that Serrano engaged in protected con-
certed activity in the presence of Respondent’s human re-
sources manager. Thus, the first two Wright Line criteria have
been satisfied. Respondent’s suspension of Serrano soon there-
after constitutes an adverse employment action sufficient to
meet the third Wright Line requirement. The inference of un-
lawful motivation arising from the timing of the suspension
establishes the final Wright Line element.
In sum, I conclude that Serrano’s protected activities were a
substantial and motivating factor in Respondent’s decision to
suspend him. In other words, management decided to act
quickly, ostensibly because of its “no threats” policy intended
to nip potential workplace violence in the bud, but also to nip
Serrano’s contemplated protected activity in the bud. The
combined force of both the lawful motivation and the unlawful
motivation sufficed to cause management to suspend Serrano.
Would the lawful motivation, by itself, have been strong
enough to produce the same result?
Therefore, Respondent must rebut the General Counsel’s
case. To defeat the conclusion that Serrano’s suspension was
unlawful, Respondent must prove by a preponderance of the
evidence that it would have suspended Serrano in any event,
even in the absence of protected activity. American Gardens
Management Co., 338 NLRB 644, 645 (2002).
Respondent asserts as its reason for suspending Serrano that
he made a threatening statement. In assessing this defense, I
keep in mind that an employer has a strong interest in maintain-
ing a safe workplace. Similarly, an employer has a legitimate
business interest in acting quickly after receiving a report of a
threat, so that a potentially violent situation is prevented.
Bridgestone Firestone South Carolina, 350 NLRB 526, 531
(2007) (The Board will not second-guess an employer’s efforts
to provide its employees with a safe workplace, especially
where threatening behavior is involved).
In determining whether Respondent has met its rebuttal bur-
den, I begin by considering whether Respondent’s asserted
reason for suspending Serrano was pretextual. A finding of
pretext defeats any attempt by a respondent to establish that it
would have taken the adverse employment action even in the
absence of protected activity. Rood Trucking Co., 342 NLRB
895, 898 (2004).
The present facts raise the possibility of pretext because, alt-
hough Respondent assertedly suspended Serrano for making a
threat, most of the words attributed to Serrano do not, on their
face, appear to be a threat. As discussed above, Leadman
Frank Dellipoala testified that Serrano said to him, “this may be
your domain, but that’s [pointing towards the door] my do-
main” and “Lewie’s going to pay.” Those last words, “Lewie’s
going to pay,” certainly might be a threat under some circum-
stances, but it does not appear that management focused on
them. Instead, management appears to have been concerned
that Serrano told the leadman “this may be your domain but
that’s my domain.”
The “domain” comment attributed to Serrano does not sound
like a threat. Indeed, to interpret it as threatening would require
substantial “reading between the lines.” Moreover, the evi-
dence does not establish that Serrano said these words with a
menacing demeanor which could turn facially innocent words
into a malicious message.
When Respondent’s counsel examined Frank Dellipoala
concerning Serrano’s demeanor, Dellipoala testified as follows:

Q. Okay. And can you tell the Court what you remember
about that situation?
A. In the morning, real early, when the shift first started up,
Sammie said to me, this may be your domain, but that’s my
domain, and he pointed toward the door. And he said, and
Lewie’s going to pay.
Q. Okay. What was your impression of––was––was Sam
angry when he said that?
A. It seemed like he was angry, to me. What he meant by
it, I don’t know.
Q. Did he seem emotional?
A. A little bit, yeah.

From Dellipoala’s testimony, I find that Serrano was slightly
angry when he made the putative threat. Dellipoala would not
have described Serrano as a “little bit” emotional if Serrano had
been a whole lot angry. Dellipoala's description does not de-
pict someone so angry that he was about to let his emotions
take over and control his conduct. Serrano's relatively mild
anger hardly would communicate a message that Serrano con-
templated taking some physical action against Jones and was in
a state of mind to do it.
Moreover, it seems significant that immediately after saying
that it “seemed like he was angry, to me,” Dellipoala added,
“What he meant by it, I don’t know.” It is reassuring to know
that Dellipoala didn’t understand what Serrano meant because
neither do I.
So, in the absence of any other factor, it would be easy to
conclude that Serrano did not, in fact, make a threat, and that
there was no way Respondent reasonably could have believed
Serrano had made a threat. That conclusion, in turn, would
lead to the further conclusion that Respondent characterized
Serrano’s words as a threat simply to have an excuse to suspend
him before he could engage in the protected activity of circulat-
ing a petition among employees.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1196
However, there is another factor which should be considered.
Serrano himself considered the “domain” statement (which he
denied making) to be a threat. Thus, according to Serrano,
Human Resources Director Mayfield asked him if he made the
statement that “this is Lewie’s domain, and that’s my domain
out there.” Serrano testified that he told Mayfield “I would
never make a comment like that, because I love life too much to
ever put that type of thought into somebody’s else mind.” Ac-
cording to Serrano, he then fell on the floor, held his stomach,
and moaned. From this response, I infer that Serrano himself
believed that making the statement in question would be mis-
conduct.
The record thus establishes that Serrano as well as Mayfield
regarded the “domain” statement to be a serious impropriety.
Therefore, I will not conclude that management seized upon
this statement as a mere excuse for imposing discipline. Ac-
cordingly, no finding of pretext bars consideration of Respond-
ent’s rebuttal arguments and evidence. However, before begin-
ning that analysis, I will devote the next paragraph to a small
detail.
It may be noted that Dellipoala quoted Serrano as saying to
him “this may be your domain,” which would be equivalent to
saying “this may be Dellipoala’s domain.” On the other hand,
Serrano testified that Mayfield asked him if he had said “this is
Lewie’s domain.” Mayfield’s testimony leaves unresolved the
exact wording of her question to Serrano. If Serrano’s version
is correct, then technically he could deny that he said “this is
Lewie’s domain” even if he had told Dellipoala that this was
his, Dellipoala’s, domain. In any event, resolving this detail
still would leave unexplained why both Mayfield and Serrano
considered the statement about domains to be threatening.
Respondent’s brief on remand does not fully address the is-
sue of whether Respondent would have disciplined Serrano in
any event, regardless of protected activity. During Respond-
ent’s oral argument, Respondent’s counsel stated, “Other em-
ployees, such as Danny Clarkston were also suspended for
violating this policy” against violence in the workplace. Essen-
tially, Respondent contends that it treated Serrano as it had
treated other employees, such as Clarkston, who presumably
had not engaged in protected activity.
During his testimony, Clarkston admitted that Respondent
had suspended him in September 2005 for making a comment
which Respondent regarded as a threat against another employ-
ee, Ed McKinney. However, the fact that Clarkston did receive
discipline in 2005 for making such a remark does not establish
that Respondent has applied its policy evenly. That is because
Clarkston did not receive discipline for a statement he admitted
that he made in 2006, a statement which, on its face, clearly
transgresses Respondent’s “no threats” rule.
Clarkston admitted that sometime during the summer of
2006, he made the following remark to Supervisor Lewie
Jones: “I told him I was mad, I told him that I would punch
Karen [sic] in her pussy.” From the record, it is clear that
Clarkston was referring to Human Resources Manager Karin
Mayfield, who had told Clarkston to clock out and go home.
Clarkston had wanted to stay to work overtime.
Mayfield testified that she was not aware of any threats made
by Clarkston against her. Crediting Clarkston, I conclude that
he did tell Supervisor Jones that he was going to punch May-
field, and further conclude that Jones did not report this threat
to Mayfield.
Jones’ failure to report the statement explains why Respond-
ent failed to discipline Clarkston for making a clear and unam-
biguous threat but did discipline Serrano for making a state-
ment which, on its face, seems much less threatening. However,
the explanation for this disparate treatment does not render it
innocent.
Respondent has admitted that Supervisor Jones was its agent.
Although Jones ranked low in Respondent’s management struc-
ture, that low rank does not negate his agency status. When
Jones acted within the scope of his authority as agent, such
action may be imputed to Respondent. Clearly, a first-line
supervisor’s responsibilities include deciding when an employ-
ee’s actions violate a company rule or otherwise are so unac-
ceptable that higher management should be informed.
Higher management necessarily depends on first-line super-
visors to be its eyes and ears on the plant floor. When such a
supervisor turns a blind eye or a deaf ear to conduct which
violates a company rule or policy, it prevents management from
imposing the discipline which otherwise would have resulted.
The supervisor’s failure to perform the duty he owed Respond-
ent does not change the fact that the supervisor’s action (or
inaction) fell within the scope of his authority as Respondent’s
agent. Therefore, Supervisor Jones’ condonation of Clarkston’s
threat may be imputed to Respondent even though higher man-
agement did not know about the threat.
It seems highly likely that higher management would have
disciplined Clarkston had it known about his “punch Karin”
comment. As already mentioned, on another occasion, man-
agement had disciplined Clarkston for another remark it had
deemed a threat. Moreover, the record indicates management
had disciplined other employees for making statements consid-
ered threats. Considering the highly offensive nature of Clark-
ston’s “punch Karin” remark, and considering that the subject
of this threat was Human Resources Manager Mayfield herself,
it appears quite certain that Clarkston would have been disci-
plined had Mayfield known about his remark.
In sum, by reporting Serrano’s ambiguous “threat” to higher
management while failing to report Clarkston’s clearcut threat,
Supervisor Jones caused Respondent’s disciplinary policy to be
applied disparately. What inference properly may be drawn
from such disparate treatment?
The difference in treatment might either reflect that Jones
harbored some hostility towards Serrano or that he showed
favoritism towards Clarkston. The fact that Jones, in effect,
“excused” Clarkston’s breach of a policy otherwise uniformly
applied to all employees does not compel a conclusion that
Jones was antagonistic to Serrano. It might be explained on the
basis of favoritism towards Clarkston.
Therefore, I would hesitate before concluding that the dis-
parate treatment which Jones accorded Clarkston and Serrano
reflected antiunion animus. However, at this point in the analy-
sis, the issue does not concern the existence of such animus,
which I already have found to exist. Rather, it concerns the
effect of this animus on the decision to discipline Serrano.
CAMACO LORAIN MFG. PLANT 1197
Respondent must show that the animus did not affect the out-
come of the decision–making process.
Even though Jones’ disparate treatment of Clarkston and
Serrano does not, in my view, warrant an inference of animus,
it nonetheless casts serious doubt on Respondent’s argument
that it would have disciplined Serrano in any event. Consider-
ing the real prospect of harm raised by Clarkston’s threat
against Mayfield, Respondent had a legitimate business interest
in acting quickly to discipline Clarkston. However, it did not.
Assessing the significance of this disparate treatment does
not put the Board in the position of second-guessing Respond-
ent’s efforts to provide its employees with a safe workplace, a
practice which the Board has eschewed. Bridgestone Firestone
South Carolina, above. Rather, it only involves evaluating how
consistently Respondent has applied its own policy. Incon-
sistent application of the policy takes the probative wind out of
Respondent’s sails.
Supervisor Jones instigated the discipline of Serrano but
failed to refer Clarkston for discipline even though Clarkston
made a statement clearly more threatening than that made by
Serrano. Supervisor Jones also knew of Serrano’s union activi-
ty.
Even assuming that the Serrano’s “domain” remark equaled
Clarkston’s threat in seriousness, I would conclude that Re-
spondent has not presented other persuasive evidence which
would overcome the doubt raised by the disparate treatment of
Clarkston and Serrano. Moreover, it is difficult to believe that
Serrano’s unclear statement, for which he received a 3-day
suspension, rises to the same level of seriousness as Clarkston’s
unequivocal expression of intent to punch Human Resources
Manager Mayfield.
As the Board observed in International Baking Co. &
Earthgrains, 348 NLRB 1133, 1138 (2006), it is not the law
that an employer can prevail only by showing prior identical
misconduct and discipline. However, where an employer dis-
ciplines an employee who had engaged in protected activity,
and the discipline ostensibly is for making a threat although the
actual language attributed to the employee does not, on its face,
constitute a threat, it is reasonable for the trier of fact to be a bit
skeptical. Where the same employer also fails to discipline an
employee who did make a clear and ugly threat, and this em-
ployee is not shown to have engaged in protected activity, the
skepticism deepens. An employer might address this skepti-
cism, in part, by presenting evidence that employees in this
particular workplace generally understood the words in ques-
tion to be threatening. The record here does not establish that
Respondent’s employees generally would understand the words
in question to convey a threat. To the contrary, Lead Man
Dellipoala testified that he didn’t know what Serrano meant.
Respondent also might address the skepticism by showing
that it had promulgated a rule identifying a particular expres-
sion as a threat and prohibiting its use. Assuming that such a
rule did not chill or discourage protected activity (as did Re-
spondent’s rule forbidding employees from discussing their
wages), its existence would contribute, at least, to the plausibil-
ity of Respondent’s claim. (Whether it would suffice, by itself,
to carry Respondent’s rebuttal burden is a different issue which
need not be discussed here.)
Respondent has not presented evidence that any rule had in-
formed employees that it attached a special meaning to remarks
such as Serrano’s “domain” statement and considered them
unwelcome in the workplace. Respondent also has not shown
that any other employee, after making a facially innocuous
comment similar to Serrano’s “domain” statement, then en-
gaged in threatening conduct or otherwise presented a danger.
Additionally, the evidence does not establish that Respondent
had disciplined any other employee, under its “no threats” rule,
for making a puzzling but not obviously threatening statement
of a tenor similar to Serrano's “domain” remark. Further, Re-
spondent has not convincingly explained why it interpreted
Serrano’s “domain” statement either as a threat of violence or
as an indication that the employee might engage in violence.
Moreover, although the evidence indicates that Supervisor
Jones bears responsibility for the disparate treatment of Clark-
ston and Serrano, it does not establish a reason for the disparity.
Thus, the evidence does not prove that, but for Serrano's pro-
tected activity, Jones would have ignored Serrano's “domain”
statement in the same way he ignored (and thereby condoned)
Clarkston's “punch Karin” statement. It isn't clear whether
Jones knew of Serrano's most recent complaint to Mayfield, but
he certainly was aware that this “pit bull” (in Jones' words) had
previously spoken to Mayfield about the way Jones treated
employees and had tried to organize a union.
Respondent has admitted that Jones is its agent, and it has
not presented any persuasive evidence or argument overcoming
the general principle that the acts of an agent, within the scope
of his authority, are attributable to the principal. Accordingly,
Respondent has not carried its burden of establishing that it
would have taken the same action against Serrano in the ab-
sence of protected activity. Therefore, I conclude that Re-
spondent’s suspension of Serrano violated Section 8(a)(1) and
(3) of the Act and recommend that the Board so find.
The Board specifically directed me to address whether Su-
pervisor Jones or Lead Man Dellipoala had reported Serrano’s
alleged threat to Human Resources Manager Mayfield and
whether, if Jones had made the report, it would affect the find-
ing in my original decision that Respondent would have disci-
plined Serrano even in the absence of protected activity. Jones,
rather than Dellipoala, made the report to Mayfield. Moreover,
Jones failed to report Clarkston's threat to higher management,
resulting in disparate treatment. For the reasons discussed
above, Jones' involvement in both decisions is highly signifi-
cant and shows the error of my earlier finding, which this deci-
sion corrects.
Discharge of Serrano
Sometime during the latter half of August 2006, Plant Gen-
eral Manager Mike Allen announced that Respondent was insti-
tuting a new incentive system on a trial basis, and that it only
would apply to one part of the plant, the section in which Ser-
rano worked. The experimental program would increase the
pay for all members of a team if the team's output met a speci-
fied production standard. If the team did not produce at the
specified rate, no member of the team would receive the addi-
tional “incentive” pay. Respondent intended this system to
reward teamwork and thereby improve production.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1198
Allen informed the affected employees that the incentive
would be a $1 per hour increase in wages. The production
standard consisted of 60 units per hour.
After the meeting, Serrano expressed his skepticism to other
employees. The record does not establish that any member of
management heard these particular comments.
Although Allen was the plant’s general manager, during this
particular week, when the incentive plan was implemented,
Supervisor Lewie Long was on vacation. Therefore, Allen
assumed some of Long’s responsibilities and spent more time
than usual in the area where Long’s employees worked.
Respondent ran more than one shift. According to Allen,
employees on other shifts demonstrated that they could meet
the production standard. About 6 a.m. on August 23, 2006,
Allen spoke with Serrano in Serrano’s work area. According to
Allen, Serrano said “he wasn’t going to bust his butt to make
any more” because it was “not worth the buck.”
Allen testified that Serrano made this remark in front of oth-
er employees and that it “broke my spirit” when it happened.
He believed that Serrano could meet the standard because em-
ployees on other shifts already had met the standard. I infer
that Allen also took offense because Serrano’s stated unwill-
ingness to work would keep the whole team from receiving the
incentive.
Allen did not take immediate action, but waited through the
day. He explained he had believed Serrano might come to him
to disclaim the earlier statement. However, Serrano did not do
so and Allen discharged him.
Serrano’s testimony differs in some respects. According to
Serrano, Allen came to Serrano’s workplace and asked why
Serrano had not made 60 parts per hour. Serrano testified:

I said there is a communication error between you and
Lewie, because Lewie Jones knows that I cannot run this
cell.

I have been replaced on this cell three times because I
cannot consistently make the parts 60 an hour. And I feel
like since I can’t make this number, you know, I feel like
you’re kind of like coming down on me.

I said, Mike, I’m not lazy. I do the best job I could do,
but I seriously cannot handle this machine and I cannot
make 60 parts an hour consistently.

So . . . he put his hand up, he says, Sam, I heard you
said a dollar’s not enough. Is that true? I said, Mike, con-
sidering what you’re saying, none of us feel that way.

There’s a lot of people that do not feel the dollar is not
enough. I said considering me, myself, a dollar’s not
enough because I cannot do 60 parts an hour on this ma-
chine, not consistently. And considering how the ma-
chines run, that I wasn’t going to be able to make it.

Some other employees witnessed this conversation between
Allen and Serrano. I do not rely upon the testimony of employ-
ee witness Carl Donan because his recollection was sketchy and
sometimes inconsistent with other accounts. For example,
Donan stated that the conversation between Allen and Serrano,
discussed above, took place “about three months” or “a couple
of months” before Serrano’s discharge. Other witnesses place
the discharge on the same day as this conversation.
Employee witness Tammy Potts recalled Allen telling Serra-
no “that he better start producing more parts. And Sammy
[Serrano] had told him that he’s doing his best. And then
Sammy told him that he didn’t agree on that dollar, and that he
wasn’t the only one that didn’t agree on it.” Potts described
Allen’s demeanor as “angry.”
Leadman Frank Dellipoala testified that Allen asked Serrano
about his production, “why his numbers would go up and come
down.” Serrano “told him he comes in in the morning, he feels
good. He goes later on in the day I get tired, and this is too
much work and I’m not going to do it.”
Allen then asked Dellipoala if he had anyone else who could
run the machine. Dellipoala gave Allen the names of some
employees, but added that they did not have Serrano’s experi-
ence and would not produce as much as Serrano did.
The accounts of Allen, Serrano, Potts, and Dellipoala differ
in some details but, in general paint a fairly consistent picture
of what transpired. The differences in testimony do not, in my
view, suggest any attempt to conceal or distort, but rather re-
flect the kind of natural variations which result from differences
in memory and viewpoint.
Based upon my observations of the witnesses, I have placed
more trust in the testimony of Dellipoala than that of Serrano.
To the extent that Dellipoala’s testimony conflicts with that of
Serrano or other witnesses, I resolve such conflicts by crediting
Dellipoala.
However, Serrano’s own testimony establishes that Re-
spondent had a legitimate business justification for discharging
Serrano. He stated unequivocally that he could not do the work
expected. Thus, Serrano stated to Plant Manager Allen, “I seri-
ously cannot handle this machine and I cannot make 60 parts an
hour consistently.”
Moreover, objective evidence supported Serrano’s admis-
sion. His production fell short of the 60–parts–per–hour stand-
ard. Serrano not only claimed to be unable to meet the standard
but proved his claim by failing to meet the standard.
Allen testified that other employees had demonstrated their
ability to meet the standard, and I credit that testimony. There-
fore, Allen might reasonably infer that Serrano did not meet the
standard because he was unwilling to “bust his butt.”
When asked, Leadman Dellipoala gave this assessment of
Serrano: “When he wanted to work, he was one of the best on
the job, but he didn’t always want to work, in my opinion.”
The words which Allen attributed to Serrano seem consistent
with Dellipoala’s assessment.
Following the Board’s Wright Line framework, I conclude
that the General Counsel has established that Serrano had en-
gaged in some protected activity and that Respondent had
knowledge of it. The government also has proven that Re-
spondent took an adverse employment action against Serrano
by discharging him.
However, the General Counsel has not proven, by a prepon-
derance of the evidence, a connection between Serrano’s pro-
tected activity and his discharge. But even assuming that the
government had established such a nexus, I conclude that Re-
spondent has met its rebuttal burden.
CAMACO LORAIN MFG. PLANT 1199
Plant Manager Allen, seeking to improve both productivity
and quality, drew on his understanding of Japanese manufac-
turers that had organized their employees into teams and re-
warded each worker based on the performance of his or her
team. Thus, he was introducing something entirely new to this
plant and its employees.
Accordingly, Respondent cannot be expected to produce ev-
idence that it had treated other employees similarly in similar
instances. There were no similar instances because of the new-
ness of the program.
However, the Act does not require an employer to retain an
employee who is unable to meet its production standards.
Thus, Section 10(c) of the Act provides in part that “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 backpay, if such individual was sus-
pended or discharged for cause.”
An inability to meet an employer’s nondiscriminatory stand-
ards certainly constitutes “cause.” Serrano himself admitted
that he told Respondent’s plant manager the following: “I seri-
ously cannot handle this machine and I cannot make 60 parts an
hour consistently.” His failure to meet those standards made
this profession of inability convincing.
Respondent discharged Serrano for being unwilling to try to
meet its standards, that is, for being unwilling to “bust his butt.”
Serrano's testimony, on the other hand, indicates he professed
an inability rather than an unwillingness. However, Respond-
ent had reason to believe that unwillingness contributed to Ser-
rano’s failure to meet the standard because other employees, on
a different shift, had indeed met the standard.
It does not matter whether Serrano was unwilling or unable
to meet the standards. Rather, what matters is that Serrano did
not do so and said he could not do so. An employer need not
keep on the payroll an employee who both failed to measure up
and who predicts his continuing failure to measure up.
Remanded Issue 8
In its Order Remanding, the Board directed me to make cred-
ibility findings with respect to Serrano’s conversation with
Allen which led to Serrano’s discharge. I have done so above.
The Board further directed me to determine how these find-
ings affect my conclusion that Serrano’s discharge was lawful.
I regret the insufficient reasoning in my initial decision, but
respectfully adhere to the conclusion that Serrano’s discharge
was lawful.
After examining the evidence anew and with the proper
thoroughness specified by the Board, I conclude that Respond-
ent reasonably believed that Serrano’s future performance
would fall below its standards and that Serrano was unwilling
to expend the effort necessary to meet those standards. There-
fore, I recommend that the Board dismiss these allegations.
REMEDY
To remedy the unfair labor practices found herein, Respond-
ent must make Sam Serrano whole, with interest, for all losses
he suffered because Respondent suspended him on or about
May 30, 2006. Respondent must also post the notice attached
hereto as Appendix A, in the manner and for the duration speci-
fied below.
Because I have concluded that Respondent lawfully dis-
charged Serrano, I do not recommend that the Board order Re-
spondent to reinstate him to his former position or to any sub-
stantially equivalent position, and do not recommend that the
Board order Respondent to make him whole for losses resulting
from his discharge.
CONCLUSIONS OF LAW
1. The Respondent, Camaco Lorain Manufacturing Plant, is
an employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. The Union, United Automobile, Aerospace and Agricul-
tural Implement Workers of America, UAW, Region 2B, is a
labor organization within the meaning of Section 2(5) of the
Act.
3. Respondent violated Section 8(a)(3) and (1) of the Act by
suspending its employee, Sam Serrano, on or about May 30,
2006.
4. Respondent did not violate the Act in any other manner al-
leged in the complaint.
On these findings of fact and conclusions of law and on the
entire record in this case, I issue the following recommended1
ORDER
The Respondent, Camaco Lorain Manufacturing Plant, Lo-
rain, Ohio, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Suspending any of its employees because that employee
engaged in union activity and/or other concerted activity pro-
tected by the Act.
(b) In any like or related manner interfering with, restraining,
or coercing its employees in the exercise of their rights to self–
organization, to form, join, or assist any labor organization, to
bargain collectively through representatives of their own choos-
ing, or to engage in concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection, or to re-
frain from any and all such activities.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Make employee Sam Serrano whole, with interest, for all
losses he suffered because Respondent unlawfully suspended
him on or about May 30, 2006.
(b) Within 14 days after service by the Region, post at its fa-
cilities in Lorain, Ohio, copies of the attached notice marked
“Appendix.”2 Copies of the notice, on forms provided by the
Regional Director for Region 8, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60

1 If no exceptions are filed as provided by Section 102.46 of the
Board’s Rules and Regulations, these findings, conclusions, and rec-
ommended Order shall, as provided in Section 102.48 of the Rules, be
adopted by the Board, and all objections to them shall be deemed
waived for all purposes.
2 If this Order is enforced by a judgment of the United States Court
of Appeals, the words in the notice reading “Posted by Order of the
National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1200
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reasona-
ble steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other mate-
rial. In the event that, during the pendency of these proceed-
ings, the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the
Respondent at any time since May 30, 2006.
(c) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Regional Director attesting to the
steps that the Respondent has taken to comply.

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