Vico Products Company, Inc. v. National Labor Relations Board

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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 24, 2003 Decided June 27, 2003
No. 01-1484
VICO P RODUCTS COMPANY, I NC.,
PETITIONER
v.
NATIONAL LABOR RELATIONS B OARD,
R ESPONDENT
INTERNATIONAL U NION, UNITED A UTOMOBILE, AEROSPACE
AND AGRICULTURAL I MPLEMENT WORKERS OF AMERICA, UAW,
INTERVENOR
On Petition for Review and Cross–Application
for Enforcement of an Order of the
National Labor Relations Board
Mark S. Ruderman argued the cause and filed the briefs
for petitioner.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.

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Richard A. Cohen, Senior Attorney, National Labor Rela-
tions Board, argued the cause for respondent. With him on
the brief were Arthur F. Rosenfeld, General Counsel, John
H. Ferguson, Associate General Counsel, Aileen A. Arm-
strong, Deputy Associate General Counsel, and David S.
Habenstreit, Supervisory Attorney.
Catherine J. Trafton argued the cause for intervenor.
With her on the brief was Michael B. Nicholson.
Before: G INSBURG, Chief Judge, and S ENTELLE and
RANDOLPH, Circuit Judges.
Opinion for the Court filed by Circuit Judge SENTELLE .
SENTELLE , Circuit Judge: Vico Products, Co., Inc. (Vico)
petitions this Court for review of a decision and order of the
National Labor Relations Board (Board) in an unfair labor
practice proceeding against Vico. Vico Prods. Co., 336
NLRB No. 45 (2001). The National Labor Relations Board
seeks enforcement of its order. Vico argues that substantial
evidence does not support the Board’s findings that Vico had
committed various unfair labor practices. Vico also argues
that the Board’s restoration order imposes an undue burden
on it. Because there is substantial evidentiary support for
the Board’s findings, and because the remedial order is well
within the Board’s broad discretion, we deny the petition for
review and grant the Board’s cross-application for enforce-
ment.
I
Vico is a family-owned company in the business of manufac-
turing and distributing parts used in the manufacture of
automobile brakes. Robert Schultz is President and principal
owner of Vico. Robert Schultz’s son, Curt Schultz, 1 a 15
percent owner of Vico stock, manages the day-to-day opera-
tions of Vico as Vice President and General Manager. Since
well before the relevant events, Vico owned an 83,000 square-
1 Hereinafter, Curt Schultz will be identified simply as ‘‘Schultz,’’
whereas Robert Schultz will be identified as ‘‘Robert Schultz.’’

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foot manufacturing and distribution facility located in Plym-
outh, Michigan. In 1993, Vico opened a warehouse and
distribution facility in South Carolina. At that location, Vico
conducted some sorting functions that previously were located
in Plymouth. Vico also relocated a chucker, which is used to
perform a series of machining functions such as turning,
boring, and/or threading, from Plymouth to South Carolina.
In 1994, Vico began manufacturing caliper pins, which are
components of a disc brake assemblage. The production of
caliper pins requires the use of large cold-forming machines
(‘‘headers’’) that cut and mold steel coil into rough-hewn parts
that later go into the assembly of a larger finished part.
After the cold-forming process, the rough-hewn parts are
processed by finishing and fine-tooling machines. Next, the
parts are sent to a company near Chicago for heat treatment
and plating. Finally, the parts are returned to Vico for
sorting, packaging, and shipment to customers.
By 1995, caliper pins became an important product line for
Vico. At the time, Vico had only one caliper-pin customer,
Bosch Manufacturing, which was located approximately 170
miles from Vico’s Plymouth facility. Vico had numerous
customers for its other products in the Louisville, Kentucky
area. In the later part of 1995, a Louisville company (Am-
brake) became Vico’s second (and soon largest) customer for
caliper pins.
On April 18, 1995, Vico applied through the Michigan
Strategic Fund (MSF) for a $3,000,000 federally-guaranteed,
low-interest loan to be used exclusively to upgrade the pro-
ductive capacity of the Plymouth facility. The loan, by its
terms, was to be used for the purchase of new machines and
for renovating the Plymouth facility, including the ‘‘Blue
Room,’’ a 2300 square-foot room in the facility where the
finishing operation for caliper pins was housed. Vico decided
to use the Blue Room for production because it considered its
facility ‘‘landlocked’’ – its property in Plymouth lacked any
space into which Vico could expand its facility. In its applica-
tion to the MSF, Vico specifically stated that ‘‘we are not
considering an out-state/national location for this project.’’

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The MSF issued tax-exempt development revenue bonds to
Vico. Vico used these to secure a loan from a local bank. On
March 1, 1996, Vico entered into a loan agreement, in which
Vico committed to use the loan proceeds on the above ‘‘Pro-
ject’’ and to keep the equipment purchased ‘‘at the Project
Site’’ until the bonds underlying the loan reached maturity
(10 years). Vico also stated that it expected to hire 10–15
new employees as a result of the planned upgrade. If Vico
relocated the machines outside of the Plymouth facility before
the bonds became due, it was obligated under the loan
agreement to secure the lender bank’s advance consent. If
approved, Vico would then have to repay the portion of the
loan equal to the cost of the relocated machines.
In December of 1995, Vico applied to Plymouth Township
for a tax abatement with respect to its purchase of machinery
with the loan proceeds. In its application, Vico stated that it
would use the machinery within the town limits and that it
anticipated hiring more employees for its caliper-pin line.
The tax abatement was approved on January 29, 1997.
Vico made draws on the loan on March 1, 1996; May 13,
1996; December 30, 1996; February 27, 1997; and May 1,
1997. With each draw, Vico certified that the funds would be
used to finance costs on the ‘‘Project.’’ Vico took the first two
draws to refurbish existing equipment and the remainder to
purchase new equipment and convert the Blue Room into a
caliper-pin production area. According to Vico’s evidence,
almost immediately after converting the Blue Room to pro-
duction use, Vico experienced problems with its manufactur-
ing process in that portion of the facility, due to its low ceiling
and oily, pitched floor.
On May 10, 1996, Vico leased a 10,800 square-foot ware-
house facility in the Louisville, Kentucky area (Louisville
Building A). After taking possession of the warehouse facili-
ty, Vico moved some equipment to Louisville, including some
cold-header machines and some sorting and assembly ma-
chines. Vico sent Ambrake an announcement, welcoming
Ambrake to Vico’s ‘‘Warehouse & Distribution Center.’’ The
announcement explained that Ambrake would be able to

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operate with ‘‘reduced shipping cost and time’’ and with a
‘‘just in time’’ delivery system by which Ambrake could pick
up products ‘‘daily or several times a day depending on the
demand.’’ The announcement did not mention the possibility
of manufacturing caliper pins at that facility.
In June, Vico held a meeting with its employees at Plym-
outh, during which Schultz discussed Vico’s plan to expand
Plymouth’s capacity to manufacture caliper pins. Schultz
showed slides indicating that Vico’s customer base was locat-
ed mostly in the Louisville area. Schultz expected Vico to see
growth for its products in that area. Schultz stated that
Vico’s future plans might include relocating part of the cali-
per-pin business to the Louisville warehouse and distribution
center. In July, Vico distributed a newsletter to its employ-
ees in which it described the Louisville facility as a warehouse
and distribution center. The newsletter made no mention of
a relocation of the caliper-pin production.
In December of 1996, Schultz met with Ambrake President
Richard Stephenson to discuss Vico’s plans for the Louisville
facility. At this meeting, Schultz may have mentioned to
Stephenson the possibility of moving the caliper-pin opera-
tions to Louisville. (Schultz’s testimony on this point is
uncorroborated; the Board made no finding on this point.)
In January of 1997, Schultz again met with Stephenson.
Alyse Leslie, Quality Control and Shipping and Receiving
Manager of Vico, attended the meeting as well. No mention
of relocating the caliper-pin operations was made at the
meeting. At this time, Leslie had no knowledge of the
possibility of such a relocation. Some time after January,
Vico began building up its inventory of caliper pins.
In February of 1997, a union organizing campaign began at
the Plymouth facility. Several employees formed the UAW
Volunteer Organizing Committee (VOC). On March 3, 1997,
employee and VOC Chairman Jim White presented Schultz
with a document signed by several employees that set out
employee rights under the National Labor Relations Act
(NLRA). Three days later, the International Union, United
Automobile, Aerospace & Agricultural Implement Workers of

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America, AFL–CIO (Union) filed a representation petition
with the National Labor Relations Board. On March 11,
1997, White gave Schultz a union document labeled ‘‘Sensible
Rules for a Fair Election’’ that was signed by at least 50
employees. White asked Schultz to sign this document, but
Schultz refused.
Some time in March, Robert Schultz approached employees
Jacqueline Whitehead and Lucy Arnold and asked ‘‘Do you
know what’s going on around here?’’ After a response of
‘‘No,’’ Robert Schultz stated that ‘‘if a Union gets out here, a
lot of people could be laid off.’’ He then put his hand on
Whitehead’s shoulder and stated, ‘‘If the Union gets in here,
you can be laid off.’’ Late in March of 1997, Company
Comptroller and General Manager of Organizational Support
Karen Dearing told a group of employees who had been
discussing unionization that ‘‘changes TTT are going to be
made when the Union is voted in and there may or may not
be jobs left. Nothing is in stone, nothing is permanent.’’
The Union won the Board election and was certified as the
exclusive bargaining representative for the Plymouth employ-
ees.
In May of 1997, Union Representative Phillip Keeling
contacted Vico and arranged a June 27 meeting with Schultz.
In late May, Schultz informed Company Operations Manager
Martin Cibich that he planned to move the caliper-pin finish-
ing operations to Louisville over the July 4th holiday and
instructed Cibich to arrange for a mover. Cibich met at the
Louisville facility with Stephen Daugherty, the owner of an
equipment moving company, to make arrangements for the
move. They met at the plant on Sunday, June 8, 1997, when
no employees were present. During their meeting, Daugher-
ty noticed union materials and asked Cibich if there would be
any labor problems with regard to the move, and Cibich
replied that there would be none. Some time after this
meeting, Daugherty informed Union Representative Keeling
of the planned move.
On June 24, Schultz signed a one-year lease for a second,
smaller facility in Louisville, which was to be used in the

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manufacture of caliper-pins for Bosch (Louisville Building B).
On June 25, in a meeting with members of the Union’s
bargaining committee, Keeling asked if anyone had heard of
the possibility of equipment being relocated to Louisville. No
one in attendance had heard of such a plan. At the June 27
meeting between Schultz and Keeling, Keeling asked Schultz
if there was a move being planned. Schultz replied that
relocation ‘‘may have to be considered in the future’’ but that
there were ‘‘no immediate plans to move anything out of the
plant.’’ Keeling remarked to Schultz that if it came up, then
Schultz should let Keeling know because the Union had a
right to discuss the issue.
On July 2, 1997, Schultz informed Ambrake of the move. A
few days later, Ambrake expressed concerns about the move
in a letter to Vico. On July 3, 1997, Schultz announced the
move to the employees. He explained that the caliper-pin
finishing machines were being moved to Louisville over the
weekend and that 33 unit employees were being laid off that
day. Schultz added that applications would be accepted from
anyone interested in applying for a job in Louisville. Schultz
then faxed a letter to Keeling, notifying him of the move and
the layoffs. Keeling responded by letter that day, expressing
his disbelief that just six days earlier Schultz could have been
unaware of the move when Keeling inquired whether a move
was being planned.
On the morning of July 4, Cibich contacted Daugherty, but
Daugherty was not ready to proceed with the move because
he had not received a signed written proposal from Vico.
Cibich contacted Thomas Rahburg, owner of another moving
company, to arrange for the move. Rahburg agreed to
handle the move. Shortly thereafter, Rahburg brought three
flatbed trucks and two pickup trucks to the Plymouth facility.
Several machines were loaded onto the trucks, and the trucks
left the facility escorted by the Plymouth police.
On July 7, 1997, the machines were unloaded from the
trucks and moved into the two Louisville facilities. Five of
the machines were fitted with automatic feeds, including the
Bosch machines that were placed in Louisville Building B.

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The machines were arranged in triangular cells in order to
permit them to be staffed by one, rather than three, employ-
ees. Vico staffed its Louisville facility in part with temporary
employees.
During July, the parties began negotiating for a collective-
bargaining agreement (CBA). In August of 1997, Vico de-
clined to give its employees a wage increase as it had done
the preceding 5 years (at rates of increase varying from 3–
5%). Vico did not inform the Union of this decision nor
engage in bargaining regarding the decision.
In September of 1997, the lender bank learned of Vico’s
move. By letter, the bank informed Vico that the bonds had
to be redeemed to the value of the machinery moved out of
state. On November 7, 1997, Vico redeemed $1.3 million of
the bonds with funds borrowed from the bank.
In September of 1997, the Union filed unfair labor practice
(ULP) charges against Vico. Administrative Law Judge
Bruce D. Rosenstein (ALJ) conducted a hearing on the
charges in March and May of 1998. On October 1, 1998, the
ALJ issued a decision holding that Vico violated the National
Labor Relations Act by failing to bargain with the Union over
the relocation decision and the effects thereof and by failing
to bargain over the decision to withhold an annual wage
increase from employees in August of 1997. The ALJ dis-
missed the portion of the complaint which alleged that Vico’s
relocation decision was motivated by antiunion animus.
In the meantime, in December of 1997, after the ULP
complaint had issued, the Board initiated a proceeding in
district court in Michigan seeking as interim relief the return
of relocated machines to the Plymouth facility. Vico settled
that action by agreeing to return the Bosch machines from
Louisville Building B back to the Plymouth facility. Instead
of placing these machines back in the Blue Room, Vico placed
these machines in a different part of the plant, where they
were configured in a triangular cell arrangement similar to
the way they had been configured in Louisville.

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Both Vico and the Union filed exceptions to the ALJ’s
decision. On September 30, 2001, the Board issued a decision
and order finding that Vico had violated section 8(a)(5) and (1)
of the NLRA, 29 U.S.C. § 158(a)(5) & (1) (2000), by relocating
its caliper-pin finishing operations to Louisville and laying off
33 employees in the process without affording the Union
notice and an opportunity to bargain. Similarly, the Board
found that Vico violated the same section of the NLRA by
discontinuing its practice of annual wage increases without
giving the Union notice and an opportunity to bargain. The
Board also found (contrary to the ALJ) that Vico’s relocation
of its caliper-pin finishing operations and layoff of 33 employ-
ees were undertaken for antiunion reasons in violation of
section 8(a)(3) and (1). 29 U.S.C. § 158(a)(3) & (1). The
Board ordered Vico to cease and desist from the ULPs found.
It ordered Vico to reestablish its caliper-pin operations in
Plymouth and to offer the laid-off employees reinstatement to
their previously held positions. In addition, the Board or-
dered Vico to make whole the laid-off employees for any
losses incurred because of the ULPs. Finally, the order
directed Vico to bargain to impasse and to post a remedial
notice.
Vico filed a petition for review, arguing that the Board’s
findings were not supported by substantial evidence and that
the Board’s order imposed an undue burden on Vico. The
Board filed a cross-petition for enforcement of its order, and
the Union intervened in support of the Board’s order.
II
A. Relocation Decision
1. Failure to give notice and opportunity to bargain
Under Dubuque Packing Co., 303 NLRB 386 (1991), the
burden is on the Board’s General Counsel to establish a
prima facie case by demonstrating that the employer’s relo-
cation decision involved a relocation of unit work unaccompa-
nied by a basic change in the nature of the employer’s
operation. Id. at 391. Such a demonstration establishes that
the relocation decision is a mandatory subject of bargaining.

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Id. The employer may then rebut the prima facie case by
showing (1) that the work performed at the new location
varies significantly from the work performed at the former
location; (2) that the work performed at the former location
is to be discontinued entirely and not moved to the new
location; or (3) that the employer’s decision involved a change
in the scope and direction of the enterprise. Id. Alternative-
ly, the employer may defend itself by showing that (1) labor
costs (either direct or indirect) were not a factor in the
decision; or (2) even if labor costs were a factor, the Union
could not have offered labor cost concessions that would have
resulted in the employer changing its decision. Id.
Vico does not dispute the fact that the relocation decision
was a ‘‘relocation of unit work unaccompanied by a basic
change in the nature of the employer’s operations’’ and,
therefore, a mandatory subject of bargaining. Vico thereby
concedes that the General Counsel has satisfied the prima
facie requirements as outlined in Dubuque Packing.
Vico attempts to defend its action by arguing that labor
costs were not a factor, or to the extent they were a factor,
that the Union could not have offered concessions sufficient to
induce Vico to refrain from relocating. Vico contends that
labor costs in Louisville were as high as or higher than labor
costs in Plymouth. Vico explains that labor costs in Louis-
ville included payment for temporary employees, which re-
quired payment to the temp agency over and above the actual
wages paid to the temporary employees. Temporary employ-
ees in Louisville cost Vico $12.00/hour ($8.00 for the employ-
ee; $4.00 for the temp agency) whereas the laid-off employees
cost Vico $8.85/hour. Vico argues that any difference in
benefits between the two is offset by the fees to the temp
agency.
Vico contends that it relocated not for reduced labor costs,
but because relocation allowed for implementation of the cell
configuration and automation of the machines, which reduced
the number of steps in the manufacturing process, thereby
reducing the total number of employees required in the
manufacturing process. In addition, Vico contends that it

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saved on freight charges and that relocation relieved it of its
landlocked situation in Plymouth and its difficulties relating
to the Blue Room.
Even assuming that labor costs were a factor, Vico argues
that the Union could not have offered concessions sufficient to
overcome the benefits of the relocation. Vico conducted a
cost-benefit analysis based on confirmed orders that indicated
that Vico’s relocation would yield savings of approximately
$240,000 in 1998 and $325,000 in 1999. Vico contends that
spreading these savings over the number of employees would
mean that the Union would have to offer concessions of $3.50
to $4.72/hour per laid off employee (using the 1998 and 1999
figures, respectively) or $.89 to $1.20/hour per employee
overall. Further, Vico argues that it needed to utilize the
Louisville facility in any event, at least to house new equip-
ment and machinery because the Plymouth facility could hold
no more equipment or machinery.
Vico’s arguments fail. The evidence shows that Vico’s
decision was based on labor costs. Schultz testified that he
believed that Vico could make caliper pins more cheaply in
Louisville. More importantly, one of Vico’s primary reasons
for relocation – that relocation allowed for the implementation
of cell configuration and automation of machines, thereby
reducing the amount of labor – is in fact based on labor costs.
Similarly, Vico’s contention that its savings were so sub-
stantial that the Union could not have made concessions fails.
As the Board noted below, Vico’s cost-benefit analysis of the
relocation was performed after the fact and could not have
formed the basis for Vico’s decision to relocate. Further,
Vico’s analysis fails to account for efficiencies that would
result if Vico implemented cell configuration and added auto-
matic feeders to its machines in Plymouth (as it did in
Louisville). Vico’s later agreement to move certain machines
back to Plymouth and its subsequent use of cell configura-
tions there underscores the fact that utilization of the more
efficient cell process was and is viable in Plymouth. Also,
Vico’s analysis fails to account for the potential increased
efficiencies resulting from the build-up of inventory in Louis-

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ville. As Vico’s arguments fail, we see that substantial evi-
dence supports the Board’s finding that Vico failed to give the
Union notice and an opportunity to bargain over the reloca-
tion decision.
2. Failure to engage in effects bargaining
Vico argues that the Board erred in ruling that Vico failed
to negotiate with the Union over the impacts and effects of
the relocation of Vico’s caliper-pin production facility. Vico
contends that at the time of the relocation, it offered to
negotiate the effects of the relocation with the Union. The
parties met for a bargaining session on July 21, 1997, during
which Vico’s counsel asked Union representatives whether
they had any proposals relative to the ‘‘effects of the reloca-
tion.’’ The Union representatives replied that they were
unwilling to negotiate over the effects at that time and would
only negotiate over the alleged outstanding ULPs. Later, at
the hearing on March 4, 1998, counsel for the Union submit-
ted a party admission acknowledging the Union made propos-
als regarding the decision to relocate and the effects of that
decision. Further, the Union admitted that Vico made pro-
posals on effects (two weeks salary to the laid-off employees
and recall rights for those employees as well). The Union
responded that they would consider the offer if it included a
requirement that Vico enter into a CBA with the Union.
Vico’s arguments miss the mark. As the Board has held,
‘‘pre-implementation notice is required to satisfy the obli-
gation to bargain over the effects’’ of a decision that impacts
conditions of employment. Los Angeles Soap Co., 300 NLRB
289, 289 n. 1 (1990) (quoting Metropolitan Teletronics Corp.,
279 NLRB 957, 959 n. 14 (1986)). As Vico gave the Union no
advance notice of the relocation plan and the 33 lay-offs, Vico
denigrated the Union and the viability of the process of
collective bargaining itself, in the eyes of unit employees.
Honeywell Int’l, Inc. v. NLRB, 253 F.3d 125, 131 (D.C. Cir.
2001). Vico’s after-the-fact offers to engage in effects bar-
gaining are irrelevant because they cannot undo the damage
already done to the Union and the process of collective
bargaining.

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B. Discontinuation of Practice of Granting Annual Wage
Increases
Vico makes two arguments to justify its failure to give the
Union notice and an opportunity to bargain on the subject of
annual wage increases. Vico first argues that the Union
waived its right to bargain on this subject. Vico contends
that the Union’s failure to object to a statement in a letter
from Mark Ruderman, an attorney for Vico, to UAW staff
representative Phil Keeling constitutes a clear and unmistak-
able waiver. The relevant statement reads: ‘‘The parties
agree to discuss language issues first and then economics as a
total package.’’ Letter from Ruderman to Keeling of 8/11/97,
at 2. Vico notes that not only did the Union fail to object to
this statement, but also Keeling failed to request past wage
increase information from Vico or to discuss wage increases
with employees until October of 1997. Vico contends that
Keeling’s nonfeasance lead to the Union’s acquiescence in the
terms of the above letter, waiving negotiations over the
economics proposals until a later date.
Vico then compares this case to Norris Indus., 231 NLRB
50 (1977). In that case, the employer proposed to terminate
the medical group insurance of employees on medical leaves
of absence and incorporated this proposal in a letter of
understanding that was signed with a contract between the
parties. The Board held that even though the Union under-
estimated the scope of the proposal, the letter constituted a
waiver. Vico argues that here the letter defers negotiations
on the amount of any wage increase pending discussions of
the non-economic language.
Vico’s waiver argument fails. The fatal defect in Vico’s
waiver argument is that the Union was unaware of the past
practice of annual wage increases. The Board’s ‘‘clear and
unmistakable’’ rule as explained in Metropolitan Edison Co.
v. NLRB, 460 U.S. 693, 707–08 (1983), requires that for a
waiver to have occurred, the subject in question must have
been explored and the waiver expressed in unequivocal terms.
See Proctor Mfg. Corp., 131 NLRB 1166, 1169 (1961). The
Union ‘‘cannot be held to have waived the right to bargain

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over an issue that was never proposed.’’ Vincent Indus.
Plastics v. NLRB, 209 F.3d 727, 735 (D.C. Cir. 2000).
Vico’s second argument is that its history of granting
annual wage increases is not the type of term or condition
that requires bargaining because the past wage increases did
not follow any set formula or criteria. Vico maintains that
this requires a dismissal for vagueness. Again, Vico’s argu-
ment fails. The lack of an explicit formula for computing wage
increases is not controlling. As we have held, ‘‘when an
employer has established a regular wage-increase program
with fixed criteria, even though discretionary in amount, that
program cannot be discontinued unilaterally.’’ Daily News of
Los Angeles v. NLRB, 73 F.3d 406, 412 (D.C. Cir. 1996). The
past wage increases here were not only regular but also
consistent in criteria: Vico granted across-the-board increas-
es equally to all employees. In addition, Vico alone was in
possession of its data regarding the wage increases, and the
General Counsel should not be faulted for Vico’s failure to
make this data known.
C. Antiunion Animus
Under Wright Line, 251 NLRB 1083 (1980), the General
Counsel must establish a prima facie case that protected
conduct was a motivating factor in Vico’s decision to layoff.
The burden then shifts to Vico to demonstrate as an affirma-
tive defense that the decisions would have been the same
even in the absence of the protected conduct. 251 NLRB at
1084, n.5.
The Board’s conclusion that Vico’s relocation decision was
based on antiunion animus rests on four main points: (1)
statements made by Robert Schultz and Dearing in the
presence of unit employees; (2) provisions in the loan docu-
ments that required Vico to acknowledge that equipment
purchased with MSF funds were to remain in the Plymouth
facility; (3) the June 27, 1997 meeting between Schultz and
Keeling; and (4) the timing of Vico’s leasing of space in
Louisville in relation to the Union’s certification.

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Vico attempts to attack each of the points relied upon by
the Board. Vico first attacks the Board’s reliance on the
statements of Robert Schultz and Dearing. Regarding Rob-
ert Schultz’s statement, Vico contends that the statement
itself is unreliable because it was made during working hours
in a busy part of the facility that would have been very loud.
Also, Vico argues that the statements carry no weight be-
cause Robert Schultz was inactive at the company at the time.
Regarding Dearing’s statements, Vico notes that Nitz, the
employee to whom the alleged statements were made, testi-
fied that he was a five-year employee when he actually had
been at the company for only seven months in his most recent
stint. In addition, Vico points out that Nitz was in a part of
the facility where hearing protection was required. Vico
further notes that Dearing denies having made the comment,
and states that Nitz’s testimony was uncorroborated. These
arguments fail. They are no more than challenges to credi-
bility determinations. It is long past the time for such
arguments. We do not retry the evidence. ‘‘[C]redibility of
witnesses is a matter for Board determination, and not for
this court.’’ Joy Silk Mills, 185 F.2d 732, 741 (D.C. Cir.
1950). ‘‘[W]e do not reverse the Board’s adoption of an ALJ’s
credibility determinations unless, unlike here, those determi-
nations are ‘hopelessly incredible,’ ‘self-contradictory,’ or ‘pat-
ently unsupportable.’ ’’ Cadbury Beverages, Inc. v. NLRB,
160 F.3d 24, 28 (D.C. Cir. 1998).
Vico points out that the ALJ found that Dearing’s state-
ment was protected under section 8(c) of the NLRA, which
protects an employer’s non-coercive antiunion statements and
prohibits the Board from inferring an unlawful motivation for
employer actions from such statements. 29 U.S.C. § 158(c).
See B.E. & K. Constr. v. NLRB, 133 F.3d 1372, 1376–77 (11th
Cir. 1997). However, Dearing’s statement, much like the
statement of Robert Schultz, reasonably can be construed as
evidence of antiunion motivation because it represented a
threat (‘‘changes TTT are going to be made when the Union is
voted in and there may or may not be jobs left TTT’’) from an
authoritative source within the company (the Company Comp-
troller & General Manager of Organizational Support). Reno

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Hilton Resorts v. NLRB, 196 F.3d 1275, 1283 (D.C. Cir. 1999)
(‘‘[R]easonable inferences of anti-union motivation were virtu-
ally compelled by the statements of Reno Hilton officials TTT
that the hotel would strongly consider contracting out TTT
jobs if the Union prevailed in the election.’’).
Next, Vico argues that its actions relating to the MFS loan
and Plymouth tax abatement did not indicate union animus.
Vico notes that the Michigan Attorney General’s Office be-
lieved Vico not in default. Vico adds that the only penalty for
relocation is acceleration of a pro rata portion of the loan.
Contrary to Vico’s arguments, Vico’s efforts to obtain the
MSF loan and the Plymouth tax abatement do not square
with the relocation decision. The sudden relocation marked a
dramatic shift from Vico’s prior statements made in connec-
tion with the loan and tax abatement that it intended to
remain in Michigan.
Vico attacks the Board’s reliance on the June 27, 1997
meeting in which Schultz failed to tell Keeling of Vico’s
impending relocation. Vico argues that Keeling’s testimony
is unreliable because his notes of the meeting include no
notation that Schultz stated that Vico had no immediate plans
of relocating. Further, Vico argues that Keeling’s testimony
was incredible and contradicted by Schultz’s testimony that
no discussion of relocation took place at the meeting. These
credibility arguments fail for the same reason as the ones
made previously by Vico.
Vico attempts to undercut the Board’s reliance on the
timing and circumstances of the relocation to Louisville. Vico
argues that it introduced substantial evidence supporting its
argument that its intent to relocate began before the Union
petition. Vico contends that its evidence shows that the
Louisville facility was intended for manufacturing rather than
simply distribution; that the Blue Room was an inadequate
space for production work; that Schultz explained to employ-
ees at the June 1996 meeting that the caliper-pin operations
might be relocated to better serve customers as Vico had
done previously in South Carolina; that the inventory build-
up began before the Union’s representation petition; and that
Vico’s cost-benefit analysis serves as an adequate basis for

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Vico’s relocation decision. In addition, Vico emphasizes the
fact that none of the bargaining committee members were
among the 33 employees laid off. Vico argues that all of this
evidence prohibits a finding that the timing of the relocation
decision tends to show union animus.
We find the haphazardness, the timing, and the secretive
nature of the hasty relocation decision render the decision
‘‘suspicious.’’ NLRB v. United Mineral & Chemical Corp.,
391 F.2d 829, 833 (2d Cir. 1968). Just a week-and-a-half
before the move, Vico needed to lease a second facility in
Louisville (Louisville Building B). And as of the morning of
the move, Vico did not have a mover under contract to haul
the equipment from Plymouth to Louisville.
The relocation occurred just three months after the Union
election and took place with almost no planning and no notice
to anyone, including Vico’s key customers. Schultz’s failure
to inform Union Representative Keeling of the impending
move when Keeling asked about it just a week prior to the
move is especially suspicious and suggests that Schultz was
hiding the relocation decision from the Union. Equally suspi-
cious is Vico’s failure to notify its primary customers, espe-
cially considering Vico’s previous announcement to Ambrake
of its new warehouse and distribution facility in Louisville.
Vico failed to notify Ambrake (the customer whom Vico
claims benefits most from the move) until two days before the
relocation and without so much as a written plan for the move
or engineering drawings of the new set-up. Ambrake’s sur-
prised and uneasy response casts further doubt on Vico’s
stated motives. Further, Schultz failed to recall whether he
informed Bosch of the move despite the fact that the move
appeared potentially to affect Bosch adversely because the
move resulted in Vico being farther away from Bosch.
In an attempt to make its relocation decision appear as if it
was made prior to union organization efforts, Vico contends
that its build-up of inventory prior to the move to Louisville
was an effort to help establish the facility as a manufacturing
center as soon as it opened. However, the build-up of
inventory just as easily supports the Board’s view that Vico
initially intended to establish the Louisville facility solely as a

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distribution center. The Board’s view is further supported by
the announcement that Vico sent to Ambrake upon opening
the Louisville facility, welcoming Ambrake to Vico’s new
‘‘Warehouse & Distribution Center.’’ All of the evidence,
taken together, constitutes substantial evidence that the relo-
cation decision was motivated by antiunion reasons. Cf.
Bandag, Inc. v. NLRB, 583 F.2d 765 (5th Cir. 1978); Carter
& Sons Freightways, 325 NLRB 433 (1998).
In an attempt to create an affirmative defense, Vico, rely-
ing on its aforementioned cost-benefit analysis, suggests that
its relocation decision would have been the same even in the
absence of union activity. As indicated above, this after-the-
fact analysis cannot support Vico’s decision to relocate and
does nothing to undermine the Board’s finding that the
relocation decision was motivated by antiunion animus.
Finally, Vico argues that the Board erred in reversing the
ALJ’s decision that the relocation decision was not motivated
by antiunion animus because the ALJ’s decision was based
upon credibility determinations of several witnesses. Vico
argues that the Board is at a disadvantage regarding credibil-
ity determinations and that the ALJ’s credibility determina-
tions are ‘‘entitled to great weight.’’ Holyoke Visiting Nurs-
es Ass’n v. NLRB, 11 F.3d 302, 308 (1st Cir. 1993). However,
the Board ‘‘is authorized to make findings contrary to the
findings of the [ALJ], and where there is substantial evidence
to support the Board’s findings, the court may not set them
aside merely because the Board’s view of the weight and
credibility of the witnesses differed from that of the [ALJ].’’
Joy Silk Mills, 185 F.2d at 742. And we are ‘‘even more
deferential when reviewing the Board’s conclusions regarding
discriminatory motive, because most evidence of motive is
circumstantial.’’ Vincent Indus. Plastics, 209 F.3d at 734.
We will not disturb the Board’s finding that Vico’s relocation
decision was based upon antiunion animus as this finding was
supported amply by substantial evidence on the record as a
whole.
D. Remedial Order
The Board ‘‘has wide discretion in ordering affirmative
action’’ to fashion remedies for unfair labor practices. Virgi-

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nia Elec. & Power Co. v. NLRB, 319 U.S. 533, 539 (1943).
Generally, we will affirm a Board remedial order unless the
order is shown to be ‘‘a patent attempt to achieve ends other
than those which can fairly be said to effectuate the policies of
the Act.’’ O’Dovero v. NLRB, 193 F.3d 532, 538 (D.C. Cir.
1999) (quotation omitted).
In the context of restoration orders, the Board’s order will
be set aside as contrary to law if it imposes an undue burden
on the employer. Fibreboard Paper Prods. Corp. v. NLRB,
379 U.S. 203, 216 (1964). In order to show that a Board
order imposes an undue burden on an employer, courts have
required that the employer demonstrate by a preponderance
of the evidence that it faces a capital investment that is
disproportionate to its resources or that it faces substantial
and continuous losses. O’Dovero v. NLRB, 193 F.3d at 538.
Vico argues that the present case is comparable to Coronet
Foods, Inc. v. NLRB, 158 F.3d 782 (4th Cir. 1998). In
Coronet, the Fourth Circuit held that an employer did not
need to restore its transportation department that it had
closed in retaliation for union activities. The Fourth Circuit
found that a restoration order would impose upon the employ-
er an undue financial hardship. The court found that the
ALJ had focused too narrowly, stating that evidence concern-
ing ‘‘subsequent relevant economic TTT factors’’ could be
considered. Id. at 795. The court noted that the transporta-
tion department that the employer had shut down was ‘‘out-
moded and inefficient’’ and that to require restoration would
put the employer ‘‘at a competitive disadvantage within its
industry.’’ Id. at 796. Vico contends that this case is quite
similar in that requiring restoration of the Plymouth facility
and its Blue Room would put Vico at a competitive disadvan-
tage by withholding the purported benefits of Vico’s Louis-
ville facility, such as a loss of increased business since the
relocation. 2
2 Vico states that since its relocation to Louisville, its caliper-pin
production has increased from 15,273,850 units in 1997 to 21,698,530
in 2002.

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Vico adds that the Board’s order neglects the costs Vico
faces in moving back into the under-sized, inefficient Plym-
outh facility. Vico points to NLRB v. G&T Terminal Pack-
aging Co., 246 F.3d 103 (2d Cir. 2001), a case in which the
court found a restoration order unduly burdensome to the
employer. In that case, the Second Circuit addressed the
issue of space constraints, noting that ‘‘nothing in the record
contradicts the Company’s claim that it simply does not have
enough space to install a new machine in its TTT facility and,
therefore, that reinstating the TTT operation is all but impos-
sible.’’ Id. at 121–22; see also Garwin Corp., 153 NLRB 664
(1965); Bonnie Lass Knitting Mills, Inc., 126 NLRB 1396
(1960) (restoration order unwarranted).
Last, Vico argues that Fast Food Merchandisers, Inc., 291
NLRB 897 (1988), and Litton Business Systems, 286 NLRB
817 (1987), stand for the proposition that where a layoff
decision is an effect of an earlier identifiable decision that is
not a mandatory subject of bargaining, a restoration order is
not an appropriate remedy. Vico contends that in this case
the layoff decision was a result of the earlier decision to
relocate and does not warrant a restoration order. Vico adds
that the effect of the layoffs has been mitigated by Vico’s
offers of reinstatement (in reverse-seniority order) following
settlement of the injunction proceeding.
We conclude that the Board’s restoration order is within its
broad discretion. Vico has not shown an undue burden by a
preponderance of the evidence. Vico is not without a viable
option. Vico has not shown evidence that it was operating at
a loss in Plymouth. Nor has it offered any proof that it
would lose business by moving back to Plymouth. Thus, its
reliance on Coronet is misplaced. Likewise, G&T Terminal
is distinguishable. Vico has not shown that it is without
adequate space in Plymouth. The fact that Vico already has
returned some machines to Plymouth following the injunction
proceeding and has implemented cell configuration more ef-
fectively to utilize space there severely undercuts its argu-
ment ‘‘that reinstating the TTT operation is all but impossi-
ble.’’ G&T Terminal, 246 F.3d at 121–22. Finally, Vico’s
argument that Fast Food and Litton stand for the proposition

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that a restoration order is inappropriate where a layoff
decision is the product of an earlier decision that is not a
mandatory subject of bargaining completely misses the mark.
Here, the underlying decision to relocate is a mandatory
subject of bargaining (a point that Vico does not contest).
See supra Part II.A.1.
III
Each of the Board’s findings is supported by substantial
evidence on the record considered as a whole. First, substan-
tial evidence supports the Board’s finding that the relocation
of the caliper-pin equipment was a mandatory subject of
bargaining and that Vico therefore violated the Act when it
relocated the caliper-pin facility, and the Board was correct in
deciding that Vico unlawfully failed to engage in effects
bargaining. Second, the Board was correct in finding that
Vico acted unlawfully in unilaterally discontinuing its estab-
lished practice of granting an annual across-the-board wage
increase. Third, the Board’s finding that Vico’s decision to
relocate was based upon antiunion animus was supported by
substantial evidence, including statements made by manage-
ment to employees, Vico’s previous loan commitments, and
the stealthy manner in which Vico conducted the relocation.
Finally, we agree with the Board that it acted within its broad
remedial authority in ordering Vico to return the caliper-pin
operation to Plymouth and to reinstate the laid-off employees
with back pay. Accordingly, we deny Vico’s petition for
review and grant the Board’s cross-application for enforce-
ment.
So ordered.

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