                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT

                                         

No. 93-1604

               NATIONAL LABOR RELATIONS BOARD,

                         Petitioner,

                              v.

              CRAFTS PRECISION INDUSTRIES, INC.,

                         Respondent.

                                         

           ON PETITION FOR ENFORCEMENT OF AN ORDER
            OF THE NATIONAL LABOR RELATIONS BOARD

                                         

                            Before

                   Torruella, Circuit Judge,
                                           
                Aldrich, Senior Circuit Judge,
                                             
                   and Stahl Circuit Judge.
                                          

                                         

Harold N.  Mack with whom Benjamin  Smith and Morgan,  Brown &amp; Joy
                                                                  
were on brief for Respondent.
Jill  A.  Griffin  with  whom  Howard  E.  Perlstein,  Supervisory
                                                    
Attorney, Jerry  M. Hunter, General  Counsel, Yvonne T.  Dixon, Acting
                                                          
Deputy  General  Counsel,  Nicholas  E.  Karatinos,  Acting  Associate
                                              
General  Counsel,  Aileen  A.  Armstrong,  Deputy   Associate  General
                                    
Counsel,  and  National  Labor  Relations  Board  were  on  brief  for
                                            
Petitioner.

                                         

                      February 15, 1994
                                         

          ALDRICH, Senior Circuit  Judge.  This is  an action
                                        

by the  National Labor  Relations Board  to enforce  an order

against Crafts  Precision Industries,  Inc., a  manufacturer,

hereinafter Crafts, or Respondent.  Originally there were two

complaints.    Simplifying  complaint  number  26,573,  filed

October  27, 1989,  it alleges,  in substance,  that  in July

1989, Crafts refused to bargain by partially transferring its

polycrystalline department from Massachusetts to its Illinois

facility.   This transfer, hereinafter the PDT, allegedly was

an  unfair  labor  practice  designed  to  discourage  lawful

employee  activities.    The  complaint  sought  its  return.

Acting General  Counsel, (Counsel),  concedes that,  although

there was some other language in the complaint, the propriety

of this transfer  was the sole issue, in  accordance with the

charge.

          On February 14,  1990 counsel for the  Union signed

and  filed a  new  charge, numbered  27,070,  reading in  its

entirety,

               The    above-named   Employer    has
          discriminated  against  employees because
          of  their   participation  in   protected
          activities.[1]

Thereafter,  on April  23,  1990 the  Union  filed a  further

charge, given the same number, stating,

                    

1.  On the  issue of  notice, as well  as satisfying  section
10(b)'s six  months limitation,  the Board's brief  describes
this as "plain  language."  It may be plain, but it is hardly
explicit.

                             -2-

               On  or about  August  22, 1989,  the
          above-named Employer, by its officers and
          agents,  laid  off  John  Kierstead,  Tom
          McCullough,   William      Hillson,  Kien
          Nguyen, Son Le, Terrance Crowley, Minh Ha
          and  Thinh Pham  because  of their  union
          activities.

          On  April 30, 1990 complaint No. 27,070, was filed,

stating,

               7.   On  or about  August 22,  1989,
          Respondent   laid   off   the   following
          employees:

            John Kierstead      Terrance Crowley
            Tom McCullough      Son Le
            William Hillson     Minh Ha
            Kien Nguyen         Thinh Pham

               8.   The  layoffs  of the  employees
          referred   to   above  in   paragraph   7
          resulted,  in  whole  or  in  part,  from
          Respondent's  partial  transfer   of  its
          polycrystalline   department   from   its
          Canton facility to  its Illinois facility
          in July, 1989.

               9.     Respondent  engaged   in  the
          conduct  described above  in paragraph  7
          because the  employees named  therein and
          other  employees  joined,  supported,  or
          assisted  the   Union,  and   engaged  in
          concerted activities  for the  purpose of
          collective bargaining or other mutual aid
          or protection, and in order to discourage
          employees   from    engaging   in    such
          activities or other  concerted activities
          for the purpose  of collective bargaining
          or other mutual aid or protection.

          We must,  however, back  up.   Case No.  26,573 was

called for trial on  March 19, 1990.   At the outset  Counsel

moved   orally  to  consolidate  it  with  Case  No.  27,070.

Respondent asserted  that "under Collier"  there should first
                                        

                             -3-

be  arbitration.  Counsel's  response was that  there need be

none because  the two cases  were related.2  The  ALJ allowed

the motion, saying he would "hear further argument at the end

of  this case."  He  then proceeded to  hear the 26,573 case,

only.

          We  find, however, that  by letter of  February 16,

1990, Crafts learned that three of the  eight employees later

named in  the April  enlargement were,  allegedly, discharged

for  individual  reasons  as  well  as because  of  the  non-

negotiated PDT.   When  this second  "consolidated" case  was

later  tried, Counsel,  though  satisfying  the  ALJ  of  the

wrongfulness of  this transfer, did  not show it cost  any of

the named  employees' jobs.   Instead  the offered  proof was

simply that three of the group were wrongfully  discharged on

account of individual lawful, but displeasing conduct.

          On this basis Crafts complains that the charge that

prevailed was not made within Section 10(b)'s six months from

August 22, 1989, and  that this was a  jurisdictional defect.

Even  if  the February  14,  1990  charge  were construed  as

insufficient, Crafts must fail.   The six months provision is

not   jurisdictional,  but   is   an   ordinary  statute   of

limitations, see NLRB v. Silver  Bakery, Inc. 351 F.2d 37, 39
                                             

(1st Cir. 1965), and, as such, may be waived.  C.E.K.  Indus.
                                                             

                    

2.  It is now the Board's position  that the cases  were  not
related.

                             -4-

Mechanical Contractors, Inc.  v. NLRB, 921 F.2d 350,  351 n.2
                                     

(1st Cir.  1990).   Immediately prior to  the hearing  on the

27,070 complaint Crafts  knew of the  separate claims of  the

three individuals.  It did not seek to amend its pleadings or

make any  attempt to object on  the ground of lateness.   The

Board  first heard of Crafts'  Section 10(b) objection by way

of an  objection taken to its  opinion.  Even  were the point

valid, it was too late.

          We  turn to  the case  before  us.   The Board  has

affirmed the ALJ's  finding that five of the  eight employees

named in the second complaint  were discharged not because of

the  machinery  transfer, but,  rather,  solely for  economic

reasons and thus  not as a result of the PDT,  found to be an

unfair labor practice  by the ALJ.  However,  it reversed his

finding  that the PDT was  an unfair labor practice, finding,

instead,   that   it,   too,  was   economically   justified.

Correspondingly,  it found  that  Crafts' allegedly  improper

statement that it  would make the  transfer unless the  union

agreed to  a modification in  the contract was not  a threat,

but a fair announcement.   Accordingly, all that is before us

is the Board's affirmance of the ALJ's finding against Crafts

with  respect to  laying  off  three individuals,  Kierstead,

McCullough and Hillson.

                             -5-

          The  ALJ   and  the   Board  found   that  economic

considerations   justified  discharges,3   but  that   unfair

reasons  predominated in  the case  of  these three.   It  is

common  ground that  this is  a  "mixed motive"  case, to  be

governed  by the shifting-burden analysis in Wright Line, 251
                                                        

N.L.R.B. 1083 (1980),  enf'd, 662 F.2d  899 (1st Cir.  1981),
                            

cert.  denied,  455  U.S.  989  (1982).   Under  N.L.R.B.  v.
                                                         

Transportation  Management Corp.,  462 U.S.  393 (1983),  the
                                

Supreme Court upheld the Wright Line  analysis, stating it as
                                    

follows:

          the General Counsel  carrie[s] the burden
          of persuading the Board that an antiunion
          animus  contributed  to   the  employer's
          decision  to  discharge  an  employee,  a
          burden that does not shift, but . . . the
          employer,  even if it  fail[s] to meet or
          neutralize the General Counsel's showing,
          [can] avoid the  finding that it violated
          the   statute  by   demonstrating  by   a
          preponderance  of the  evidence that  the
          worker would have  been fired even if  he
          had not been involved with the union.

Id. at  395.  See also Herrick &amp;  Smith v. N.L.R.B., 802 F.2d
                                                   

565, 570 (1st  Cir. 1986) (employee's protected  conduct must

be a "substantial or motivating factor for the discharge").

          In  reviewing the Board's  findings, the court will

not  "displace   the  Board's  choice   between  two   fairly

conflicting  views, even  though the court  would justifiably

                    

3.  Crafts  presented  evidence that  its  sales  had dropped
considerably;   that  it  had  laid  off  three  other  union
employees in July,  and had reduced its  non-union management
support staff by some 30%.

                             -6-

have made a different choice had the matter been before it de
                                                             

novo."  Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 488
                                          

(1951).    However, "a  reviewing  court is  not  barred from

setting aside a Board decision when it cannot conscientiously

find   that   the  evidence   supporting   the  decision   is

substantial, when viewed in the  light that the record in its

entirety furnishes, including the body of evidence opposed to

the Board's view."  Id.
                       

          Respondent argues, on the basis of this last quoted

clause,  that  on  the affirmative  finding  of  the economic

necessity of layoffs, with no  finding that more layoffs were

made than necessary, the evidence was insufficient to support

the Board's findings, (1) that  the three employees were laid

off because  of their protected  activity, and  (2) that  the

company had  failed to  show that the  three would  have been

laid off regardless of their union activity.

          Hillson
                 

          In July 1989, Hillson complained to McCullough, the

chief union  steward, that  he had not  received a  pay raise

resulting from an earlier  successful grievance.   McCullough

pursued the matter  with management twice  in July and  again

within a week  before the August layoffs.   There was nothing

else by way of a prima facie case.   We may agree that timing

can be an important factor in determining whether a discharge

is  motivated by the employee's protected activity.  N.L.R.B.
                                                             

                             -7-

v. Vemco, Inc.,  989 F.2d 1468, 1479, amended,  997 F.2d 1149
                                             

(6th  Cir.  1993).    Here,   however,  we  face  an  unusual

situation;  the Board  found that layoffs  at that  time were

justified.   When  a  mass  layoff is  justified,  it is  not

unlikely  that  some affected  employees  will have  recently

engaged  in minor protected  conduct.  That,  standing alone,

should not establish a prima  facie case.  Indeed, we suggest

that  to hold  so would  be wrong  in principle.   Employees,

aware of the fact that reductions were imminent, could strive

to make  minor  trouble  and  thus  place  themselves  in  an

automatically protected group.  We consider it speculative to

say the  Board carried its  burden.  Rather, that  it reacted

automatically  here seems  confirmed  by  its  findings  with

respect to Kierstead.

          Kierstead
                   

          Like Hillson, Kierstead claimed that Respondent was

not complying with obligations that arose out of a previously

successful   grievance.    The  Board  found  not  only  that

Kierstead was laid off just days after filing his labor grade

grievance, and just two weeks after being reinstated by court

order, but also that the  company had given Kierstead a false

reason for its failure to reinstate him at his previous labor

grade --  that the PCD  operations in Massachusetts  had been

fully terminated, a claim retracted by the company at the ALJ

hearing.    If  this  made out  a  prima  facie  case,  it is

                             -8-

rebutted.   Four  employees  were  laid  off  in  Kierstead's

department, one of whom,  Son Le, was in a higher labor grade

than Kierstead.  The ALJ  and the Board found that the  other

three layoffs,  including Le's, were  economically justified.

As  it  is  undisputed  that  seniority  was  honored in  the

layoffs, Kierstead  cannot argue that another employee should

have been chosen in his place; all were either more senior or

in  considerably higher  labor grades.4    Further, the  fact

that Respondent reached  beyond Kierstead's  labor grade  and

into  Le's indicates  that  Kierstead  was  not  singled  out

unfairly;  in Kierstead's division, as in the Natural Diamond

division,  Respondent exhausted the lowest labor grade before

reaching into  a higher grade.5  No claim  was made, by Le or

Kierstead, that  Le was laid  off as a cover  for Kierstead's

layoff,  despite the  presence  of  the union  representative

throughout the hearing.  See,  e.g., N.L.R.B. v. Jack  August
                                                             

Enterprises,  Inc., 583  F.2d 575,  578-79  (1st Cir.  1978).
                  

Given the  Board's unchallenged findings  regarding the other

                    

4.  The  bargaining  agreement  provided  that  in  selecting
employees for layoff, "seniority shall be the deciding factor
among   employees  physically   fit  and   competent  through
knowledge, skill,  and  efficiency to  perform the  available
work."  Agreement at   12(b); T. &amp; E. A. at 347.

5.  The  bargaining agreement also provided that "In the case
of  layoff,  an  employee  displaced  from  his  occupational
grouping  may exercise his  shop seniority and  bump into any
job in  the same or  lower labor grade  providing he is  then
qualified to perform  the work . . ."  Agreement  at   12(a);
T. &amp; E. A. at 347.

                             -9-

layoffs  in this department,  Kierstead would have  been laid

off regardless of his union activity.

          McCullough
                    

          With  respect to McCullough  there was more  to the

case, though on both sides.   From Crafts' standpoint, it did

away  with his position of  inspector, and provided that each

worker  should inspect his  own work.   Pappas, Crafts' chief

officer, testified that  he had contemplated that  this would

effect a substantial saving.  As against this the Board noted

that  this had  been done,  if at  all, in his  head, without

paper analysis.   To this  Pappas replied that it  had worked

out to save some $20,000.  It  would be difficult to say that

this affair was more than a draw, and insufficient to justify

a conclusion  either way.   The operator  of a  small company

must normally do much in his head.  There was, however, more.

For  over  ten  years  McCullough  had  been  union  steward,

responsible for  pursuit  of union  members' grievances  with

management.  In  December, 1988,  he received  a labor  grade

increase, and was  told by his supervisor that  he would have

received the increase  at least two years earlier  had it not

been for  his union  activities.   Pappas  became angry  with

McCullough in June 1989 when  he refused to move the location

of  a vote on  a working foreman  proposal.  After  the vote,

Pappas asked for  the vote total,  but McCullough refused  to

tell him.  Twice in July and once during the week  before the

                             -10-

layoffs in August, McCullough pursued a pay rate dispute with

management on  behalf of Hillson.   On August  15, McCullough

discussed with his supervisor Kierstead's pay  grade dispute,

and his supervisor told McCullough  that his name had come up

in a management conversation "with some disfavor" and that he

should be  on his  best behavior.   McCullough discussed  the

same issue with Pappas on August 17, and filed a grievance on

Kierstead's behalf the next day.

          The Board held that this was sufficient evidence of

"animus to McCullough's union activities by the Respondent up

to the time immediately preceding his layoff."  Although, for

reasons  already  given,  we  could  not  accept  all  of its

reasoning,  we cannot  fault  the  Board  in  this  instance.

Obviously  a union  steward will  not  be management's  fair-

haired boy  or he  would quickly lose  favor with  the union.

Correspondingly,   we   would   think   occasionally   heated

disputes --  depending,  perhaps, on  personalities  --  must

occasionally occur.6  It would seem unreasonable that a union

steward  could have  an ace-in-the-hole safe  conduct against

lay-off   by  the  fact  that  his  pursuing  grievances  was

sometimes  irritating.   However, there  was  more than  that

here.    One  does  not   punish  a  steward  for  his  union

representation.   We find the Board  was warranted in holding

                    

6.  We  note  with  some surprise  that  the  Board seemingly
charged against  Pappas the fact  that he fought  a grievance
"vigorously."

                             -11-

it had a prima facie case.  Nor can we say  that Respondent's

showing that  it would  have done  away with  the inspector's

position in any event was  compelling as matter of law.   The

work required somebody's time.

          The order as  to McCullough is  enforced; otherwise
                                                             

denied.  No costs.
       

                             -12-
