ARCHER DANIELS MIDLAND COMPANY (ADM)

National Labor Relations Board - Administrative Judge Opinions

Jan 12, 2016

25-CA-143250 (N.L.R.B. Jan. 12, 2016)

JD–1–16
Decatur, IL
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ARCHER DANIELS MIDLAND COMPANY (ADM),
and Cases 25–CA–143250
25–CA–145578
BAKERY, CONFECTIONERY, TOBACCO 25–RC–142796
WORKERS & GRAIN MILLERS INTERNATIONAL
UNION, AFL–CIO, CLC LOCAL 103-G
Rebekah Ramirez, Esq.,
for the General Counsel.
Joseph E. Tilson, Esq. and
Jeremy J. Glenn, Esq.,
for the Respondent.
Dennis Howard,
for the Charging Party.
DECISION AND REPORT ON OBJECTIONS
MELISSA M. OLIVERO, Administrative Law Judge. These combined unfair labor practice and
representation cases arise out of a union representation campaign that resulted in the Union’s
defeat by a margin of 5 votes. The cases were tried in Peoria, Illinois on July 23 and 24, 2015.
The General Counsel alleges that Respondent committed several violations of Section 8(a)(3)
and (1) and Section 8(a)(1) of the National Labor Relations Act (Act). GC Exh. 1(i). As
discussed herein, I find merit to most of these allegations.
Moreover, the Union alleges that its objections to Respondent’s conduct during the election
campaign should be sustained, the election set aside, and a new election ordered. As discussed
herein, I sustain two objections and recommend that election be set aside and a new election
ordered.
JD–1–16
2
STATEMENT OF THE CASES
On December 15, 2014,1 the Bakery, Confectionery, Tobacco Workers & Grain Millers
International Union, AFL–CIO, CLC Local 103-G (Union) filed a representation petition with 5
the National Labor Relations Board (Board) indicating substantial employee support for its
efforts to be certified as the representative of a bargaining unit of maintenance employees at the
Decatur, Illinois Bio Products facility of Archer Daniels Midland Company (ADM) (Respondent
or Employer). The petition was docketed by the Board as Case 25–RC–14296. The parties
entered into a stipulated election agreement, which was approved by the Board’s Subregional 10
Officer-In-Charge on December 18, 2014.2 GC Exh. 1(l).
The Stipulated Election Agreement sets forth the following appropriate unit under the Act:
All full-time and regular part-time maintenance employees employed by the 15
Employer in its Bio Products plant located in Decatur, Illinois; excluding all
managers, professional employees, laboratory employees, office clerical
employees, guards and supervisors as defined in the Act, and all other employees.
On January 20 and 21, 2015, a representation election was conducted in the above-specified20
unit of Respondent’s maintenance employees at its Bio Products plant in Decatur, Illinois. The
tally of ballots showed the following results:
Approximate number of eligible voters 62
Number of void ballots 025
Number of votes case for the Petitioner 28
Number of votes cast against participating
labor organization 33
Number of valid votes counted 61
Number of challenged ballots 030
Number of valid votes counted plus
challenged ballots 61
There were no challenged ballots. A majority of the valid votes counted were not cast for the
Union.35
On January 28, 2015, the Union filed objections to seeking to set the election aside.
Following an investigation, the Regional Director concluded that there was merit to the Union’s
Objections 2, 3, and 4, and found additional objectionable conduct. With the approval of the
Regional Director, the Union withdrew Objections 1 and 5. On May 22, 2015, the Regional 40

1 Although the General Counsel’s Brief and the Union’s objections indicate that the petition was filed
on December 12, 2014, the Regional Director’s Report on Objections indicates that the petition was filed
on December 15. GC Exh. 1(l); GC Br. p. 5. Employee Nick Mitchell also testified that the Union filed
the petition around December 15. Tr. 42. The petition itself was not made part of the record. As such, I
find that the later date is correct.
2 All dates are in 2014 unless otherwise indicated.
JD–1–16
3
Director issued a report on objections and consolidated the objections with the instant unfair
labor practice cases for hearing. GC Exh. 1(l).
The Union filed the charge in Case 25–CA–143250 on December 22 and an amended charge
on March 31, 2015. The Union filed the charge in Case 25–CA–145578 on March 3, 2015 and 5
an amended charge on March 31, 2015. The General Counsel issued a consolidated complaint
on April 30, 2015. GC Exh. 1(i). Respondent timely filed an answer to the consolidated
complaint, denying the allegations and setting forth two affirmative defenses. GC Exh. 1(k). The
essence of the complaint, and the Union’s objections, are as follows (the paragraph numbers
below mirror those in the consolidated complaint): 10
5a) Respondent, by Tony Facchinello, interrogated employees about their union activities,
created an impression of surveillance among Respondent’s employees, and threatened employees
with unspecified reprisals on or about September 12, 2014, in violation of Section 8(a)(1) of the
National Labor Relations Act (the Act).15
5b) Respondent, by Tony Facchinello, interrogated employees about their union activities and
created an impression of surveillance among Respondent’s employees, and threatened employees
with unspecified reprisals on or about December 1, 2014, in violation of Section 8(a)(1) of the
Act.20
5c) Respondent, by Butch Rentmeister, changed the location of maintenance employees’
breaks, on December 17, 2014, thus creating and impression of surveillance and engaging in
actual surveillance of employees’ union activities, in violation of Section 8(a)(1) of the Act.
This violation is alleged as objectionable conduct in the Union’s Objection 4.25
5d) Respondent, by Tony Facchinello, interrogated employees about their union activities and
the union activities of others in January 2015, in violation of Section 8(a)(1) of the Act. This
violation is alleged as Additional Objectionable Conduct by the Regional Director.
30
5e) Respondent, by Butch Rentmeister, interrogated employees about their union activities
and the union activities of others and threatened employees with unspecified reprisals if they
engaged in union activity in January 2015, in violation of Section 8(a)(1) of the Act. This
violation is alleged as Additional Objectionable Conduct by the Regional Director.
35
5f) Respondent, by David Pickett, intimidated and harassed employees by singling them out
for their union activities in front of others on or about January 6, 2015, in violation of Section
8(a)(1) of the Act. This violation is alleged as objectionable conduct in the Union’s Objection 2.
6a) Respondent changed the location and length of maintenance employees’ breaks on or 40
about December 17, 2014, because employees supported the Union and to discourage employees
from engaging in these activities, in violation of Section 8(a)(3) and (1) of the Act. This violation
is alleged as Additional Objectionable Conduct by the Regional Director.
6b) Respondent denied maintenance employees’ personal holidays since about January 4, 45
2015, because employees supported the Union and to discourage employees from engaging in
JD–1–16
4
these activities, in violation of Section 8(a)(3) and (1) of the Act. This violation is alleged as
objectionable conduct in the Union’s Objection 3.
Respondent’s affirmative defenses assert that some of the allegations of the consolidated
complaint are time barred under Section 10(b) of the Act and that some or all of the allegations 5
of the consolidated complaint fall outside the scope of the underlying charges. GC Exh. 1(k).
The parties were given a full opportunity to participate, to introduce relevant evidence, to
examine and cross-examine witnesses, and to file briefs. On the entire record, including my own
observation of the demeanor of the witnesses,3 and after considering the briefs filed by the 10
parties, I make the following
FINDINGS OF FACT
I. JURISDICTION15
Respondent, a corporation, manufactures and sells food and feed products at its facility in
Decatur, Illinois, where it annually sells and ships goods valued in excess of $50,000 directly to
points outside the State of Illinois. Respondent admits, and I find, that it is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a 20
labor organization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Overview of Respondent’s Operations and Management Structure25
Respondent processes corn dextrose into food grade and industrial grade products, including
xanthan, lysine, sorbitol, and lactic acid, for human and livestock consumption at its Bio
Products facility in Decatur, Illinois. Departments at the Bio Products facility include
fermentation, refinery, bio 2, polyol, utility, laboratory, engineering, and maintenance. The 30
polyol and utility departments are located in separate buildings from the main building, where
most of the departments are located. Respondent’s maintenance department has employees
stationed throughout the Bio Products facility, including in the polyol department.
Michael Pasquariello is the plant manager of the Bio Products facility and is the highest 35
ranking management official at that facility. Anthony Facchinello has served as the
superintendent of the maintenance department since July 2014. Richard “Butch” Rentmeister is
the maintenance supervisor in Respondent’s fermentation department and he reports directly to
Facchinello. In all, 6 maintenance supervisors and 61 employees report to Facchinello.
40
Tracy Mosser is Respondent’s human resources manager at the Bio Products facility. David
Pickett is a senior employee and labor relations representative for Respondent. He works at

3 Although I have included citations to the record to highlight particular testimony or exhibits, my
findings and conclusions are not based solely on those specific record citations, but rather on my review
and consideration of the entire record for this case. My findings of fact encompass the credible testimony
and evidence presented at trial, as well as logical inferences drawn therefrom.
JD–1–16
5
Respondent’s corporate office, which is also located in Decatur, but is separate from the Bio
Products facility. Respondent admits, and I find, that Rentmeister, Facchinello, and Pickett are
supervisors of Respondent within the meaning of Section 2(11) of the Act or agents of
Respondent within the meaning of Section 2(13) of the Act. GC Exh. 1(k).
5
B. Respondent’s Maintenance Department
As noted above, Facchinello is the superintendent of Respondent’s maintenance department.
This department encompasses electrical and instrumentation (E/I) technicians and apprentices,
probe technicians, filter technicians, utility building technicians, storeroom attendants, 10
mechanics, and two tank crews. R. Exh. 1. These employees are assigned to work throughout
the Bio Products facility.
Eight employees in the maintenance department are members of a maintenance tank crew.
Respondent has two tank crews with four employees per crew. Employees assigned to the tank 15
crew work rotating 12-hour shifts. Most of the work of the tank crews is performed in the
fermentation department, but they may also work on tanks located in the refinery and bio 2
departments.
Nick Mitchell is the leadman of one of Respondent’s tank crews. Mitchell was appointed 20
tank crew leader on September 11, 2014, by Facchinello. ER Exh. 13; Tr. 254. Other employees
on Mitchell’s tank crew are Greg Dennison, Sean Kelly, and Kyle Logue.
C. The Union Campaign
25
On December 15, 2014, the Union filed a petition for a representation election with the
Board. In its petition, the Union sought to represent a unit of maintenance employees at
Respondent’s Bio Products facility. No evidence was adduced at the trial regarding when the
Union began its organizing efforts among Respondent’s employees or the extent of those efforts.
However, there was no open union activity during the campaign such as the distribution of union 30
literature, the wearing of union insignia, or the like.
There had been two prior efforts to organize Respondent’s maintenance employees. First, in
2010, a representation election was held regarding a petition filed by the Teamsters. Tr. 41. An
election was held in 2013 regarding a previous petition filed by the Union. Tr. 40-41. 35
Respondent’s maintenance employees did not select union representation in the 2010 or 2013
election.
Mitchell vehemently denied that he was a “lead” or “open” Union organizer during any of
the Union campaigns. However, I find that Mitchell’s union support would have been known to 40
or suspected by Respondent. Mitchell served as an observer for the Teamsters in the 2010
election. Tr. 79. Additionally, he testified at a Board-conducted community-of-interest hearing
in 2010. Tr. 83. Moreover, Mitchell’s testimony on this point was not convincing. When asked
whether he was the lead organizer in the second [2013] campaign, Mitchell answered a question
with a question by responding, “What’s your definition of lead organizer?” Tr. 82. Mitchell also45
testified in his pre-trial affidavit that “I was the lead organizer in the first campaign.” Tr. 80-81.
When asked if he was the lead organizer in the most recent campaign, Mitchell asked, “May I
JD–1–16
6
have a second?” Tr. 83. Only after being directed to answer the question, Mitchell quickly stated
that he was not the lead organizer. Tr. 83-84. However, this testimony was contradicted by other
witnesses called by the General Counsel, including Sean Kelly. Tr. 150. I find that these
contradictions and hesitations in answering questions diminish Mitchell’s credibility on this
point and I find that Mitchell’s union sympathies would have been known to or at least suspected 5
by Respondent’s supervisors and managers.4
Even though I find that Respondent would have known or suspected that Mitchell was
sympathetic to the Union, I do not find that Respondent would have known that Mitchell was an
organizer. No evidence was adduced at trial that Mitchell engaged in union organizing activities 10
on Respondent’s premises. Furthermore, no evidence was adduced that any of Respondent’s
supervisors or managers ever observed Mitchell engage in organizing activity. Thus, although I
find that Mitchell would have been regarded as being pro-union by Respondent, I do not find that
he engaged in union organizing activity or that such activity was known to Respondent.
15
D. Alleged September 2014 Incident
Mitchell testified that he was summoned to Facchinello’s office on September 12, 2014,
during the night shift. Tr. 42. Mitchell had been promoted to leadman on the tank crew by
Facchinello 1 day earlier. When Mitchell arrived at the office, they discussed Mitchell’s 20
application for a temporary foreman position. Facchinello stated that it would be difficult for
Mitchell to receive training for this position because of his shift work. Mitchell agreed that it
would be difficult. Facchinello asked Mitchell if he would be willing to come in on his days off
for training. Mitchell said no.
25
According to Mitchell, Facchinello then stated, “Nick, I do not like liars.” Mitchell replied,
“ok.” Facchinello then stated, “Nick, I know that you ran the last two [union] campaigns.”
Mitchell was dumbfounded. Facchinello then went on to ask if Mitchell was running a union
campaign to which Mitchell replied no. Facchinello stated that if he found out that Mitchell, as a
leadperson, had any involvement [in a union campaign], he would be very disappointed in him. 30
Mitchell did not respond and the meeting ended.
For his part, Facchinello denied telling Mitchell that he knew Mitchell ran the last two union
campaigns or that he would be disappointed in Mitchell if he found out Mitchell was running a
union campaign. Facchinello also denied asking Mitchell if he was running a union campaign. 35
Facchinello did testify, however, that he had a conversation similar in content to the one
above before Mitchell’s promotion to leadman. Tr. 249. Facchinello testified that it was Mitchell
who brought up the subject of the Union when he asked if Facchinello had heard rumors about
him [Mitchell] leading a union campaign in the plant. Tr. 251. Facchinello testified that he told 40

4 While I find that Mitchell’s union sympathies were known or at least suspected by Respondent, I do
not find that Mitchell self-disclosed his status as a union organizer or adherent. I further do not find that
Mitchell self-disclosed rumors that he was a union organizer. Respondent elicited testimony from
Facchinello and Pasquariello that Mitchell willingly offered that he was a union organizer or that there
were rumors to this effect. Tr. 226-227; 251-253. This testimony defies credulity and I credit the
testimony of Mitchell that he did not self-disclose his union organizing activity to Respondent in
conversations as alleged by Facchinello and Pasquariello.
JD–1–16
7
Mitchell that he had heard such rumors, as well as rumors about Mitchell chewing tobacco in the
plant and procrastinating. Tr. 251-252. Facchinello then gave the following testimony in
response to a question by Respondent’s counsel:
Q: Did the subject of employees rights to file petitions and organize come up?5
A: Yeah. When he talked—he went back, and he was making comment that—
you know, about this—about the Union, him organizing the Union campaign, and
he said he thought that that was the reason why people were making comments
about him chewing tobacco, because it’s a cardinal rule and it was a way to 10
maybe retaliate based on their opinion that or maybe their perception that Nick
was, you know—and I told Nick, I said, that, you know, is his prerogative . . .
Tr. 252-253. Although this testimony was not coherent, Respondent’s counsel made no effort to
seek clarification from Facchinello. I do not credit Facchinello’s testimony regarding this 15
conversation with Mitchell as it was both implausible and unclear. Instead, I credit Mitchel’s
version of the conversation.
E. December 2014 Incident Preceding Filing of Petition
20
A few weeks before December 1, Mitchell reported that a lock out/tag out had been
performed incorrectly by an ADM contractor. Facchinello investigated Mitchell’s claim. On
December 1, Mitchell was called to Facchinello’s office to discuss the results of the
investigation. Tr. 46–47.
25
According to Mitchell, Facchinello told him that the lock out/tag out had not been done
incorrectly and that three contractor employees all had the same story. Mitchell replied he had
no motivation to lie. Facchinello stated that, surely, three people weren’t going to lie to him.
Mitchell then said, “Well, Tony, that means you’re calling me a liar.” Facchinello stated, “Nick
I don’t like liars and I will find out if you are lying to me.” Out of the blue Facchinello then said, 30
“Nick, I know that you ran the last two campaigns.” Mitchell interrupted him and asked, “Have I
ever told you personally, Tony, that I was involved in any campaign running of anything?”
Facchinello said no. Mitchell then said, “Well, then I [would] appreciate that you quit listening
to hearsay.”
35
Facchinello acknowledged that this conversation took place. Tr. 260. Facchinello stated that
when he met with Mitchell to discuss his investigative findings regarding the lock out/tag out, he
told Mitchell that there was nothing that could lead him to believe that the contractor was in
violation. Facchinello added that he was concerned with the way the contractor filled out the
lock out/tag out. Mitchell then stated, “So are you stating I’m lying to you?” Facchinello 40
replied, “I’m not stating that anybody is lying, I’m just stating that I have these statements.”
Facchinello said that maybe it was a problem of perception. Mitchell then repeated, “So I’m
lying to you?” Facchinello stated, “I’m not saying anyone is lying here, Nick.” He said it was
the same thing as with other rumors at the plant and he would not take any action based upon a
JD–1–16
8
statement. Facchinello denied making any statements about Mitchell’s union activity or Mitchell
running two prior union campaigns.5
F. December 17, 2014 Allegations
5
In the early 2000s, Respondent constructed a large maintenance break room in the Bio
Products facility. Tr. 54. This break room had many amenities, including refrigerators,
microwaves, vending machines, and an ice machine. Tr. 55. After the maintenance break room
was constructed, maintenance employees began taking their breaks there, regardless of where
they were assigned to work in the Bio Products facility. Tr. 169. This break room is able to seat 10
60 or so employees and is so large that Respondent sometimes uses it for training or all-plant
meetings. Tr. 54; 322.
Respondent’s employees working an 8-hour shift receive one 10-minute break in the
morning, a 20-minute meal break, and a 10- minute break in the afternoon.6 R. Exh. 3. Members 15
of the tank crew, who work 12-hour shifts, receive two extra breaks: one additional 10-minute
break in the morning and an additional 10-minute break in the afternoon. In essence, all
employees, regardless of schedule, receive a paid break every 2 hours. Tr. 178. Employee Sean
Kelly testified that the break times did not include travel times to and from the break room.7 Tr.
137. Additionally, Respondent’s maintenance employees were sometimes allowed additional 20
breaks due to high temperatures and safety concerns. Tr. 167. Temperatures in the plant may
reach 110 degrees and maintenance employees work with their bodies fully covered for safety
reasons. Thus, maintenance employees must remove their protective gear during their breaks
and put it back on before returning to work. At the time that Facchinello became maintenance
superintendent, all maintenance employees took their breaks in the maintenance break room. 25
Respondent’s employees admitted that they were aware of Respondent’s break policies and
that they were reminded about the policies. Employee Martin Hadley testified that Respondent
brought up breaks over the years. Tr. 166. Employee Greg Dennison testified that employees
received annual reminders about breaks. Tr. 180. Tracy Mosser testified that she specifically 30
addressed employee breaks at a meeting with employees in April 2014. R. Exh. 11; Tr. 325–328.
However, there is no evidence that Respondent ever enforced its break policy and Facchinello
admitted that no employee was ever disciplined for a violation of Respondent’s break policies.
Tr. 315. In fact, Respondent’s employees testified without contradiction that the break length
policies were never enforced prior to the filing of the Union’s petition. Tr. 138, 197.35
According to Facchinello, he decided to change the break locations for most maintenance
employees in mid-December because: maintenance employees working in polyol complained

5 I do not credit Facchinello’s version of this conversation and instead credit Mitchell’s.
Facchinello’s testimony on this point was rife with hesitation, as evidenced from his frequent use of the
phrase “you know.” Instead, I find it more likely that the conversation occurred in the manner testified to
by Mitchell.
6 This rule is sometimes referred to as the 10–20–10 rule.
7 Kelly’s testimony is bolstered by evidence that maintenance employees working in the polyol
department drove from the polyol building to the main building to take their breaks in the maintenance
break room prior to September 2014. Tr. 313. The round trip drive would have certainly created break
times beyond the allotted 10 minutes.
JD–1–16
9
about having to travel to the maintenance break room to take breaks; he had observed breaks
being extended by 20 to 30 minutes; and concerns over inefficiency and productivity. Tr. 264–
265. Facchinello had earlier implemented such a change for maintenance employees working in
polyol in September 2014, well before the Union filed its petition.8
5
After observing maintenance employees taking what he felt were lengthy breaks, Facchinello
testified that he met with employees and reminded them to adhere to Respondent’s break time
policies. He hoped that employees would police the problem themselves, but over time he
observed this was not happening. None of Respondent’s employees testified that Facchinello
met with them to remind them to adhere to Respondent’s break time policies prior to his 10
changing of the location of employee breaks. Rentmeister testified that he recommended
changing the location of breaks for maintenance employees assigned to departments other than
polyol to Facchinello.9 Tr. 361.
On December 10, Facchinello sent an email to all maintenance employees discussing his first 15
six months as maintenance superintendent. GC Exh. 2. Facchinello specifically mentioned his
concerns with employees overstaying their breaks in this email. However, Facchinello did not
mention that he was considering changing the location of employee breaks in his email.
Facchinello testified that he decided over the weekend of December 13–14 to implement the 20
change in employee break locations. He did not testify to any specific incident or reason that
caused him to make the change at that time. He discussed his idea first with supervisors in
human resources because of “complications.”10
Facchinello and Rentmeister both held meetings with employees to discuss the decision to 25
change the locations of their breaks. The dates of these meetings were never established. Both
Facchinello and Rentmeister told employees that the reason for the change in break location was
to reduce employee travel times.11 Tr. 71, 137-138, 166. Rentmeister did not testify about
meeting with employees regarding the change in break locations in December 2014.
30
Although Rentmeister testified to the distances and lengths of time it would take employees
to travel between the various departments and the maintenance break room, he testified that he
measured the distances and times and prepared a document containing his findings in preparation

8 However, unlike other changes made by Facchinello, the change in break location for maintenance
employees assigned to polyol was urged by the maintenance employees, not Respondent’s managers.
9 Facchinello did not testify that he discussed the issue of employees overstaying breaks with
Rentmeister at any time prior to making his decision. However, Facchinello did testify that Rentmeister
told him that maintenance employees used to break in the areas where they were assigned prior to the
construction of the maintenance break room. Tr. 267.
10 Facchinello did not elaborate on what these complications might have been and he did not testify to
any specific conversations with Respondent’s human resources personnel about the change. Mosser was
not asked whether she discussed Facchinello’s decision to change employee break locations with him.
11 I do not credit the testimony of Mitchell that Rentmeister told employees that the reason for the
change in break locations was so that Respondent could monitor employee breaks. Sean Kelly, who was
present when Rentmeister spoke to employees about the change in break locations, did not corroborate
Mitchell's testimony. No one else gave testimony about such a statement. As such, I do not credit
Mitchell’s testimony on this point.
JD–1–16
10
for the hearing.12 R. Exh. 14A; Tr. 366. Conversely, all of Respondent’s employees testified that
it took only 2–3 minutes to travel between fermentation or bio 2 and the maintenance break
room. Tr. 58, 59, 166, 180. I credit the testimony of the employees over that of Rentmeister in
this regard.
5
Facchinello sent an email to all maintenance department employees memorializing the
change in break locations on December 17. GC Exh. 3. Under Facchinello’s new system,
maintenance employees working in the refinery department would continue to take their breaks
in the maintenance break room. All other maintenance employees would break in the
departments where they were working. GC Exh. 3. 10
Rentmeister admitted that he began to monitor the length of maintenance employees’ breaks
in December 2014. Tr. 363. He did so by walking by the break room at the beginning of their
break and then again at the end of the break time. Tr. 363. If he noticed employees in the break
room beyond their scheduled break times, he would tell them to return to work. Tr. 364. 15
Employees noticed Rentmeister walking by the break room and looking in at them during this
time frame. Tr. 72–73; 139; 180–181. It is undisputed that the environment in the Bio Products
facility is very loud and that anyone walking by any of the employee break rooms would not be
able to hear what was going on inside. Tr. 104.
In late January 2015, after the election, Facchinello modified his decision regarding 20
employee break locations after receiving a complaint from Mitchell. GC Exh. 4; Tr. 63–67; 277–
278. On January 26, 2015, Mitchell radioed Facchinello and asked him to come to the
fermentation department break room. Due to fermentation department and maintenance
department employees taking their breaks at the same time, the break room was so crowded that
Mitchell could not sit down to take his break. When Facchinello arrived in the break room, he 25
observed Mitchell standing. Tr. 64–65; 277. Mitchell asked Facchinello if he would like to take
his breaks standing up, to which Facchinello replied no. Mitchell said that he would not ask
fermentation employees to stand so that he could sit for his break. Mitchell then asked
Facchinello if it was fair that he had to take his break standing up, to which Facchinello replied
no. Mitchell then reminded Facchinello that it was his decision to change the break locations. 30
Facchinello responded that it was his hope that the fermentation employee breaks and
maintenance employees’ breaks would not conflict. Mitchell then told Facchinello that “you can
see that’s not happening.” Facchinello promised to look into finding a solution and said that he
would get back to Mitchell.
35
Later, Facchinello sent an email message to all maintenance employees regarding break
locations. GC Exh. 4. In his email, Facchinello stated that due to space constraints in the
fermentation department, he was again changing the break and lunch locations for day shift
employees. Under the further revised system, maintenance employees assigned to refinery and
fermentation would take their breaks and lunch in the maintenance break room. Other 40
maintenance employees would continue to break in the departments to which they were assigned.

12 Rentmeister indicated that it would take 7 minutes from fermentation and 8 minutes from bio 2 to
travel to the maintenance break room. I do not credit Rentmeister’ s testimony on this point and instead
credit the testimony of Respondent’s employees, as I did not find Rentmeister to be a generally credible
witness. I further accorded little weight to Rentmeister’s document because it was not relied upon by
Facchinello when making his decision to change the location of employee breaks.
JD–1–16
11
In addition, Facchinello reminded employees to hold themselves accountable for abiding by the
break time rules.
G. January 2015 Allegation Regarding Facchinello
5
Employee Kyle Logue testified that while in the locker room at work, Facchinello asked him
if Nick Mitchell was forcing him to join the Union. Tr. 194. This locker room is shared by
employees and management. When asked to recount the conversation, Logue testified that
Facchinello asked, “So is Nick forcing you to go union yet?” Tr. 195. Logue testified that he
responded, “Nobody forces me to do anything and I make my own choices.” Logue testified that 10
Facchinello then changed the subject.
Facchinello denied ever asking Logue about Mitchell or the Union. Tr. 261. Facchinello
testified, however, that he had multiple conversations with Logue in the locker room and that the
topic of the Union arose. Tr. 262. According to Facchinello, it was Logue who initiated the 15
conversations by stating that he was frustrated with Mitchell talking to him about the Union and
wanting him to sign a union card. In response to a question by Respondent’s counsel on this
issue, Facchinello gave the following response:
And I have replied that I’m not involved in the Union process, that is the hourly 20
employees’ rights to be able to, you know, petition for the Union, that I’m not the
person that can help them with that matter and that I suggested that he talk to
somebody in HR about that, because I just—I don’t have enough—I don’t know
enough about it.
25
Tr. 262. Facchinello was unable to state how many such conversations he had with Logue or the
exact words used in any of the conversations. Tr. 261–262; 310–311. Facchinello’s testimony
was given hesitatingly and in a confusing manner. In addition, he attempted to embellish his
testimony on rebuttal by stating for the first time that Logue complained about Mitchell’s work
performance during these conversations. Tr. 410–412. Therefore, I credit the testimony of 30
Logue over that of Facchinello in this instance.
H. January 2015 allegations regarding Rentmeister
Two witnesses testified that they were interrogated by Rentmeister in January 2015.
Employee Greg Dennison testified that in January 2015, prior to the election, he was in the office 35
of Rentmeister, the maintenance supervisor in fermentation. Tr. 177. Dennison testified that
Rentmeister asked him what his thoughts were and how the campaign was going. Dennison did
not respond. Another manager, identified as John Dodwell, then told Rentmeister that he wasn’t
allowed to be asking questions like that. Dodwell was not called as a witness. When asked if he
posed this question to Dennison and whether the other manager responded as testified to by 40
Dennison, Rentmeister testified, “Not to my knowledge.”13 Tr. 369–370.

13 As Rentmeister did not deny that the conversation occurred as testified to by Dennison, I credit
Dennison’s testimony.
JD–1–16
12
Employee Martin Hadley testified that in early January 2015 he was in Rentmeister’s office
to receive a work assignment. Tr. 163. Out of the blue, Rentmeister asked Hadley, “Well why do
you guys want to get a union in here?” Hadley stared at Rentmeister for a minute, not knowing
what to say. He eventually responded, “Well probably the same reason why you wanted to get
one in here.” Hadley stated that employees wanted to be treated more fairly. Hadley did not 5
remember Rentmeister making any further response.
Rentmeister testified that the encounter went somewhat differently. Rentmeister denied
asking Hadley why he wanted a union. Instead, Rentmeister testified that he overheard Hadley
telling another person that he wanted to bring in a union for the same reason Butch Rentmeister 10
wanted to bring in a union. Rentmeister could not remember to whom Hadley was speaking.14
Employee Kyle Logue also testified to an incident involving Rentmeister in December 2014
or January 2015. According to Logue, he was speaking with Rentmeister about an issue with a
seal when Rentmeister told him, “Don’t go down with a sinking ship.” Tr. 200. Logue testified 15
that he did not know what Rentmeister meant by this statement. Tr. 200. Logue testified that
Dennison was present for this conversation. Dennison was not asked about Rentmeister making
this statement and he did not testify about it. Rentmeister was not asked about whether he made
this statement or not.
20
I. January 2015 Allegations Regarding Pickett
During the most recent union campaign, Pickett conducted meetings for maintenance
department employees. Tr. 34. Pickett described these meetings as “informational,” while
employees characterized the meetings as “anti-union.” Tr. 48, 175, 377. During the January 6, 25
2015 meeting, Mitchell felt that he was singled out by Pickett. Tr. 50. About 15 maintenance
department employees were present for this meeting. Tr. 378. According to Mitchell, Pickett
stated that when employees had questions about the Union, they could ask Mitchell. Tr. 50.
Mitchell asked Pickett if he was insinuating that he was the leader of the union campaign. Pickett
said no, but that he thought Mitchell would have the answer. Tr. 50.30
According to employee Sean Kelly, Pickett did not say anything to Mitchell during this
meeting. Instead, Kelly testified that when Pickett was talking to the group, he focused his
attention and eyesight on Mitchell. Tr. 135. According to employee Greg Dennison, Pickett
referred questions to Mitchell three times during the meetings and stared at Mitchell. Tr. 176. 35
Steve Hartwig, a maintenance department employee called as a witness by Respondent,
testified that at the meeting in question he asked Pickett when the union authorization cards were

14 I credit the testimony of Hadley over that of Rentmeister. I did not find Rentmeister’ s brief
testimony credible. For example, he testified that he was present in Facchinello’s office for the
conversation between Facchinello and Mitchell about the lock out/tag out investigation. Tr. 374. Neither
Facchinello nor Mitchell testified that he was present. Also, like Facchinello, he embellished his
testimony on rebuttal to indicate for the first time that Logue had complained about Mitchell’s work
performance. Finally, as a current employee of respondent, Dennison’s testimony is entitled to enhanced
credibility. Advocate South Suburban Hospital, 346 NLRB 209 fn. 1 (2006); see also American Wire
Products, 313 NLRB 989, 993 (1994) (Current employee providing testimony adverse to his employer is
at risk of reprisal and thus likely to be testifying truthfully).
JD–1–16
13
signed. Pickett told Hartwig he would have to ask the Union. Hartwig then turned to Mitchell
and asked Mitchell, but did not remember Mitchell’s response. Hartwig also asked Mitchell
what the Union could do for him. Hartwig testified that, during the meeting, Pickett asked
Mitchell questions. Tr. 232. Although Hartwig could not remember the exact questions asked by
Pickett, he remembered that “it was in the context of the Union effort.” Tr. 232. Pickett denied 5
that he ever asked Mitchell a question at the meeting. Tr. 382. Mosser denied that Pickett asked
questions of or directed questions to Mitchell. Tr. 341, 342.
In this instance, I credit the testimony of Mitchell, Hartwig, and Dennison that Pickett
referred questions to Mitchell during the meeting. In addition, I credit the testimony of Mitchell, 10
Kelly, and Dennison that Pickett stared at Mitchell during the meeting. Although Pickett
testified that attention may have been focused on Mitchell because Mitchell asked an inordinate
number of questions at the meeting, this testimony was not corroborated by any of the
maintenance employees present at the meeting, including Hartwig. Moreover, Pickett could not
recall any of the specific questions allegedly asked by Mitchell. Tr. 385–86. Therefore, I credit 15
the testimony of the employee witnesses present at the meeting.
J. Allegation Regarding Denial of Personal Holidays
Respondent gives its employees three personal holidays per year.15 Tr. 73, 141, 169, 183, 20
201, 283. These personal holidays do not “roll over” and must be used in the year they are given
or they are lost. Tr. 73. Personal holidays may be taken in one of two ways: an employee may
request and schedule a personal holiday in advance by completing an all-purpose form or an
employee may call in request a personal holiday. When using the latter method, employees call
Respondent’s employee call-off line. If Facchinello is not present, a maintenance employee is 25
directed to a superintendent or foreman who takes down the employee’s information on an all-
purpose form. For employees in the maintenance department, these forms are directed to
Facchinello. There is no dispute that when maintenance employees call-in to request a personal
holiday, their requests can only be approved by Facchinello.16 Tr. 141, 284–285.
30
Respondent maintains a no-fault attendance policy. R. Exh. 2. Employees are given 10
points to use on a rolling, 365-day basis. R. Exh. 2; Tr. 289. Employees may use these points for
a variety of reasons, including visits to the doctor or vacations. Tr. 289. If a personal holiday
request is denied and the employee does not report to work, the employee is assessed one point
under the attendance policy. Tr. 288. If the employee is told that his request for a personal 35
holiday has been disapproved and the employee reports to work late, he or she is assessed one-
half point. Tr. 295.
Respondent maintains a work rule concerning how many employees can be off at one time
from a single department. R. Exh. 1. According to Respondent’s rule, which is posted and 40
known to employees, only one person on each tank crew is authorized to be absent on a

15 Although Jt. Exh. 1 indicates that employees receive one personal holiday and two floating
holidays per year, it is clear from the testimony at trial that employees receive three personal holidays per
year. In this instance, I credit the testimony of the witnesses over the contents of Jt. Exh. 1.
16 In at least one instance, Facchinello has abdicated his decision-making authority to longer-tenured
managers. Jt. Exh. 2; Tr. 305–306. Facchinello did not explain why he did so. Id.
JD–1–16
14
particular day. R. Exh. 1; Tr. 147, 286. The only exception to this policy is when an employee
seeks time off under the Family Medical Leave Act (FMLA). Requests for FMLA leave are
granted automatically. Tr. 292. An employee requesting FMLA leave, which is not paid, may
seek pay for the day by requesting a personal holiday for the same time period.17 Personal
holiday requests coinciding with FMLA leave are also granted automatically, even if they result 5
in a violation of Respondent’s policy concerning how many employees may be absent at one
time from a single department.
Respondent’s work rules require that personal holiday requests must be approved prior to the
start of a shift. R. Exh. 2, par. 5.3.4.2. Nevertheless, these requests may not be approved or 10
denied on the same day as they are made. Respondent’s rules also state that a personal holiday
request may be denied based on plant needs. R. Exh. 2, par. 5.3.4.2.2. Despite these rules,
Respondent’s records indicate that personal holiday requests are rarely denied. Between
December 2013 and March 2015, Respondent approved over 1,000 personal holiday requests for
employees at the Bio Products facility. R. Exh. 10. Among these approved requests were over 15
250 for maintenance department personnel. In fact, Respondent denied only one request for a
personal holiday for a member of the maintenance department (R. Agee) between December
2013 and the filing of the Union’s petition.18 J. Exh. 2; R. Exh. 10. No reason was given for the
denial of this employee’s request.
20
On January 4, 2015, three of the four members of Mitchell’s tank crew called in to request a
personal holiday within hours of the start of their shift. January 4 was the Sunday of the New
Years’ holiday weekend. Mitchell called in first and his request for a personal holiday was
granted.19 R. Exh. 7.
25
Dennison called in at 5:40 a.m. on January 4 to request FMLA leave. So that he could be
paid, Dennison also requested a personal holiday for this time. R. Exh. 7. Dennison’s request
was granted as he sought FMLA leave and he was paid for this day through the granting of the
personal holiday.
30
Sean Kelly called in seeking a personal holiday at 5:55 a.m. As noted above, two members
of the tank crew (Mitchell and Dennison) were already scheduled to be off on January 4.
Consequently, Kelly’s request for a personal holiday was denied by Facchinello, but not until

17 Receiving pay for a personal holiday coinciding with FMLA leave is referred to as pay “in lieu of.”
Tr. 292.
18 It appears that Respondent allowed violations of its attendance policy in approving personal holiday
requests. For example, both S. Hartwig and K. Bever were granted personal holiday requests on
December 9, 2013, even though R. Exh. 1 indicates they are both day shift storeroom attendants and only
one may absent per day. R. Exh. 10. In addition, both J. Grimsley and J. Cochran were granted personal
holidays on January 6, 2014, even though both were members of the same tank crew and the attendance
policy indicates only one member of the tank crew may be off at a time. R. Exhs. 1; 10. None of these
approved requests are marked “paid in lieu,” which would indicate that they were granted in conjunction
with FMLA leave. R. Exh. 7; Tr. 292
19 The time that Mitchell called in is disputed. Mitchell claims he called at about 2 a.m., but his all-
purpose form indicates he called in at 4:48 a.m. R. Exh. 7. This discrepancy is not important, however,
because it is undisputed that Mitchell was the first member of his tank crew to call in seeking a personal
holiday.
JD–1–16
15
January 5. R. Exh. 7. Kelly did not report to work on January 4 and was consequently assessed a
point under Respondent’s attendance policy.20 Tr. 293.
The evidence indicates that Respondent began more strictly enforcing its attendance policy
regarding personal holidays in January 2015, after the Union filed its petition. In January and 5
February 2015 alone, Respondent denied 6 personal holiday requests for maintenance
employees. Jt. Exh. 2.
DISCUSSION AND ANALYSIS OF THE UNFAIR LABOR PRACTICES
10
A. Credibility Analysis
A credibility determination may rely on a variety of factors, including the context of the
witness’ testimony, the witness’ demeanor, the weight of the respective evidence, established or
admitted facts, inherent probabilities and reasonable inferences that may be drawn from the 15
record as a whole. Double D Construction Group, 339 NLRB 303, 305 (2003); Daikichi Sushi,
335 NLRB 622, 623 (2001) (citing Shen Automotive Dealership Group, 321 NLRB 586, 589
(1996)), enfd. 56 Fed. Appx. 516 (D.C. Cir. 2003). Credibility findings need not be all-or-
nothing propositions—indeed, nothing is more common in judicial decisions than to believe
some, but not all, of a witness’ testimony. Daikichi Sushi, 335 NLRB at 622. 20
My credibility findings are generally incorporated into the findings of fact set forth above.
My observations, however, were that many of Respondent’s witnesses appeared less than fully
credible. Many of the witnesses lacked complete recall of the events at issue, hesitated in their
testimony, or gave improbable testimony. I generally credited the witness accounts which 25
seemed most plausible and were corroborated by other testimony or documentary evidence.
Mitchell testified in a sure manner. However, he appeared exasperated at times on cross-
examination and sometimes answered a question with a question. Nevertheless, his testimony
was generally plausible and corroborated by other witnesses. As such, I generally credited 30
Mitchell’s testimony. Specific instances where I credited other witnesses over Mitchell or
declined to credit his testimony are noted in the findings of fact, above.
Sean Kelly appeared calm and open when giving his testimony. He freely testified to
opinions seemingly at odds with the General Counsel’s theories, including that he agreed with 35
Respondent’s position in denying his personal holiday request on January 4, 2015. He did,
however, contradict himself on occasion. For example, he testified on cross-examination that
Mitchell did not attempt to hide his support for the Union and that his support was well-known
by other employees and managers. Then, on redirect examination, Kelly testified that Mitchell
did not broadcast his support for the Union to management. Nevertheless, Kelly’s testimony was 40
often supported by other witnesses and was logical. As such, I credited his testimony as
indicated above in the findings of fact.

20 Kelly conceded that he agreed with Respondent’s business outlook in assessing him the attendance
point because Mitchell and Dennison were already off. Tr. 155–156.
JD–1–16
16
I found Martin Hadley to be a particularly credible witness. He testified in a steady and
forthright manner. Respondent did not cross-examine Hadley and his direct testimony was not
contradicted by that of other witnesses. As such, I have credited Hadley’s testimony.
Greg Dennison was also a credible witness. He appeared relaxed and straightforward while 5
testifying. He readily admitted information seemingly favorable to Respondent’s case, such as
that Respondent reminded employees about break time rules. Tr. 180. Furthermore, Dennison’s
testimony regarding key events was plausible and supported by other witnesses. Therefore, I
have credited his testimony.
10
Kyle Logue appeared nervous while testifying, but he answered questions in a direct and
specific manner. Although he was occasionally unsure of dates when incidents occurred, I do
not find that this detracted from his overall credibility. When his testimony was not supported
by other witnesses who would be expected to testify favorably for the General Counsel, I did not
credit his testimony. Nevertheless, I have generally credited Logue’s testimony, except where 15
specifically noted.
Steven Hartwig was soft-spoken and seemed forthright in his testimony. His testimony was
largely corroborated by other witnesses. In addition, although he was called as a witness by
Respondent, he freely gave testimony that was contrary to that of Respondent’s managers. 20
Therefore, I have largely credited Hartwig’s testimony as set forth in the findings of fact.
Furthermore, I note that current employees are likely to be particularly reliable because these
witnesses are testifying adversely to their pecuniary interests. Advocate South Suburban
Hospital, 346 NLRB 209 fn. 1 (2006), citing Flexsteel Industries, 316 NLRB 745 (1995), affd. 25
mem. NLRB v. Flexsteel Industries, 83 F.3d 419 (5th Cir. 1996); see also American Wire
Products, 313 NLRB 989, 993 (1994) (Current employee providing testimony adverse to his
employer is at risk of reprisal and thus likely to be testifying truthfully). Therefore, I have
accorded the testimony of Respondent’s current non-managerial employees enhanced credibility.
30
I have not credited the brief testimony of Michael Pasquariello in this case. Pasquariello’s
only testimony bearing on this case concerned the alleged revelation by Mitchell that he was a
strong union supporter. Mitchell specifically denied making such a statement to Pasquariello. It
defies logic that Mitchell would approach the newly-appointed highest ranking official at the Bio
Products facility and announce that he was a “big” supporter of the Union. Instead, I have found 35
that Mitchell’s support for unions, which he did not hide, was gleaned by Respondent through
Mitchell’s service as an observer for a union at a Board-conducted election and his testimony at a
Board hearing. Thus, I do not credit Pasquariello’s testimony.
I did not generally credit the testimony of Tony Facchinello. He sometimes jumped to 40
answer questions before the questioner was finished. At other times he testified hesitatingly and
employed the phrase “you know” when giving testimony regarding critical events. He appeared
to stammer at times. His recall of critical events was often vague. I have cited examples of such
testimony above in the findings of fact. As such, I credited Facchinello’s testimony only where
corroborated by other witnesses I have found credible or where it is very plausible, 45
uncontroverted, or contrary to the position of Respondent.
JD–1–16
17
I also did not credit much of the testimony of Butch Rentmeister. His testimony was not
corroborated by other witnesses, including Respondent’s witnesses. For example, even though
he testified that he was present at a meeting with Facchinello and Mitchell regarding a lock
out/tag out issue, neither Mitchell nor Facchinello testified that he was present. Additionally, his
testimony was often not plausible or specific. However, I did credit Rentmeister’s testimony 5
when it was corroborated by other, credible witnesses or was contrary to Respondent’s interests.
I specifically did not credit the rebuttal testimony of Rentmeister and Facchinello that Logue
complained to them on multiple occasions about Mitchell’s work performance. This testimony
was offered for the first time on rebuttal. Additionally, despite these allegedly numerous 10
complaints, neither Rentmeister nor Facchinello investigated or disciplined Mitchell. As such, I
do not credit this testimony and find that it detracted from the overall credibility of Facchinello
and Rentmeister.
Moreover, I did not credit the testimony of David Pickett. He sometimes did not answer 15
questions posed by the General Counsel in a direct fashion. For example, when asked by the
General Counsel whether he was involved in meetings with employees during previous union
organizing drives, Pickett only replied, “It’s possible.” This testimony is implausible, as Pickett
is a senior labor relations representative of Respondent and has been for 10 years. Furthermore,
it defies logic that he would remember the two prior organizing drives but not recall a detail such 20
as this. Pickett also attempted to answer questions before the questioner was finished. His
testimony was also contradicted by numerous employees, including one called as a witness by
Respondent, who I have found more credible.
I found Tracy Mosser to be a credible witness. She testified in a convincing and sound 25
manner. Her testimony was largely noncontroversial and dealt mainly with Respondent’s
policies. I have credited her testimony regarding reminding employees about Respondent’s break
policies.
B. Respondent, by Facchinello, Violated the Act by Interrogating and Threatening Mitchell 30
and Creating an Impression that his Union Activities were under Surveillance
The General Counsel alleges, in paragraph 5(a) of the complaint, that Respondent, by Tony
Facchinello, violated Section 8(a)(1) of the Act by: (i) interrogating employees; (ii) informing
employees it was aware of their past union activity, creating an impression of surveillance that 35
their current union activities were under surveillance; and (iii) threatening employees with
unspecified reprisals. These violations of the Act are alleged to have occurred on or about
September 12, 2014, 2 months prior to the filing of the Union’s petition. These violations are not
alleged as objectionable conduct with regard to the January 2015 election.
40
In paragraph 5(b) of the complaint, the General Counsel alleges that Respondent, by Tony
Facchinello, violated Section 8(a)(1) of the Act by: (i) interrogating employees about their union
activities; and (ii) by informing employees it was aware of their past union activity, creating an
impression among employees that their current union activities were under surveillance. Like
the allegations in paragraph 5(b), these violations are alleged to have occurred on December 1, 45
2014, prior to the filing of the 2014 petition. These violations are not alleged as objectionable
conduct with regard to the January 2015 election.
JD–1–16
18
The Board considers the totality of the circumstances in determining whether the questioning
of an employee constitutes an unlawful interrogation. Rossmore House, 269 NLRB 1176 (1984),
enfd. sub nom. Hotel Employees Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985). The Board
has additionally determined that in employing the Rossmore House test, it is appropriate to 5
consider the factors set forth in Bourne v. NLRB, 332 F.2d 47, 48 (2d Cir. 1964): whether there
was a history of employer hostility or discrimination; the nature of the information sought
(whether the interrogator was seeking information to base taking action against individual
employees); the position of the questioner in the company hierarchy; the place and method of
interrogation, and; the truthfulness of the reply. In applying the Bourne factors, the Board seeks 10
to determine whether under all of the circumstances the questioning at issue would reasonably
tend to coerce the employee at whom it was directed so that he or she would feel restrained from
exercising rights protected by Section 7 of the Act. Westwood Health Care Center, 330 NLRB
935, 941 (2000).
15
Examining the totality of the circumstances here, I find that Facchinello’s interrogations of
Mitchell in September and December 2014 were unlawful. In September 2014, Mitchell was
summoned to Facchinello’s office, where they discussed both Mitchell’s recent promotion to
leadman and his application for a temporary foreman position. During the conversation,
Facchinello stated that he didn’t like liars and stated that he knew Mitchell ran two prior union 20
campaigns. Facchinello went on to ask Mitchell if he was running a union campaign and to state
that, if he found out Mitchell was running such a campaign, he would be disappointed in
Mitchell. Thus, Facchinello was seeking information about Mitchell’s union activity and implied
that he would take action against Mitchell if he was engaging in union activity. Facchinello was
Mitchell’s supervisor at the time. The conversation occurred at work, on work time, in the office 25
of the highest ranking person in Mitchell’s department. Mitchell did not reply Facchinello’s
question. Given the lack of a truthful response, the location of the questioning, Facchinello’s
position with Respondent, and the nature of the information sought, I find that a reasonable
employee would feel restrained in exercising his right to engage in union activity under the Act.
Therefore, I find that that Facchinello’s interrogation of Mitchell in September 2014 violated 30
Section 8(a)(1) of the Act as alleged by the General Counsel in paragraph 5(a)(i) of the
consolidated complaint.
Facchinello’s statement to Mitchell that he would be disappointed in Mitchell if he found out
that Mitchell was engaging in union activity violated Section 8(a)(1) of the Act as a threat of 35
unspecified reprisal. The test for evaluating whether an employer’s statement or conduct violates
Section 8(a)(1) of the Act is whether under all the circumstances the statements or conduct
reasonably tended to restrain, coerce, or interfere with employees’ rights guaranteed by the
Section 7 of the Act. Mediplex of Danbury, 314 NLRB 470, 472 (1994); Sunnyside Home Care
Project, 308 NLRB 346 fn. 1 (1992). The employer’s subjective motivation is irrelevant. Yoshi’s 40
Japanese Restaurant, Inc., 330 NLRB 1339, 1339 fn. 3 (2000). Furthermore, it is well settled
that the test of interference, restraint, and coercion under Section 8(a)(1) of the Act does not turn
on whether the coercion succeeded or failed. American Tissue Corp., 336 NLRB 435, 441
(2001) (citing NLRB v. Illinois Tool Works, 153 F.2d 811, 814 (7th Cir. 1946)). The Board has
found a threat of unspecified reprisal by a supervisor telling an employee he was “disappointed” 45
to see employee’s picture on a pro-union flyer. Print Fulfillment Services LLC, 361 NLRB No.
144, slip op. at 1 (2014). See also Sea Breeze Health Care Center, 331 NLRB 1131, 1132
JD–1–16
19
(2000) (holding that manager’s statement that she was “highly disappointed” with employee’s
union support was a “veiled threat of reprisal”). Similarly, in this case, I find that Facchinello’s
statement that he would be disappointed in Mitchell constitutes a threat of unspecified reprisal.
Therefore, I find that Respondent violated Section 8(a)(1) of the Act as alleged by the General
Counsel in paragraph 5(a)(iii) of the consolidated complaint. 5
I further find that Facchinello’s interrogation of Mitchell in December 2015 violated the Act.
In discussing a purported safety violation by a contractor in Facchinello’s office, Facchinello told
Mitchell that he doesn’t like liars and would find out if Mitchell was lying to him. Additionally,
Facchinello again told Mitchell he knew that Mitchell had run the last two union campaigns. 10
Mitchell denied involvement in union activity. Facchinello’s statements constitute an unlawful
interrogation because they were made by Mitchell’s supervisor (Facchinello) in the supervisor’s
office, on work time, and were intended to obtain information regarding Mitchell’s union activity
which would have been used for action against Mitchell.21 This last point is proven by
Facchinello’s repeating of his statement that he did not like liars, which he had used in his 15
September 2014 interrogation, coupled with words that he would somehow find out if Mitchell
was lying. Given the lack of a truthful response, the location of the questioning, Facchinello’s
position with Respondent, and the nature of the information sought, I find that a reasonable
employee would feel restrained in exercising his right to engage in union activity under the Act.
Therefore, I find that that Facchinello’s interrogation of Mitchell in December 2014 violated 20
Section 8(a)(1) of the Act as alleged by the General Counsel in paragraph 5(b)(i) of the
consolidated complaint.
I further find that Facchinello’s statements to and questions of Mitchell in September and
December 2014 created an unlawful impression that his union activities were under surveillance. 25
The Board’s test for determining whether an employer has created an impression of surveillance
is an objective one. An employer creates an unlawful impression of surveillance when
reasonable employees would assume that their activities have been monitored. Stevens Creek
Chrysler, 353 NLRB 1294, 1295–1296 (2009). Where an employer tells employees that it knows
about their union activities, but fails to cite its information source, Section 8(a)(1) is violated 30
because employees are left to speculate about how such information was obtained and might
assume that surveillance occurred. Id. at 1296. Facchinello, who was hired by Respondent after
the two prior organizing drives, did not reveal the source of his information that Mitchell was a
union organizer. Facchinello’s statements to Mitchell that he knew Mitchell ran prior union
organizing drives without revealing the source of his information would create a reasonable 35
assumption that Respondent had Mitchell’s union activities under surveillance. As such, I find
that Facchinello’s statements to Mitchell in September and December 2014 violated Section
8(a)(1) of the Act as alleged by the General Counsel in paragraphs 5(a)(ii) and 5(b)(ii) of the
consolidated complaint.

21 Although Facchinello’s statements in December were not in the form of a question, I still find this
to be an unlawful interrogation. Facchinello’s accusation that Mitchell had engaged in union organizing
was designed to elicit a denial or affirmation from Mitchell, similar to asking an open-ended question. In
Westwood Health Care Center, 330 NLRB 935 fn. 21 (2000), the Board found an unlawful interrogation
quoting the Fifth Circuit's observation that: “unlawful interrogations may occur even when remarks are
not ‘couched as questions’ if an employer agent makes statements that are ‘calculated to elicit responses
from employees about their union sentiments.”’ NLRB v. McCullough Environmental Services, 5 F.3d
923, 929 (5th Cir. 1993).
JD–1–16
20
C. Respondent, by Facchinello, Violated the Act by Interrogating Logue
In paragraph 5(d) of the consolidated complaint, the General Counsel alleges that
Respondent, by Facchinello, interrogated employees about their union activities and the union 5
activities of others in January 2015, in violation of Section 8(a)(1) of the Act. This allegation
forms the basis for “Additional Objectionable Conduct” as found by the Regional Director in his
Report on Objections.22
In January 2015, Facchinello and Logue were in a locker room on Respondent’s premises10
when Facchinello asked Logue if Mitchell had forced him to go union yet. Logue replied that no
one forces him to do anything and he makes his own choices. Logue did not reveal his feelings
about the Union to Facchinello. This conversation took place in a locker room maintained by
Respondent just before or after a work shift. Facchinello is Logue’s supervisor and the highest
ranking maintenance department official at the Bio Product’s facility. The question posed by 15
Facchinello was clearly meant to elicit a statement from Logue regarding his union sympathies
and Logue did not give a truthful reply. Thus, in weighing all of the Bourne factors, I find that
Facchinello’s questioning of Logue constituted an unlawful interrogation in violation of Section
8(a)(1) of the Act, as alleged by the General Counsel in paragraph 5(d) of the consolidated
complaint. 20
D. Respondent, by Rentmeister, Violated the Act by Interrogating Dennison and Hadley
In paragraph 5(e) of the consolidated complaint, the General Counsel alleges that
Respondent, by Butch Rentmeister, (i) interrogated employees about their union activities and 25
the union activities of others and (ii) threatened employees with unspecified reprisals if they
engaged in union activity in January 2015, in violation of Section 8(a)(1) of the Act. This
allegation forms the basis for “Additional Objectionable Conduct” as found by the Regional
Director in his Report on Objections.
30
According to Dennison’s credited testimony, in January 2015 prior to the election, he was in
the office of Rentmeister, the maintenance supervisor in the fermentation department.
Rentmeister asked Dennison what his thoughts were and how the campaign was going.
Dennison did not respond. Another manager, who was not called as a witness, told Rentmeister
that he wasn’t allowed to be asking questions like that. This question was asked by Dennison’s 35
supervisor, in the supervisor’s office, and sought information regarding the union sympathies of
Dennison or his coworkers. Given Dennison’s lack of a response, the location of the
questioning, Rentmeister’ s position with Respondent, and the nature of the information sought, I
find that a reasonable employee would feel restrained in exercising his right to engage in union
activity under the Act. Thus, in weighing the Bourne factors, I find that Rentmiester’s 40
questioning of Dennison constituted a violation of Section 8(a)(1) of the Act as alleged in
paragraph 5(e)(i) of the consolidated complaint.

22 Although the consolidated complaint alleges that this interrogation occurred in January 2015,
testimony at trial and the General Counsel’s brief indicate that it occurred in November or December
2014. Tr. 195; GC Br. p. 5. Logue was unclear of the date of the conversation, but eventually testified
that it was around the time of the election in 2015. Tr. 202–203.
JD–1–16
21
According to Hadley’s credited testimony, he was in Rentmeister’ s office to receive a work
assignment in early January 2015. Out of the blue, Rentmeister asked Hadley, “Well why do
you guys want to get a union in here?” Hadley stared at Rentmeister for a minute, not knowing
what to say. He eventually responded, “Well probably the same reason why you wanted to get 5
one in here.” Hadley stated that employees wanted to be treated more fairly. This conversation
took place in the office of Hadley’s supervisor, on work time, and Rentmeister was seeking
information regarding the union sympathies of Hadley and his coworkers. Given the location of
the questioning, Rentmeister’ s position with Respondent, and the nature of the information
sought, I find that a reasonable employee would feel restrained in exercising his right to engage 10
in union activity under the Act. Thus, in weighing the Bourne factors, I find that Rentmiester’s
questioning of Hadley constituted a violation of Section 8(a)(1) of the Act as alleged in
paragraph 5(e)(i) of the consolidated complaint.
As indicated in the findings of fact, Logue also testified to an incident involving Rentmeister 15
in December 2014 or January 2015. According to Logue, he was speaking with Rentmeister
about an issue with a seal when Rentmeister told him, “Don’t go down with a sinking ship.”
Although Logue testified that Dennison was present for this conversation, Dennison was not
asked about Rentmeister making this statement and he did not testify about it. Rentmeister was
not asked about making this statement. Even Logue admitted that it was not clear what was 20
meant by Rentmeister’ s alleged statement. This statement was vague at best and I cannot find
that Rentmeister was referring to any employee’s union activity when he made it. Given the lack
of corroboration and the uncertainty regarding the meaning of Rentmeister’s statement, I find
that the General Counsel has not proven that Respondent violated the Act by threatening Logue,
as alleged in paragraph 5(e)(ii) of the consolidated complaint and recommend that it be 25
dismissed.
E. Respondent, by Pickett, Violated the Act by Intimidating and Harassing Mitchell
In paragraph 5(f) of the consolidated complaint, the General Counsel alleges that 30
Respondent, by David Pickett, intimidated and harassed employees by singling them out for their
union activities in front of others on or about January 6, 2015, in violation of Section 8(a)(1) of
the Act. This allegation forms the basis for Objection 2 to the election.
At a meeting meant to discourage employees for selecting union representation, Pickett 35
singled out Mitchell. He did so both by asking him questions and staring at him during the
meeting. Pickett’s actions were taken in the presence of 15 employees. Singling out identified
union supporters in the midst of their coworkers has been found to constitute intimidating and
coercive conduct, violative of Section 8(a)(1) of the Act. Durango Boot, 247 NLRB 361, 364
(1980). See also Permanent Label Corp., 248 NLRB 118, 135 (1980), enfd. 657 F.2d 512 (3d 40
Cir. 1981) (Singling out union adherents in a meeting with supervisors has an intimidating and
coercive effect upon their Sec. 7 rights, in violation of Section 8(a)(1) of the Act). Therefore, I
find that Respondent violated Section 8(a)(1) of the Act by intimidating and harassing Mitchell
as alleged in paragraph 5(f) of the consolidated complaint.
JD–1–16
22
F. Respondent Violated the Act by Changing the Location of Maintenance Employee Breaks
In paragraph 5(c) of the consolidated complaint, the General Counsel alleges that 5
Respondent, by Butch Rentmeister, violated Section 8(a)(1) of the Act by changing the length
and location of maintenance employees’ breaks, thus: (i) creating an impression that employees’
union activities were under surveillance, and; (ii) engaging in surveillance of employees’
breaks.23 These allegations form the basis for Objection 4 to the election. In paragraph 6(a) of
the consolidated complaint, the General Counsel alleges that on December 17, Respondent 10
violated Section 8(a)(3) and (1) of the Act by changing the length and location of employee
breaks. This allegation forms the basis for “Additional Objectionable Conduct” as found by the
Regional Director in his Report on Objections. Through testimony at the trial, Respondent
admitted that it changed the location of employee breaks and surveilled its employees’ breaks.
Tr. 275, 363. 15
Section 8(a)(3) of the Act prohibits employer “discrimination in regard to tenure of
employment or any term or condition of employment to discourage membership in any labor
organization.” The Board has recognized that an employer’s imposition of a ban on a
longstanding employee practice, in retaliation for its employees’ support for a union, violates 20
Section 8(a)(3) and (1) of the Act. Murphy Oil USA, Inc., 286 NLRB 1039, 1043 (1987).
To determine whether an employer's adverse employment action violates Section 8(a)(3) and
(1) of the Act, the Board applies the analysis articulated in Wright Line24 to establish whether an
employer’s action against employees violates Section 8(a)(3) and (1) of the Act. To establish a 25
violation, the General Counsel must show, by a preponderance of the evidence, that an
employee's union activity was a motivating factor in the employer’s decision. Id. at 1089. If the
General Counsel makes the required showing, the burden shifts to the employer to demonstrate
that it would have taken the same action even in the absence of the employee’s union activity. Id.
The employer cannot meet its burden merely by showing that it had a legitimate reason for its 30
action; rather, it must demonstrate that it would have taken the same action in the absence of the
protected conduct. Bruce Packing Co., 357 NLRB No. 93, slip op. at 3–4 (2011); Roure Bertrand
Dupont, Inc., 271 NLRB 443, 443 (1984).
Proof of animus and discriminatory motivation may be based on direct evidence or inferred 35
from circumstantial evidence. Robert Orr/Sysco Food Services, 343 NLRB 1183, 1184 (2004);
Ronin Shipbuilding, 330 NLRB 464, 464 (2000). The Board relies on both circumstantial and
direct evidence in determining whether the conduct in question was unlawfully motivated. Fluor
Daniel, Inc., 311 NLRB 498 (1993). Improper motivation may be inferred from several factors,

23 Although the consolidated complaint alleges that Rentmeister changed the location of employee
breaks, the testimony at trial leaves no doubt that it was Facchinello who made the change. This error is
of no moment as Facchinello is an admitted supervisor and agent of Respondent and, thus, his actions are
imputed to Respondent. Dorothy Shamrock Coal Co., 279 NLRB 1298, 1299 (1986), enfd. 833 F.2d 1263
(7th Cir. 1987).
24 251 NLRB 1083 (1980), enfd. on other grounds 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S.
989 (1982), approved in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983).
JD–1–16
23
including the timing between an employee’s protected activity and the discharge. Temp Masters,
Inc., 344 NLRB 1188, 1193 (2005).
In the circumstances of this case, I find that the General Counsel has established that
Respondent violated Section 8(a)(3) and (1) of the Act by changing the location of its 5
employees’ breaks. The petition in this case was filed on December 15, 2014. Tony Facchinello
announced his decision to change the location of employees’ breaks on December 17.
Respondent asserts that Facchinello made his decision prior to the filing of the petition. The
General Counsel asserts that the timing of the December 17 email from Facchinello to the
maintenance department employees establishes Respondent’s animus. 10
Initially, I find that Respondent’s change in its employees’ break locations constituted an
adverse employment action. Employment actions are adverse if they change the terms and
conditions of employment in an unfavorable way and thus make a job less desirable. Northeast
Iowa Telephone Co., 346 NLRB 465 (2006). The evidence established that a majority of the 15
maintenance employees worked in fermentation and, thus, were required to break in the
fermentation break room under Facchinello’s changed policy. The maintenance break room was
clearly nicer and had more amenities than the fermentation break room. Furthermore, there was
enough room for all maintenance employees to sit down in the maintenance break room, while
maintenance employees sometimes needed to stand for their breaks in the fermentation break 20
room. Changing the location of employee breaks from one where employees can sit down to a
crowded place with fewer amenities where employees have to stand is a change for the worse.
Thus, I find that the General Counsel has established that the change in employee break locations
constitutes an adverse employment action.
25
In analyzing the change in employee break locations under Wright Line, I find that
Respondent had knowledge of its employees’ union activities by the filing of the petition on
December 15.25 I further find, as asserted by the General Counsel, that the timing of the decision
at issue establishes that Respondent harbored animus toward its employees’ union activities. The
Board has found that timing is evidence of such probative worth that, even standing alone, it may 30
demonstrate antiunion animus as motivation for an employer’s actions. Sears, Roebuck & Co.,
337 NLRB 443 (2002), citing Masland Industries, 311 NLRB 184, 187 (1993), and NLRB v.
Rain-Ware, Inc., 732 F.2d 1349, 1354 (7th Cir. 1984). Moreover, the Board has long held that
the timing of adverse action close to the filing of an election petition may raise an inference of
animus and unlawful motive. Lucky Cab Co., 360 NLRB No. 43 slip op. at 4 (2014). In this 35
case, Respondent took its swift action within mere days of the filing of the election petition.
Further supporting the conclusion that Respondent had knowledge of and bore animus to its
employee’s union activities, Respondent has offered no persuasive explanation as to why
Facchinello chose to address the longstanding problems of employees overstaying their breaks 2 40
days after the filing of the election petition. The Board has found a violation of Section 8(a)(3)
and (1) when an employer took sudden action to address an “age old” problem without providing

25 I did not credit Facchinello’s testimony that he was unaware of the filing of the petition at the time
he decided to change the location of the employees’ breaks. Facchinello could not elucidate a reason for
the timing of his decision. In the absence of a cogent reason, I find that it was the filing of the petition
triggered Facchinello’s action.
JD–1–16
24
evidence as to how the situation worsened requiring immediate action. Sivalis, Inc., 307 NLRB
986 (1992). In Sivalis, like in the instant case, the employer changed rules regarding of
employee breaks shortly after its employees engaged in union activity. The Board noted that
employees would not miss the sudden impact of a change taken to prevent employees from
overstaying meal or other breaks. Id.; see Speed Mail Service, 251 NLRB 476, 477 (1980). 5
Similarly, in this case, Respondent produced no evidence establishing why Facchinello chose to
address the age-old problem of overstaying breaks at this particular time. Thus, as in these cases,
I find that Respondent violated Section 8(a)(3) and (1) of the Act by changing the location of
employee breaks as alleged by the General Counsel in paragraph 6(a) of the consolidated
complaint. 10
Facchinello’s changing of the employees’ break location, coupled with the other violations
noted above further establish Respondent’s unlawful motive. I have found that Respondent
committed numerous other violations of Section 8(a)(1) both before and after Facchinello
changed the location of maintenance employees’ breaks. Findings of 8(a)(1) violations, 15
including interrogations and threats, may be used to establish animus. Kajima Engineering &
Construction, Inc., 331 NLRB 1604 (2000). Thus, in addition to the timing of Facchinello’s
decision, I find that the interrogations of Mitchell, Dennison, and Logue, Facchinello’s threat to
Mitchell, and Pickett’s singling out of Mitchell establish Respondent’s antiunion animus.
20
I do not find, however, that Respondent has met its burden under Wright Line. In order to
meet its burden, Respondent would need to prove that it would have taken the same action (i.e.,
changed the location of employee breaks) in the absence of its employees’ union activity.
Although Respondent asserts that it changed the location of employee breaks in response to
employees overstaying their breaks, it could not advance a cogent reason for the timing of its 25
action or an incident that lead to taking this action. As such, I find that Respondent has not met
its burden under Wright Line. Thus, I find that Respondent violated the Act as alleged in
paragraph 6(a) of the consolidated complaint.
However, I do not find that the General Counsel has established that Respondent took an 30
adverse employment action against its employees by changing the length of their breaks. The
evidence clearly establishes that Rentmeister began more closely monitoring employee breaks in
December 2014. However, none of the employees who testified at the hearing testified that they
took shorter breaks as a result of this monitoring. In addition, no employee was ever disciplined
in any way as a result of Rentmeister’s increased observation of employee breaks. Although 35
Rentmeister’s actions might have been annoying to employees, it was not established that his
actions made employee breaks more onerous or shorter. Thus, the General Counsel has not
established, by a preponderance of the evidence, that Respondent took any adverse action against
employees by Rentmeister more closely observing employee breaks. Thus, I find that the
General Counsel has not met its burden in establishing a violation of Section 8(a)(3) and (1) 40
regarding changing the length of employee breaks.
Moreover, I do not find that the General Counsel established that Respondent independently
violated Section 8(a)(1) of the Act by engaging in surveillance of employee breaks and creating
an impression that employees’ union activities were under surveillance by more closely 45
monitoring employee breaks. An employer violates Section 8(a)(1) when it surveilles employees
engaged in Section 7 activity by observing them in a way that is “out of the ordinary” and
JD–1–16
25
thereby coercive. Sands Hotel & Casino, San Juan, 306 NLRB 172 (1992), enfd. sub nom. mem.
S.J.R.R., Inc. v. NLRB, 993 F.2d 913 (D.C. Cir. 1993). Although the record is clear that
Rentmeister began more closely monitoring employee break times during the critical period,
there is no evidence that the employees were engaged in any sort of Section 7 activity at any time
that they were being surveilled. In fact, Respondent’s employees indicated that they did not 5
engage in any Section 7 activity on Respondent’s premises during the critical period. Therefore,
I cannot find that Respondent engaged in unlawful surveillance of employee Section 7 activity as
alleged in the complaint. Accordingly, I recommend dismissal of paragraph 5(c)(i) of the
consolidated complaint and Objection 4 to the conduct of the election.
10
The impression of surveillance allegation fails for similar reasons. I have not found any
credible evidence that Respondent, through its supervisors or agents, made any statements
regarding the changing of employee break locations and times that would lead a reasonable
employee to believe that his or her union or other protected concerted activities were under
surveillance. Thus, I recommend dismissal of paragraph 5(c)(ii) of the consolidated complaint15
and Objection 4 to the conduct of the election.26
G. Respondent Violated the Act by Denying Maintenance Employees’ Personal
Holiday Requests
20
In paragraph 6(b) of the consolidated complaint, the General Counsel alleges that
Respondent denied maintenance employees’ personal holidays since about January 4, 2015,
because employees supported the Union and to discourage employees from engaging in these
activities, in violation of Section 8(a)(3) and (1) of the Act. This allegation forms the basis for
Objection 3 to the conduct of the election. 25
As found above, Respondent rarely denied requests for personal holidays prior to the filing of
the union’s petition. In fact, the attendance records submitted by Respondent demonstrate that
only one such request was denied in the year preceding the filing of the petition. It was only
after the filing of the petition that Respondent began denying personal holiday requests. 30
Respondent’s more strict enforcement of its attendance policy beginning in January 2015
violated Section 8(a)(3) and (1) of the Act. Changes in enforcing an existing attendance policy
have been found violative of the Act. Illiana Transit Warehouse Corp., 323 NLRB 111, 118
(1997). See also Print Fulfillment Systems, 361 NLRB No. 144, slip op. at 4 (2014)
(Respondent’s stricter enforcement of work rules in response to an employee’s union activity 35
violated Section 8(a)(3) of the Act).
Analyzing this violation under Wright Line, as found above, Respondent’s employee engaged
in union activity by the filing of the election petition, Respondent had knowledge of this activity,
and Respondent bore animus toward this activity. The timing of these denials, beginning in 40
January 2015, is dubious at best. Thus, the General Counsel has established a prima facie case.
Respondent has not met its rebuttal burden regarding this violation. Respondent offered no
reason for more strictly enforcing its personal holiday policy. Also, Respondent’s assertion that

26 If the Board or a court should disagree with my findings regarding the length of employee breaks,
surveillance, or creating the impression of surveillance, I note that had I found these violations, the
remedy would not be materially changed.
JD–1–16
26
it was merely enforcing its existing policy ignores the evidence that Respondent previously
allowed violations of its attendance policy in approving personal holiday requests. Additionally,
if Respondent were truly concerned with the ability of a tank crew to perform its work, it might
have called Kelly or another employee in to work on January 4. There is no evidence that this
was done and instead Respondent allowed three members of a tank crew to be absent on January 5
4. Therefore, I find that Respondent has not established that it would have taken the same action
in denying personal holiday request absent its employees’ union activity. As such, I find that the
General Counsel has established, by a preponderance of the evidence, that Respondent violated
Section 8(a)(3) and (1) of the Act as alleged in paragraph 6(b) of the consolidated complaint.
10
H. Respondent’s Did Not Prove its Affirmative Defenses
In its answer to the consolidated complaint, Respondent has raised two affirmative defenses:
that the allegations contained in the consolidated complaint are time barred and that some or all
of the allegations of the consolidated complaint fall outside the scope of the underlying charges. 15
I note that Respondent did not provide any argument or citation to case law supporting these
affirmative defenses in its brief. The proponent of an affirmative defense has the burden of
establishing it. Babcock & Wilcox Construction Co., 361 NLRB No. 132, slip op at 14 (2014),
citing Broadway Volkswagen, 342 NLRB 1244, 1246 (2004) (finding the burden on the party
raising an untimely charge defense under Section 10(b) of the Act), enfd. 483 F.3d 628 (9th Cir. 20
2007). Furthermore, in examining the charges and consolidated complaint, I see no basis for
Respondent’s affirmative defenses. Therefore, I find that Respondent has failed to meet its
burden regarding its affirmative defenses.
OBJECTIONS TO CONDUCT AFFECTING THE ELECTION25
As noted at the outset of this decision, the Union filed timely objections to conduct affecting
the results of the election, which parallel the unfair labor practice allegations of the consolidated
complaint. While the Union has withdrawn two of the objections that it filed, there are three
others, in addition to the additional objectionable conduct found by the Regional Director, that 30
remain for consideration. The Board has long held that it will set aside an election if one party
engages in conduct that interferes with employee free choice during the critical period between
the filing of the petition for an and the date of the election. Ideal Electric & Mfg. Co., 134 NLRB
1275 (1961). Conduct which violates the Act interferes with an election unless it is de minimis
and virtually impossible to conclude that the violation could have affected the election results. 35
Jewish Home for the Elderly of Fairfield County, supra at 1115; Airstream, Inc. 304 NLRB 151,
152 (1991); Dal-Tex Optical Co., 137 NLRB 782, 786 (1962). Based on my findings set forth
above, the Respondent has committed numerous violations of the Act that occurred during the
critical period between the filing of the petition on December 15, 2014, and election conducted
on January 20 and 21, 2015, which parallel the objections filed by the Union and found by the 40
Regional Director. Specifically, I have found that Respondent violated Section 8(a)(1) of the Act
as alleged in paragraphs 5(a), 5(b), 5(d), 5(e)(i), and 5(f) of the consolidated complaint, and
violated Section 8(a)(3) of the Act as alleged in paragraphs 6(a) and 6(b) of the consolidated
complaint. Thus, I find that Respondent committed objectionable conduct as alleged in the
JD–1–16
27
Union’s Objections 2 and 3, and “Additional Objectionable Conduct” as alleged by the Regional
Director as alleged in his Report on Objections.27
The Board has traditionally held that conduct violative of Section 8(a)(1) of the Act is also
conduct which interferes with the exercise of a free and untrammeled choice in an election. As 5
such, it serves as a basis for invalidating an election. According to the Board, conduct which is
violative of Section 8(a)(1) of the Act is “a fortiori, conduct which interferes with the exercise of
a free and untrammeled choice in an election.” Playskool Mfg. Co., 140 NLRB 1417 (1963); see
also IRIS U.S.A., Inc., 336 NLRB 1013 (2001); Diamond Walnut Growers, Inc., 326 NLRB 28
(1988). Further, the Board has held that this is also “because the test of conduct which may 10
interfere with the ‘laboratory conditions' for an election is considerably more restrictive than the
test of conduct which amounts to interference, restraint, or coercion which violates Section
8(a)(1).” Dal-Tex Optical Co., 137 NLRB 1782 (1962). See also Overnite Transportation Co.,
158 NLRB 879 (1966); Excelsior Underwear, 156 NLRB 1236 (1966). Respondent has
committed numerous violations of Section 8(a)(1) of the Act by interrogating and threatening its 15
employees. Accordingly, I have determined that the Respondent’s misconduct during the critical
period is sufficient to set aside the results of the election held on January 20 and 21, 2015, and I
make the following findings with respect to the objections filed by the Union regarding conduct
occurring during the critical period.
20
The meritorious objections filed by the Union involve, inter alia, the interrogation of four
employees, creating an impression that employees’ union activities were under surveillance,
making an unlawful threat of reprisal, intimidating and harassing an employee supporter of the
Union by a senior official of Respondent at a meeting attended by approximately 15 maintenance
employees, changing the location of employees’ breaks, and denying employees’ personal 25
holiday requests by more strictly enforcing attendance policies during the critical period. I find
that the conduct which I have found has violated the Act during the critical period is clearly more
than de minimis pursuant to the principles expressed in the cases cited above. In reaching this
conclusion, I have considered the fact that the union lost the election by a narrow margin, 33 to
28. The Board gives significant weight to close election results in determining whether 30
misconduct warrants setting an election aside. Student Transportation of America, Inc., 362
NLRB No. 156, slip op. at 3 (2013); Hopkins Nursing Care Center, 309 NLRB 958, 959 (1992).
Based on the above, I conclude that the objectionable conduct and unfair labor practices
engaged in by the Employer have tended to interfere with the free and fair choice of a 35
determinative number of voting unit employees. Accordingly, as the election results do not
reflect the employees' free and fair choice, I recommend that the election be set aside and that
this proceeding be remanded to the Regional Director for Region 25 for the purpose of
conducting a second election.
40
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within the meaning of Section

27 As I did not find that Respondent violated the Act as alleged in paragraph 5(c) or 5(e)(ii) of the
consolidated complaint, I recommend that the Union’s Objection 4 and the “Additional Objectionable
Conduct” related to paragraph 5(e)(ii) of the consolidated complaint be dismissed.
JD–1–16
28
2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by: twice interrogating employee 5
Nick Mitchell in September and December 2014 and separately interrogating
employees Kyle Logue, Greg Dennison, and Martin Hadley in January 2015.
4. Respondent violated Section 8(a)(1) of the Act by informing employees it was
aware of their past union activities and creating an impression that their current union 10
activities were under surveillance.
5. Respondent violated Section 8(a)(1) of the Act by threatening employees with
unspecified reprisals.
15
6. Respondent violated Section 8(a)(1) of the Act by intimidating and harassing
employees by singling them out for their union activities.
7. Respondent violated Section 8(a)(3) and (1) of the Act by changing the location
of maintenance employees’ breaks.20
8. Respondent violated Section 8(a)(3) and (1) of the Act by denying maintenance
employees’ requests for personal holidays.
9. Respondent did not otherwise violate the Act as alleged.25
10. The unfair labor practices committed by Respondent affect commerce within the
meaning of Section 2(6) and (7) of the Act.
11. Respondent engaged in objectionable conduct during the critical period by 30
committing the unfair labor practices set forth in paragraphs 3 through 8 of these
Conclusions of Law, as set forth above.
REMEDY
35
Having found that the Respondent has engaged in certain unfair labor practices, I shall order
it to cease and desist therefrom and to take certain affirmative action designed to effectuate the
policies of the Act.
Having unlawfully changed the locations of employees’ breaks, I recommend that 40
Respondent be ordered to rescind these changes and restore the status quo existing prior to
December 15, 2015.
Having unlawfully more strictly enforced its attendance policy, I recommend that
Respondent be ordered to rescind such changes and restore the status quo existing prior to 45
January 4, 2015, and, rescind and remove any record of any adverse personnel action it may have
taken against maintenance department employees by its changes.
JD–1–16
29
For the reasons discussed above, I have found that Respondent engaged in objectionable
conduct the requires setting aside the election conducted January 20 and 21, 2015, in Case 25–
RC–142796, and that a new election be held on the terms set forth immediately below.
5
Respondent shall post an appropriate informational notice, as described in the attached
appendix. This notice shall be posted at Respondent’s Bio Products facility wherever the notices
to employees are regularly posted for 60 days without anything covering it up or defacing its
contents. In addition to physically posting the paper notices, notices shall be distributed
electronically, such as by email, posting on an intranet or an internet site, and/or other electronic 10
means, if the Respondent customarily communicates with its employees by such means. In the
event that, during the pendency of these proceedings, Respondent has gone out of business or
closed the facility involved in these proceedings, 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 September 12, 2014. When the notice is issued to Respondent, it 15
shall sign it or otherwise notify Region 25 of what action it will take with respect to this
decision.
On these findings of fact and conclusions of law, and on the entire record, I issue the
following recommended direction of second election and order.20
DIRECTION OF SECOND ELECTION
A second election by secret ballot shall be held among the employees in the unit found
appropriate, whenever the Regional Director deems appropriate. The Regional Director shall 25
direct and supervise the election, subject to the Board’s Rules and Regulations. Eligible to vote
are those employees employed during the payroll period ending immediately before the date of
the Notice of Second Election, including employees who did not work during that period because
they were ill, on vacation, or temporarily laid off. Also eligible are employees engaged in an
economic strike that began less than 12 months before the date of the first election and who 30
retained their employee status during the eligibility period and their replacements. Jeld-Wen of
Everett, Inc., 285 NLRB 118 (1987). Those in the military services may vote if they appear in
person at the polls. Ineligible to vote are employees who have quit or been discharged for cause
since the payroll period ending immediately before the date of the Notice of Second Election,
striking employees who have been discharged for cause since the strike began and those who 35
have not been rehired or reinstated before the election date, and employees engaged in an
economic strike that began more than 12 months before the date of the first election and who
have been permanently replaced. Those eligible shall vote whether they desire to be represented
for collective bargaining by Bakery, Confectionery, Tobacco Workers & Grain Millers
International Union, AFL–CIO, CLC Local 103-G. 40
To ensure that all eligible voters have the opportunity to be informed of the issues in the
exercise of their statutory right to vote, all parties to the election should have access to a list of
voters and their addresses that may be used to communicate with them. Excelsior Underwear,
156 NLRB 1236 (1966); NLRB v. Wyman-Gordon Co., 394 U.S. 759 (1969). Accordingly, it is 45
directed that an eligibility list containing the full names and addresses of all eligible voters must
be filed by the Employer with the Regional Director within 7 days from the date of the Notice of
JD–1–16
30
Second Election. North Macon Health Care Facility, 315 NLRB 359 (1994). The Regional
Director shall make the list available to all parties to the election. No extension of time to file
list shall be granted by the Regional Director except in extraordinary circumstances. Failure to
comply with this requirement shall be grounds for setting aside the election whenever proper
objections are filed.5
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended28
ORDER10
The Respondent, Archer Daniels Midland Company (ADM), Decatur, Illinois, its officers,
agents, successors, and assigns, shall
1. Cease and desist from15
(a) Interrogating employees about their union activities and the union activities of other
employees.
(b) Informing employees that it is aware of their past union activities and creating an 20
impression that their current union activities were under surveillance.
(c) Threatening employees with unspecified reprisals.
(d) Intimidating and harassing employees by singling out them out for their union activities.25
(e) Changing the location of maintenance employees’ breaks.
(f) Denying maintenance employees’ requests for personal holidays by more strictly
enforcing its attendance policies. 30
(g) In any like or related manner interfering with, restraining, 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:35
(a) At the maintenance employees’ request, grant them the personal holidays which they
were denied in retaliation for their union activities.
(b) Restore the location of maintenance employees’ breaks as they existed prior to December 40
15, 2015.

28 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted
by the Board and all objections to them shall be deemed waived for all purposes.
JD–1–16
31
(c) Within 14 days from the date of the Board’s Order, remove from its files any reference to
the unlawful assessment of attendance points or other discipline to Kyle Logue, and
within 3 days thereafter notify him in writing that this has been done and that the
attendance points or other discipline will not be used against him in any way.
5
(d) Within 14 days after service by the Region, post at its Bio Products facility in Decatur,
Illinois, copies of the attached notice marked “Appendix.”29 Copies of the notice, on
forms provided by the Regional Director for Region 25, after being signed by the
Respondent’s authorized representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous places including all places where 10
notices to employees are customarily posted. In addition to physical posting of paper
notices, the 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. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced, or covered by any other 15
material. In the event that, during the pendency of these proceedings, 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 September 12,
2014.20
(e) 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 Region attesting to the
steps that the Respondent has taken to comply.
25
IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges violations
of the Act not specifically found.
IT IS FURTHER ORDERD that the election in Case 25–RC–142796 is set aside, and that a
new election shall be conducted at a date and time to be determined in the discretion of the 30
Regional Director. The second election shall be conducted in a manner consistent with the
“Direction of Second Election” set forth above.
Dated, Washington, D.C. January 12, 2016
35
Melissa M. Olivero
Administrative Law Judge

29 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 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.”
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 violated 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 benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT coercively question you about your union support or activities or the union
support or activities of other employees.
WE WILL NOT inform you that we are aware of your past union activities and create the
impression that we are engaged in surveillance of your current union activities
WE WILL NOT threaten you with unspecified reprisals because you engage in union activities.
WE WILL NOT intimidate or harass you by singling you out in a group meeting for engaging in
union activities.
WE WILL NOT change the location of your breaks in retaliation for engaging in union activities.
WE WILL NOT deny your requests for personal holidays because you or other employees
engaged in union activities.
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, at the maintenance employees’ request, grant them the personal holidays which were
denied in retaliation for engaging in union activities.
WE WILL restore the location of maintenance employees’ breaks as they existed prior to
December 15, 2015.
WE WILL remove from our files all references to any points and related disciplinary actions that
we issued to employees under our attendance policies as a result of our denial of personal
holiday requests and WE WILL notify those employees in writing that this has been done and
that the points or discipline will not be used against them in any way.
WE WILL rescind our changes to the location and length of maintenance employees’ breaks,
including by allowing employees to take breaks in the location previously permitted by us prior
to employees engaging in union activities.
ARCHER DANIELS MIDLAND COMPANY
(ADM)
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the
National Labor Relations Act. It conducts secret-ballot elections to determine whether employees want
union representation and it investigates and remedies unfair labor practices by employers and unions. To
find out more about your rights under the Act and how to file a charge or election petition, you may speak
confidentially to any agent with the Board’s Regional Office set forth below. You may also obtain
information from the Board’s website: www.nlrb.gov.
575 North Pennsylvania Street, Room 238, Indianapolis, IN 46204-1577
(317) 226-7381, Hours: 8:30 a.m. to 5 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/25-CA-143250 or by using the QR code
below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING
AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY
QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE
DIRECTED TO THE ABOVE REGIONAL OFFICE’S COMPLIANCE OFFICER, (317) 226-7413.