Armstrong Machine Co.

National Labor Relations Board - Board Decisions

Dec 16, 2004

343 N.L.R.B. 1149 (N.L.R.B. 2004)

ARMSTRONG MACHINE CO.
343 NLRB No. 122
1149
Armstrong Machine Company, Inc. and United Food
and Commercial Workers Union, Local 6, AFL–
CIO, CLC. Cases 18–CA–16276–1, 18–CA–
16555–1, and 18–RC–16904
December 16, 2004
DECISION, DIRECTION, AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND WALSH
On March 7, 2003, Administrative Law Judge Keltner
W. Locke issued the attached decision. The General
Counsel, the Respondent, and the Charging Party filed
exceptions and supporting briefs, and the Respondent
filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs, and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order as modified and set
forth in full below.2

1 The General Counsel, Respondent, and Charging Party have ex-
cepted to some of the judge’s credibility findings. The Board’s estab-
lished policy is not to overrule an administrative law judge’s credibility
resolutions unless the clear preponderance of all the relevant evidence
convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have care-
fully examined the record and find no basis for reversing the findings.
In the absence of exceptions, we adopt pro forma the judge’s rec-
ommendation to sustain the challenge to the ballot of Maxine Lange.
In addition, no exceptions were filed to the judge’s findings that (1) the
Respondent violated Sec. 8(a)(1) by threatening that union representa-
tion would be futile and that it would not sign a collective-bargaining
agreement if the Union won the election; and (2) the Respondent did
not violate Sec. 8(a)(1) by: creating the impression of surveillance;
interrogating employee Randall Boles about his union activity or
threatening him that union representation would be futile or would
result in the loss of jobs; threatening to reduce or eliminate employee
bonuses; threatening employees with reduced vacation or job flexibil-
ity; threatening employees with loss of benefits; and intimidating and
harassing employees because of their union support by approaching
them with a video camera and asking the name of their supervisor.
In adopting the judge’s finding that employee Jim Lange quit his
employment and was therefore not discharged in violation of Sec.
8(a)(3) and (1), we observe that the Union stated in its brief in support
of its cross-exceptions that it was not contending that the Respondent’s
admission in its answer to the complaint that Jim Lange was discharged
precluded the Respondent from arguing that Lange quit his employ-
ment. Accordingly, the issue of whether that admission in the answer is
dispositive is not before us.
2 We shall modify the judge’s recommended Order to conform more
closely to the findings herein, including adding a remedy to reflect the
judge’s finding that the Respondent unlawfully threatened to reduce
employees’ hours because of union activity. We shall also modify the
judge’s recommended Order in accordance with our decisions in Indian
Hills Care Center, 321 NLRB 144 (1996), and Excel Container, 325
NLRB 17 (1997). We shall also issue a new notice to conform to the
language in the Order.
1. The judge found that Donald Meier was not a super-
visor within the meaning of Section 2(11) of the Act,
and, accordingly, recommended overruling the challenge
to his ballot. We agree.3
Meier, the Respondent’s job repair foreman, was the
most senior of approximately 11 employees who worked
in the Respondent’s repair department. Meier performed
work similar to that done by others in the department, but
also was responsible for ensuring that the other employ-
ees remained productive. To this end, Meier answered
employees’ questions and assigned departmental work.
In making work assignments, Meier referred and adhered
to a priority list generated by management. He also took
into account employees’ skills and experience and
whether employees were compatible to work together.
In addition, when the Respondent’s owner, Clifford Por-
ter, was absent, Meier answered customer inquiries re-
lated to the repair department.
On these facts, we agree with the judge that the Re-
spondent failed to sustain its burden of establishing
Meier’s supervisory status.4 As noted by the judge, the
record fails to demonstrate that Meier exercised inde-
pendent judgment in assigning work or in addressing
personnel problems.5 Further, while the record estab-
lishes that Meier discussed mechanical and repair prob-
lems with customers, it fails to establish that his prob-

3 For the reasons set forth in his partial dissent, Chairman Battista
finds, contrary to the judge and his colleagues, that Meier is a 2(11)
supervisor.
4 It is well settled that the burden of establishing supervisory status
rests on the party asserting it. “Thus, any lack of evidence in the record
is construed against the party asserting supervisory status.” Elmhurst
Extended Care Facilities, 329 NLRB 535, 536 fn. 8 (1999). Conclu-
sionary evidence is insufficient to prove supervisory status. Chevron
Shipping Co., 317 NLRB 379, 381 fn. 6 (1995) (citing Sears, Roebuck
& Co., 304 NLRB 193, 199 (1991) (“[C]onclusionary statements, with-
out supporting evidence, are not sufficient to establish supervisory
authority.”)); North Shores Weeklies, Inc., 317 NLRB 1128 (1995)
(noting the employer’s failure to meet its burden where “the record
does not reveal the press supervisors’ particular acts and judgments that
make up their direction of work”). Further, giving “some instructions
or minor orders to other employees,” does not confer supervisory
status. Franklin Home Health Agency, 337 NLRB 826, 829 (2002).
Only individuals with “genuine management prerogatives” should be
considered supervisors, as opposed to “straw bosses, leadmen . . . and
other minor supervisory employees.” Chicago Metallic Corp, 273
NLRB 1677, 1688 (1985), enfd. in relevant part 794 F.2d 527 (9th Cir.
1986). The Board has a duty not to construe supervisory status broadly
because “the employee who is deemed a supervisor is denied employee
rights which the Act is intended to protect.” Id. at 1689.
5 See, e.g., Dynamic Science, Inc., 334 NLRB 391, 393 (2001).
(“Conclusory evidence, ‘without specific explanation that the [disputed
person or classification] in fact exercised independent judgment,’ does
not establish supervisory authority.”) (Citations omitted.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1150
lem-solving authority could affect employees’ terms and
conditions of employment.6
Our dissenting colleague contends that Meier’s super-
visory authority is established by the fact that, when as-
signing work, Meier considers the employees’ skills,
experience, and compatibility. We disagree. Nothing in
the record supports a finding that Meier’s employee
placements are based on anything other than the common
knowledge, present in any small workplace, of which
employees have certain skills and which employees do
not work well together. In other words, the record fails
to evince that Meier’s assignment of work was anything
other than routine.7
In Hausner-Hard-Chrome of KY, Inc., 326 NLRB 426
(1998), the Board found that supervisory status was not
established with respect to three employees who attended
daily meetings at which management created a produc-
tion list. These employees who, on returning to their
departments, used the production list to indicate the pri-
ority of particular projects to department employees,
were viewed as mere conduits of management’s deci-
sions. Further, as to one of these three employees who
made assignments by taking note of employees’ skill and
experience, the Board found that he did not exercise in-
dependent judgment as required under Section 2(11);
rather, he assigned work in the manner of a skilled lead-
man.
The record here shows that Meier made work assign-
ments in a manner similar to those involved in Hausner,
i.e., by referring to a production list and taking note of
employees’ skills and experience with respect to a par-
ticular task. As noted above, such evidence, without
more, does not establish that the assignments were any-
thing other than routine.8 Further, Meier’s taking note of

6 Somerset Welding & Steel, Inc., 291 NLRB 913 (1988) (leadmen
lack supervisory authority where they function as quality control em-
ployees in inspecting the work of others, report performance issues to
their supervisors, and have no authority to effectuate any ultimate per-
sonnel decisions).
7 See Quadrex Environmental Co., 308 NLRB 101 (1992) (field ser-
vice employees designated as “leads” not statutory supervisors where
“the leads’ assignment of tasks to work crew employees demonstrates
nothing more than the knowledge expected of experienced persons
regarding which employees can best perform particular tasks”); Hex-
acomb Corp., 313 NLRB 983, 984 (1994) (foremen not found to be
supervisors where there was no evidence that they exercised independ-
ent judgment “when they shift[ed] employees around within their re-
spective lines to get projects accomplished”).
8 See, e.g., Williamette Industries, 336 NLRB 743, 744 (2001) (em-
ployee found not to be a supervisor where there was no evidence that
he exercised any authority “beyond routine direction of simple tasks or
the issuance of low level orders”); Chrome Deposit Corp., 323 NLRB
961, 963–964 (1997) (crew leaders who made “routine” work assign-
ments based on parameters defined by management found not to be
employee compatibility when assigning work does not
demonstrate the exercise of independent judgment as
envisioned by Section 2(11) of the Act. See, e.g., Brown
& Root, Inc., 314 NLRB 19, 21 (1994). Accordingly, we
adopt the judge’s finding that Meier is not a supervisor
within the meaning of Section 2(11).
2. The judge found that the Respondent violated Sec-
tion 8(a)(1) of the Act by certain statements made by the
Respondent’s president and partial owner, Clifford Por-
ter, during a meeting on November 23, 2001. Specifi-
cally, the judge found that Porter unlawfully interrogated
employees about their union activities, threatened plant
closure if the employees selected a union to represent
them, and told employees that union representation
would be futile and that he would not enter into a collec-
tive-bargaining agreement with the Union. The judge
further found, however, that certain other comments Por-
ter made were not violative of Section 8(a)(1), because
they did not amount to unlawful threats of suspension
and discharge, as was alleged. For the reasons set forth
below, we find, contrary to the judge, that these state-
ments violate Section 8(a)(1) of the Act.
On November 23, 2001, Porter met with Calvin
Lange9 and employees Donald Meier and Jamie Lange in
a work area in the Respondent’s facility. During this
meeting, Porter raised numerous concerns, including
concerns about oil spills on the production floor, the poor
productivity of certain employees, excessive socializa-
tion between employees during working time, a recent
OSHA inspection, and employees’ problems with Mi-
chelle Clark-Ames, Porter’s daughter and partial owner
of the Respondent. Porter also expressed concern about
a statement Calvin Lange made to employee John Lyon,
in early November, threatening Lyon with a “blanket
party” if he did not support and vote for the Union. (As
explained by the judge, a “blanket party” is slang for the
physical assault of an individual while the victim’s head
is covered with a blanket so as to prevent him from de-
fending himself.)
Interspersed among the lawful topics of discussion,
Porter also made other statements during this November
23 meeting that the judge correctly found violated Sec-
tion 8(a)(1). Porter interrogated the employees, asking,
“so what are you hearing about who is pushing this Un-
ion thing,” and “who is pushing this Union thing? You
guys don’t know anything about that either, huh?” In
addition, Porter unlawfully told the employees that he
could close the plant because of the employees’ union

supervisors because they possessed “the kind of routine, decision-
making authority typical of non-supervisory leadmen”).
9 We agree with the judge’s finding that Calvin Lange is a 2(11) su-
pervisor.
ARMSTRONG MACHINE CO. 1151
activities. Porter admitted that he told the employees that
he could “get rid of most of these people here and just
dwindle their jobs down . . . job everything out . . . I
mean if you’re gonna try to put the Union on me . . . why
that ain’t gonna work too good either.” Porter further
admitted that he told Lange, Meier, and Lange that he
was “almost 70 years old and [could] close this goddamn
place and sell it out.” Porter also told the employees that
union representation would be futile, and that he would
not enter into a collective-bargaining agreement with the
Union. Porter stated, “[w]ell, you guys thin[k] that the
Union is going to run this place it ain’t going to happen
. . . . And, if the Union gets in here . . . I won’t give the
Union a contract at all . . . I’ll just job the stuff out.”
In addition to these threats, Porter complained several
times during the course of the meeting about the “bad
attitudes” of the Langes and Meier, and stated that he
was “tired of this bullshit.” Porter repeatedly suggested
that the employees take time off to “think about what you
are doing right now,” thereby allowing Porter to get “this
whole goddamn thing straightened out.” Porter also
stated the following:
I’m tired of it . . . if you guys don’t want to work here
. . . leave . . . you could leave . . . that’s one nice thing
about the old USA, you can quit and leave any time
you want to. See, I’m [ ] tired of this bullshit. See, I
had another guy working here one time and he tried the
same shit, ya know. You know who it was . . . it was
Mark . . . he was going around trying to intimidate peo-
ple too . . . I got rid of him, forever.
Porter reiterated this theme several times. He stated,
“[b]ut if you guys don’t want to work here why hell, just
go somewhere else . . Every time I come over here you
guys are in a little huddle . . plotting against the rest of
the people that work here.” Later in the conversation
Porter stated, “I can close the door ya know . . . one of
you guys made the statement that if you get the Union in
here why I won’t be able to close the door.”
At the hearing, Porter acknowledged that he was upset
because the employees supported the Union, and that the
“attitude” he objected to was the employees’ union sup-
port.
While finding that several of Porter’s statements dur-
ing the November 23 conversation violated Section
8(a)(1), the judge dismissed allegations that Porter fur-
ther violated the Act by threatening the employees with
suspension and discharge. Regarding the threat of sus-
pension, the judge found that Porter, when stating that
employees had “bad attitudes,” was referring to the em-
ployees’ lack of commitment to correcting workplace
problems, the intimidation of Lyon, the disregard of their
job responsibilities, and the criticism of Clark-Ames.
The judge, therefore, found that Porter had threatened
suspension for unprotected, rather than union, activity.
Similarly, as to the threat of discharge, the judge found
that the General Counsel failed to prove that the threat
pertained to the Union or the organizing campaign. The
judge further found that the General Counsel did not
prove that employees would reasonably understand the
threat to be related to the employees’ protected activity.
In their exceptions, the General Counsel and the
Charging Party argue that, when taken in context, Por-
ter’s use of “bad attitude” is synonymous with union
activity and that Porter, through his repeated suggestions
that the employees take a couple of weeks off because of
their “bad attitudes,” implicitly threatened the employees
with suspension for engaging in union activity. As to the
threat of discharge, the General Counsel and Charging
Party argue that the Respondent’s statements, when
viewed together, constitute a clear threat to terminate the
Langes and Meier because of their union activity. We
agree.
Contrary to the judge, we find that Porter’s statements
constituted unlawful threats of discharge and suspension.
In dismissing these additional allegations, the judge im-
properly isolated the statements from the coercive con-
text in which they were uttered. When these statements
are analyzed in the context of the entire November 23
conversation, it is clear that Porter threatened employees
with suspension and discharge because of their union
activity.
Although Porter, during the course of the meeting, dis-
cussed many topics and articulated the numerous reasons
why he was upset with the employees, he, sua sponte,
raised the topic of the Union. By engaging in unlawful
interrogation, by his threats of plant closure, and by his
statements conveying a sense of futility and a refusal to
enter into a collective-bargaining agreement, Porter made
clear to the employees that he was upset about the em-
ployees’ union support. Given the rambling nature of the
conversation, and the numerous unlawful statements re-
ferring to the Union, employees could reasonably believe
that the threats of suspension and discharge were also
related to the employees’ union support. In this context,
employees would not easily discern that Porter’s re-
peated references to the employees’ “bad attitudes” were
unrelated to the employees’ union activity. See James
Julian Inc. of Delaware, 325 NLRB 1109 (1998) (“[t]he
Board has repeatedly found, with court approval, that, in
a labor-relations context, company complaints about a
‘bad attitude’ are often euphemisms for pro-union senti-
ments”).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1152
In fact, as discussed above, Porter admitted in his tes-
timony that the “attitude” he was upset about related, at
least in part, to the employees’ union support. Even if
the discharge threat was actually related to the intimida-
tion and threatening of Lyon, and even if Porter was not
“focusing on union sympathies” when he referred to em-
ployees’ “bad attitude,” employees could reasonably
construe the threats of discharge and suspension as
statements relating at least in part to the employees’ un-
ion activities. In light of this ambiguity, the threats of
suspension and discharge would have the reasonable
tendency to coerce the employees in the exercise of their
Section 7 rights. Accordingly, the threats of suspension
and discharge made by Porter on November 23 violated
Section 8(a)(1) of the Act. See Furniture Renters of
America, Inc., 311 NLRB 749, 752 (1993), enfd. in part
36 F.3d 1240 (3d Cir. 1994) (employer’s statements vio-
late Section 8(a)(1) of the Act where such statements
could have reasonably led employees to believe that sup-
port of the union could lead to discharge).
3. The judge found that the Respondent did not violate
Section 8(a)(1) of the Act when Porter said to Calvin
Lange, Donald Meier, and Jamie Lange that they could
not vote in the election because they were supervisors.
We agree.10
The record establishes that during the November 23
meeting Porter told Lange, Meier, and Lange that be-
cause they were supervisors they were not eligible to
vote in the election. Porter showed the men a document
that stated that “managers and supervisors” cannot vote
in representation elections. One of the men protested,
stating that they were not supervisors. Porter again ar-
ticulated his belief that they were supervisors, to which
one of the men replied that they had never been told that
they were supervisors. In response, Porter said, “See,
we’re going to have a hearing about this . . . so we’ll find
out,” and further stated, “you guys might want to just
take off for a couple of weeks until I get ahold [sic] of a
lawyer and get this all straightened out.” Notwithstand-
ing Porter’s suggestion, the Respondent did not lay the
men off, nor did they take time off.
In finding that Porter’s comments did not violate Sec-
tion 8(a)(1), the judge distinguished Porter’s comments
from those found unlawful in Shelby Memorial Home,
305 NLRB 910, 918–919 (1991). The judge stated that,
whereas the employer in Shelby clearly and unequivo-
cally informed employees that they were supervisors and
were not entitled to participate in protected activity, Por-
ter did not insist that the men were supervisors and in-

10 For the reasons set forth in his partial dissent, Member Walsh
finds that this statement violated Sec. 8(a)(1).
stead stated that the dispute would be resolved through a
hearing. The judge further stated that Porter did not tell
the three men that they had no right to engage in pro-
tected activity. The judge found that because Porter’s
statements merely communicated his opinion and were
not coercive or threatening they did not interfere with the
employees’ exercise of their Section 7 rights.
We agree with the judge’s finding. It is well settled
that the Act does not preclude an employer from express-
ing opinions to employees, so long as those statements
are not coercive. See, e.g., Wilker Bros. Co., 236 NLRB
1371, 1372 (1978). Because, as the judge found, Porter’s
statements amounted to the mere expression of his opin-
ion, the issue is whether these statements could reasona-
bly tend to coerce and intimidate the employees in the
exercise of their Section 7 rights. We agree with the
judge that they could not. As the judge articulated, Por-
ter expressed his opinion, the men disagreed, and Porter
responded that the dispute would be resolved through a
hearing. As such, Porter’s benign expression of opinion
would not reasonably tend to intimidate or coerce em-
ployees in the exercise of their protected activity.
Our dissenting colleague does not dispute that Porter
merely suggested that the three men might be supervi-
sors. However, relying on Shelby Memorial Home, he
contends that this suggestion is sufficient to establish a
violation. Contrary to our colleague, Shelby does not
hold that the mere suggestion that an employee may be a
supervisor amounts to a per se violation of Section
8(a)(1). In Shelby, the employer did not suggest the em-
ployees were supervisors; rather, the employer insisted
that employees were supervisors, demanded that em-
ployees refrain from engaging in protected activity, and
threatened termination if the employees did engage in
such activity. Shelby, supra, 305 NLRB at 919. In con-
trast, Porter’s comments did not contain such harsh and
threatening statements. Rather, they amounted to the
mere expression of his opinion followed by a statement
that the issue would be resolved with a hearing. Thus,
contrary to the dissent’s contention, Porter did not act at
his “peril” as did the employer in Shelby. Porter’s ex-
pression of his opinion about their supervisory status did
not include any prohibitions, demands, or threats, like the
statements at issue in Shelby. To the contrary, Porter’s
comments were accompanied by the assurance of a fair
resolution of their difference of opinion, i.e., at a hearing.
We agree with our colleague that if an employer flatly
tells persons that they cannot vote, the employer has
acted at its peril and has violated Section 8(a)(1) if it
turns out that the persons are employees. However, the
Respondent here (through Porter) simply told persons
that, in its opinion, they were ineligible and that the issue
ARMSTRONG MACHINE CO. 1153
would be resolved in a hearing. The individuals would
reasonably understand that they were free to take a con-
trary position and thereby claim the status of eligible
employees.
Finally, the fact that Porter committed 8(a)(1) viola-
tions in the same speech does not render unlawful the
comments discussed above. The employees would rea-
sonably understand that their eligibility would be deter-
mined solely by the facts and law developed at a hearing.
Our colleague’s reliance on Medcare Associates, Inc.,
330 NLRB 935, 936 fn. 7, 968 fn. 44 (2000), and Sav-On
Drugs, 253 NLRB 816, 820–821 (1980), enfd. 728 F.2d
1254 (9th Cir. 1984), is misplaced. In Medcare Associ-
ates, an employer told a group of RNs, who were later
found not to be supervisors, that they were “prohibited”
from engaging in union activity. The coercive nature of
that statement of prohibition is not comparable to Por-
ter’s expression of his opinion about supervisory status
and his statement that the issue would be resolved with a
hearing. In addition, Porter simply said that, in his opin-
ion, the employees would be ineligible to vote. In Med-
care, the employees were told that all union activity was
prohibited. Sav-On Drugs involved the termination of
two employees for engaging in protected activity, con-
duct far more coercive than the conduct at issue here.
Thus, in contrast to those two cases, our colleague misses
the point that the statements at issue here did not have a
chilling tendency.
For these reasons, we adopt the judge’s finding that
Porter’s statements did not violate Section 8(a)(1).
4. The judge found that the Respondent violated Sec-
tion 8(a)(3) of the Act by terminating employees Jamie
Lange and Donald Meier because of their union activity.
We affirm the judge’s finding that the General Counsel
sustained his burden, under Wright Line,11 of demonstrat-
ing that the employees’ union activities were a motivat-
ing factor in the Respondent’s decision to terminate
them. However, as explained below, we find, contrary to
the judge, that the Respondent met its burden of estab-
lishing that it would have discharged the two employees
even if they had not engaged in union activities. Accord-
ingly, we reverse the judge’s finding that the Respondent
violated Section 8(a)(3) of the Act by terminating Jamie
Lange and Donald Meier.12

11 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
12 Chairman Battista finds that Donald Meier is a 2(11) supervisor.
Assuming arguendo that Meier is an employee, Chairman Battista joins
the following analysis as it pertains to the issue of termination.
The Respondent terminated Calvin Lange,13 Jamie
Lange, and Donald Meier on December 24, 2001. The
events leading to their terminations began in early No-
vember 2001, when the three of them threatened em-
ployee John Lyon with a “blanket party” if he did not
vote for the Union. (As explained above, a “blanket
party” is slang for the physical assault of an individual
while the victim’s head is covered with a blanket so as to
prevent him from defending himself.) The Respondent’s
owner, Clifford Porter, learned of this threat approxi-
mately 2-1/2 weeks after it was made. Porter approached
Calvin and Jamie Lange, and Meier the day he learned of
the threat and demanded that they stop threatening em-
ployees.
Immediately thereafter, the two Langes and Meier
drove to Lyon’s home, where they were informed by
Lyon’s wife that Lyon was attending to personal business
at a local shop. They proceeded to that shop where they
approached Lyon and informed him that, as a result of
Lyon’s disclosure of the “blanket party” threat, Calvin
Lange had been terminated. In fact, Calvin Lange had not
been terminated. Upon learning that the two Langes and
Meier had approached Lyon again, and had referenced
their prior discussion, Porter telephoned his attorney,
who advised him not to terminate the employees until
after the election.
Shortly after the December 13, 2001 election, Calvin
Lange, together with Jamie Lange and Donald Meier,
informed Porter that they had brought the Union in to
“punish” Porter’s daughter and co-owner, Michelle
Clark-Ames. Thereafter, on December 24, 2001, the
Respondent terminated Calvin Lange, Jamie Lange, and
Donald Meier. At the hearing, Porter acknowledged that
Lange’s postelection statement was one of the reasons
for his decision to terminate the three, but added that the
primary reason was their “terrorization” of another em-
ployee (i.e., Lyon).
Although we agree with the judge that Porter’s testi-
mony establishes that Lange and Meier’s protected activ-
ity was a motivating factor in the Respondent’s decision
to terminate them, we find, contrary to the judge, that the
record also shows that the Respondent would have ter-
minated Lange and Meier even in the absence of their
protected activity. The “blanket party” statement threat-
ened physical violence. In response, the Respondent
directed the men to stay away from Lyon. Lange and
Meier willfully disregarded this directive; they immedi-
ately proceeded to track Lyon down to falsely inform

13 As stated above, we adopt the judge’s finding, for the reasons
cited in his decision, that Calvin Lange was a supervisor within the
meaning of the Act, and that his termination was, therefore, not unlaw-
ful.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1154
him that he had caused the Respondent to terminate Cal-
vin Lange. It was this conduct—the unprotected threat
and the immediate and willful disregard of the Respon-
dent’s directive—that led Porter to decide that Lange and
Meier should be terminated.
This decision was made in late November. There is no
evidence that Porter ever changed his mind. On the ad-
vice of his attorney, however, Porter waited until shortly
after the election to terminate Lange and Meier. In the
period between Porter’s decision and the actual termina-
tion, Porter learned that the men asserted that they
brought the Union in to punish Clarke-Ames. Porter
admitted that this became a secondary reason for the ter-
minations. However, the decision to terminate the men
had already been made, and that decision had not been
based on the employees’ protected activity. The fact that
the employees subsequently made a prounion statement
does not change the fact that a lawful decision to termi-
nate had been made, and does not require that this lawful
decision be revoked.
Accordingly, we find that that the discharges do not
violate Section 8(a)(3) of the Act.
5. We adopt the judge’s recommendation to overrule
the Respondent’s objection to the election, which alleges
that Donald Meier, Jamie Lange, and Calvin Lange
threatened unit employees with physical harm and diffi-
cult working conditions if the employees did not vote in
favor of the Union. The Respondent relies on the “blan-
ket party” statement made by Calvin Lange to employee
John Lyon, as well as the November 23 after-hours con-
tact by Calvin Lange, Jamie Lange, and Donald Meier
with Lyon, when they falsely told Lyon that Calvin
Lange had been terminated as a result of Lyon’s disclo-
sure of the “blanket party” threat. The judge found, and
we agree for the reasons set forth in the judge’s decision,
that the “blanket party” statement was not objectionable.
The judge, however, did not discuss the November 23
incident.
In its exceptions, the Respondent contends that the
judge erred in failing to consider the subsequent, after-
work visit, arguing that this visit constituted objection-
able conduct sufficient to warrant setting aside the elec-
tion. We find the Respondent’s argument without merit.
The subsequent visit, when considered either alone or
together with the previous “blanket party” statement, is
insufficient to create a general atmosphere of fear and
reprisal and, therefore, does not warrant setting aside the
election. Id.
DIRECTION
It is directed that the Regional Director for Region 18
shall, within 14 days from the date of this Decision, Di-
rection, and Order, open and count the ballots of Donald
Meier and Jamie Lange. The Regional Director shall
thereafter serve on the parties a revised tally of ballots
and issue the appropriate certification.
ORDER
The Respondent, Armstrong Machine Company, Po-
cahontas, Iowa, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Threatening its employees with a reduction in
hours because of its employees’ activities on behalf of a
labor organization.
(b) Unlawfully interrogating its employees about their
union activities or the union activities of other employ-
ees.
(c) Threatening employees with discharge or suspen-
sion because of their activities on behalf of a labor or-
ganization.
(d) Threatening its employees that choosing a union
would be futile.
(e) Threatening its employees that it would not sign a
collective-bargaining agreement with a union selected by
its employees.
(f) Threatening its employees that it could close the
plant if its employees select a union to represent them.
(g) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days after service by the Region, post at
its facility in Pocahontas, Iowa, copies of the attached
notice marked “Appendix.”14 Copies of the notice, on
forms provided by the Regional Director for Region 18,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate 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 November 23, 2001.

14 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
ARMSTRONG MACHINE CO. 1155
(b) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
CHAIRMAN BATTISTA, dissenting in part.
Contrary to my colleagues, I find that Donald Meier is
a statutory supervisor, that the challenge to his ballot
should be sustained, and that his termination did not vio-
late Section 8(a)(3).1
The record establishes that Meier’s responsibilities in-
clude assigning departmental work to employees. In
making these assignments, Meier considers the employ-
ees’ skills and experience, and decides which employees
will work well together on specific projects. Although
Meier refers to a management-generated list when as-
signing work, this list merely indicates the projects des-
ignated for completion. It is often Meier alone who de-
termines which employees are best suited to work on
specific assignments.
In sum, Meier assesses employee skills, he matches
these skills to particular projects, and he makes a deter-
mination that certain employees will work well together.
In my view, these are quintessentially matters of discre-
tion and judgment. There is no guideline or book that
dictates to Meier the assignment that he is to make.
My colleagues contend that the record shows nothing
more than Meier’s reliance on the “common knowledge”
of employees’ skills and experience, and of their ability
to work together. However, there is no record evidence
establishing the existence of any such “common knowl-
edge.”
The cases my colleagues cite in support, Quadrex En-
vironmental Co., 308 NLRB 101 (1992); and Hexacomb
Corp., 313 NLRB 983, 984 (1994), are clearly distin-
guishable. In Quadrex, the “leads” were found not to be
supervisors, in part, because their staffing assignments
were carried out “under the direction of management
according to a schedule that has been established by
management.” Id. Indeed, if the leads encountered any
problems, they were required to report them. Id. Here,
there is no evidence suggesting that Meier’s authority to
assign work is qualified by a directive to report any prob-
lems to his superior. Meier’s authority in this respect
was unqualified. Similarly, in Hexacomb, supra, the
Board found the assignments made by certain foremen
did not establish supervisory status because the record
failed to show that they exercised “independent judgment
when they shift employees around within their respective
lines to get projects accomplished.” Id. By contrast, there

1 I agree with the majority’s findings in all other respects.
is such evidence here. The record shows that the as-
signments involved an assessment of employee skills and
a determination of which employees would work well
together on a particular project.
My colleagues further contend that Meier’s responsi-
bilities are akin to those found insufficient to establish
supervisory status in Hausner Hard-Chrome, 326 NLRB
426 (1998). That case too is clearly distinguishable. In
Hausner, management “laid out the work for the day”
and the alleged supervisors, possessing no control over
plant operations, merely communicated these plans to the
employees. In other words, there were no specific as-
signments that required independent judgment. Such is
not the case here. Meier assigns work, and, in doing so,
regularly exercises independent judgment sufficient to
satisfy the requirements of Section 2(11). Further, there
was no evidence in Hausner, as there is here, that the
assignments involved a determination of employees’
skills, or a determination of which employees could work
well together on any particular project.
For the above reason, I conclude that Meier is a super-
visor.2
MEMBER WALSH, dissenting in part.
My colleagues find, and I agree, that the Respondent’s
president and partial owner, Clifford Porter, violated
Section 8(a)(1) of the Act by certain statements he made
during a meeting on November 23, 2001, with Supervi-
sor Calvin Lange and employees Jamie Lange and Don-
ald Meier.1 Specifically, at that meeting Porter unlaw-
fully interrogated the employees concerning their union
activities, threatened plant closure if the employees se-
lected a union to represent them, told the employees that
union representation would be futile and he would not
enter into a collective-bargaining agreement with the
Union, and threatened to suspend and terminate the em-
ployees for engaging in union activity. During the
course of the conversation, Porter also told statutory em-
ployees Meier and Lange that they would not be able to
vote in the election because they were supervisors. My
colleagues find that statement to be lawful, arguing that
Porter was merely tentatively stating his honest belief
that those employees were supervisors and, therefore,
ineligible to vote. In finding this statement to be lawful,
my colleagues have improperly isolated the statement
from the coercive and unlawful context in which it was
made. When analyzed in the context of the entire No-

2 Even if Meier were an employee, his discharge would be lawful,
for the same reason that my colleagues and I find that Jamie Lange’s
discharge was lawful.
1 I agree with my colleagues that Calvin Lange was a supervisor un-
der Sec. 2(11) of the Act. I join Member Liebman in finding that em-
ployees Donald Meier and Jamie Lange were not statutory supervisors.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1156
vember 23 conversation, it is clear that Porter committed
an additional violation of Section 8(a)(1) of the Act.
During the course of the November 23, 2001 meeting
described in the majority opinion, Porter threatened the
employees that, because they were supervisors, they
would not be allowed to vote in the election. When the
employees insisted that they were not supervisors, Porter
responded, “Well I thought you [were].” One employee
stated that he was never informed that he was a supervi-
sor and Porter replied that, “[W]e’re going to have a
hearing about this . . . [s]o we’ll find out,” and then told
the employees that he thought they ought to take a couple
of weeks off “until I get hold of a lawyer and get this all
straightened out.”
The General Counsel and the Charging Party contend
that this statement is unlawful even if it reflected Porter’s
honest belief because, under Shelby Memorial Home,
305 NLRB 910 fn. 2, 912, 918–919 (1991), enfd. 1 F.3d
550 (7th Cir. 1993), “[a]n employer acts at its peril when
it takes steps calculated to chill the exercise of Sec. 7
rights by individuals who may later be found to be under
the protection of the Act.” Because Jamie Lange and
Meier have been found not to be supervisors, the Re-
spondent interfered with the exercise of the employees’
Section 7 rights.
Porter’s comments were unlawful under Shelby Memo-
rial Home. A statement that an employee is ineligible to
vote would reasonably chill that employee in the exercise
of his Section 7 right to vote if the employee is actually
eligible. The fact that Porter did not insist that the em-
ployees would be ineligible to vote and stated that they
would “find out,” does not erase the coerciveness of the
statement, particularly in light of Porter’s continued in-
sistence that the employees were supervisors. Under
Shelby Memorial Home, Porter acted at his peril when he
suggested that the employees would be ineligible to vote.
My colleagues attempt to distinguish Shelby Memorial
Home, supra, on the basis that in Shelby, the employer
did more than merely suggest that the employees were
supervisors and would therefore be ineligible to vote, but
also demanded that employees refrain from engaging in
protected activity and threatened termination if the em-
ployees engaged in such activity. In Shelby, the Board
found, inter alia, that the respondent violated Section
8(a)(1) by (a) telling employees that they could not vote
in a union election; (b) telling employees that they could
not participate in union activities and that they would be
subject to dismissal for doing so; and (c) telling employ-
ees that they could be discharged for disloyalty for en-
gaging in union activities. In distinguishing Shelby on
the basis of the demand to refrain from union activity and
the discharge threats, my colleagues suggest that absent
such “harsh and threatening” conduct, merely telling
eligible employees that they could not vote in an election
would not constitute a violation of Section 8(a)(1).
Contrary to my colleagues, I do not read Shelby to pre-
clude a finding that a statement to eligible employees
that they would not be able to vote in the election, with-
out more, can violate Section 8(a)(1). Shelby set forth
and applied the rule that an employer acts at its peril if it
chills the exercise of the Section 7 rights of anyone who
may later be found to be protected by the Act. Sav-On
Drugs, 253 NLRB 816, 820–821 (1980), enfd. 728 F.2d
1254 (9th Cir. 1984). Thus, under the “peril” rule, viola-
tions of the Act are established if employees are later
found to be statutory employees and steps had been taken
to chill their Section 7 rights. See, e.g., Medcare Associ-
ates, Inc., 330 NLRB 935, 936 fn. 7, 968 fn. 44 (2000)
(erroneously telling a group of RNs that they were su-
pervisors and were therefore prohibited from engaging in
union activity violated Sec. 8(a)(1) where RNs were later
found not to be supervisors). Nothing in the “peril” rule
requires additional coercion if employees’ Section 7
rights are chilled. My colleagues apparently believe that
merely telling eligible employees that they are ineligible
to vote does not chill them in the exercise of Section 7
rights. However, suggesting that an eligible employee is
ineligible has the reasonable tendency to discourage that
employee from exercising his statutory right to vote.
Because we have found that Lange and Meier were statu-
tory employees entitled to vote in the election, the Re-
spondent acted at its peril when it attempted to discour-
age those employees from voting in the election, and,
under Shelby, committed a violation of Section 8(a)(1) of
the Act.2
Although Porter may have believed that Lange and
Meier were statutory supervisors at the time he suggested
that they would be ineligible to vote, under the “peril”
rule, even an honest belief does not insulate the conduct
from being found coercive. Whether a statement is coer-
cive within the meaning of Section 8(a)(1) of the Act,
after all, is measured from the perspective of the em-
ployee, and thus is not based on the state of mind of the
employer. See NLRB v. Okun Bros. Shoe Store, 825 F.2d
102, 105–106 (6th Cir. 1987).
My colleagues’ citation to Wilker Bros., 236 NLRB
1371, 1372 (1978), enfd. in part 652 F.2d 660 (6th Cir.

2 My colleagues distinguish Sav-On Drugs and Medcare on the basis
that the conduct in those cases was “hardly comparable to” or “far more
coercive than” the conduct at issue here. Even if the conduct at issue
here was comparatively less coercive, that does not preclude a finding
that the conduct is coercive nevertheless. If, as here, a statement rea-
sonably discourages employees from exercising their Sec. 7 rights, it is
coercive and violative of Sec. 8(a)(1).
ARMSTRONG MACHINE CO. 1157
1981), for the proposition that an employer may express
opinions to employees so long as those statements are
not coercive, is unavailing. Here, Porter’s expression of
his “opinion” that statutory employees Lange and Meier
were ineligible to vote in the election was coercive be-
cause it had the reasonable tendency to discourage them
from voting, thereby chilling those employees in the ex-
ercise of their statutory right to vote.3 Accordingly, Por-
ter’s comment violated Section 8(a)(1) of the Act.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist any union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT interfere with, restrain, or coerce our
employees in the exercise of these rights, guaranteed to
them by Section 7 of the Act.
WE WILL NOT threaten our employees with a reduction
in hours because of their protected and union activities.

3 Discouraging eligible employees from voting is, by itself, inher-
ently coercive, regardless of the context in which such a statement is
made. However, I observe that in this case the “opinion” at issue was
expressed during the course of the November 23 meeting at which
numerous other unlawful statements and threats were made, including
threats of discharge and suspension for engaging in union activities.
Although the unlawful threats of discharge and suspension were not
directly linked to a future attempt by these statutory employees to vote
in the election, Porter did threaten that dire consequences would ensue
should the employees continue to engage in union activities. Moreover,
Porter arguably linked a threat of suspension with the employees’ inten-
tion to vote in the election when he immediately followed his “opinion”
concerning the employees’ ineligibility to vote with a suggestion that
the employees take a couple of weeks off until he could “get hold of a
lawyer and get this all straightened out.” Under such circumstances,
my colleagues’ attempt to portray Porter’s comments as merely a be-
nign expression of his “opinion on a supervisory issue” is contrary to
the facts. In light of Porter’s hostility to union activity, a reasonable
employee would likely interpret Porter’s “opinion” concerning the
employees’ ineligibility as an attempt to discourage them from exercis-
ing their Sec. 7 right to vote in the election.
WE WILL NOT unlawfully interrogate our employees
about their union or other protected activities or about
the Union or protected activities of other employees.
WE WILL NOT threaten our employees with discharge or
suspension because they engage in activities on behalf of
a labor organization.
WE WILL NOT threaten our employees by stating that
choosing a labor organization to represent them is futile.
WE WILL NOT threaten our employees that we would
not sign a collective-bargaining agreement with a labor
organization selected by our employees.
WE WILL NOT threaten our employees that we could
close the plant if our employees selected a labor organi-
zation to represent them.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
ARMSTRONG EQUIPMENT COMPANY
David M. Biggar, Esq., for the General Counsel.
Becky S. Knutson., Esq. and William D. Thomas, Esq. (Davis,
Brown, Koehn, Shors & Roberts), for the Respondent.
Peter J. Ford, Esq.,.for the Charging Party.
DECISION
STATEMENT OF THE CASE
KELTNER W. LOCKE, Administrative Law Judge. This pro-
ceeding concerns two unfair labor practice cases, Cases 18–
CA–16276–1 and 18–CA–16555–1, which were consolidated
for hearing with a representation case, Case18–RC–16904. In
the unfair labor practice cases, the General Counsel of the Na-
tional Labor Relations Board (the General Counsel or the Gov-
ernment) has alleged that Armstrong Machine Company, Inc.
(the Respondent) unlawfully discharged five employees be-
cause of their union activities, and that management officials
made a number of statements which interfered with, restrained,
and coerced employees in the exercise of rights protected by
the National Labor Relations Act (the Act). I find that Respon-
dent unlawfully discharged two employees, Jamie Lange and
Donald Meier Jr., but did not unlawfully discharge three other
individuals, Calvin Lange, Jimmy Lange, and Brad Meier.
Issues in the representation case concern an election con-
ducted by the Board at the Respondent’s plant on December 13,
2001. The Board agent conducting that election challenged the
ballots of four individuals whose names did not appear on the
voter eligibility list. I recommend that two of these challenged
ballots, cast by Jamie Lange and Donald Meier Jr., be opened
and counted.
Additionally, I recommend that Respondent’s objection to
conduct affecting the results of the election be overruled. The
record does not establish that the alleged objectionable conduct
occurred during the critical period.
Procedural History
Respondent repairs pumps and manufactures parts for pumps
at its plant in Pocahontas, Iowa. On November 14, 2001, the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1158
Union filed a representation petition in Case 18–RC–16904.
The Union and Respondent entered into a stipulated election
agreement which the Regional Director for Region 18 of the
Board approved on December 3, 2001. This agreement pro-
vided for an election in the following collective-bargaining
unit:
All full-time and regular part-time production and mainte-
nance employees employed by the Employer at its plant lo-
cated at 10 SW 7th Street, Pocahontas, Iowa; excluding office
clerical and office cleaning employees and guards and super-
visors as defined in the National Labor Relations Act.
On December 13, 2001, the Board conducted this election.
At the conclusion of the election, the Board agent issued a tally
of ballots which set forth the following information:
Approximate number of eligible voters 24
Void ballots 0
Votes cast for Petitioner 9
Votes cast against Petitioner 10
Number of valid votes counted 19
Challenged ballots 4
Valid votes counted plus challenged ballots 23
Challenged ballots are sufficient in number to affect the results
of the election.
On December 20, 2001, Respondent filed objections to con-
duct affecting the results of the election.
On about December 24, 2001, Respondent discharged em-
ployees Calvin Lange, Jamie Lange, and Donald Meier Jr. On
January 3, 2002, the Union filed an unfair labor practice charge
against Respondent in Case 18–CA–16276–1. The Union al-
leged, among other things, that these discharges violated Sec-
tions 8(a)(3) and (1) of the Act.
After an investigation, the Regional Director for Region 18
issued a complaint and notice of hearing in Case 18–CA–
16276–1 on July 9, 2002.
On July 11, 2002, the Regional Director issued a report on
challenged ballots and objections, order directing hearing, con-
solidating cases and notice of hearing. This order consolidated
Case 18–CA–16276–1 with Case 18–RC–16904 and scheduled
the hearing to begin on September 17, 2002.
On August 19, 2002, the Union filed an unfair labor practice
charge against Respondent in Case 18–CA–16555–1. This
charge alleged that on about April 3, 2002, Respondent dis-
charged employee Brad Meier in violation of Section 8(a)(3)
and (1) of the Act.
On September 3, 2002, the Regional Director issued an order
consolidating cases and amendment to consolidated complaint.
This order added an allegation raised by the unfair labor prac-
tice charge in Case 18–CA–16555–1. Specifically, it amended
the complaint to allege that on about April 3, 2002, Respondent
discharged employee Brad Meier.
On September 17, 2002, hearing opened before me in Fort
Dodge, Iowa. The parties presented evidence on September 17,
18, 25, and 26, 2002. Counsel also filed posthearing briefs,
which I have considered.
Admitted Allegations
In its answers to the complaint and to the amendment to
complaint, Respondent has admitted a number of allegations.
Based on these admissions, I find that the unfair labor practice
charges were filed and served as alleged in complaint para-
graphs 1(a), (b), and (c). Further, I find that Respondent is an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
Respondent does not contest that the Union is a labor organi-
zation within the meaning of Section 2(5) of the Act. Based on
the record, and particularly noting that Respondent entered into
a stipulated election agreement with the Union in Case 18–RC–
16904, I so find.
Respondent has admitted that Clifford Porter, president and
partial owner of Respondent, and Michelle Clark, secretary-
treasurer and partial owner of Respondent, are its supervisors
and agents within the meaning of Section 2(11) and (13) of the
Act, respectively. I so find.
Respondent has admitted the allegations raised in complaint
paragraph 6(a). Based on that admission, I find that on about
December 24, 2001, Respondent discharged its employees Cal-
vin Lange, Jamie Lange, and Donald Meier Jr.
Respondent’s answer admitted the allegations raised in com-
plaint paragraph 6(b), that it discharged employee Jimmy
Lange on about December 28, 2001. However, for reasons
discussed below, I conclude that this “admission” was a typo-
graphical error. I do not find that Respondent discharged
Jimmy Lange.
Respondent has admitted the allegations raised in complaint
paragraph 6(c). Based on that admission, I find that on about
April 3, 2002, Respondent discharged its employee Brad Meier.
Respondent has denied the other allegations raised by the
complaint, as amended.
Disputed Allegations
Supervisory Status of Calvin Lange
Respondent contends that Calvin Lange was, during his em-
ployment with Respondent, its supervisor and agent within the
meaning of Section 2(11) and (13) of the Act. The Government
disputes this allegation. Resolving this issue will determine
whether the challenged ballot cast by Calvin Lange in the De-
cember 23, 2001 election should be counted.
With certain exceptions not relevant here, the Act’s protec-
tion does not extend to individuals who meet Section 2(11)’s
definition of supervisor. Therefore, Calvin Lange’s supervisory
status, of lack of it, also is relevant to the allegation that Re-
spondent discharged him unlawfully for engaging in union
activities.
When a party asserts that a certain individual is a supervisor,
the Board places the burden of proof on that party.
Lange testified that at the end of his employment with Re-
spondent, his title had been “leadman/foreman.” Eight em-
ployees worked in the shop where Lange performed this func-
tion. Lange spent much of his workday at a machine, perform-
ing tasks similar to those of the others in the shop. He esti-
mated that he spent 80 percent of his time on the job perform-
ing such production work.
ARMSTRONG MACHINE CO. 1159
However, his duties also included making sure that these
employees remained busy. As he described it, “I’d just look
around while I was at the saw and then if they weren’t doing
it—I could usually tell if they weren’t doing anything. Then,
I’d just look on the back order list, go over there and tell them
that this is what they got to do next.”
At all times material to the complaint, Respondent’s work
rules told employees to let “Cliff, Michelle or Calvin, know if
you have to work or want to work overtime.” (Cliff refers to
Cliff Porter, who owns a one-half interest in Respondent. Mi-
chelle refers to Michelle Clark–Ames, Porter’s daughter, who
owns a one–quarter interest in Respondent. Calvin refers to
Calvin Lange.)
According to Lange, neither Porter nor Clark-Ames had
called him a “supervisor” before November 23, 2001. On the
other hand, on March 17, 1999, Lange signed a disciplinary
warning issued to employee Russ Johnson, and this warning
identified Lange as “Ship Forman [sic].” Specifically, that
warning stated:
Russ Johnson missed work on March 16, 1999. He did not
call in. He returned to work on March 17, 1999.
After being asked by shop Forman [sic], Calvin Lange, why
we [sic] was not a[t] work yesterday, Russ replied he was sick
and dose [sic] not have a phone at home, I know I should have
called in.
This is the 1st warning.
In addition to Lange, the warning also bore the signature of
Michelle Clark. (Her last name later changed, after marriage,
to Clark-Ames.) Lange testified that Michelle Clark-Ames had
asked him to find out from Johnson why he wasn’t at work, and
then reported Johnson’s response to Clark-Ames. According to
Lange, Clark-Ames prepared the disciplinary notice and had
Lange sign it.
On April 12, 1999, Lange signed a disciplinary warning is-
sued to employee Brian Helmers and again, this warning identi-
fied Lange as “Ship Forman [sic].” This warning stated:
Brian Helmers missed work on April 9, 1999. He did not call
in. He returned to work on April 12, 1999.
After being asked by shop Forman [sic], Calvin Lange, and
Michelle Clark why we [sic] was not at work on the 9th,
Brian replied he was sick asked why he didn’t call in Brian
replied he didn’t know he had too. [sic]
This is the first warning
Respondent later discharged Helmers. The November 2,
1999 discharge notice, signed by Michelle Clark and Calvin
Lange, identified Lange as “Shop Forman [sic].” According to
Lange, he received instructions from Clark-Ames to ask
Helmers about his absence and reported the information back to
her. Later, she asked Lange to sign the disciplinary notice and
he did.
Based on these disciplinary notices, I conclude that Calvin
Lange had the title “foreman” at least as early as March 17,
1999, well before the union organizing campaign which led up
to the December 13, 2001 election. However, the Board does
not determine an individual’s supervisory status, or lack of it,
based on that person’s title. Rather, the Board looks to the
criteria set forth in Section 2(11) of the Act.
The Act defines “supervisor” to mean “any individual having
authority, in the interest of the employer, to hire, transfer, sus-
pend, lay off, recall, promote, discharge, assign, reward, or
discipline other employees, or responsibly to direct them, or to
adjust their grievances, or effectively to recommend such ac-
tion, if in connection with the foregoing the exercise of such
authority is not of a merely routine or clerical nature, but re-
quires the use of independent judgment.” See 29 U.S.C. §
152(11).
Thus, to warrant a conclusion that a particular person meets
the statutory definition of supervisor, the evidence must estab-
lish three elements: (1) That the individual had authority to
perform at least one of the functions listed in the statute; (2)
that the individual exercised this authority in the interest of the
Employer, and (3) that the exercise of such authority is not of a
merely routine or clerical nature but requires the use of inde-
pendent judgment.
Determining whether Calvin Lange discharged any em-
ployee requires me to determine which witnesses should be
credited. Bonnie Williams, who works as a secretary-
receptionist in Respondent’s office, testified that on one occa-
sion in December 2000, Lange “came in and told me that he
fired Kenny Rhea.” She made the following notation on a
piece of paper which she placed in Rhea’s personnel file:
12/14/00
Calvin stated he had just fired Kenny Rhea. He had done this
before or right around 8:00, when I came in.—Bonnie
Calvin Lange denied discharging Rhea. According to Lange,
Rhea had an appointment at 11a.m. that day, left work to go to
the appointment, and never returned. “I never talked to him,”
Lange testified, “since that day.”
For the following reasons, I credit Williams’ testimony
rather than Lange’s. First, the record establishes that Lange
told at least one other employee that he had authority to hire
and fire. Specifically, employee Norma Greenwood testified
that Calvin Lange “told me that he had the right to fire and hire
whoever he wanted.”
Greenwood’s demeanor as a witness created the very strong
impression that she was telling the truth. She was plain talking
and forthright, and her responses on cross-examination actually
increased her credibility. Based on her testimony, which I
credit, I find that Lange did tell her that he had the authority to
hire and fire.
On the witness stand, Calvin Lange denied having power to
hire or discharge. The prior inconsistent statement he made to
Greenwood, described above, adversely affects his credibility.
Second, Lange admitted that he told a lie to employee John
Lyon. Specifically, he testified that November 23, 2001, he
told Lyon that he, Lange, had been discharged. Although
Lange characterized this statement as a joke, he did not dispute
its falsity. The fact that he would make an untrue statement to
a worker does not, by itself, establish that his testimony under
oath is unreliable, but to some extent, it does detract from his
credibility.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1160
Even though Lange told Greenwood that he fired Rhea, there
remains a possibility that this statement was untrue. It might be
no more trustworthy than Lange’s false statement to Lyon that
he, Lange, had been discharged. In other words, even if Lange
had lied to Greenwood about firing Rhea, he still might have
been telling the truth when he testified that Rhea simply left
work for an appointment and never came back.
Such a possibility appears unlikely. Commonly, employees
do not just leave work and never return. Conceivably, an em-
ployee might do so if he had just had an argument with his
supervisor or, perhaps, if he had just won a large sum in a lot-
tery. The record here does not indicate that Rhea had any such
reason to quit his job precipitously. Therefore, I conclude that
Rhea was discharged.
Both Owner Porter and Owner Clark-Ames were away from
the facility on the day Rhea’s employment ended, leaving
Lange as the highest–ranking person on the premises. When
they returned, neither Porter nor Clark-Ames reinstated Rhea.
In these circumstances, I conclude that Calvin Lange did dis-
charge Rhea. Further, considering the absence of any higher
official on this occasion, it appears clear that Lange exercised
independent judgment in deciding to discharge Rhea. I so find.
The evidence also establishes that Lange directed the day-to-
day activities of the eight shop employees. Each morning,
Lange would get a “back order list” from the office. This list
specified the work which customers had ordered and gave some
indication of the time target for finishing the work. Using this
list, Lange assigned work to employees who had finished their
previous assignments. On direct examination, he testified, “I’d
just look around while I was at the saw and then if they weren’t
doing it—I could usually tell if they weren’t doing anything.
Then, I’d just look on the back order list, go over there and tell
them that this is what they got to do next.”
In view of this testimony, there can be little doubt that one of
Lange’s duties involved assigning work to employees. Addi-
tionally, it cannot be contested that in making these job assign-
ments Lange was acting in the interest of his employer.
The parties do disagree about whether Lange was exercising
independent judgment when he performed such assignments.
The General Counsel argues that Lange was performing essen-
tially a routine, clerical function. Specifically, the General
Counsel notes that all employees had access to the back order
list, and sometimes an employee would look at the list and
decide for himself what to do next, rather than being directed
by Lange.
The record falls short of establishing that Lange exercised
significant independent judgment when he assigned work to the
employees. Standing alone, Lange’s authority to assign work
would be insufficient to establish supervisory status.
Lange also possessed authority to grant overtime. He admit-
ted having such authority while being cross-examined about his
talking with employees during their working time:
Q. But you talked to them when you were the person
who was supposed to be keeping them busy?
A. Yeah.
Q. When you were the person who approved their
overtime?
A. Yeah.
Lange’s testimony downplays any use of independent judg-
ment in exercising this authority. Thus, on cross-examination,
Lange testified that when someone requested overtime he
would “go talk to Cliff and Michelle to see if it was okay.” On
the other hand, the record does not establish that the owners
required or directed Lange to consult with them before approv-
ing overtime. It appears more likely that Lange chose to do so
on his own.
Lange testified that when the owners were away from the
premises, no employee asked him for permission to work over-
time. However, on further questioning, Lange admitted that he
didn’t know “for sure” whether an employee had asked for
overtime when Porter and Clark-Ames were away. Lange also
admitted that a work rule had required employees to ask him
for permission to work overtime when Porter and Clark-Ames
were not around.
Although the General Counsel argues that Porter and Clark-
Ames were almost always present at the facility, the evidence
establishes that sometimes both were away at the same time.
Porter credibly testified that he takes trips to call on customers
in foreign countries. On one such trip, he spent 30 days in Aus-
tralia. I find that in promulgating the work rule requiring em-
ployees to ask either one of them or Lange for permission to
work overtime, the owners contemplated that in their absence,
Lange would use independent judgment in granting or denying
such requests.
As discussed above, Calvin Lange possessed authority to
discharge employees and used it on one occasion when neither
Porter nor Clark–Ames was present at the facility. Addition-
ally, he had authority to approve overtime requests, and Re-
spondent’s work rules specifically mentioned this authority. In
these circumstances, I find that at all material times before his
discharge, Lange was Respondent’s supervisor within the
meaning of Section 2(11) of the Act.
Therefore, I recommend that the Board sustain the challenge
to the ballot Calvin Lange cast in the December 13, 2001 elec-
tion. Additionally, for reasons discussed more fully below, I
recommend that the Board dismiss the allegation that Respon-
dent unlawfully discharged Lange because of the union activi-
ties.
Supervisory Status of Donald Meier
Respondent also contends that Donald Meier Jr. was, during
his employment, a supervisor within the meaning of Section
2(11) of the Act. Resolution of this issue will determine
whether Meier’s challenged ballot should be opened and
counted or whether the challenge to that ballot should be sus-
tained. Additionally, the complaint alleges that Respondent
unlawfully discharged Meier, and his supervisory status, or lack
of it, will affect the protection afforded him by the Act.
Meier’s job title was “repair department foreman” and his
duties included assigning work to employees in this department
and keeping them busy. When a customer had a problem with
a pump, Meier would confer with the customer about it.
Meier’s duties also included performing work similar to that
done by others in this department, such as welding, running a
lathe and a hone, and rebuilding pumps and motors.
ARMSTRONG MACHINE CO. 1161
A person can meet the statutory definition of “supervisor” by
having authority to assign work to other employees, provided
that doing so is not of a merely routine or clerical nature but
requires the use of independent judgment. Respondent, having
asserted that Meier is a supervisor, bears the burden of proving
that he used independent judgment when he assigned work to
employees.
Although the record discloses that customers discussed with
Meier the mechanical problems they wanted fixed, the evidence
does not reveal the extent of Meier’s problem-solving authority.
Similarly, the record does not establish that Meier used inde-
pendent judgment in solving production problems which might
arise while employees performed their tasks. The evidence also
does not demonstrate that Meier’s assignment of work to em-
ployees was other than routine.
For example, Donald Meier ostensibly had authority to direct
the work of John Lyon. Although Respondent called Lyon to
the witness stand and asked him about Meier’s authority, his
testimony does not support a conclusion that Meier’s supervi-
sory duties entailed much independent judgment:
Q. Who told you what you needed to do when you ran
the lathe?
A. Calvin did and Cliff did depending on what we
were doing.
Q. I’m sorry. Maybe I made a mistake here. When
you ran the lathe were you in the west building or in the
east building?
A. The west building.
Q. Okay. And was Calvin Lange your foreman or was
Donnie Meier?
A. Donnie Meier was.
Q. Okay. Why is that Calvin would tell you what to
do?
A. Calvin would come across the street whenever—
when Michelle would tell him something to do to come up
and tell me what to do if it needed to be done if Donnie
was busy with something else.
Clearly, Calvin Lange and Michelle Clark-Ames played a
considerable role in directing the work of the employees osten-
sibly under Meier’s supervision. A preponderance of the evi-
dence fails to establish that Meier’s direction of employees was
more than routine.
The credible evidence establishes, and I find, that Meier es-
sentially made work assignments in the way a skilled leadman
generally makes such assignments, by taking note of employ-
ees’ skills and experience with respect to particular tasks. As-
signments made in this manner do not require the exercise of
independent judgment sufficient to satisfy the statutory defini-
tion. See Hausner Hard-Chrome of Kentucky, Inc., 326 NLRB
426 (1998).
In sum, I conclude that Meier is not a supervisor within the
meaning of Section 2(11) of the Act. Therefore, I recommend
that the Board overrule the challenge to the ballot he cast in the
December 13, 2001 election.
Supervisory Status of Jamie Lange
Respondent contends that before his discharge, Jamie Lange
held the title of shipping department manager and was a super-
visor within the meaning of Section 2(11) of the Act. Lange
cast a challenged ballot in the December 13, 2001 election.
Additionally, the complaint alleges that Respondent discharged
him unlawfully. His supervisory status, or lack of it, affects the
resolution of both of these issues.
Jamie Lange and one other person worked in the Respon-
dent’s shipping department. Respondent’s brief stated that his
“job was to keep all of the parts moving, and communicate with
Calvin Lange concerning inventory and the need for parts to be
made.” Additionally, Respondent contends that Owner Porter
placed Jamie Lange in charge of the shop when Calvin Lange
was absent.
The record does not establish that Jamie Lange possessed
any of the powers enumerated in Section 2(11) of the Act ex-
cept, possibly, the assignment of work. However, the evidence
does not establish that Lange’s work assignment duties were
other than routine, or that he exercised independent judgment in
fulfilling these duties.
I conclude that Respondent has not carried its burden of
proving that Jamie Lange was a supervisor within the meaning
of Section 2(11) of the Act, and find that he was not. There-
fore, I recommend that the Board overrule the challenge to his
ballot.
The November 23, 2001 Meeting
The complaint alleges that Owner Porter made a number of
unlawful statements when he met on November 23, 2001, with
Calvin Lange, Jamie Lange, and Donald Meier, who worked
for Respondent. Porter considered these three individuals to be
supervisors but as discussed above, the record establishes only
that one of them—Calvin Lange—satisfied the statutory defini-
tion of “supervisor.” Porter did not summon these three to his
office, but met with them in Respondent’s main building by
machines called CNC lathes.
Porter spoke with these men about a number of things, in-
cluding a statement Calvin Lange had made to employee John
Lyon. As Lange admitted on the witness stand, he had told
Lyon, “If you don’t vote for the union I’m going to give you a
blanket party,” a slang phrase meaning that Lange would throw
a blanket over Lyon’s head and beat him up. The record leaves
no doubt that Lange used the term “blanket party” in this as-
saultive sense and that Lange understood his meaning. Lange
testified that he made the statement in jest, but it offended
Lyon.
Although Porter did not know it at the time of the November
23, 2001 meeting, there had been two previous instances of
violence against Lyon, whose work attitudes may have engen-
dered some resentment. One of the alleged discriminatees,
Donald Meier, explained that
Lyon . . . is a very good worker. He stays right at it and he
thinks everybody else should be working as hard as he is, and
he gets angry if this person ain’t doing this or this person he
thinks should be doing that, and some people get arguments
with him just because, you know, they think they are doing
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1162
enough work and he doesn’t think they are doing enough
work.
Meier does not suggest that Lyon did anything to provoke
the two attacks against him. To the contrary, undisputed evi-
dence establishes that in each instance, the other employee was
the aggressor. In one of those instances, a worker had poked
Lyon in the eye, causing temporary injury. In the other in-
stance, Lyon was on a forklift when another employee hit the
forklift with a metal rod and tried to pull Lyon off to beat him.
Lyon was not the only employee who displayed a particu-
larly conscientious attitude towards work duties. Another such
worker, Norma Greenwood, had become the target of pranks.
Greenwood, a lathe operator, described instances in which
her work area would be neat when she left for lunch, but she
would return to find stuff thrown all over the floor and grease
on her machine handles. She also testified that she would bring
her own brooms to work to keep the area clean, and someone
would hide them.
As discussed above, Greenwood was a reliable witness
whose testimony I have credited. She was also a conscientious
employee obviously irked by these incidents. Although she
complained to her foreman, Calvin Lange, he admittedly took
no action on her complaints and did not communicate those
complaints to higher management. When Lange failed to act,
Greenwood complained to Michelle Clark-Ames, who is both
one of Respondent’s owners and also the daughter of its presi-
dent. Thus, higher management was aware both that Green-
wood had been the victim of pranks which interfered with
work, and that Calvin Lange had failed to act on Greenwood’s
complaints.
Clearly, Owner Porter regarded Supervisor Lange’s failure to
protect a conscientious employee from harassment as inconsis-
tent with the supervisor’s duty to facilitate production. How-
ever, it appears that Porter suspected Lange not merely had
turned a blind eye to the pranks but actually had instigated the
mischief. Thus, during the November 23, 2001 meeting with
Calvin Lange, Jamie Lange, and Donald Meier, Porter accused
them of “pulling pranks” and “intimidating employees.”
However, when Porter met with the three men on November
23, he had more on his mind than the harassment of conscien-
tious employees. Porter’s statements to them make clear that
he was still smarting from a recent inspection by the Occupa-
tional Safety and Health Administration, and he also was con-
cerned about the Union’s petition for a representation election.
As noted above, Porter considered these three men to be su-
pervisors, not “employees,” as that term is used in the Act. If
Porter had been correct, any statements he made solely in their
presence could not violate Section 8(a)(1) of the Act because
that section prohibits interference with the rights of employees,
not supervisors. Porter was so confident that he was talking to
supervisors, not employees, that he made a tape recording of
the meeting and provided a copy to the Board.
However, Porter was wrong. Neither Jamie Lange nor Don-
ald Meier met the statutory definition of “supervisor.” State-
ments Porter made in their presence could well be unlawful if
such statements, judged by an objective standard, would rea-
sonably tend to interfere with, restrain, or coerce employees in
the exercise of Section 7 rights.
To prove that a statement violated Section 8(a)(1) of the Act,
the Government does not have to show that the speaker in-
tended to interfere with protected rights. The law focuses on
the likely effect of the statement, not on the speaker’s reason
for making it. In examining the alleged violative statements, I
will apply the Board’s objective standard to determine their
lawfulness.
Complaint Paragraph 5(a)
Complaint paragraph 5(a) alleges that on about November
23, 2001, Respondent, by its president and owner Porter, at
Respondent’s Pocahontas facility, interrogated employees
about their union activities. Porter admitted asking Calvin
Lange, Donald Meier, and Jamie Lange, “So what are you hear-
ing about who is pushing the union thing?” Porter also admit-
ted saying to them,“Who is pushing the union thing? You guys
don’t know about that either, huh?”
In evaluating the lawfulness of these questions, I rely on
Smith & Johnson Construction Co., 324 NLRB 970 (1997). In
that case, the Board affirmed the administrative law judge’s
analysis of certain statements alleged to violate Section 8(a)(1)
of the Act. The judge had described the framework for that
analysis in these terms:
In deciding whether interrogation is unlawful, I am governed
by the Board’s decision in Rossmore House, 269 NLRB 1176
(1984). In that case, the Board held that the lawfulness of
questioning by employer agents about union sympathies and
activities turned on the question of whether “under all circum-
stances, the interrogation reasonably tends to restrain or inter-
fere with the employees in the exercise of rights guaranteed
by the Act.’’ The Board in Rossmore House noted the [test set
forth in Bourne Co. v. NLRB, 332 F.2d 47 (2d Cir. 1964)] was
helpful in making such an analysis. The Bourne test factors
are as follows:
1. The background, i.e. is there a history of employer
hostility and discrimination?
2. The nature of the information sought, e.g. did the in-
terrogator appear to be seeking information on which to
base taking action against individual employees?
3. The identity of the questioner, i.e. how high was he
in the Company hierarchy?
4. Place and method of interrogation, e.g. was em-
ployee called from work to the boss’s office? Was there an
atmosphere of “unnatural formality’’?
5. Truthfulness of the reply.
Applying these factors, I conclude that Porter’s questions to
the employees were unlawful. The questions sought the iden-
tity of union advocates, information which could be used as a
basis for taking action against individual employees. The re-
cord does not suggest any legitimate reason for Respondent to
seek this information, so I must conclude that the employees
who heard these questions would believe that the questioner
contemplated retaliation. In this context, the questions would
certainly tend to interfere with the exercise of Section 7 rights.
ARMSTRONG MACHINE CO. 1163
The questioner occupied the highest position in the corporate
hierarchy. He owned a one-half interest in the Respondent and
was its president. Porter’s position and authority reasonably
would increase the coercive effect of the questions he asked.
Additionally, it appears that the employees did not respond
truthfully. Thus, Porter’s comment—“You guys don’t know
about that, either”—indicates that the employees did not iden-
tify those supporting the Union.
On the other hand, two factors weigh in favor of a finding
that the questions were not violative. The meeting did not take
place in Porter’s office but in the working area of the plant.
Additionally, at that point, there did not appear to be a history
of employer hostility towards the Union.
However, I conclude that the three factors which support
finding a violation outweigh the two factors which favor find-
ing no violation. The fact that Respondent’s president, who
had plenary power to take disciplinary action against employ-
ees, asked about the identity of union adherents creates the
clear impression that employees who supported the Union
might suffer adverse employment consequences. This impres-
sion interferes with, restrains and coerces employees in the
exercise of Section 7 rights. Therefore, I recommend that the
Board find that Respondent violated Section 8(a)(1) as alleged
in complaint paragraph 5(a).
Complaint Paragraph 5(b)
Complaint paragraph 5(b) alleges that during this same con-
versation, Respondent, by Porter, threatened employees by
telling them they would be suspended because of their bad
attitude and their union activities.
The General Counsel does not claim that Porter specifically
told the men, “[Y]ou will be suspended because of your bad
attitude and your union activities.” Rather, the Government
appears to contend that Porter conveyed this message using
other words. Citing the tape recording which Porter made of
the meeting, the General Counsel’s brief states:
Porter accused the three employees of intimidating employees
and telling them if they did not belong to the Union, they were
going to do “this or that.” Porter then told them that the three
of them and Jimmy (Lange) too, have bad attitudes. He later
testified that the bad attitude he was referring to was, in part,
their support for the Union. [Tr. 93).] They accused Porter of
also having a bad attitude. Porter then threatened them with
suspension by telling them that if they did not want to work
there, they should go home. He then said they should take
two weeks off right then “until we get this whole goddamn
thing straightened out.”
In effect, the General Counsel is excerpting Porter’s state-
ments from different parts of the meeting and then offering the
excerpts collectively to establish a violation. Although it is
quite appropriate to consider various remarks together to under-
stand the overall theme of a discussion, excerpting must be
used carefully to avoid taking statements out of context. In a
newscast, for example, “sound bites” may be selected which
represent the whole fairly, but “sound bites” also can mislead
when clarifying statements are left on the cutting room floor.
To prove the threat alleged in complaint paragraph 5(b), the
Government first points to a “sound bite” from the beginning of
the tape recording of the November 23 meeting.
It [seems] to me that we’re having a little attitude problem
around here. And, uh, we’re also having some intimidation
around here, and that’s all going to come to a halt right now,
today. . . . You guys have been going around here intimidat-
ing guys, [telling] them if they don’t belong to the union
you’re going to do this or that.
Clearly, Porter was referring to the statement Calvin Lange
made to John Lyon, namely, that if Lyon did not vote for the
Union, Lange would give him a “blanket party,” meaning that
Lange would throw a blanket over Lyon’s head and beat him
up.
If Lange had threatened to do violence unless Lyon gave him
a dollar, such a threat clearly would have been improper. The
“blanket party” statement does not become any more proper, or
legally protected, merely because the speaker sought to extort
support for the Union rather than money.
In sum, Porter’s references to “attitude problem” and “in-
timidation” did not concern any protected activities but rather
focused on conduct which was unprotected, such as the “blan-
ket party” threat which Calvin Lange, accompanied by Donald
Meier, made to John Lyon. Clearly, the men who heard Por-
ter’s statement understood it in this manner. Indeed, the tape
recording of the November 23 meeting reveals that at one point,
one of the men, apparently Calvin Lange, protested that he had
been joking. Such a statement indicates that he was quite aware
of what Porter meant by “intimidation.”
In certain cases, an employer can use the word “intimida-
tion” as a code word for “union activity.” In such circum-
stances, both the speaker and the hearer reasonably will under-
stand that “intimidation” carries a meaning different from the
definition in the dictionary. When that happens, of course, a
warning against “intimidation” really is a threat to chill union
activity and therefore unlawful under the Act.
In the present case, however, the context makes clear that
Porter was not using the word “intimidation” as a synonym for
“union activity” and the listeners reasonably would not believe
it carried that meaning. Specifically, there already had been
instances of violence in the workplace and the parties to the
November 23 conversation were quite aware of Calvin Lange’s
“blanket party” threat to employee Lyon.
The General Counsel’s argument also depends on statements
made by Porter later in the November 23 meeting. The General
Counsel’s brief referred to these remarks as follows:
Porter then threatened them with suspension by telling them
that if they did not want to work there, they should go home.
He then said they should take two weeks off right then “until
we get this whole goddamn thing straightened out.”
As noted above, Porter did not specifically threaten the men
with suspension but instead, as the General Counsel’s brief
states, told them that if they did not want to work there, they
should go home. Significantly, Porter did not make this remark
in the context of employees’ union activities. Rather, Porter
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1164
was talking about problems in the shop, notably, an employee
who did not want to clean up spilled oil.
One of the men, apparently Calvin Lange, disputed Porter’s
version and accused him of twisting the facts around. Porter
replied, “I ain’t the one that’s twisting it around.” One of the
men made a response which is unintelligible on the tape, and
then Porter asked, “So what’s your problem?” The man re-
plied, “I’m just saying you twisted it around.” Then Porter
stated:
I’m going to tell you guys, if you don’t want to work here, go
home. In fact, I think you ought to take off two weeks right
now, till we get this whole goddam thing straightened out.
Clearly, Porter did not suggest that the men take off work
because they were engaged in union activities. To the contrary,
Porter became irritated because one of the men accused him,
twice, of twisting the facts concerning an incident unrelated to
union activity. His response, suggesting that the men go home,
does not constitute a threat of suspension for engaging in pro-
tected activities.
The General Counsel’s argument also relies on Porter’s re-
mark to the men that they had a “bad attitude” and Porter’s
apparent admission, on page 93 of the transcript, that he had
used the phrase “bad attitude” to mean union activities. Called
as an adverse witness by the General Counsel, Porter testified,
in part, as follows:
Q. And you were upset as well at Jamie and Don be-
cause they supported the union too, isn’t that true? I mean
that’s what their attitude was that you didn’t like?
A. That’s right. I didn’t like their attitude at all.
If that one answer is considered in isolation, it appears to be
an admission that Porter considered the men to have a bad atti-
tude because they were prounion. However, the next question
and answer suggest otherwise:
Q. And it was because they supported the union as
Calvin did?
A. I don’t know if that’s the reason they changed their
attitude just on account of the union but they kind of
changed their attitude just before the union vote, and they
made several remarks about Michelle was really mean to
them and I said, “Well, exactly what is she doing to be
mean to you?” Well, they couldn’t really nail down any
one thing and you know what they told me? They told
me—they said it’s mainly the faces she makes because
she’d go out there and they’d all three be standing in a
huddle. More so not Donnie as much as Jamie and Calvin
and Jimmy, and I went out there on several occasions and
they’d be standing there talking about things and I’ll guar-
antee they wasn’t talking about doing work.
From this answer and other portions of Porter’s testimony, I
conclude that he was not using the term “bad attitude” as a
euphemism for “prounion sympathies.” Rather, he considered
these men to have a bad attitude because they manifested dis-
dain for their responsibilities—they stood around talking when
they should have been working—and because they criticized
his daughter, Michelle Clark-Ames.
As noted above, Porter considered Calvin Lange, Jamie
Lange, and Donald Meier to be his supervisors. During the
November 23 meeting, Porter mentioned a number of things
which needed correction in the shop, including diesel oil spills
on the floor, tools scattered around rather than put away, and
employees being subjected to pranks. As the tape recording of
this meeting establishes, the three men did not express a will-
ingness to correct these problems. Instead, the men repeatedly
interrupted Porter and argued with him. I find that when Porter
used the term “bad attitude,” he was not referring to union
sympathies but rather the three men’s resistance to following
his instructions and their apparent lack of commitment to cor-
recting the problems he identified.
The General Counsel’s argument also rests on a number of
cases in which the Board has found that when a management
official used the term “bad attitude,” the official really meant
“union sympathies.” For example, the Board stated in James
Julian Inc. of Delaware, 325 NLRB 1109 (1998), “The Board
has repeatedly found, with court approval, that, in a labor–
relations context, company complaints about a “bad attitude”
are often euphemisms for prounion sentiments. E.g., Prome-
nade Garage Corp., 314 NLRB 172, 180 (1994); Helena Labo-
ratories Corp., 225 NLRB 257, 269 (1976), enf. in pertinent
part 557 F.2d 1183 (5th Cir. 1977); L.S. Ayres & Co., 221
NLRB 1344, 1345 (1976), enfd. 551 F.2d 586 (4th Cir. 1977).
It should be noted that the Board found that the words “bad
attitude” are often euphemisms for prounion sentiments, but the
Board has not held that the words “bad attitude” always, with-
out exception, have this meaning. The Board has not, as a mat-
ter of law, rewritten the dictionary to equate the words “bad
attitude” invariably with “union sympathies.” Rather, in each
case the Board makes findings of facts to determine whether
the words “bad attitude,” in that particular context, connote
union sympathies or union activities.
When Porter’s remarks at the November 23 meeting are con-
sidered as a whole, it is clear that he was not focusing on union
sympathies when he said that the three men had a “bad atti-
tude.” Moreover, in context, the words “bad attitude” reasona-
bly would not be understood to refer to union activities. There-
fore, I do not find that Porter was using the term as a synonym
for union activities.
In sum, I conclude that the government has not established
the violation alleged in complaint paragraph 5(b). Therefore, I
recommend that the Board dismiss this allegation.
Complaint Paragraph 5(c)
Complaint paragraph 5(c) alleges that during this same con-
versation, Respondent, by Porter, told employees that he knew
who had brought the Union in, thereby creating the impression
that its employees’ union activities were under surveillance.
The Government’s brief refers to Porter’s comments about
seeing employees standing in groups of three and his conclu-
sion that the employees were not talking about work. From
these facts, the General Counsel urges a sinister conclusion.
Specifically, the brief argues as follows:
When Porter told them that “. . . there’s two or three guys
standing in a, in a group, visiting, and you ain’t visiting about
work, I’m going to give you a clue . . . that ain’t what’s hap-
ARMSTRONG MACHINE CO. 1165
pening. . .so if you don’t want to work here . . . just go home
. . . I think you ought to take a couple of weeks off and think
about what you are doing right now . . . because I’m tired of
this bullshit” (GCX6), he suggests that he knows they are
talking about the Union, thereby giving the impression that
their Union activities are under surveillance, in violation of
Section 8(a)(1) as alleged in the complaint.
Standing alone, the statements attributed to Porter are am-
biguous. It is possible to project an unlawful meaning onto
these words in the same way that a dark design may be seen in
an inkblot. When these words are considered in context, how-
ever, it becomes clear that Porter was not talking about em-
ployees’ union activities.
The tape of the November 23 meeting discloses that immedi-
ately before the remarks quoted in the General Counsel’s brief,
Porter was talking about employees leaving tools around in the
work area. Both his tone of voice and coarse words made clear
that Porter was quite peeved by the employees’ failure to put
away their tools.
Then, Porter moved to the topic of employees standing
around talking rather than working. The General Counsel ar-
gues that Porter’s remark, “you ain’t visiting about work,” re-
fers to discussions about the Union, but it equally could refer to
other forms of socializing. The government has the burden of
proving that Porter’s ambiguous statement did, indeed, refer to
union activity, but it has not carried that burden.
To the contrary, the context strongly suggests that Porter
simply was complaining that employees were engaged in idle
talk rather than attending to their job duties. As already noted,
immediately before this comment Porter’s subject concerned
employees who failed to put away their tools. The tape reveals
that immediately after the comments quoted above, Porter
complained to the three men about having to come out every
day and “hound” them.
A clear theme emerges from these comments: Porter consid-
ered these three men to be supervisors and wanted them to
make sure that employees worked and then put away their
tools. He did not want to come into the shop and see employ-
ees idle or their tools out of place. If these three men, his “su-
pervisors,” did not have the will to remedy the problems, Porter
suggested, they should not be working.
Applying an objective standard, I conclude that those who
heard these remarks would not reasonably understand them to
mean that Porter was keeping employees’ union activities under
surveillance. Therefore, I recommend that the Board dismiss
the allegations in complaint paragraph 5(c).
Complaint Paragraph 5(d)
Complaint paragraph 5(d) alleges that during this same con-
versation, Respondent, by Porter, threatened employees that it
would get rid of them because of their activities on behalf of
the Union. The General Counsel’s brief explains this allegation
as follows:
During the course of this discussion, Porter also threatened to
get rid of the three because of their activity on behalf of the
Union. This threat is contained in Porter’s following com-
ments at the meeting: “. . . I’m tired of it . . . if you guys don’t
. . . if you guys don’t want to work here . . . leave, shit, you
could leave . . . that’s one nice thing about the old USA, you
can quit and leave any time you want to. See, I’m . . . I’m
tired of this bullshit. See, I had another guy working here one
time and he tried the same shit, ya know. You know who it
was . . . it was Mark . . . he was going around trying to intimi-
date people too . . . I got rid of him forever . . . .” (GCX6)
This threat to get rid of the three employees because they sup-
port the Union and talk to others in support of the Union vio-
lat[es] Section 8(a)(1) as alleged in the complaint.
Even though the General Counsel’s brief speaks of a threat
to get rid of three employees because they supported the Union,
none of Porter’s comments, quoted above, specifically men-
tions the Union or the organizing campaign. The government
bears the burden of proving that Porter’s comments really con-
cerned the employees’ protected activities.
It is true that during this rather long meeting, Porter men-
tioned the Union more than once. It is also true that some of
his statements during this meeting violated Section 8(a)(1) of
the Act. However, the discussion touched on a number of mat-
ters, and Porter clearly was upset about many things, ranging
from untidy shop conditions to the recent visit of an OSHA
inspector. It is not at all clear that when Porter said “I’m tired
of this bullshit,” he was referring to the union organizing drive.
To the contrary, the evidence suggests that he was not. Im-
mediately after proclaiming that he was “tired of this bullshit,”
Porter went on to say that he had “had another guy working
here one time and he tried the same shit . . . it was Mark . . . he
was going around trying to intimidate people too.”
Nothing in the record indicates that this employee named
“Mark” tried to organize a union and such a fact cannot simply
be assumed. Certainly, Porter did not state that this “Mark”
engaged in union activity. Instead, Porter said that Mark “was
going around trying to intimidate people too.”
Porter had reason to believe that at least two of the three men
attending the November 23 meeting—Calvin Lange and Don-
ald Meier—had tried to intimidate an employee because of the
“blanket party” threat Lange made, in Meier’s presence, to John
Lyon. When Porter told them that “Mark” had gone around
“trying to intimidate people too,” those words reasonably
would be understood to refer to the making of threats, not to
protected activities.
Indeed, Calvin Lange’s response to Porter’s statement is not
consistent with a finding that Lange understood Porter’s use of
the word “intimidate” to refer to union activities. After Porter
said that Mark “was going around trying to intimidate people
too and I got rid of him,” Calvin Lange replied, “He didn’t
intimidate me. Ever.”
Porter disagreed, saying, “Oh, you and him got into fights all
the time.” At that point, Lange interrupted, saying “Yeah, but
he didn’t intimidate me, as I said, I’d knock him.”
Porter then suggested that other people would, in fact, be in-
timidated, and accused the men of pulling pranks on employ-
ees. Clearly, this exchange had nothing to do with protected
activity. It concerned bullying and workplace violence. Porter
lawfully could threaten to discipline employees who engaged in
such conduct.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1166
In sum, the government has not established that Porter’s
statements, quoted above, either referred to the Union or would
reasonably be understood to refer to the Union. Therefore, I
conclude that the General Counsel has not established, by a
preponderance of the evidence, the allegations raised in com-
plaint paragraph 5(d). Therefore, I recommend that the Board
dismiss this allegation.
Complaint Paragraph 5(e)
Complaint paragraph 5(e) alleges that during this same con-
versation, Respondent, by Porter, threatened the employees that
they could not vote in any election because they were supervi-
sors. The General Counsel’s brief summarizes of the facts
which form the basis for this allegation:
As the meeting went on, Porter again questioned each of the
three as to what they knew about the Union. (GC Exh. 6.) He
then announced to Calvin, Donald, and Jamie that they were
supervisors and that they could not vote in the upcoming elec-
tion. He got a paper from his car that said that “managers and
supervisors” cannot vote. (GC Exh. 6.) They disagreed that
they were supervisors and Porter said, “So I think you guys
ought to just take off and, for a couple of weeks until I get hold
of a lawyer and get this all straightened out.” (GC Exh. 6.)
The Government’s brief, however, omits three sentences
which tend to cast Porter’s comments in a slightly different
light. After Porter showed the men a paper saying that manag-
ers and supervisors could not vote, one of them protested that
they were not supervisors. Porter replied, “Well, I thought you
was.”
At that point, one of the men remarked that no one had told
him that he was a supervisor and Porter replied, “See, we’re
going to have a hearing about this . . . . So we’ll find out.”
At that point, after saying “So we’ll find out,” Porter added
the remark quoted in the General Counsel’s brief: “So I think
you guys ought to just take off for a couple of weeks until I get
hold of a lawyer and get all this straightened out.” (Notwith-
standing this comment, Porter did not lay the men off and they
did not take time off work.)
Citing Shelby Memorial Home, 305 NLRB 910, 918–919
(1991), the General Counsel argues that Porter violated Section
8(a)(1) by erroneously telling the three men that they could not
vote in the election because they were supervisors. That case,
however, involved management’s clear and unequivocal state-
ment to employees that they were supervisors and not entitled
to vote or engage in protected activity. Porter’s statements, by
comparison, were much more tentative.
Thus, when the men disagreed with Porter’s characterization
of them as supervisors, Porter did not insist that he was correct
but instead said that they were going to have a hearing about it
and would find out. Moreover, unlike management in Shelby
Memorial Home, Porter did not tell the men that they had no
right to engage in protected activities.
In these circumstances, I believe that the facts of the present
case distinguish it from Shelby Memorial Home. Further, I
conclude that Porter’s statement, indicating that he thought the
men were supervisors, did not interfere with, restrain, or co-
erced them in the exercise of protected rights. Therefore, I
recommend that the Board dismiss the allegations raised in
complaint paragraph 5(e).
Complaint Paragraphs 5(f) and (g)
Complaint paragraph 5(f) alleges that during this same con-
versation, Respondent, by Porter, threatened employees that the
Union was not going to get in his company, thereby telling
employees that representation by the Union would be futile.
Complaint paragraph 5(g) alleges that during this same conver-
sation, Respondent, by Porter, threatened the employees that
Respondent would not sign a contract if they were represented
by the Union.
The tape recording Porter made of the November 23, 2001
meeting establishes that he said the following:
Well, if you guys think that the union’s going to run this
place, it isn’t going to happen. I’m going to tell you that right
up front. And if the union gets in here, which they might, I
don’t care one way or the other, it doesn’t make any differ-
ence to me if they vote the union in or not, but then the union
will have to come and get a contract from me and I won’t give
the union a contract at all.
Additionally, in his testimony, Porter admitted saying,
“[T]he union will have to come and get a contract from me and
I won’t give the union a contract at all. I’ll just job the stuff
out.”
Porter’s statements, quoted above, are tantamount to telling
employees that selecting a union representative would be a
futile act. The Board often has held that such statements con-
cerning the futility of representation interfere with the exercise
of Section 7 rights. See, e.g., Mohawk Industries, 334 NLRB
1170 (2001). I recommend that the Board find Respondent
violated Section 8(a)(1) of the Act, as alleged in complaint
paragraphs 5(f) and (g).
Complaint Paragraph 5(h)
Complaint paragraph 5(h) alleges that during this same con-
versation, Respondent, by Porter, threatened employees that he
could close the plant because of their efforts to seek representa-
tion by the Union. In his testimony, Porter admitted saying, “I
can get rid of most of these people here and just dwindle their
jobs down, you know. Job everything out.” He also admitted
telling the men, “I’m almost 70 years old and I can close this
goddamn place and sell it out.”
Considered in context, Porter’s admitted statements, that he
could “job everything out” and “just dwindle their jobs down”
and that he could “close this goddam place and sell it out,”
clearly convey the message that he would close the plant, or at
least the production portion of the plant, if employees chose
union representation. These threats of plant closure interfere
with the free exercise of Section 7 rights. I recommend that the
Board find that Respondent violated Section 8(a)(1) as alleged
in complaint paragraph 5(h).
Other Alleged 8(a)(1) Violations
The complaint alleges that on certain occasions after this
November 23, 2001 meeting Owner Porter and Secretary-
Treasurer Clark-Ames made other statements to employees
ARMSTRONG MACHINE CO. 1167
which violated Section 8(a)(1) of the Act. These allegations
will be discussed in the order they appear in the complaint.
Complaint Paragraph 5(i)
Complaint paragraph 5(i) alleges that on about November
29, 2001, Respondent by its president and owner, Porter, at
Respondent’s Pocahontas facility, interrogated an employee
about the employee’s union activities. On about this date, em-
ployee Randall Boles had a conversation at work with John
Lyon and Donald Meier. During this conversation, Boles ex-
pressed the opinion to Meier that the purpose of a union was to
solve disputes and secure a fair wage. Boles also said that he
was going to vote for the Union.
Boles testified that shortly after this conversation, he saw
Lyon talking with Owner Porter, who then came over to Boles
and asked him what he knew about the Union. Boles replied
that he did not know anything about it.
Porter denied asking Boles this question. This credibility
conflict must be resolved.
Neither Porter nor Boles was a totally disinterested witness.
Obviously, the outcome of this case would materially affect
Porter’s company. On the other hand, Respondent had dis-
charged Boles twice. A desire to get even could have affected
Boles’ testimony just as a desire to protect his company could
have affected Porter’s testimony.
Based on my observations of the witnesses, I credit Porter.
He appeared to be quite free of guile. More than once, he ad-
mitted making statements which violated the Act and he even
provided the investigating Board agent a tape recording which
proved he made unlawful statements. Additionally, he made
other admissions which were not helpful to his case.
For example, on direct examination by Respondent’s coun-
sel, Porter stated that when he heard about Calvin Lange’s
“blanket party” comment to John Lyon, he did not know that
two employees previously had assaulted Lyon. Porter also
admitted that before the November 23, 2003 meeting with Cal-
vin Lange, Jamie Lange, and Donald Meier, he had received
from the Board a letter informing him that the Union had filed a
representation petition.
Further, Porter admitted that he made up his mind to fire
Calvin Lange, Jamie Lange, and Donald Meier after Calvin
Lange told Porter that he had brought in the Union to punish
Porter’s daughter. Such an admission on cross–examination
would be quite rare, the stuff of Perry Mason novels, but Porter
did not make the admission as a result of cross–examination.
He made it on direct examination by Respondent’s own coun-
sel.
Considering this candor, I conclude that if Porter really had
made the statement attributed to him by Boles, he would have
admitted it just as readily as he admitted other violative state-
ments. Certainly, he would have nothing to gain by denying
that he told Boles the Union would not run his company but at
the same time admitting telling others that “I can get rid of
most of these people here and just dwindle their jobs down, you
know. Job everything out.”
Crediting Porter, I find that he did not interrogate Boles con-
cerning employees’ union activities. Therefore, I recommend
that the Board dismiss the allegations raised in complaint para-
graph 5(i).
Complaint Paragraph 5(j)
Complaint paragraph 5(j) alleges that some time during the
month of December 2001, Respondent, by Porter, “in a conver-
sation at Respondent’s Pocahontas facility, told an employee
the Union would never get into the plant and if it did he would
close the plant, thereby threatening employees that representa-
tion by the Union would be futile and could result in a loss of
jobs.” To establish this allegation, the government relies on the
testimony of Randall Boles.
According to Boles, an hour after Porter asked what he knew
about the Union, Porter returned to Boles and asked him again
if he knew anything about the Union. Boles testified that after
he denied knowing anything about the Union Porter said, “They
might get a f—king union in here but they are not going to run
my fucking company.”
Porter denied having any conversation with Boles about the
Union. Therefore, the testimony presents a credibility conflict
which must be resolved.
The comment which Boles attributed to Porter—that a union
would not run his company—is consistent with the earlier
statement which Porter made during the November 23, 2001
meeting, that “if you guys think that the Union’s going to run
this place, it isn’t going to happen” and “I can get rid of most of
these people here and just dwindle their jobs down, you know.
Job everything out.” The General Counsel argues that this
consistency weighs in favor of crediting Boles.
However, based on my observations of the witnesses, I credit
Porter’s denial. As discussed above, Porter was candid even
when it was not in his interest. Crediting his testimony, I find
that he did not make the statement attributed to him by Boles.
Therefore, I recommend that the Board dismiss the allegations
raised in complaint paragraph 5(j).
Complaint Paragraph 5(k)
Complaint paragraph 5(k) alleges that sometime in Decem-
ber 2001, Respondent, by Porter, during a conversation at the
Pocahontas facility, threatened employees that their bonuses
would be reduced or eliminated because of employees’ efforts
to seek union representation.
Calvin Lange testified that while he was working, Porter
came over to him and said that the employees would not be
getting bonuses if the Union came in. I do not credit Lange’s
testimony.
The record indicates that Lange previously had spread untrue
rumors that employees would not be receiving a bonus. More-
over, Lange admitted that he told a lie to John Lyon when he
saw Lyon at a body shop on November 23, 2001. Because of
these false statements, I am reluctant to credit Lange’s testi-
mony except where it is corroborated by other evidence. In this
instance, it lacks such corroboration.
In sum, I conclude that credible evidence does not establish
the allegations raised in complaint paragraph 5(k). Therefore, I
recommend that the Board dismiss these allegations.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1168
Complaint Paragraphs 5(l), (m), (n), and (p)
Complaint paragraphs 5(l), (m), (n), and (p) concern state-
ments allegedly made by Respondent’s president Porter at a
meeting of employees in December 2001. More specifically,
complaint paragraph 5(l) alleges that Porter threatened employ-
ees that they would have less flexibility as to when they could
take vacation than they previously enjoyed if they obtained
representation by the Union. Complaint paragraph 5(m) alleges
that sometime in December 2001, Porter threatened to make
employees work at night if they chose the Union to represent
them. Complaint paragraph 5(n) alleges that sometime in De-
cember 2001, Porter threatened to reduce employees’ hours if
they chose the Union to represent them.
Complaint paragraph 5(p) alleges that Porter threatened em-
ployees that he might lay some employees off because of em-
ployees’ union activities. Respondent denies all of these alle-
gations.
Employee Jim Lange testified as follows concerning Porter’s
statements at the same meeting:
Q. What did Cliff say about the union?
A. He said the union, you know, about people if
they—if people vote for the—vote union they might have
to work nights and they might have to cut their hours
down to 20 hours a week.
Q. Did he say anything else you can recall?
A. I think he probably did but I can’t recall it.
Jim Lange’s son, Calvin Lange, gave the following testi-
mony concerning Porter’s statements at this meeting:
A. I believe. He said that if the union comes in that
you weren’t going to get the bonuses or weren’t going to
get the same benefits as the people that didn’t work there.
Q. Do you remember anything else he said?
A. He said that—I think he said that he could shut the
doors down and not have to worry about anything.
Q. All right. Do you remember anything else he said?
A. I don’t think there was much else I can remember
that Cliff said.
Another of Jim Lange’s sons, Jamie Lange, also testified.
Jamie Lange is also a cousin of another witness to this meeting,
Brad Meier.
According to Jamie Lange, the meeting “started out as a
safety meeting.” Lange testified that at some point, Porter
made comments about the Union:
Q. What did he say, do you remember?
A. He said that, you know, things are getting slow
around here. He might start laying some people off.
Q. Now was that—let me rephrase the question. Did
he say anything about the union?
A. He said—he said people if they do go for the union
they might not have as many hours and they might be
working nights.
Q. Did he say anything else?
A. I don’t remember him saying anything else.
Jim Lange’s stepson, Donald Meier, testified that about a
week before the December 13, 2001 election, Porter called an
employee meeting to discuss forklift safety. According to
Meier, during this meeting Porter told the employees
that people can vote for the Union whatever way they want
but they might have to work a night shift or their hours might
be cut. Might not get the same benefits. Might not get as
much raise as the other employees. Might not get vacation.
Might have to take a vacation when they tell us we have to
take it.
Brad Meier gave the following testimony concerning Por-
ter’s statements at this same meeting:
A. We were having like an OSHA meeting or some-
thing to do with like forklift so he was giving us like train-
ing us for the forklift. The union got brought up and he
was telling us that he’d have to cut our hours and like
make us work nights, people that were union. Then Mi-
chelle said something about taking benefits away and stuff
if the union got in there because they didn’t want it in
there. They didn’t need them to tell them how to run their
company.
Q. Okay. Do you remember how the union came up?
Who it was that brought the union up in that meeting?
A. Cliff I believe.
Q. Okay. Do you remember why he brought that un-
ion—how the subject came up or why he brought it up?
A. I don’t remember for sure how it was brought in.
Porter denied making any statements about the Union at this
meeting. For several reasons, including my observations of the
witnesses, I credit Porter and find that he did not make the
statements attributed to him.
Superficially, it appears that Porter’s version is outnumbered
four to one by the testimony of Jim Lange, Calvin Lange, Don-
ald Meier, and Brad Meier. However, because these four wit-
nesses are related to each other, there may be a heightened
possibility of collusion warranting a closer look at their testi-
mony.
Witness Jim Lange and his son, Calvin Lange, had different
recollections of Porter’s comments. According to Jim Lange,
Porter said that if the employees voted for the Union they might
have to work nights or experience a reduction in their hours.
Calvin Lange, did not recall Porter making such comments.
On the other hand, Calvin Lange quoted Porter as saying
“that if the Union comes in that you weren’t going to get the
bonuses or weren’t going to get the same benefits as the people
that didn’t work there.” However, Calvin Lange’s father did
not attribute such a threat to Porter and neither did Calvin
Lange’s brother, Jamie Lange.
As discussed above, Calvin Lange does not deny that he had
made an untrue statement to John Lyon and, in view of this
falsehood, I have some doubts about his reliability as a witness.
Moreover, the evidence establishes that Calvin Lange threat-
ened Lyon with a “blanket party,” that is, throwing a blanket
over his head and beating him up, if Lyon did not support the
Union. Lange’s apparent willingness to make a threat of physi-
cal harm to advance the Union’s cause suggests a partisanship
so intense it could affect the reliability of Lange’s testimony.
ARMSTRONG MACHINE CO. 1169
The sketchy nature of the testimony of the Government’s
witnesses also raises concern. For example, Brad Meier testi-
fied that he could not recall how the subject of the Union came
up at this particular meeting.
As discussed above, Porter appeared to be a witness incapa-
ble of guile, and he made a number of admissions damaging to
Respondent. There is no reason to believe that he would not be
equally candid in admitting the statements alleged in complaint
paragraphs 5(l), (m), (n), and (p) had he made such statements.
I find that he did not. Therefore, I recommend that the Board
dismiss these allegations.
Complaint Paragraph 5(o)
Complaint paragraph 5(o) alleges that at the same meeting
described in paragraphs 5(l) to (n), Respondent’s secretary-
treasurer, Michelle Clark-Ames, threatened employees that they
might lose benefits if they were represented by the Union.
Respondent’s answer denies this allegation.
To establish this allegation, the Government relies on the tes-
timony of a number of employees who attended this meeting.
One of them, Jamie Lange, testified as follows:
Q. Did he [Porter] say anything else?
A. I don’t remember him saying anything else but Mi-
chelle said the union people might not have the same
benefits as nonunion people like insurance and bonuses.
Q. Do you remember any other discussion about the
union at all during that meeting?
A. No, I don’t.
The General Counsel’s brief also refers to the testimony of
Donald Meier: “And I believe Michelle said something about
we might have to pay for our own insurance if we join the Un-
ion because that’s a benefit and it’s not something they have to
do.” Meier further testified that on this occasion, neither Porter
nor Clark-Ames talked about the collective-bargaining process.
Calvin Lange testified that Clark-Ames “said that—that our
vacation—or not our vacation but our insurance and stuff was a
benefit and the union members wouldn’t get the same benefits
as the nonunion members so we probably wouldn’t get our
insurance paid and stuff like that.”
Jim Lange testified “I remember Michelle [Clark-Ames] she
said something about if the Union people—you know, on their
insurance—they won’t—their insurance would be different.
You won’t have the same insurance as the other people.”
According to Brad Meier, “Michelle [Clark–Ames] said
something about taking benefits away and stuff if the union got
in there because they didn’t want it in there. They didn’t need
them to tell them how to run their company.”
The vague nature of this testimony concerns me. For exam-
ple, Donald Meier did not state unequivocally that Clark-Ames
made a particular statement but instead testified, “I believe
Michelle said something about.” (Emphasis added.) The tenta-
tive nature of this testimony raises some doubt about the suffi-
ciency of Meier’s memory.
Similarly, both Jim Lange and Brad Meier testified that
Clark-Ames “said something about.” Calvin Lange’s testimony
on this subject began with something of a false start by attribut-
ing to Clark-Ames a comment about employees’ vacations.
Lange then corrected himself by adding that Clark-Ames’
comment was not about vacations but about “insurance and
stuff.” However, he did not explain what he meant by “and
stuff.”
Michelle Clark-Ames testified that she told the employees
that “if a union is voted in, benefits may have to be renegoti-
ated.” She explained that she used the word “may” because she
“had this paper and it said you have to say ‘may’. I made sure
that I went by the sheet.” She further testified as follows:
Q. Did you indicate your preference as to whether em-
ployees voted for the union or not?
A. I believe I said that we would prefer not.
Q. Did you say anything else about how they could
vote?
A. Well I think I said if—we would prefer not to have
a union but they could vote any way they wanted. I said
that first, and then I went into the, if a union is voted in
you may have to renegotiate benefits, which include insur-
ance and bonuses.
Clark-Ames’ testimony appears consistent with that of Jamie
Lange, who testified only that Clark-Ames “said the Union
people might not have the same benefits as nonunion people
like insurance and bonuses.” She testified that she was careful
to use the word “may” and Jamie Lange’s version indicates that
she used the word “might.” Neither account establishes that
Clark-Ames threatened that employees would lose benefits if
they selected the Union.
Calvin Lange’s testimony also fell short of stating that Clark-
Ames told employees they would lose benefits if they chose
union representation. He indicated that she said employees
“probably wouldn’t get our insurance paid and stuff like that.”
(Emphasis added.)
The testimony of the General Counsel’s other witnesses re-
veals similar levels of uncertainty about what Clark-Ames said.
Thus, Donald Meier prefaced his account with the words “I
believe Michelle said something about.” (Emphasis added.)
Similarly, Jim Lange testified that Clark-Ames said “something
about.” Likewise, Brad Meier testified that Clark-Ames said
“something about.”
Testimony that a supervisor said “something about” a par-
ticular subject falls short of establishing what that speaker actu-
ally did say. Moreover, such vague testimony gives no inkling
of the totality of the supervisor’s remarks.
All the same, the circumstances of this meeting require that
the testimony about it be considered thoroughly. The com-
plaint alleges that Clark-Ames made the violative comments at
an employee meeting 2 days before the election. As numerous
Board decisions document, employers opposing a union orga-
nizing campaign often conduct “captive audience” meetings
shortly before an election to persuade employees to vote no. If
the December 11, 2001 meeting was, in fact, such a “captive
audience” meeting conducted to convey a negative message
about the Union, that context could well affect the message
which the employees understood.
Stated another way, if a high management official required
employees to attend a meeting for the announced purpose of
addressing a particular subject, and if during this meeting the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1170
manager made a specific statement focused on this subject,
employees would be likely to regard the message as official
pronouncement rather than casual dictum. A message of such
gravity might well impress itself upon the listener’s memory
more permanently than some off-the-cuff remark.
Additionally, if the manager who spoke at a “captive audi-
ence” meeting convened specifically to oppose the Union later
testified that he said very little about the Union, such testimony
would not be credible. For these reasons, it is appropriate to
determine whether the December 11, 2001 meeting was a “cap-
tive audience” meeting called to persuade employees to vote
no.
However, it should be stressed that an employer’s intention
in calling a meeting is irrelevant to some other matters. Sig-
nificantly, a speaker’s motivation in making an allegedly coer-
cive statement does not affect whether or not the statement
itself is lawful. Rather, the Board decides whether a statement
is lawful or unlawful by determining its likely effect on em-
ployees’ willingness to exercise their Section 7 rights.
Additionally, whether management called a meeting to in-
form employees about its position on unionization or for some
totally unrelated reason does not affect the General Counsel’s
burden of proof. In other words, the fact that an employer con-
ducted a “captive audience” meeting before a representation
election does not raise any presumption, or justify any infer-
ence, that management made unlawful statements at the meet-
ing.
Therefore, I consider management’s purpose in calling the
December 11, 2001 meeting only because the employees’ be-
liefs about the purpose of the meeting may have affected how
they understood, interpreted and remembered what was said,
and—more importantly in the present instance—because the
purpose of the meeting is relevant to assessing Clark-Ames’
credibility.
The General Counsel’s witnesses agree that management
called the December 11, 2001 meeting to discuss workplace
safety. Nothing in the record indicates that Respondent in-
tended the meeting to be a forum to discuss the election.
During the safety meeting, an employee raised a question
about a former employee, Jason Lange, who had not received
vacation pay at the time his employment ended. Many employ-
ees attending this meeting were related to Jason Lange. These
employees believed that he had accrued the vacation time and
that he should have been paid for it. On the other hand, man-
agement had concluded that Jason Lange had not worked the
full year necessary to be eligible for vacation pay.
The discussion became animated and at some point, it se-
gued from the subject of Jason Lange’s vacation pay to the
more general subject of employee benefits, and from there, to
the Union. In this context, Clark-Ames told the employees that
if the Union were selected, “you may have to renegotiate bene-
fits.”
If management had been intent on presenting antiunion
views during a “captive audience” meeting, I would be quite
skeptical of Clark-Ames’ testimony that she said little about the
Union. However, management had not set out to have such a
“captive audience” meeting. Instead, management convened
the meeting to discuss safety matters, notably forklift safety, in
the wake of an OSHA inspection. In that context, mention of
the Union was a digression.
Moreover, considering the hostility manifested by the em-
ployees over management’s perceived treatment of Jason
Lange, the atmosphere was less than ideal for a “vote no” sales
pitch. Clark-Ames would have little reason to dwell on the
union issue when doing so would further polarize rather than
persuade.
For all of these reasons, as well as my observations of the
witnesses, I credit Clark-Ames’ testimony and find that she
only told the employees that if the Union came in, “benefits
may have to be renegotiated.” Such a statement was not merely
true but a truism. Whenever employees select a union, they
seek to negotiate new terms of employment, often including
new benefits.
Because this statement did not constitute a threat, I conclude
that it did not violate the Act. Therefore, I recommend that the
Board dismiss the allegations raised in complaint paragraph
5(o).
Complaint Paragraphs 5(q) and (r)
Complaint paragraph 5(q) alleges that on about December
12, 2001, Respondent, by President Porter, interrogated an
employee about the employee’s union sympathies by asking the
employee how he would vote in the election. Complaint para-
graph 5(r) alleges that during this same conversation, Porter
threatened to reduce the hours of its employees because of their
activities on behalf of the Union. Respondent’s answer denies
these allegations.
Steve Meier testified that on the day before the election, Por-
ter “came up to me and asked me how I was voting on the Un-
ion and I told him I was voting yes. Then he asked me how we
was able to—how was the employees going to afford to pay for
the union dues when he kind of cut the hours down because the
job was being—it was going to be slow or whatever.”
Porter did not specifically deny making the comments attrib-
uted to him by Meier. Crediting this unrebutted testimony, I
find that Porter did make these comments.
Applying the Rossmore House standards discussed above, I
conclude that Porter’s asking Meier how he was going to vote
violated Section 8(a)(1) of the Act. The first Rossmore House
factor concerns a history of employer hostility towards the Un-
ion. At the time Porter asked Meier how he was going to vote,
Porter already had demonstrated hostility to the Union. Spe-
cifically, certain statements he made at the November 23, 2001
meeting violated Section 8(a)(1), as discussed above.
The second Rossmore House factor concerns the nature of
the information sought. It is difficult to conclude that Porter
was simply being curious when he asked Meier how he was
going to vote, because Porter followed that question with a
veiled threat to reduce the employees’ hours. This threat cer-
tainly created the appearance that Porter was seeking informa-
tion on which to base taking action against an employee.
The third Rossmore House factor concerns the identity of the
questioner. Porter owns one-half interest in Respondent and is
its president. Thus, he is the Respondent’s highest-ranking
official.
ARMSTRONG MACHINE CO. 1171
These first three factors weigh in favor of finding the ques-
tion coercive and unlawful. The remaining two Rossmore
House factors weigh against finding a violation. Porter did not
call Meier into his office or other locus of authority, but posed
the question on the plant floor. Meier’s reply that he would
vote for the Union presumably was truthful.
On balance, I conclude that Porter’s question violated Sec-
tion 8(a)(1). When the company president asks an employee
how he is going to vote in a Board-conducted election the next
day, and couples that question with a veiled threat, such action
clearly would interfere with, restrain and coerce an employee in
the exercise of Section 7 rights.
Additionally, applying an objective standard, I conclude that
Porter’s rhetorical question concerning how employees would
pay for the Union when he was going to cut their hours or when
the job was going to be slow reasonably would be understood
as a threat to reduce hours should employees select the Union.
That, too, violates Section 8(a)(1) of the Act.
In sum, I find that the General Counsel has established the
allegations raised in complaint paragraphs 5(q) and (r) and
recommend that the Board find that Respondent thereby vio-
lated Section 8(a)(1) of the Act.
Complaint Paragraph 5(s)
Complaint paragraph 5(s) alleges that some time after De-
cember 13, 2001, Respondent, by President Porter, harassed
and intimidated employees because they supported the Union
when he approached them with a camcorder and demanded to
know the name of their foreman. After summarizing the facts, I
will examine them to determine (1) whether the questions Por-
ter asked the employees violated the Act in and of themselves;
(2) whether Porter violated the Act by videotaping each em-
ployee as he asked the questions; (3) whether Porter’s videotap-
ing the employees violated the Act regardless of the questions
asked.
The Facts
On December 19, 2001, Respondent’s president, Porter,
turned on a camcorder and walked around the plant asking
employees about recent improvements in workplace safety,
such as new handrails and fire extinguishers. Porter also asked
some of the employees “Who is your supervisor?” or “Who is
your foreman?”
Porter did not notify the employees beforehand that he would
be videotaping them, and on the tape, some appeared surprised.
One employee turned away while Porter was taping and de-
clined to participate. Porter asked the man to state his name but
otherwise did not insist that he answer any questions, and the
record does not indicate that he received any discipline for
refusing.
There is no evidence that Porter singled out union adherents
for interview. To the contrary, I find that Porter sought to in-
terview every employee in the workplace, without regard to any
employee’s opinion about the Union.
Both at the end of the videotape and in his testimony at hear-
ing, Porter explained that he made the videotape for two rea-
sons. A recent inspection under the Occupational Safety and
Health Act had turned up problems and Porter wanted to send
the tape to OSHA to show that Respondent had remedied the
problems and now was in compliance with that law. Porter also
wanted to send a copy of the video to the Board to support Re-
spondent’s position that three employees—Calvin Lange, Jamie
Lange, and Brad Meier—were supervisors. The three had cast
challenged ballots in the December 13 election and their votes,
if counted, could affect the outcome.
The General Counsel’s Theory
Citing Johnnie’s Poultry Co., 146 NLRB 770 (1964), enf.
denied 344 F.2d 617 (8th Cir. 1965), the Government argues
that Porter’s videotaping interfered with, restrained, and co-
erced employees in violation of Section 7 of the Act. The Gen-
eral Counsel’s brief states, in part:
[I]n asking these questions, Porter did not tell employees the
purpose of the questions, assure them that no reprisal would
be taken against them depending on their answers, and tell
them that participation was voluntary, that they could decline
if they wished. . . . Such safeguards are necessary to avoid the
inherent coercion that might accompany an Employer ques-
tioning employees on matters involving Section 7 rights.
Johnnie’s Poultry Co., 146 NLRB 770, 774–775 (1964), enf
den. 344 F.2d 617 (8th Cir. 1965). Moreover, the questioning
must take place in an atmosphere free of employer hostility to
union organizing. Id. The evidence developed at trial dem-
onstrates that this was hardly the case.
Quite clearly, Porter did not give the assurances of volun-
tariness required by Johnnie’s Poultry. Additionally, the record
demonstrates at least some hostility to union organizing.
Therefore, if the Johnnie’s Poultry principle applies to this
situation, the Government has established a violation of the
Act.
As the General Counsel’s brief points out, the Johnnie’s
Poultry doctrine applies to management’s questioning of em-
ployees “on matters involving Section 7 rights.” Was Porter
questioning employees on such matters? In addressing that
issue, I will first summarize the Johnnie’s Poultry rationale and
then examine the questions Porter asked.
The Johnnie’s Poultry Rationale
In Johnnie’s Poultry, the Board articulated an exception to
the general rule that a management representative may not
question an employee concerning that employee’s, or other
employees’ protected activities. The Johnnie’s Poultry decision
recognizes the need to make an exception when the employer’s
attorney or representative is preparing for an NLRB hearing.
The exception applies only when the management representa-
tive takes certain actions to assure that the employee’s coopera-
tion is voluntary and uncoerced.
The Johnnie’s Poultry principle applies only when asking an
employee a particular question which otherwise would violate
the Act. A manager certainly does not have to assure an em-
ployee that his cooperation is voluntary before asking the em-
ployee about baseball scores, the weather, or what the em-
ployee would like to eat for lunch. Because such innocuous
questions have nothing to do with employees’ protected activ-
ity, they do not constitute unlawful interrogation and therefore
do not require an exception to the rule forbidding unlawful
interrogation.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1172
Thus, the starting point for any Johnnie’s Poultry analysis
must be determining whether asking a particular question ordi-
narily would constitute unlawful interrogation. If the question
doesn’t constitute unlawful interrogation, the whole Johnnie’s
Poultry analysis is unnecessary.
Porter’s Questions
Under most circumstances, asking an employee if he favors
the Union constitutes unlawful interrogation. Asking an em-
ployee how other employees feel about the Union also consti-
tutes unlawful interrogation. Regardless of how the employee
answers, the mere fact that his boss wants to know discourages
his free exercise of the right to form, join, or assist a labor or-
ganization, protected by Section 7.
On the other hand, the question “Who is your supervisor?”
does not seek to elicit from an employee any information con-
cerning activities protected by Section 7 of the Act. Asking
such a question, in and of itself, would not violate the Act and
therefore would not raise the question of whether the Johnnie’s
Poultry exception should apply. I conclude that Porter’s ques-
tions alone were not unlawful.
The Camcorder Context
That conclusion does not end the analysis. Porter did not
simply ask these questions in the typical way, but posed them
to employees while his camcorder was taping them. Perhaps
the videotaping converted an otherwise lawful question—“Who
is your supervisor?”—into unlawful interference with Section 7
rights.
In analyzing this issue, I begin by noting that an employer
can interrogate an employee subtly about his union sympathies
without ever coming out and asking, “Do you support the Un-
ion?” For example, if an employer should ask an employee to
wear an antiunion message, that response flushes out the em-
ployee’s attitude about the Union just as effectively, perhaps
more effectively, than a more direct question. For that reason,
such a request constitutes unlawful interrogation. Fieldcrest
Cannon, 318 NLRB 470 (1995).
Similarly, if management asks an employee to appear in a
photograph or video opposing unionization, the mere request
constitutes unlawful interrogation because it places the union
adherent in a situation where he has to reveal his convictions or
betray them. On the other hand, using an employee’s likeness
in such a campaign video without his consent also can interfere
unlawfully with the employee’s Section 7 rights, including the
right to choose not to be involved at all in the unionization
controversy.
In Allegheny-Ludlum Corp., 333 NLRB 734 (2001), the
Board held that an employer could solicit an employee to ap-
pear in a video opposing unionization but only if the employer
first gave certain assurances. In deciding on what assurances
should be required, the Board drew guidance from Johnnie’s
Poultry, above, and from Struksnes Construction Co., 165
NLRB 1062 (1967), which required such assurances when
questioning employees in different contexts. (As noted above,
Johnnie’s Poultry concerned interrogation by an employer rep-
resentative preparing for a hearing. Struksnes concerned an
employer conducting a poll of employees to determine a un-
ion’s majority status.)
Specifically, in Allegheny-Ludlum, the Board held that an
employer lawfully may solicit employees to appear in a cam-
paign video if each of the following requirements is satisfied:
1. The solicitation is in the form of a general an-
nouncement which discloses that the purpose of the film-
ing is to use the employee’s picture in a campaign video,
and includes assurances that participation is voluntary, that
nonparticipation will not result in reprisals, and that par-
ticipation will not result in rewards of benefits.
2. Employees are not pressured into making the deci-
sion in the presence of a supervisor.
3. There is no other coercive conduct connected with
the employer’s announcement such as threats of reprisal or
grants or promises of benefits to employees who partici-
pate in the video.
4. The employer has not created a coercive atmosphere
by engaging in serious or pervasive unfair labor practices
or other comparable coercive conduct.
5. The employer does not exceed the legitimate pur-
pose of soliciting consent by seeking information concern-
ing union matters or otherwise interfering with the statu-
tory rights of employees.
If the video Porter made on December 19, 2001, is a “cam-
paign video,” these criteria must be applied. In that case, the
way Porter made the video clearly failed to satisfy these stan-
dards and therefore violated Section 8(a)(1) of the Act.
However, I do not conclude that Porter’s video was a cam-
paign video. He did not make it to show employees to influ-
ence their votes in the election. In fact, he made the video after
the election.
Also, the video did not take any position on unionization, ei-
ther for or against. On the tape, Porter did refer to the recent
election in explaining why [he] made the tape and wanted to
send it to the Board. However, he took no position, for or
against, concerning how employees should vote.
Therefore, I conclude that the tape is not a “campaign video”
requiring the Allegheny-Ludlum assurances. But even if it is
considered to be a campaign video, I conclude that it falls
within another category discussed in the Allegheny-Ludlum
decision, namely, videos which do not convey the message that
those appearing on the tape opposed the Union. The Board
majority wrote:
We turn next to the second question presented by the court’s
remand: whether, and under what circumstances, may an em-
ployer who has not solicited employees to participate in a
campaign videotape nevertheless use their images in the
videotape without incurring Section 8(a)(1) liability . . . [W]e
hold that an employer may do so only if the employer ob-
serves safeguards designed to insure that the videotape,
viewed as a whole, does not convey the message that the em-
ployees depicted therein either support or oppose union repre-
sentation.
Without doubt, Porter’s videotape does not suggest that the
employees on the tape either support or oppose unionization.
Porter does not ask them any question about unionization. If
the tape makes any statements at all, they are “Look, we’ve
ARMSTRONG MACHINE CO. 1173
fixed the OSHA problems” and “___________ is my supervi-
sor.” Because the videotape does not convey the message that
any employee supports or opposes the Union, making it did
not, under Allegheny-Ludlum, violate the Act.
Another Possible Theory of Violation
Might there be some other legal theory under which Porter’s
videotaping would violate Section 8(a)(1)? Although the Gen-
eral Counsel’s brief does not cite Grandview Health Care Cen-
ter, 332 NLRB 347 (2000), it may be instructive to examine
whether that precedent suggests a different basis for a conclu-
sion that Porter’s videotaping interfered with, restrained, or
coerced employees in the exercise of Section 7 rights.
Essentially, such a theory would be based on the principle
that in the context of a labor dispute, an employee’s refusal to
carry out an assignment may be protected by law, even though
it would constitute insubordination in other circumstances. For
example, a truckdriver typically has a duty to make an assigned
delivery. However, the law may protect his refusal to cross a
picket line. Although the driver made an individual decision to
honor the picket line, he is acting in concert with the employees
who established it. Thus, the driver’s individual decision to
cross a picket line, like an individual employee’s decision to
join the strike, constitutes concerted activity within the contem-
plation of the Act.
The same principle may be applied to an individual em-
ployee’s refusal to answer a supervisor’s work-related question.
Obviously, an employee ordinarily has a duty to answer such
work-related questions. However, a refusal to answer such a
question, like the driver’s refusal to cross a picket line, may be
protected in the special circumstances of a labor dispute.
But what is a “labor dispute”? The Board defines the term to
encompass more than a strike or picket line. Under the Board’s
definition, a grievance proceeding under a collective-bargaining
agreement is a “labor dispute.” Thus, in Grandview Health
Care Center, 332 NLRB 347 (2000), the Board, citing Cook
Paint & Varnish Co., 246 NLRB 646 (1979), enf. denied 648
F.2d 712 (D.C. Cir. 1981), stated that
[W]hile an employer may lawfully question employees in an
investigation prior to discipline, it may not compel an em-
ployee to answer questions once disciplinary action is taken,
the grievance machinery is activated, and the dispute is to be
submitted to arbitration . . . an employee has a Section 7 right
to refuse to cooperate in building a case against a fellow em-
ployee once discipline is imposed and an actual labor dispute
is underway through resort to arbitration.
The Board has also held that an unfair labor practice investi-
gation is a “labor dispute.” Therefore, an employee’s refusal to
cooperate with management during such an investigation con-
stitutes protected activity.
In Grandview Health Care Center, the Board found unlawful
the employer’s rule prohibiting an employee from “[r]efusing
to cooperate in the investigation of any allegation of patient
(resident) neglect or abuse or any other alleged violation of
company rules, laws, or government regulations.” The Board
explained that:
By compelling employees to cooperate in unfair labor practice
investigations, or risk discipline, the Respondent’s rule vio-
lates the longstanding principle, established in Johnnie’s
Poultry, that employees may not be subjected to employer in-
terrogations, relating to Section 7 activity, that reasonably
tend to coerce them to make statements adverse to their Sec-
tion 7 interests, those of a fellow employee, or those of their
union. If the employees’ Section 7 right of mutual protection
is to be safeguarded, cooperation must be voluntary. Failure
to inform employees of the voluntary nature of the employer’s
investigation is “a clear violation” of Section 8(a)(1) of the
Act. Adair Standish Corp. v. NLRB, 912 F.2d 854, 861 (6th
Cir. 1990).
When Porter made the December 19, 2001 videotape, no un-
fair labor practice charge had yet been filed, but a representa-
tion petition had been filed and remained pending. Moreover,
when he asked employees questions on videotape, he was gath-
ering evidence to send to the Board on the issue of certain vot-
ers’ supervisory status.
Porter did not use any threat of disciplinary action to compel
employees to answer his questions while the camera was roll-
ing. On the other hand, he asked the questions without giving
the employees any assurances that they did not have to answer
and that no adverse consequence would result from a refusal to
answer. To determine whether Porter thereby violated the Act
under a Grandview Health Care Facility theory, I will examine
that case in further detail.
A portion of the Grandview Health Care Center decision
quoted above can be read in two separate ways. Each of these
interpretations leads to a different result. Therefore, it is impor-
tant to examine the language carefully. The Board stated, in
pertinent part that:
[E]mployees may not be subjected to employer interrogations,
relating to Section 7 activity, that reasonably tend to coerce
them to make statements adverse to their Section 7 interests,
those of a fellow employee, or those of their union.
One possible interpretation is that the Board is referring only
to a particular subset of interrogations relating to Section 7
activity, namely, those interrogations relating to Section 7 ac-
tivity which also reasonably tend to coerce an employee into
making a statement adverse to Section 7 interests. In other
words, the Board is stating two criteria in the conjunctive,
namely, that the rule applies only to an interrogation that (1)
relates to Section 7 activity and also (2) reasonably tends to
coerce the employee into making statements adverse to the
Section 7 interests of himself, other employees, or the union.
Here is the other possible interpretation: The language
quoted above may be describing two different sets of questions,
either of which might not be asked without first giving assur-
ances. In other words, this second interpretation would read the
two phrases in the disjunctive.
Under this second interpretation, the first set would include
questions relating to Section 7 activity. The second set would
include questions (even questions facially unrelated to Sec. 7
activity) which would reasonably tend to coerce an employee
into making a statement adverse to someone’s Section 7 inter-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1174
ests. If the question fell into either category, it would be
unlawful unless preceded by appropriate assurances.
This second interpretation could lead to some rather extreme
results. For example, suppose that a machine had to be turned
off at the end of a shift but was not, resulting in damage. Sup-
pose further that the employer disciplined employee Smith,
who usually turned the machine off, and that Smith filed a
grievance stating, “I did not turn off the machine because em-
ployee Jones told me he would turn it off.” Investigating this
grievance, the supervisor asks Jones, “Did you tell Smith you
would turn off the machine?”
Were I to apply the second interpretation to this hypothetical
situation, I would have to conclude that the supervisor must
first inform Jones that he did not have to answer the question,
and if the supervisor did not give such assurance, the employer
would be engaging in an unlawful interrogation.
Stated another way, because a grievance had been filed over
a disciplinary action there was a “labor dispute,” and in that
circumstance, Jones could not be asked any question about the
facts leading up to the discipline without first being advised of
his right to remain silent. Such an outcome is so extreme I
doubt that the Board would have intended it.
Therefore, I conclude that the first interpretation is correct.
In other words, if a question does not inquire into the exercise
of Section 7 rights then an employer does not have to precede
the question with assurances of voluntariness. Applying this
interpretation, I further conclude that Porter did not violate the
Act simply by asking employees “Who is your supervisor?” or
“Who is your foreman?” because neither of these questions
inquires into the exercise of Section 7 rights.
In sum, Grandview Health Care Center does not provide a
basis for concluding that Porter’s videotaping violated the Act.
Neither do the other rationales discussed above. Therefore, I
recommend that the Board dismiss the allegations raised by
complaint paragraph 5(s).
Complaint Paragraphs 5(t), (u), and (v)
Complaint paragraph 5(t) alleges that on about December 27,
2001, Respondent, by its president and owner, Porter, at Re-
spondent’s Pocahontas facility, threatened an employee that
representation by the Union would be futile when he said there
would be no “damn” union in his plant. Complaint paragraph
5(u) alleges that during this same conversation, Porter threat-
ened an employee by saying that he had discharged three em-
ployees because of their support for the Union. Complaint
paragraph 5(v) alleges that during this same conversation, Por-
ter threatened an employee that employees would no longer be
able to move from job to job as they had in the past if they se-
lected the Union to be their representative. Respondent denies
these allegations.
A more complete description of the circumstances surround-
ing this allegation may be found later in this decision, in con-
nection with the discussion of complaint paragraph 6(b). In
brief, the facts may be summarized as follows. On December
24, 2001, Respondent discharged Calvin Lange, Jamie Lange,
and Donald Meier. The two Langes are sons of Jim (or Jimmy)
Lange. Donald Meier is Jim Lange’s stepson.
On December 27, 2001, Jim Lange was working at a ma-
chine called a hone, which grinds liners used in pumps. The
machine accomplishes this task only when pressure has been
applied to the grinding wheel. Otherwise, the wheel spins un-
productively.
Porter became concerned that Jim Lange was taking too long
to hone a liner. After examining the machine, Porter concluded
that Lange had been going through the motions of honing a
liner without putting pressure on the grinding wheel, and thus
was pretending to work but accomplishing nothing. Porter
confronted Lange at his machine on December 27, 2001.
According to Lange, during this conversation Porter said, “I
told you guys the damn union is not coming in here.” (Allega-
tion in complaint par. 5(t)) Jim Lange further quoted Porter as
saving that he had gotten rid of Calvin Lange, Jamie Lange, and
Donald Meier because they were the leaders of the campaign to
bring in the Union. (Allegation in complaint par. 5(u).)
Further, Jim Lange testified that Porter said that if the Union
got into the plant, employees would only have certain jobs and
that Porter couldn’t pull them off those tasks to do something
else. (Complaint par. 5(v)) Porter specifically denied making
these statements.
As discussed below in connection with complaint paragraph
6(b), based in substantial measure on my observations of the
witnesses, I credit Porter’s testimony and discredit Lange’s. I
find that Lange deliberately was slowing production by pre-
tending to work without accomplishing anything. His motive
for this deception—anger over Porter’s discharge of two sons
and a stepson—also may have affected Lange’s testimony at
trial.
Falsely testifying that Porter made the alleged violative
statements would serve the same purpose as misleadingly pre-
tending to work; it provided a method of getting even with
Porter for the discharge of Lange’s sons and stepson. More-
over, attributing to Porter an admission that he discharged these
individuals because of their union activities would serve not
only a desire for revenge but also Lange’s desire to help his
sons and stepson regain their employment.
As discussed below, I conclude that Porter did unlawfully
discharge two of the three men and that the discharge of the
third individual, Calvin Lange, would have been unlawful but
for his supervisory status. Notwithstanding my findings that
the terminations of Jamie Lange and Donald Meier violated the
Act, I do not find that Porter made any admission to Jim Lange
concerning these discharges.
To the contrary, I find that Porter did not make any of the al-
legedly violative statements which Lange attributed to him.
Therefore, I recommend that the Board dismiss the allegations
raised in complaint paragraphs 5(t), (u) and (v).
Complaint Paragraphs 5(w), (x), and (y)
Complaint paragraph 5(w) alleges that on about January 2,
2002, Respondent, by Porter, threatened employees that they
would be discharged because of their support for the Union.
Complaint paragraph 5(x) alleges that during this same conver-
sation, Porter threatened employees that he had discharged
three named employees because of their support for the Union.
Complaint paragraph 5(y) alleges that during this same conver-
ARMSTRONG MACHINE CO. 1175
sation, Porter threatened employees that representation by the
Union would be futile when he told them there would be no
union in his plant, no matter what. Respondent’s answer denies
these allegations.
Employee Steve Meier testified that on January 2, 2002,
while he and Brad Meier were at work getting parts, Porter
came up to him and asked what they were doing. According to
Meier, he told Porter that he was getting parts for a pump, and
Porter then “started complaining about how much it was cost-
ing him for the lawyers and—because of the Union and every-
thing else and told me and Brad that he got rid of Donnie, Cal-
vin, Jamie, and Jim because of the Union. If we don’t behave
or watch out, whatever, that we’d be the next ones gone.” Ad-
ditionally, Meier testified, Porter said that “the Union wasn’t
coming in no matter what.”
Brad Meier’s account was similar but more abbreviated. He
testified that he and Steve Meier were getting parts when Porter
came up and asked what they were doing. Brad Meier further
testified:
We told him that we were getting parts or I was helping Steve
get parts and then he started complaining about how much
money it was costing him for his lawyers and how much pa-
perwork his daughter Michelle had to do, and then he said—
told us that if we didn’t straighten up that we’d be the next
ones just like Calvin and Jamie and Don and Jim because the
union is not coming in here.
Porter denied making the comments which the Meiers attrib-
uted to him. Based on my observations of the witnesses, I
credit Porter and find that he did not make the alleged state-
ments.
At the time of this encounter, nearly 3 weeks after the elec-
tion, Porter already had been advised by counsel and well knew
that it was unlawful to make threats. Indeed, at his point Re-
spondent had received the initial unfair labor practice charge,
so Porter was aware that if he made unlawful statements, he
would have to answer for them during the Board investigation.
Porter understood the things he should not do.
Human beings, of course, have a long history of disregarding
a prohibition and its consequences and eating the forbidden
fruit anyway. However, when someone breaks a known rule
and risks the attendant punishment, he usually has a reason for
doing so. The impetus for breaking the rule may arise from a
cold calculation that the benefit to be gained is worth the price
to be paid. The motive also may arise in anger or some other
strong emotion which overcomes prudence. But either way,
there is still a motive.
No evidence suggests a motive for Porter to make the state-
ments attributed to him. On January 2, 2002, the election had
been over for almost 3 weeks. Porter could not obtain the
Meiers’ votes by threatening them. Moreover, Respondent had
filed objections to conduct affecting the election and these ob-
jections were pending before the Board. Such added govern-
ment scrutiny certainly would increase the risk of detection of
an unfair labor practice. Thus, the benefits of making a threat
were minimal and the possibility of adverse consequence was
great. At a rational level, Porter had no reason to make the
alleged statements.
Therefore, if Porter did make the comments attributed to
him, his motivation must have been emotional. However, the
record suggests no reason why Porter would approach the two
employees on this occasion and bring up the subject of the Un-
ion “out of the blue.” Emotions, when aroused, certainly can
overcome caution, but there is no evidence that on this occasion
any particular event or remark had provided such a wakeup
call.
In sum, my observations of the witnesses persuade me that
Porter’s testimony was reliable, and the events described by
Steve and Brad Meiers appear rather implausible. For these
reasons, I credit Porter and find that he did not make the state-
ments the Meiers attributed to him. Therefore, I recommend
that the Board dismiss the allegations raised in complaint para-
graphs 5(w), (x), and (y) of the complaint.
Complaint Paragraph 6(a)
Complaint paragraph 6(a) alleges that on about December
24, 2001, Respondent discharged its employees Calvin Lange,
Jamie Lange, and Donald Meier Jr., which Respondent admits.
Paragraph 6(d) of the complaint, as amended, alleges Respon-
dent engaged in this conduct because Calvin Lange, Jamie
Lange, and Donald Meier Jr., engaged in protected union and
concerted activities. Respondent denies this alleged unlawful
motivation.
Someone who meets the statutory definition of “supervisor”
is not an “employee” within the meaning of the Act. Except in
extraordinary circumstances not present here, the discharge of a
supervisor does not violate the Act. For the reasons discussed
above, I have concluded that at all material times, Calvin Lange
was a statutory supervisor. Therefore, I recommend that the
Board dismiss the allegations that Respondent’s discharge of
Calvin Lange violated Section 8(a)(1) and (3) of the Act.
Should the Board conclude that Calvin Lange is an “em-
ployee,” rather than a “supervisor,” it would become necessary
to determine whether Respondent lawfully discharged him.
Therefore, for purposes of the analysis discussed below, I will
consider him to be an “employee.”
In evaluating the evidence, I will follow the framework
which the Board set forth in Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455
U.S. 989 (1982). Under Wright Line, the General Counsel must
establish four elements by a preponderance of the evidence.
First, the Government must show the existence of activity pro-
tected by the Act. Second, the Government must prove that
Respondent was aware that the employees had engaged in such
activity. Third, the General Counsel must show that the alleged
discriminatees suffered an adverse employment action. Fourth,
the Government must establish a link, or nexus, between the
employees’ protected activity and the adverse employment
action.
In effect, proving these four elements creates a presumption
that the adverse employment action violated the Act. To rebut
such a presumption, the respondent bears the burden of show-
ing that the same action would have taken place even in the
absence of the protected conduct. Id. at 1089. See also Manno
Electric, Inc., 321 NLRB 278, 280 fn. 12 (1996).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1176
With respect to the first Wright Line element, the record es-
tablishes that Calvin Lange, Jamie Lange, and Donald Meier all
signed union authorization cards and talked with other employ-
ees about the Union. I conclude that the Government has estab-
lished the first Wright Line element.
With respect to the second Wright Line element, Respondent
President Porter’s testimony establishes that he knew that Cal-
vin Lange, Jamie Lange, and Donald Meier were advocating
that employees support the Union. This testimony will be dis-
cussed further below. I conclude that the Government has es-
tablished the second Wright Line element.
Clearly, the General Counsel has established the third Wright
Line element. Respondent admittedly discharged Calvin Lange,
Jamie Lange, and Donald Meier and such discharges are ad-
verse employment actions.
Finally, the Government must establish a connection be-
tween the alleged discriminatees’ protected activities and the
adverse employment action. In this instance, Porter testified
that Calvin Lange told him that he had brought in the Union to
punish Porter’s daughter, Michelle. His testimony continues as
follows:
Q. And how did you react to that?
A. I was very irritated about that. I couldn’t believe
that my most entrusted employees would do this.
Q. All right. Would do what?
A. Would bring in the union thing to punish Michelle.
Q. Was it the union thing that bothered you or was it
their actions toward your child?
A. It was their actions about punishing Michelle and I
couldn’t see that Michelle had ever done anything to these
people to—why they would want to punish her . . . I just
didn’t understand why they were doing this. But they ex-
plained it to me why they were doing it.
Q. And why was that?
A. Well, they said—they said they didn’t have any
complaint with me. . . . It was Michelle that they was pun-
ishing and I asked him—I said “What did Michelle do to
you?” Well, she comes out here and tells us to do this and
tells us to do that and then she just makes these terrible
faces, and I said “Well, did that do serious harm to you
making them faces, you know?” I said “When you are up-
set about things you always make some kind of faces.” I
do myself.
And so I made up my mind right then that I was going
to fire them and so we just broke up the meeting. There
was no sense in talking with them guys any more because
they had told me that they wasn’t going to change their at-
titudes.
Q. And what attitude was it that you had a problem
with?
A. On Jamie he just—he just really had a bad attitude
and he said—he said at the meeting—he said “Well, I ain’t
going to change my attitude.”
Q. What attitude was it?
A. Well, just a nasty attitude. He didn’t want to talk to
anybody. He—you know, how can we converse with him
if he don’t want to talk to us.
In further testimony, elicited on direct examination by Re-
spondent’s counsel, Porter stated that there were two reasons
why he discharged Calvin Lange, Jamie Lange, and Donald
Meier. The main reason, he said, was because they “terrorized”
another employee. By “terrorize,” Porter clearly was referring
to Calvin Lange’s comment to John Lyon, threatening him with
a “blanket party” if Lyon did not support the Union. Thus,
Porter explained, “I just can’t tolerate people in there trying to
infringe on people’s civil rights and not allow them to vote
however they want to.”
Porter testified he had a second reason for firing the three,
namely, their attempt to “punish” his daughter Michelle by
bringing in the Union. Porter testified:
Q. Mr. Porter, would it have made any difference to
you if they were doing these things because of the union or
for some other reason?
A. If they do it for any reason.
Although that testimony is not entirely clear, I understand it
to mean that Porter would have discharged the three men for
trying to “punish” his daughter regardless of the method the
men had chosen for inflicting the “punishment.” Presumably,
Porter would have felt the same motivation to discharge the
men even if they had expressed this desire by some action
wholly unrelated to the Union.
Porter’s testimony establishes a sufficient nexus to satisfy
the fourth Wright Line element. It would split hairs too finely
to find that in making the discharge decision, Porter did not
take into account the protected activities of the three men, but
only their motivation for engaging in such activities. Recogniz-
ing such a distinction would not effectuate the purposes of the
Act, which protects the rights of employees to form, join or
assist labor organizations without regard to their reasons for
doing so. Under the law, employees’ rights to engage in union
activity do not depend on whether their hearts are pure.
By proving all four Wright Line elements, the General Coun-
sel has, in effect, raised a presumption that the discharges were
unlawful. Respondent may rebut this presumption by showing
that it would have discharged the men even in the absence of
protected activity. In assessing whether a respondent has car-
ried this burden, the Board does not rely on its views of what
conduct should merit discharge. “Rather,” the Board has
stated, “we look to the Respondent’s own documentation re-
garding [the alleged discriminatee’s] conduct, to its “Personnel
Policy” handbook, and to the evidence of how it treated other
employees with recorded incidents of discipline.” Lampi LLC,
327 NLRB 222, 223 (1998).
Respondent has not provided the kind of particularized
documentary evidence contemplated by the Board in Lampi
LLC. That may be understandable, considering that Respon-
dent is a relatively small employer operating without the pa-
perwork which exists in larger companies. However, Respon-
dent also has not offered testimony to establish instances when
it discharged other employees for similar reasons.
During the November 23, 2001 meeting, Porter did say he
discharged a former employee named Mark because he went
around intimidating other employees. Evidence concerning this
discharge could be quite relevant to Respondent’s defense. For
ARMSTRONG MACHINE CO. 1177
example, if this employee’s conduct had been similar to, or no
worse than the conduct of Calvin Lange, Jamie Lange, and
Donald Meier, and if this employee had not engaged in any
protected activity, then the discharge of the employee would
support a finding that Respondent would have taken similar
action against the three men even in the absence of union activ-
ity.
The record, however, provides little information about Mark.
No evidence allows a meaningful comparison of Mark’s con-
duct with that of Calvin Lange, Jamie Lange, and Donald
Meier. Apart from Porter’s comment to these men during the
November 23, 2001 meeting, there is no basis to conclude ei-
ther that an employee named Mark went around intimidating
other workers or that Respondent discharged him for this rea-
son. We don’t even know Mark’s last name.
In a company with a small employee complement, infrac-
tions prompting discharge do not happen every day. An em-
ployer’s ability to mount a successful Wright Line defense does
not depend on proof that another employee committed exactly
the same offense and got exactly the same discipline
For example, suppose employee X stole his employer’s truck
and rolled it into the river. No other employee had ever done
so, making it impossible for the employer to prove that it al-
ways discharged an employee who stole a truck and rolled it
into the river. Must the Board conclude that this employer has
failed to present the evidence needed to carry its rebuttal bur-
den? Of course not. The Board certainly may consider other
evidence concerning the likelihood that an employee would be
terminated for certain conduct even though the alleged dis-
criminatee was the first member of a respondent’s work force
to engage in this specific conduct.
Although the Board does not substitute its judgment for that
of the employer in deciding which offenses warrant discharge,
it still may take notice of what types of infractions commonly
lead to the termination of employment in a particular industry.
Indeed, Congress created the Board as an agency with particu-
lar expertise in labor relations. The Board may draw upon its
experience in weighing an argument that a particular offense
was so severe it always would result in discharge.
Here, the conduct does not appear to be so egregious that
most employers would react almost automatically by issuing
discharge notices. In these circumstances, where the offending
conduct does not fall outside any obvious industry norms, Re-
spondent’s rebuttal evidence must be detailed enough to show
how much the offending conduct transgressed its own stan-
dards, if not the industry’s. The evidence here falls short.
In sum, I conclude that Respondent has not established that it
would have discharged Calvin Lange, Jamie Lange, and Donald
Meier Jr. even in the absence of protected activity. I recom-
mend that the Board find that Respondent’s discharge of Jamie
Lange and Donald Meier Jr. violated Section 8(a)(3) and (1) of
the Act.
Additionally, but for my finding that Calvin Lange is a su-
pervisor within the meaning of Section 2(11) of the Act, I
would recommend that the Board find that his discharge vio-
lated Section 8(a)(3) and (1) of the Act. However, because I
conclude that he is a supervisor, I recommend that the Board
dismiss the allegations regarding the discharge of Calvin
Lange.
Complaint Paragraph 6(b)
Complaint paragraph 6(b) alleges that on about December
28, 2001, Respondent discharged its employee Jimmy Lange.
Respondent’s original answer admitted this allegation.
Thereafter, the General Counsel issued an amendment to the
complaint which resulted in Respondent amending its answer.
In this amendment, Respondent again admitted the allegation
raised by complaint paragraph 6(b). However, it appears that
Respondent did not intend to make this admission. At the hear-
ing, Respondent’s counsel consistently maintained that Re-
spondent had not discharged Lange. For example, in her open-
ing statement, Respondent’s counsel stated: “We believe that
Mr. Lange was not fired at all.” Similarly, in its posthearing
brief, Respondent took the position that it had not discharged
Jimmy Lange.
As discussed below, clear evidence establishes that Respon-
dent did not discharge Jimmy Lange. In these circumstances, I
conclude that Respondent did not intend to admit in its answer
that it discharged Lange and that the admissions on this issue in
its answer and amendment to answer are inadvertent. More-
over, even were I to accept these admissions at face value, I
would still be compelled to find that Respondent did not dis-
charge Lange because any other finding would be contrary to
the great weight of the evidence. The facts are as follows.
Not only is Jimmy Lange the father of Calvin and Jamie
Lange and the stepfather of Donald Meier Jr., he was also the
father of the union organizing drive. That campaign began
when Lange, dissatisfied with working conditions, discussed
the matter with other employees and then met with the Charg-
ing Party’s business manager, Dick Kraus. Later, Jimmy Lange
took union authorization cards to work and gave them to other
employees.
Lange’s last day at work was December 28, 2001. On that
day, Porter came to Lange’s workstation, where he was operat-
ing a machine called a hone. This machine uses a moving
“stone” to grind liners under pressure, but the operator must
apply the correct amount of pressure for the particular task.
Both Lange and Porter agree that Porter accused Lange, es-
sentially, of going through the motions of honing a liner with-
out applying the pressure needed to accomplish the work. Con-
trary to Porter, however, Lange insists that he was, in fact, ap-
plying the correct pressure, rather than faking it.
Both Lange and Porter also agree that Porter told Lange to
shut the machine down and go home. Both also agree that
Lange asked Porter, “Are you firing me?” Both also agree that
Porter replied that he was not firing Lange. Similarly, both
agree that Porter told Lange that when he wanted to work he
could come back to work. Thus, Lange testified as follows on
cross–examination by Respondent’s counsel:
Q. Did Mr. Porter tell you you were not being fired?
A. Yes, he did.
Q. Did Mr. Porter tell you when you wanted to work
you could come back?
A. Yes, he did.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1178
Lange left the premises and, by his own admission, never re-
turned to work. Lange also admitted that he never attempted to
come back to work, and never told Porter again that he wanted
to work.
Lange testified that he believed he had been fired because he
received a telephone call from another individual who quoted a
woman who worked at a body shop as saying that one of Re-
spondent’s foremen told her that Lange had been fired. Ac-
cording to Lange, he never sought to work for Respondent
again because of this belief.
Lange’s explanation strains credulity. No reasonable person,
having been told by the boss that he could return when he was
ready to work, would then accept a third-hand statement to the
contrary as dispositive. It does not take the experience of a trial
lawyer to realize that hearsay upon hearsay is not particularly
reliable.
Although Lange testified that he was putting appropriate
pressure on the hone—in other words, not faking work—I do
not credit that testimony. As a witness, Lange was not particu-
larly persuasive because, on occasion, he sidestepped the ques-
tion, as illustrated by the following example:
Q. Did you ever tell Mr. Porter again that you wanted
to work there?
A. When he told me to get my stuff and leave I was
fired.
This testimony raises doubts about Lange’s credibility be-
cause it is nonresponsive and because it supplies a conclusion
rather than a fact. Moreover, the conclusion itself is hardly
consistent with Lange’s admission that Porter told him he was
not being fired.
Additionally, Lange had an apparent motive to go through
the motions of working without producing any results. Four
days before this incident, Porter had discharged two of Lange’s
sons and his stepson. Moreover, Porter had done so the day
before Christmas. In all likelihood, Lange was, if not boiling
mad, at least simmering.
For these reasons, I reject Lange’s testimony to the extent it
contradicts Porter’s. Moreover, I find that Lange was, in fact,
pretending to work on December 28, 2001, without intending to
produce any result.
Applying the Wright Line analysis, I find that Lange engaged
in ample protected activity. Therefore, I conclude that the gov-
ernment has established the first Wright Line element.
The record is less clear that Respondent knew about Lange’s
efforts, but for analysis I will assume that to be the case.
Therefore, I conclude that the General Counsel has established
the second Wright Line element.
However, the Government has not established the third
Wright Line element, which requires proof that an adverse em-
ployment action had taken place. By Lange’s own admission,
Porter told him that he was not fired. By Lange’s own admis-
sion, Porter told him he could come back when he was ready to
work. By Lange’s own admission, he never tried to come back
to work.
In these circumstances, it is clear that Respondent did not
discharge Lange. Therefore, I conclude that no adverse em-
ployment action took place.
Because the General Counsel has not established all four
Wright Line elements, I recommend that the Board dismiss the
allegations set forth in complaint paragraph 6(b).
Complaint Paragraph 6(c)
Paragraph 6(c) of the complaint, as amended, alleges that on
about April 3, 2002, Respondent discharged employee Brad
Meier. Paragraph 6(d) of the complaint, as amended, alleges
Respondent engaged in this conduct because Meier engaged in
protected union and concerted activities. Respondent denies
these allegations.
Brad Meier began work for Respondent in July 1995 and
worked in the shipping department. When the union organizing
campaign began in the fall of 2001, Meier signed a card, at-
tended some union meetings, and took another employee to
meet the Union’s business manager at a restaurant. Addition-
ally, Brad Meier was present when Donald Meier asked em-
ployee John Lyon if Lyon were going to join the Union.
Brad Meier testified that on April 3, 2002, he was working,
putting some valves together, when “my supervisor or my
foreman, Tom Merihart, came back and told me . . . to go and
get a torque wrench and torque them valves so then I went
across the street and then I went in the other building and I
went and asked Jim Barrett where the torque wrench was.”
According to Meier, after he got the torque wrench he started
back across the street when John Lyon began yelling at him. At
this time, Lyon was a foreman. Meier quoted Lyon as saying,
among other things, “You better not break that f—king torque
wrench and bring that f—king torque wrench back as soon as
you are done with it.” Meier testified that in response, “I
flipped him off and then I went back across the street and went
back to work.”
Lyon’s version of this encounter is quite different. Lyon de-
nied that he yelled or swore at Meier, adding that he had no
reason to do either. Lyon testified that he told Meier to make
sure he brought the torque wrench back “not being broke.” He
explained that in the past torque wrenches had gotten broken.
In response, according to Lyon, Meier started swearing at
him and accused him of getting Calvin Lange, Jamie Lange,
and Donald Meier fired because he was a “backstabber.” Lyon
testified he was “kind of stunned” and asked Meier what he
meant, to which Meier answered, “You’ll see. It ain’t over
yet.” Meier then made a vulgar gesture with his finger.
Although Lyon and Meier agree that Meier made this vulgar
gesture, their testimony diverges on every other detail. There-
fore, I must decide which testimony is more reliable.
If I accept Meier’s testimony, I must conclude that Lyon, for
no apparent reason, began swearing at Meier. If I credit Lyon’s
testimony I must conclude that Meier, for no apparent reason,
began swearing at Lyon. Absent further information, not ap-
parent from the record, neither version seems particularly
likely.
The record does indicate that Meier had a more volatile per-
sonality. For example, another employee, Julie Reynolds, testi-
fied about an encounter she had with Meier in late December
2001 or early January 2002. Michelle Clark-Ames had in-
structed Reynolds to find out who had parked in the spot used
by Porter. She began asking employees and when Meier ac-
ARMSTRONG MACHINE CO. 1179
knowledged that it was his car, she told him, “Well, you are
supposed to move it.” According to Reynolds, when she replied
“Michelle,” Meier asked,“Where in the f—k am I supposed to
park it.”
Meier then went to Clark-Ames. Reynolds testified she
overheard Meier “cussing at Michelle.” This incident suggests
that Meier could “fly off the handle” with slight provocation.
The record does not indicate that Lyon had a similar tendency.
Thus, it would appear more likely that during the April 3, 2002
encounter, it was Meier who erupted.
Moreover, my observations of the witnesses lead me to
credit Lyon. Therefore, I find that Meier swore at Lyon. Addi-
tionally, consistent with the testimony of both witnesses, I find
that Meier directed a vulgar gesture towards Lyon.
Later that same day, Clark-Ames called Brad Meier into the
office and gave him a termination notice. That notice, signed
by Clark-Ames and Porter, stated in part as follows:
Brad Meier, called John Lyon name and flipped him off. We
consider this a act of belligerence toward a foreman, which
was stated in the rules and during company meetings that this
kind of behavior will not be tolerated.
In considering the lawfulness of this discharge, I apply the
Wright Line standards discussed above. Clearly, the Govern-
ment has established the first Wright Line element. Brad Meier
signed a union card, attended union meetings, and took an em-
ployee to see a union official.
Second, the General Counsel must prove that management
knew about Brad Meier’s protected activities. Although the
evidence does not establish that Respondent specifically knew
of Brad Meier’s protected activities, summarized above, man-
agement had reason to identify him as a union supporter. Brad
Meier was present when Donald Meier asked John Lyon if
Lyon were going to join the union. The evidence suggests that
Lyon reported this conversation to management.
Brad Meier and Donald Meier also were relatives. Brad
Meier’s presence when Donald Meier asked Lyon about sup-
porting the Union, together with the familial relationship rea-
sonably would create at least the impression that both shared
prounion views. Although the record does not present excep-
tionally strong evidence that Respondent knew about Brad
Meier’s protected activities, I conclude that the evidence is
sufficient to satisfy the second Wright Line element.
The third Wright Line criterion concerns the existence of an
adverse employment action. Without doubt, discharge consti-
tutes an adverse employment action.
Finally, the General Counsel must establish a link between
Brad Meier’s protected activity and Respondent’s decision to
discharge him. Respondent’s unlawful termination of Jamie
Lange and Donald Meier on December 24, 2001, certainly calls
into question Respondent’s motivation in later discharging Brad
Meier. Additionally, as discussed above, Respondent’s presi-
dent made a number of statements, violating Section 8(a)(1) of
the Act, which demonstrated some hostility towards the union
organizing campaign.
It may be noted that the violative statements do not specifi-
cally indicate that management identified Brad Meier with this
activity. Likewise, they do not show that Porter singled out
Brad Meier for disciplinary action either because of the union
organizing drive or because of Meier’s protected activities.
Therefore, I will look further to determine whether other evi-
dence suggests that Respondent bore a particular hostility to-
ward Brad Meier because of Meier’s union activities or the
protected activities of other employees.
In some instances, the timing of a discharge may support an
inference that an employer took the discharged employee’s
union activity into account when making the decision to fire
him. For example, if management terminated a worker
promptly after learning that the worker supported the Union, it
would be reasonable to conclude that this newly acquired
knowledge precipitated the discharge.
The record here, however, does not indicate that manage-
ment learned about Brad Meier’s protected activities immedi-
ately before the discharge. Moreover, Meier’s discharge oc-
curred more than 3 months after the representation election. A
connection between Meier’s campaigning for the union and his
later discharge cannot reasonably be inferred from the timing
alone.
The April 3, 2002 letter memorializing Brad Meier’s dis-
charge cited two acts which prompted the termination of his
employment: Meier had called Lyon a name and had “flipped
him off.” The letter, signed by President Porter and Vice Presi-
dent Clark-Ames, explained, “We consider this a[n] act of bel-
ligerence toward a foreman.”
If the epithet which Meier applied to Lyon had some well–
recognized antiunion connotation—for example, a term such as
“scab”—then Meier’s use of such term arguably might consti-
tute protected activity. If so, then Respondent would have con-
sidered Meier’s protected activity in making the decision to
discharge him. However, Meier did not call Lyon a “scab.” He
called him a “backstabber.”
Standing alone, this term does not suggest union or other
protected activity. Even in the context of prior events, it does
not carry this connotation.
The record suggests that Meier used this epithet because he
believed Lyon had complained to management about the ac-
tions of Calvin Lange, Jamie Lange, and Donald Meier, and
that Lyon’s complaints had resulted in the discharge of these
three men.
As noted above, Calvin Lange, accompanied by Donald
Meier, had threatened to beat Lyon up (by giving him a “blan-
ket party”) if Lyon did not support the Union. Lyon reported
this threat to management and on November 23, 2001, Owner
Porter cautioned Calvin Lange, Jamie Lange, and Donald Meier
not to threaten employees. Nonetheless, the three men sought
out Lyon that same evening, and Calvin Lange falsely stated
that he, Lange, had been fired. It appears that Brad Meier be-
lieved that Lyon had complained to management about this
encounter and that Lyon’s complaint led to the discharge of the
three men.
These incidents do not constitute protected activity. Calvin
Lange’s specific “blanket party” threat is not protected. More-
over, the record does not establish that the three men engaged
in any protected activity when they met up with Lyon on the
night of November 23, 2001. In this context, when Brad
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1180
Meier’s called Lyon a “backstabber,” the term reasonably
would not be understood to describe opposition to the Union.
Therefore, and regardless of whether calling someone a
“scab” might constitute protected activity in certain circum-
stances, a question not presented here, Meier was not engaged
in protected activity when he called Lyon a “backstabber.”
Respondent’s explanation, that it discharged Meier for calling
directing a derisive name and vulgar gesture towards Lyon,
does not, on its face, suggest a connection between Meier’s
protected activity and the discharge decision.
Nonetheless, I conclude that Respondent’s violations of Sec-
tion 8(a)(1), and Respondent’s unlawful discharges of Jamie
Lange and Donald Meier, discussed above, are sufficient to
carry the General Counsel’s burden of showing a connection
between protected activity and the decision to terminate Brad
Meier. At the fourth step of the Wright Line analysis, the gov-
ernment does not have to show proximate causation; it does not
have to prove that but for the unlawful motivation, a respondent
would not have taken the adverse employment action. The
General Counsel merely has to establish that some connection
exists between the protected activity and the adverse employ-
ment action.
Although the record clearly falls short of satisfying a “but
for” standard, it does suffice to demonstrate some kind of link
between the protected activity and the adverse employment
action. Therefore, I conclude that the General Counsel has
established the fourth Wright Line element.
Because the General Counsel has established all four Wright
Line elements, the burden shifts to Respondent to prove that it
would have discharged Brad Meier in any event, even in the
absence of any protected activity. As discussed above, the
Board does not rely on its own views about what conduct
should merit discharge but looks to a respondent’s own docu-
mentation regarding the alleged discriminatee’s conduct, to the
respondent’s personnel policy handbook, and to evidence of
how the respondent treated other employees with recorded
incidents of discipline. Lampi, LLC, 327 NLRB 222 (1998).
In applying these standards, it is appropriate to note that the
thoroughness of an employer’s record keeping is somewhat
proportional to the employer’s size. Typically, a company with
thousands of workers will keep detailed personnel records.
Such a large company almost invariably maintains a human
resources department staffed by professionals with substantial
training in labor relations. These specialists understand the
value of documentation, know how to prepare it, and often
teach these recordkeeping skills to line supervisors.
On the other hand, a small company, such as the Respondent
in this case, does not have a separate human resources depart-
ment or a labor relations staff. Typically, such a small com-
pany keeps fewer records and many of those records are not as
thorough as those kept at big companies.
This difference does not change an employer’s burden of
proof in rebutting the General Counsel’s case. That burden is
the same regardless of the size of the employer. However, the
difference does affect the way documentary evidence should be
interpreted.
For example, assume that the human resources manager of a
large company testified that management had treated the al-
leged discriminatee exactly the same as it had treated other
employees who had committed a similar infraction. Further
assume that this large company kept meticulous records but
failed to support the manager’s testimony with documentation.
Quite properly, the judge might be skeptical of such testimony.
However, if the respondent were a small company which kept
fewer records and had no human resources staff, the absence of
corroborating documents would not raise the same level of
suspicion.
A small company could suffer another disadvantage, com-
pared to a large employer, in meeting the rebuttal burden.
Among a work force of thousands, it is likely that someone,
other than the alleged discriminatee, had committed the same
offense. The large employer therefore could point to this prior
experience to show that it had not treated the alleged discrimi-
natee more harshly because of his union activities.
In a small company, it is much less likely that two employ-
ees have committed exactly the same infraction. The small
employer may have great difficulty showing that it previously
had treated a similar situation in the same way because no em-
ployee had engaged in such behavior in the past. Therefore, the
size of the employer needs to be considered in weighing a re-
spondent’s rebuttal evidence.
The record suggests that during his first 6 years of employ-
ment with Respondent, Brad Meier’s work was satisfactory.
Beginning in late December 2001, problems began developing.
Before his discharge, Meier received two other disciplinary
warnings. Meier did not deny the conduct which prompted the
warnings. However, I must determine whether the three in-
stances of improper conduct would have caused Respondent to
discharge Meier in any event, regardless of union and other
protected activities.
The first incident occurred on December 27, 2001. Shortly
before this date, Respondent had fired Jamie Lange, who had
been Brad Meier’s “foreman,” that is, the person who kept
Meier busy and answered his questions. After Jamie Lange’s
discharge, another person, Tom Merihart, took over the job.
On December 27, Merihart asked Brad Meier to help him
find some crosshead pins. Meier told Merihart he did not know
where they were. That statement raised some questions be-
cause Meier had worked in the department about 6 years. Mi-
chelle Clark-Ames asked Meier about it. Meier admittedly told
Clark-Ames that it was not his job to tell Merihart where the
pins were. Clark-Ames responded that it was Meier’s job to do
so.
Shortly after that Meier admittedly told Porter that it wasn’t
his job to tell anyone where parts were. Meier also admitted
telling Porter, “Fire me if you want to.” Respondent did not
discharge Meier on this occasion, but management did issue
Meier a disciplinary warning.
Brad Meier’s second warning resulted from the incident, de-
scribed above, in which Meier parked in Porter’s spot and then
became belligerent when told to move his vehicle. The third
disciplinary action, Meier’s discharge, followed his directing a
derisive name and vulgar gesture towards his supervisor.
In each of these incidents, Meier manifested hostility to-
wards his supervisor and in at least two of the instances, Meier
demonstrated an unwillingness to follow directions. If man-
ARMSTRONG MACHINE CO. 1181
agement’s instructions had been particularly onerous or had
subjected Meier to some extraordinary risk, his defiance might
be more understandable, but the tasks he had been asked to
perform—to help his foreman find a part and to move his vehi-
cle out of the boss’s parking spot—were unremarkable.
Meier’s bellicose reaction was so disproportionate it reasonably
could be regarded not merely as insubordinate but scary.
It is not surprising that Respondent has not produced evi-
dence that another employee acted in a similar way and re-
ceived similar discipline. Meier’s volatility lay far outside the
norm. Perhaps a large employer, with thousands of workers,
would have encountered more than one who reacted with such
dramatic hostility to undramatic requests. Respondent, how-
ever, is not a large employer.
Respondent did not discharge Meier the first time he dis-
played hostility, even though Meier told Porter, “Fire me if you
want to.” Respondent did not discharge Meier the second time.
On both occasions, Respondent gave Meier the opportunity to
correct his conduct. When Meier displayed the same belliger-
ence the third time, Respondent reasonably could decide that
Meier’s behavior would not change and that he would continue
to defy supervision, sometimes explosively.
For two reasons, Brad Meier’s conduct would raise major
concerns with virtually any employer. First, he demonstrated a
repeated tendency to defy instructions, sometimes in a quite
confrontational and offensive manner. It is common sense that
no supervisor wishes to deal with an employee who persistently
refuses to carry out assignments and shows no inclination to
change.
Second, Meier’s hair-trigger temper raised significant con-
cerns about workplace safety. He had demonstrated a tendency
to become verbally abusive on slight, if any, provocation. Em-
ployers commonly would regard such blowups as red flags,
signaling the possibility of even more serious eruptions in the
future.
The record demonstrates that already there had been epi-
sodes of violence in Respondent’s workplace. Considering that
Meier’s explosions of temper could be the prodrome of vio-
lence, the Respondent would have been quite concerned about
retaining him even if he had been adamantly antiunion.
In sum, I conclude that Respondent would have taken the
same action against Brad Meier even in the absence of any
protected activity. Therefore, I recommend that the Board dis-
miss the allegations raised in complaint paragraph 6(c).
Respondent’s Objection
After the December 13, 2001 election, Respondent filed a
timely objection. Respondent contends that Calvin Lange,
Jamie Lange, and Donald Meier engaged in conduct which
intimidated employees and thereby tainted the election. Spe-
cifically, Respondent points to the “blanket party” statement
which Calvin Lange, accompanied by Donald Meier, made to
employee John Lyon, and to the afterhours contact which Cal-
vin Lange, Jamie Lange, and Donald Meier had with Lyon on
November 23, 2001.
Calvin Lange admitted making the “blanket party” statement
but could not pinpoint the date on which he made it. The date
must be ascertained as accurately as possible to determine
whether the allegedly objectionable conduct took place within
the “critical period.” If so, the conduct may warrant setting
aside the election. If not, the conduct will be considered too
remote to have undermined the laboratory conditions which the
Board deems essential to a fair election. The “critical period”
begins the day the petition was filed, in this case November 14,
2001, and extends through the election. Ideal Electric Mfg.
Co., 134 NLRB 1275 (1961).
Calvin Lange testified that made the “blanket party” state-
ment to Lyon “way before” he signed a union authorization
card, and in “October, I’d say.” Lange signed the authorization
card on November 2, 2001.
Lyon did not have a clear recollection as to date. On direct
examination, he testified that Calvin Lange made the “blanket
party” statement to him on about November 12, 2001. At one
point on cross-examination, he placed this conversation in Oc-
tober 2001. Even the testimony most favorable to Respon-
dent’s case—that Calvin Lange made the “blanket party” threat
on November 12, 2001—indicates that this incident took place
about 2 days before the Union filed the representation petition.
Therefore, the threat did not occur during the critical period and
I recommend that the Board overrule the objection.
Even had Lange made the “blanket party” statement to Lyon
during the critical period, I still would recommend that the
Board overrule the objection. The record does not establish
that Lange was acting as the Union’s agent when he made this
statement. Moreover, it is clear that Respondent never author-
ized Lange to make such a statement.
Therefore, when Lange made the “blanket party” comment,
he was acting as a third party. Ordinarily, statements made by
a third party do not carry as much weight as those made by the
employer or the Union before an election. Nonetheless, in
certain instances third party conduct can be so egregious that it
upsets the laboratory conditions necessary to protect employee
freedom of choice. See, e.g., Smithers Tire, 308 NLRB 72
(1992).
In the present case, Calvin Lange made the blanket party
statement to Lyon outside the presence of any other employee
except Donald Meier, who had accompanied Lange. Although
Lyon reported the incident to Owner Porter, he did not tell
other employees about it. Additionally, the “blanket party”
statement was an isolated instance. The record does not indi-
cate a pattern of threats.
On the other hand, the election was very close, the tally of
ballots recorded 9 votes for and 10 votes against the Union,
with 4 challenged ballots. A threat affecting one voter could
have an appreciable impact.
Calvin Lange testified that he was joking, but even were he
serious when he told Lyon that he would give Lyon a “blanket
party” if Lyon did not vote for the Union, Lange had no way of
knowing for sure how Lyon marked his ballot. The privacy of
the voting booth rendered Lange’s threat an empty one. Apply-
ing an objective standard, I conclude that the “blanket party”
statement would not have upset the laboratory conditions even
if it had been made during the critical period.
Respondent’s objection does not raise another matter which
may have affected the necessary laboratory conditions. How-
ever, it merits discussion here. During the critical period, Cal-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1182
vin Lange told employees that Respondent was not going to
pay bonuses, as it customarily did at Christmas. This statement
was baseless and untrue.
The election took place 12 days before Christmas. A super-
visor’s statement to employees that they would not be receiving
the traditional bonus could easily produce an emotional reac-
tion, particularly if employees were counting on the customary
bonuses to pay their Christmas shopping bills.
When Calvin Lange falsely announced that employees would
not be receiving Christmas bonuses, he spoke with the apparent
authority of the Respondent. Employees would consider him to
speak with the voice of management on matters related to their
compensation. Employees also would assume that a supervi-
sor’s statements about bonuses were knowledgeable and trust-
worthy. Therefore, Calvin Lange’s misrepresentations have at
least some potential to taint the election.
Although Respondent’s objection does not mention Lange’s
misrepresentations about bonuses, that issue may be considered
here. Respondent’s objection has opened an inquiry into the
validity of the election, that issue remains pending, and the
election’s results have not been certified. In these circum-
stances, any conduct which may have degraded the laboratory
conditions may be considered. See White Plains Lincoln Mer-
cury, 288 NLRB 1133 (1988).
Nonetheless, I do not recommend that the Board overturn the
election because of Lange’s inaccurate statements about bo-
nuses. The record establishes that Owner Porter corrected the
misinformation by assuring employees they would be getting
bonuses.
In sum, I conclude that the record does not establish any ob-
jectionable conduct which would warrant setting aside the elec-
tion.
Maxine Lange’s Challenged Ballot
Respondent challenged the ballot of Maxine Lange on the
basis that, as a cleaning employee, she was not within the
agreed-upon collective-bargaining unit. In a stipulated election
agreement approved by the Regional Director on December 13,
2001, the parties agreed that employees in the following appro-
priate bargaining unit would be eligible to vote:
All full-time and regular part-time production and mainte-
nance employees employed by the Employer at its plant lo-
cated at 10 SW 7th Street, Pocahontas, Iowa; EXCLUDING
office clerical and office cleaning employees and guards and
supervisors as defined in the National Labor Relations Act.
The record establishes that before she suffered an injury in
about January 2001, Maxine Lange did some production work
along with cleaning duties. After the injury, management di-
rected Lange not to work in the shop but to perform only clean-
ing duties. Calvin Lange testified that “she just pretty much did
all the cleaning and wiped the shelves down and did that stuff.”
At the time of the election, Maxine Lange clearly fell within
the category of “office cleaning employee.” As such, she was
excluded from the voting unit. Therefore I recommend that her
ballot should not be counted.
Summary of Recommendations in Case 18–RC–16904
For the reasons discussed above, I recommend that the Board
take the following actions in Case 18–RC–16904:
The challenge to the ballot cast by Calvin Lange should be
sustained because he is a supervisor within the meaning of
Section 2(11) of the Act.
The challenges to the ballots of Jamie Lange and Donald
Meier Jr. should be overruled, and their ballots counted, be-
cause they are not supervisors within the meaning of Section
2(11) of the Act.
The challenge to the ballot of Maxine Lange should be sus-
tained because at the time of the election she was an office
cleaning employee and therefore was not included in the
agreed-upon voting unit.
After counting the challenged ballots of Jamie Lange and
Donald Meier Jr., a revised tally of ballots and the appropriate
certification based on that revised tally of ballots should be
issued.
CONCLUSIONS OF LAW
1. Armstrong Machine Company is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. United Food and Commercial Workers Union, Local 6,
AFL–CIO, CLC 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 the fol-
lowing acts: On November 23, 2001, Respondent unlawfully
interrogated employees about their union activities [complaint
paragraph 5(a)]; unlawfully threatened employees by implying
that representation by the Union would be futile and by stating
that if employees chose the Union to represent them Respon-
dent would not sign a collective-bargaining agreement and
could close the plant [complaint pars. 5(f), (g), and (h); on
about December 12, 2001, Respondent unlawfully interrogated
an employee about the employee’s union sympathies and
threatened to reduce employees’ hours because of their union
activities [complaint pars. 5(q) and (r)]; on about December 24,
2001, Respondent unlawfully discharged employees Jamie
Lange and Donald Meier Jr. and has thereafter refused to rein-
state them.
4. Respondent violated Section 8(a)(3) of the Act on Decem-
ber 24, 2001, by discharging employees Jamie Lange and Don-
ald Meier Jr. and thereafter by refusing to reinstate them.
5. Respondent did not violate the Act in any other manner al-
leged in the complaint.
[Recommended Order omitted from publication.]