Brandeis Machinery & Supply Co.

National Labor Relations Board - Board Decisions

Jul 21, 2004

342 N.L.R.B. 530 (N.L.R.B. 2004)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
342 NLRB No. 46
530
Brandeis Machinery and Supply Company, a Wholly
Owned Subsidiary of Bramco, L.L.C. and Inter-
national Union of Operating Engineers, Local
150, AFL–CIO. Case 25–CA–28201–1
July 21, 2004
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND WALSH
On September 25, 2003, Administrative Law Judge C.
Richard Miserendino issued the attached decision. The
Respondent and the Charging Party Union each filed
exceptions and supporting briefs, and both parties filed
answering briefs.
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 exceptions1 and briefs and has decided to
affirm the judge’s rulings, findings,2 and conclusions3
and to adopt the recommended Order as modified.4

1 There are no exceptions to the judge’s dismissal of complaint alle-
gations that the Respondent violated Sec. 8(a)(1): by removing union
literature from an employee bulletin board; by searching Bob Cook’s
toolbox; and by threatening Cook with discharge because he spoke to
other employees on the picket line. There are also no exceptions to the
judge’s dismissal of complaint allegations that Respondent violated
Sec. 8(a)(3) and (1): by issuing Steven Benefield a written reprimand
for poor performance and extending his original 90-day probationary
period; by refusing to assign Cook and Benefield overtime; and by
assigning Cook and Benefield more onerous work.
2 The Respondent and Charging Party have excepted to some of the
judge’s credibility findings. The Board’s established 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 carefully examined the
record and find no basis for reversing the findings.
3 The judge found, and we agree, that the Respondent did not violate
Sec. 8(a)(3) and (1) by discharging Benefield. However, we disagree
with the judge to the extent that he implies in the penultimate sentence
of sec. II.L.2.b. of his decision that there was no showing that union
animus was a motivating factor behind that discharge. We find, as did
the judge in sec. II.L.2.a of his decision, that the General Counsel met
his initial burden by establishing that the Respondent’s animus toward
Benefield’s union membership and activities was a motivating factor
behind his discharge, but we further find that the Respondent estab-
lished its defense, under Wright Line, 251 NLRB 1083 (1980), that it
would have discharged Benefield even in the absence of his protected
union activity.
4 In the cease-and-desist provision of his recommended Order, the
judge inadvertently omitted a requirement that the Respondent refrain
from altering its lunchtime policy in order to stifle union activity. We
shall modify his Order accordingly. We shall also substitute a new
notice to conform to the Order as modified.
In accord with Excel Container, Inc., 325 NLRB 17 (1997), the cor-
rect date in par. 2(d) of the judge’s recommended Order is December
26, 2001, not May 8, 2002.
The judge found that the Respondent’s production
manager, Tom Muraski, violated Section 8(a)(1) by pro-
hibiting shop mechanic, Bob Cook, from wearing a union
hat. The judge also found that branch manager, Tom
Freeman, violated Section 8(a)(1) by prohibiting field
service mechanic, Steve Benefield, from wearing a union
button that covered the company logo on his hat. We
affirm the judge’s Section 8(a)(1) finding with regard to
Cook, and as explained in footnote 7, below, find it un-
necessary to pass on his 8(a)(1) finding with regard to
Benefield.5
On May 14, 2002, Production Manager Muraski no-
ticed Cook wearing his union hat at work. Muraski
handed Cook a company hat and “suggested that I wear
this [company] hat instead of wearing my union hat.”
The judge found that Muraski’s remark to Cook was
unlawful because he “strongly implied that Cook should
remove his Union hat and replace it with a company
hat.” We agree.
As the judge correctly notes, an employee’s right to
wear union insignia while at work is protected by Section
7. An employer may not interfere with that right absent a
showing of special circumstances, such as the need to
maintain production or discipline. Albis Plastics, 335
NLRB 923, 924–925 (2001). We view it as a clear inter-
ference with the protected right to wear union insignia
where, as here, a supervisor hands an employee a com-
pany hat and “suggests” that he substitute it for his union
hat. This was the second time within a week that the
Respondent had commented on Cook’s wearing of union
insignia. Just a few days earlier, on May 9, Plant Man-
ager Freeman had pointed to a union button that Cook
wore on his hat and stated that “he didn’t appreciate me
wearing it at work.” Although the judge did not address
whether this earlier remark was also unlawful,6 we find
that it gives further meaning to Muraski’s statement to
Cook on May 14, and additionally supports the conclu-
sion that the May 14 remark violated Section 8(a)(1).7

5 We correct two factual errors made by the judge in connection with
these findings. In the last sentence of the first par. of sec. II.I.1. of the
judge’s decision, it was Benefield, not Cook, whom Freeman testified
was not reprimanded for wearing a union button. And in the third
sentence of sec. II.I.2., it was Benefield again, not Cook, about whom
Freeman was testifying.
6 The complaint alleges that this remark violates Sec. 8(a)(1), but
neither the General Counsel nor the Union except to the judge’s failure
to find the violation.
7 The violation that we find regarding Cook essentially constitutes a
finding of an unlawful prohibition against the wearing of union insig-
nia. We shall amend par. 1(e) of the judge’s cease-and-desist order to
reflect this finding. Because it would be cumulative of this violation to
consider and affirm the judge’s finding that the Respondent addition-
ally violated Sec. 8(a)(1) by prohibiting Benefield from wearing union
BRANDEIS MACHINERY & SUPPLY CO. 531
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Brandeis Machinery and
Supply Company, South Bend, Indiana, its officers,
agents, successors, and assigns, shall take the action set
forth in the Order as modified below.
1. Substitute the following for paragraph 1(e).
“(e) Prohibiting employees from wearing union insig-
nia on the job during working hours.”
2. Insert the following as paragraph 1(g) and reletter
the subsequent paragraph.
“(g) Stifling employees’ union activity by shortening
the length of the lunch period and by requiring that they
go to lunch at staggered times.”
3. Substitute the attached notice for that of the admin-
istrative law judge.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

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

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on your
behalf
Act together with other employees for your benefit
and protection

insignia (a button) on his hat, and it would not affect the remedy, we
find it unnecessary to pass on this latter allegation.
Chairman Battista would find neither violation. With respect to the
Cook allegation, the Chairman finds that a suggestion that an employee
wear a company hat rather than a union hat is simply a statement that
the Respondent would prefer that the employee favor the company
rather than the union in regard to the union’s organizational campaign.
Such a statement is clearly lawful under Sec. 8(c). In addition, Chair-
man Battista notes that the Respondent did not order the removal of the
hat. Indeed, Cook continued to wear the union hat, and nothing hap-
pened to him because of that. Finally, plant manager Freeman’s earlier
remark was in the same vein as the one under discussion, and it was not
found to be unlawful.
Chairman Battista finds the judge’s union button violation regarding
Benefield even less supportable. Contrary to the judge, Benefield was
not ordered to remove a union button entirely from his person. Rather,
the button was covering the company logo on the hat that he was wear-
ing, and he was simply “asked . . . to remove the button from the logo
. . . but [was] . . . not t[o]l[d] . . . he could not wear the button.” Ac-
cordingly, Chairman Battista would reverse the judge’s Sec. 8(a)(1)
finding that Benefield was prohibited from wearing a union button.
Choose not to engage in any of these protected ac-
tivities.

WE WILL NOT question job applicants about their union
membership and union affiliation.
WE WILL NOT promulgate, maintain, and enforce a
written policy that encourages employees to report to
management any employees who solicit support for a
union.
WE WILL NOT threaten job applicants with plant clo-
sure if our employees choose to be represented by a un-
ion.
WE WILL NOT verbally encourage employees to report
to management any employees who solicit support for a
union and WE WILL NOT tell employees that we will put a
stop to such union solicitation.
WE WILL NOT prohibit employees from wearing union
insignia on the job during working hours.
WE WILL NOT verbally promulgate, maintain, and en-
force a rule that prohibits employees from discussing
unions during working time, while allowing discussion
about nonunion related and nonwork related topics dur-
ing the same time.
WE WILL NOT stifle employees’ union activity by
shortening the length of their lunch hour and by requiring
that they go to lunch at staggered times.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
their rights guaranteed them by Section 7 of the National
Labor Relations Act.
WE WILL, within 14 days of the Board’s Order, restore
the lunch hour and lunchtime practice that existed at our
South Bend facility prior to May 8, 2002.
WE WILL, within 14 days of the Board’s Order, rescind
and remove from our employee handbook the provisions
that encourage employees to report to management other
employees who solicit support for unions.
WE WILL, within 14 days of the Board’s Order, rescind
in writing our verbal policy prohibiting employees from
discussing unions during working hours, while permit-
ting discussions on nonunion related and nonwork re-
lated topics during the same hours.
BRANDEIS MACHINERY AND SUPPLY COMPANY

Belinda J. Brown, Esq., for the General Counsel.
Walter L. Sales, Esq. and Craig C. Dilger, Esq., of Louisville,
Kentucky, for the Company.
Alexia M. Kulwiec, Esq., for the Charging Party.

DECISION
STATEMENT OF THE CASE
C. RICHARD MISERENDINO, Administrative Law Judge. This
case was tried in South Bend, Indiana, on March 10–12, 2003.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 532
The charge was filed1 by International Union of Operating En-
gineers, Local 150, AFL–CIO (Union) on May 28, 2002, and
was amended twice. On August 28, 2002, the complaint was
issued against Brandeis Machinery and Supply Company, a
wholly owned subsidiary of Bramco, L.L.C. (Respondent or
Brandeis) alleging multiple violations of Section 8(a)(1) of Act,
as well as an unlawful disciplinary action and an unlawful dis-
charge in violation of Section 8(a)(3) of the Act. The alleged
violations occurred when union organizers/employees Robert
Cook and Steven Benefield attempted to organize a union at the
Respondent’s South Bend, Indiana, facility.
The Respondent’s timely answer denied the material allega-
tions of the complaint. The parties have been afforded a full
opportunity to appear, present evidence, examine and cross-
examine witnesses, and file posthearing briefs.
On the entire record, including my observation of the de-
meanor of the witnesses, as well as my credibility determina-
tions based on the weight of the respective evidence, estab-
lished and admitted facts, inherent probabilities, and reasonable
inferences drawn from the record as a whole, and after consid-
ering the briefs filed by the General Counsel, the Respondent,
and the Charging Party, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation with an office and facility in
South Bend, Indiana, is engaged in the sale, rental, and service
of construction and mining equipment. During the 12-month
period ending April 30, 2002, it sold and shipped, and pur-
chased and received, from its South Bend facility, goods valued
in excess of $50,000 directly to and from points located outside
the State of Indiana. The Respondent admits and I find that it is
an employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
The Respondent admits and I find that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The South Bend Facility
Brandeis sells and services heavy construction and mining
equipment throughout Kentucky and Indiana. In early 2000, the
Company decided to open a branch in South Bend, Indiana, to
better serve its customers in the South Bend-Fort Wayne, Indi-
ana area. Thomas Freeman was the branch manager. He began
hiring employees for the South Bend facility in June 2001. (Tr.
237.) Freeman hired Tom Muraski as the product support man-
ager in charge of parts and service. Muraski had been working
for Brandeis in Indianapolis, Indiana. Freeman also hired James
Montgomery as the field service mechanic: a key position that
requires very good technical skills, very good problem solving
ability, and excellent customer service skills. (Tr. 239.) The
field mechanic was an important job, since customer service
was the primary reason the South Bend facility was opened.
In October 2001, Freeman hired Mike Karre as a shop me-
chanic. A shop mechanic does not require the high technical

1 All dates are 2002, unless otherwise indicated.
skills of a field mechanic and works on equipment at the South
Bend facility. Other shop mechanics were hired in the start-up
stages of the South Bend facility, but they were terminated for
less than satisfactory performance. In December 2001, Supervi-
sor Tom Muraski interviewed Robert Cook as a shop mechanic.
B. Bob Cook Is Hired
1. Facts
Bob Cook was a heavy equipment mechanic for 30 years. He
also was a member of the Union for 23 years. (Tr. 53.) Cook
was unemployed at the time he submitted a job application to
Brandeis. He applied for the job at the suggestion of union
organizer David Fagan. Cook did not mention his union affilia-
tion to Muraski when he interviewed for the job nor was it
listed on his job application. (R. Exh. 41.)
On December 26, 2001, Muraski interviewed Cook, who ex-
plained his past job experience. Cook testified that when he told
Muraski that he had been employed by LTV Steel, Muraski
asked him what union was involved. Cook responded the
“Steelworkers.” (Tr. 54.) Muraski testified that it was not his
practice to inquire about union affiliations during job inter-
views and further stated that he did not ask Cook about his
union affiliation during his interview. (Tr. 493.) Muraski did
not deny, however, that he and Cook talked about his previous
employment at LTV Steel, which would be expected during a
job interview. He also did not specifically deny that he asked
Cook what union represented the LTV employees. Because the
steel industry traditionally has been heavily unionized, I find
that it is more likely, than not, that Muraski casually asked
which union represented the employees at LTV. For this, and
demeanor reasons, I credit Cook’s testimony that Muraski
asked him what union was involved at LTV Steel.
In addition, Cook testified that Muraski told him that
Brandeis was a nonunion company and that he could not fore-
see them going union. Cook stated that Muraski asked him how
he felt about working nonunion. (Tr. 54.) Muraski did not deny
making this statement or asking Cook this question. Moreover,
the statement is consistent with Brandeis’ company policy as
expressed in its employee handbook. It states, in relevant part,
that “[t]his is a non-union organization. It always has been and
it is certainly our desire that it always will be that way.” (GC
Exh. 11, 16.) The Brandeis’ employee handbook also states, in
relevant part:

You have a right to join and belong to a union and you have
an equal right NOT to join and belong to a union. If any other
employee should interfere or try to coerce you into signing a
union authorization card, please report it to your [s]upervisor
and we will see that the harassment is stopped immediately.

Thus, it is more likely, than not, that Muraski reiterated the
Company policy in the course of telling Cook about the Com-
pany. Further, and in the absence of any denial, specific or
otherwise, I credit Cook’s testimony that Muraski asked him
how he felt about working for a nonunion company.
At the end of the interview, Muraski told Cook that he would
have to take an exam and he would be interviewed by the
branch manager. Muraski also opined that Cook would be
hired.
BRANDEIS MACHINERY & SUPPLY CO. 533
Cook met with Branch Manager Freeman the next day, and
shortly after that he was hired. He started work on January 2,
2002.
2. Analysis and findings
In Rochester Cadet Cleaners, Inc., 205 NLRB 773 (1973),
the Board stated:

[Q]uestions concerning former union membership and union
preference, in the context of a job application interview, are
inherently coercive, without accompanying threats (sic), and
are therefore violative of Section 8(a)(1) of the Act, even
when the interviewee is subsequently hired.

See also, Bighorn Beverage, 236 NLRB 736, 751 (1978).
The credible evidence shows that Muraski informed Cook
that Brandeis was nonunion and probably would remain nonun-
ion. The evidence further shows that Muraski asked Cook how
he would like working for a nonunion company. These state-
ments were consistent with the Company policy as outlined in
the employee handbook. I find that Muraski’s interview state-
ments were aimed at ascertaining Cook’s union preference and
are inherently coercive and violative of the Act. Moreover,
Muraski’s casual question about Cook’s former employer can
reasonably be viewed as a question aimed at ascertaining his
former union membership, and therefore interferes with the job
applicants Section 7 rights under the Act. Therefore, I find that
Muraski’s questions during Cook’s job interview violated Sec-
tion 8(a)(1) of the Act.
In addition, the complaint alleges that the Respondent vio-
lated the Act by promulgating and maintaining a written policy
encouraging employees to report other employees who solicit
support for a union. The Board has held that an employer vio-
lates the Act when it invites its employees to report instances of
fellow employees bothering, pressuring, abusing, or harassing
them with union solicitations and it implies that such conduct
will be punished. Greenfield Die & Mfg. Corp., 327 NLRB
237, 238 (1998). The Respondent’s policy statement invites the
employees to report “harassment” by union organizers attempt-
ing to get employees to sign authorization cards. It reasonably
could be construed to mean that the conduct would be pun-
ished. Accordingly, I find that the Respondent’s written policy
as stated in its handbook unlawfully interferes with the employ-
ees’ Section 7 rights and therefore violates Section 8(a)(1) of
the Act as alleged in paragraph 5(b) and (7) of the complaint.
C. Productivity Peaks, Montgomery Resigns
By all accounts, James Montgomery was a crackerjack field
mechanic. His adept field mechanical skills were widely recog-
nized by the Brandeis’ customers serviced by the South Bend
facility. As the South Bend facility developed its customer
base, profitability based on mechanic productivity steadily
grew.2
In December 2001, the utilization percentage for the South
Bend facility was 50.5 percent. Management was concerned
about the utilization rate, but recognized that it would take time

2 The branch had one field mechanic (Montgomery) and two shop
mechanics (Cook and Karre).
for a new branch to develop a customer base.3 (Tr. 369–370.) In
January 2002, after its first full month of operation, the utiliza-
tion rate for South Bend was 78.6 percent, which was consid-
ered fairly acceptable. In February 2002, the rate increased to
94 percent, which was unusually high.
In February 2002, Montgomery resigned to work for R&R
Excavating, one of the Brandeis’ largest parts and service cus-
tomers in the South Bend area.4 (Tr. 241.) Thus, Freeman had
to hire a field service mechanic to replace Montgomery.
D. Brandeis Hires Steve Benefield
1. Facts
On February 18, Muraski interviewed Steven Benefield for
the field service mechanic position. Benefield, like Cook, was a
long time member of the Union. (Tr. 167.) He learned about the
job from union organizer Phil Overmyer. Benefield was rec-
ommended to Muraski by Cook. Muraski asked Benefield
about his work experience, and in particular, if he worked with
Komatsu equipment. Benefield told Muraski that he had
worked on heavy equipment for LTV Steel for 10 years, which
was untrue, and that he could fix anything if he had a manual.
(Tr. 169, 496.) He did not tell him that he was a union member.
Muraski was impressed with Benefield and spoke to Branch
Manager Freeman about hiring him.
On February 25, Benefield was interviewed by Freeman and
Muraski. Freeman went over Benefield’s work experience.
When he asked him about his mechanic skills, Benefield told
him that if he had a book (i.e., a repair manual) he could repair
anything and that he was an excellent mechanic. (Tr. 242.)
According to Benefield, Freeman also asked him what he
knew about Brandeis and explained the history of the Com-
pany. Benefield stated that Freeman told him that Brandeis was
a nonunion shop and “they would close the doors before they
went union.” (Tr. 169.) Freeman did not deny making that
statement. He was unsure whether he gave Benefield a history
of the Company and did not recall telling Benefield that
Brandeis was a nonunion shop. He admitted that he hurried
through the interview and that he was more concerned with
Benefield’s technical skills. (Tr. 243.) In the absence of a spe-
cific denial, and for demeanor reasons, I credit Benefield’s
testimony on this point. In addition, I find that the remarks are
consistent with the message contained in the employee hand-
book, that is, that the Company is nonunion and hopes to re-
main that way.
Freeman hired Benefield, who began a 90-day probationary
period. If his work was satisfactory, his employment would
become permanent on June 4, 2002. (Tr. 202–203.)

3 Brandeis uses a service analysis report to track mechanic produc-
tivity, which it correlates to profitability. The computer-generated
report divides the number of hours charged to revenue jobs by the
number of hours paid to the mechanics. The standard utilization for the
Company is 80 percent. (Tr. 369.)
4 The South Bend facility’s three largest customers were Schrock
Excavating, R&R Excavating, and Clark Farm Aggregates.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 534
2. Analysis and findings
Paragraph 5(c) of the complaint alleges that the Respondent
violated Section 8(a)(1) of the Act when Freeman stated that
the South Bend facility would close if unionized. The issue here
is whether Freeman’s statement is an unlawful threat in viola-
tion of Section 8(a)(1) of the Act or employer protected speech
under Section 8(c) of the Act.
In NLRB v. Gissel Packing Co., 395 U.S. 575, 620 (1969),
the Supreme Court articulated the standard for evaluating the
lawfulness of employer statements concerning employees’
Section 7 rights to support or oppose a labor organization or to
engage in or refrain from engaging in concerted activity. The
Court stated “[a]n employer is free to communicate to his em-
ployees any of his general views about unionism or any of his
specific views about a particular union, so long as the commu-
nications do not contain a ‘threat of reprisal or force or promise
of benefit.’” 395 U.S. at 618. The Court further stated that an
employer “may even make a prediction as to the precise effects
he believes unionization will have on his company.” Id. The
prediction however must be “carefully phrased on the basis of
objective fact to convey an employer’s belief as to demonstra-
bly probable consequences beyond his control or to convey a
management decision already arrived at to close the plant in
case of unionization.” Id. The employer is therefore free only to
tell “what he reasonably believes will be the likely economic
consequences of unionization that are outside of his control,”
and not “threats of economic reprisal taken solely on his own
volition.” Id. The evaluation must be made in the context of the
labor relations setting, taking into account the totality of the
relevant circumstances. Mediplex of Danbury, 314 NLRB 470,
471 (1994).
Freeman’s remarks were not accompanied by any objective
factual information explaining why the plant would have to
close based on factors beyond the Respondent’s control. Nor is
there any evidence of a previously made management decision
to shut down operations for economic reasons in the event of
unionization. Rather, Freeman’s statement that the Respondent
will “close the doors” if the branch is ever unionized conveys
the impression that it would be entirely within the Respondent’s
control to close or not to close the facility. I find that Freeman’s
statement is not protected by Section 8(c) of the Act. I further
find that the unrebutted statement is a threat of reprisal or force
against any attempt to unionize. Accordingly, I find that Free-
man’s statement violates Section 8(a)(1) of the Act as alleged
in paragraph 5(c) of the complaint.
E. Benefield’s Work Performance Problems
1. Rex Royer
Rex Royer, a small Brandeis’ customer, owned two Komatsu
excavators. On March 21, 2002, Benefield performed a PBC
hydraulic tune up on one of Royer’s excavators. Royer testified
that after Benefield completed the work, the machine ran
slower than before the tune up. (Tr. 250.) Royer stated that he
complained to Benefield about the problem, and that Benefield
attempted to fix it at least twice, but he could not get the ma-
chine to run correctly.5 Royer stated that he complained to
Brandeis about Benefield’s work, so Brandeis waived payment
of the $428 bill for performing the tune up. (Tr. 257; R. Exh.
6.)
2. Shrock Excavating
On April 4, Benefield did a hydraulic tune up on two excava-
tors owned by Shrock Excavating, one of Brandeis’ largest
customers in the South Bend area. Shrock’s manager, Scott
Clark, did not like the way the machines ran after the tune up
and complained to Muraski. (R. Exh. 18.)
On April 25, Benefield was again sent to Shrock to perform
a hydraulic tune up on another machine. Scott Clark testified
that Benefield incorrectly set the pressures and brake on the
machine, so that it stopped abruptly causing the excavator to
spin in a dangerous manner. (Tr. 263.) Clark testified that he
complained to Muraski about Benefield’s work and told him
that he did not want Benefield to return to correct the problem.
Instead, he asked James Montgomery, who worked for R&R
Construction,6 to adjust the machine. (Tr. 264.)
3. R&R Excavating
On March 13, 2002, Benefield performed warranty service
work on a loader owned by R&R Excavating. (Tr. 286.) R&R’s
service manager, James Montgomery, the former Brandeis’
field mechanic, observed Benefield perform the work. He testi-
fied that Benefield appeared unsure of himself and that he had
to coach Benefield through certain parts of the work. After
Benefield completed the service work, the loader worked fine
for a while, but then began blowing white smoke from the ex-
haust. (Tr. 289.)
On Friday, May 1, 2002, Benefield was dispatched to R&R
to determine the cause of the white smoke. He took shop me-
chanic, Mike Karre,7 with him to perform a diagnostic test on
the machine using a laptop computer. Neither Benefield nor
Karre had any experience using the laptop. After checking the
manual, and consulting Montgomery, the computer displayed a
fault code indicating that a sensor had to be replaced. Mont-
gomery, who had an off-site appointment, left the premises
while Benefield made the repair. After the sensor was replaced,
however, the error code came up on the computer even when it
was not hooked up to the machine. Benefield and Karre came
back the next day, Saturday, May 2, which meant that they
were being paid overtime for weekend work. The overtime was
not covered under the warranty and therefore the customer,
R&R, incurred the additional cost. When Montgomery arrived
at the jobsite, he examined the laptop computer and realized
that Benefield and Karre had been running the diagnostic test in

5 Royer testified that because the excavator ran slower after the tune
up, it took more time to complete a job, and he was unable to charge
the same hourly rate for excavating.
6 Clark and Montgomery had developed a good rapport and friend-
ship. Because Montgomery also did side jobs servicing and repairing
heavy equipment, Clark asked him to correct the problem.
7 Karre was a relatively inexperienced shop mechanic, who went
along to observe and learn on a day when there was not very much to
do in the shop. (Tr. 474.)
BRANDEIS MACHINERY & SUPPLY CO. 535
a simulator, rather than troubleshooting mode, and therefore
they had been trouble shooting a problem that did not exist.
Montgomery decided to troubleshoot the problem himself.
He found that the overhead adjustments were off, the injectors
were incorrectly set, and the valves were loose. (Tr. 294.)
Montgomery determined that some of the bolts had not been
torqued properly. He also determined that Benefield had made
these adjustments when he previously worked on the machine.
(Tr. 294–295.)
Montgomery complained to Muraski and told him that he
was not going to pay for the overtime.8 He also told him that
Benefield did not know what he was doing and that he did not
want him to work on R&R equipment again. (Tr. 295.) Mont-
gomery told Muraski that he would make the repairs himself,
that he wanted a credit for the overtime billed by Benefield and
Karre, and he wanted to be reimbursed for the cost of making
the repairs himself under the warranty. If Muraski refused,
Montgomery told him that he would demand a field mechanic
be sent from Indianapolis in the future, which would reflect
poorly on the South Bend facility’s service department. Mu-
raski complied with Montgomery’s demand, agreed to cover
Montgomery’s service costs under the warranty work, and gave
him a credit for the overtime.
F. Cook and Benefield Begin Organizing Activity
In early April, Cook was told by union organizer Phil Over-
myer to initiate an organizing campaign at Brandeis. (Tr. 58.)
Cook spoke first to employee Ken Lubinski telling him that he
had spoken with a union organizer who wanted to know if the
Brandeis’ employees were interested in starting a union. (Tr.
58.) Lubinski told Cook he would think about it. The next day
he told Cook he was not interested. (Tr. 412.) Lubinski testified
that he did not tell anyone about his conversations with Cook.
(Tr. 412.)
Two weeks later, on May 1, Cook took Mike Karre to lunch
to discretely question him about joining a union. Cook told
Karre about Union wages and benefits. (Tr. 60.) Karre asked
Cook if Benefield was also a member of the Union, but Cook
did not respond. He continued talking about union benefits.
Karre told Cook that he wanted to meet with the union organ-
izer. The next day, May 2, Karre met Cook, Benefield, and
union organizers Phil Overmyer and Delbert Watson at a local
restaurant. They went over the benefits of joining the Union
with Karre. (Tr. 171.) That night Karre talked to his parents
about his meeting with the union organizers. They advised him
against joining a union. (Tr. 473.)
On May 3, Karre went to lunch with Freeman and Muraski.
(Tr. 245.) He told them that Cook and Benefield had ap-
proached him about joining a union. Freeman was stunned. (Tr.
246.) When they returned from lunch, Freeman called Bene-
field into his office to tell him that the training session that he
and Karre were scheduled to attend in Atlanta, Georgia, was
off. (Tr. 173.) He asked him to return the advance check for
training and told him that he would attend a class in July.

8 Benefield did not tell Muraski about the problem with the laptop
and also failed to tell him that Montgomery was upset. (Tr. 215-216;
GC Exh. 3; R. Exh. 7.) Muraski first heard of the problem from Mont-
gomery.
Benefield promptly phoned Cook, who was home from work
that day. Benefield told him that he thought that Brandeis knew
that they were union members because Freeman canceled his
training trip. (Tr. 62.) Benefield immediately called union organ-
izer Phil Overmeyer and left a message telling him that Benefield
believed that Brandeis knew that they were trying to organize a
union. That afternoon around 3 p.m., Freeman received a fax
letter from Overmeyer advising him that Cook and Benefield
were union members who were going to try to organize the South
Bend branch employees. (Tr. 30, 246; GC Exh. 4.)
When Freeman received the fax, he phoned Brandeis’ Presi-
dent Gene Snowden and Vice President Larry Shuck, informing
them that Cook and Benefield were union organizers. They told
him that they were going to consult legal counsel and that he
was not to make any major personnel decisions without con-
sulting them first. (Tr. 246–247; 374.)
The following Monday, May 6, Freeman came to work later
than usual.9 He refused to speak to Cook and Benefield unless
it was business related. He phoned Snowden and Shuck to ad-
vise them that over the weekend James Montgomery from R&R
Excavating had complained about work performed by Bene-
field. He told them that Montgomery did not want Benefield to
do any more work for R&R Excavating. (Tr. 310.) Freeman
was concerned that Brandeis might lose R&R’s service busi-
ness. The possibility of terminating Benefield was discussed,
but because of the union organizing drive, it was decided to
give Benefield the benefit of the doubt by extending his 90-day
probationary period. (Tr. 384.) It was also decided that
Snowden and Shuck would travel to South Bend on Wednes-
day, May 8, to advise Benefield of his extended probation and
to meet with the employees.
G. May 7, 2002
On May 7 Freeman and Muraski held a weekly meeting. Ac-
cording to Benefield, they emphasized that the South Bend
branch was losing money, that sales and services were down,
and that the parts department was barely breaking even. (Tr.
176.) Benefield further testified that Freeman and Muraski
stressed the importance of working together as a team.
Later that day, Cook and Benefield were working in close
proximity of employee Ken Lubinski, when Benefield made the
comment that nobody was talking to them, except Ken Lubin-
ski. According to Benefield, Lubinski started yelling at Bene-
field to stop talking to him and to stop sending union organizers
to his house.10 (Tr. 178.) Employee Kevin Hardy, who was
working nearby in the parts department, heard the shouting and
intervened, telling Benefield that he better leave Lubinski alone
or he might do something that was regrettable. (Tr. 178.) Bene-
field testified that when he later told Muraski that Hardy had
threatened him and that Lubinski had screamed at him, Muraski
rolled his eyes without responding.

9 Freeman had a heart condition and diabetes. Over the weekend, he
had been admitted to the hospital with chest pains. (Tr. 308–309.)
10 Lubinski testified that union organzier Overmyer came to his
home, where Lubinski told him three times that he was not interested in
joining a union. (Tr. 413.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 536
H. May 8, 2003
1. Facts
The next day, May 8, Lubinski complained to Freeman about
Benefield talking to him about the Union. Lubinski told Free-
man that he did not want any contact with Cook and Benefield,
except about Company business. (Tr. 414.) When Benefield
arrived at work on May 8, Muraski asked him to follow him to
Freeman’s office. There, behind closed door, Benefield was
told that the meeting had been called to talk about Ken Lubin-
ski. (Tr. 179.) Benefield asked for a union representative. When
Freeman told him that Brandeis did not recognize his Union,
Benefield asked for Cook to be present. Freeman reluctantly
allowed Cook to attend.
Freeman told Benefield that Ken Lubinski had requested that
Benefield “not talk to him, speak to him, [or] work by him.”
(Tr. 179, 315–316.) Benefield explained that it was Lubinski
who became angry and started yelling at him, and that Hardy
intervened and threatened Benefield. He on the other hand had
remained calm and promptly reported the incident to Muraski.
After Freeman confirmed that Benefield had reported the inci-
dent to Muraski, he told Benefield to stay away from Lubinski
and that he would talk to Hardy and get back with him. (Tr.
179–180.) A short time later, Freeman advised Benefield that
Kevin Hardy told him that he did not threaten Benefield. In-
stead, when he stated that he would do something that he re-
gretted, he meant that he (Hardy) would quit his job purport-
edly because he was tired of hearing about the Union. Freeman
told Benefield that Hardy also requested that Benefield not
speak to him. (Tr. 180.) On that basis, he told Benefield that if
either he or Cook needed to talk to these employees they had to
do it through Muraski.11 (Tr. 316.)
Also on the morning of May 8, Snowden and Shuck met
with the employees to tell them the Company’s position on the
Union. (Tr. 379.) Snowden had a written speech, which he
worked from, but he did not read it or memorize it. (Tr. 380.)
Cook secretly taped the session. (GC Exh. 12.) Snowden at one
point told the group:

Well they have the right to talk to you. If they want to talk to
you they can. But again you have the right not to listen. If they
follow you on your property you have a right to tell them to
leave the property. They don’t have any right on your prop-
erty if you don’t want them on it. So, once again, if the union
gets so aggressive that you feel you’re being harassed, then
we need to know about it because we will do everything
within our legal means to keep you from being harassed.

(GC Exh. 12.)
After the group meeting, Shuck and Snowden met with
Benefield and gave him a copy of the probationary letter. (GC
Exh. 5.) They also discussed the problem reported by Mont-

11 As Freeman explained, the employees were becoming very angry
and the branch operation was being disrupted. (Tr. 316.) He asked
Cook and Benefield “to basically kind of cool their efforts, let things
cool down, that people were angry.” (Tr. 316.) On the other hand, he
testified that Snowden and Shuck told him not to interfere with the
organizing efforts.
gomery. The probationary letter expressed concern that Bene-
field did not follow procedure by contacting his manager for
guidance and instead sought help from the customer in making
the repair. It also pointed out that Benefield had failed to report
the potential customer relations problem immediately to Mu-
raski. The letter stated that Benefield would be provided addi-
tional training to improve his knowledge and would be placed
on 90-day probation within which Benefield was expected to
improve communications with his manager, as well as the qual-
ity of his work.12 In the event Benefield failed to do so, it could
result in termination.
2. Analysis and findings
Paragraph 5(d) of the complaint alleges that Snowden’s
statement encouraging employees to report other employees
who solicit support for the Union was unlawful. Snowden’s
statement runs afoul of the Greenfield Die & Mfg, Corp., 327
NLRB 237, 238 (1998). The speech was a direct invitation for
employees to report any instances of being harassed, pressured,
or bothered by union organizers. It also could be reasonably
construed to mean that the conduct would be punished. As
such, I find that the speech encouraging employees to report
union supporters who solicit their support, with implications
that those employees will be disciplined, violated Section
8(a)(1) of the Act as alleged in paragraph 5(d) of the complaint.
Paragraph 6(e) of the complaint alleges that the Respondent
violated Section 8(a)(1) and (3) of the Act by giving Benefield
a written reprimand and extending his 90-day probation,
thereby discriminating against him with respect to the terms
and conditions of his employment because he was a union
member engaging in activities on behalf of the Union.
In Wright Line, Inc., 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the Board
established an analytical framework for deciding discrimination
cases turning on employer motivation. The General Counsel
must persuasively establish that the evidence supports an infer-
ence that union activity was a motivating factor in the em-
ployer’s decision.13 Specifically, the General Counsel must
establish union activity, knowledge, animus or hostility, and
adverse action, which tends to encourage or discourage union
activity. Farmer Bros. Co., 303 NLRB 638, 649 (1991). Infer-
ences of animus and unlawful motive may be inferred from the
total circumstances proved and in some circumstances may be
inferred in the absence of direct evidence. Fluor Daniel, Inc.,
304 NLRB 970 (1991). Once accomplished, the burden shifts to
the employer to persuasively establish by a preponderance of
the evidence that the reasons for its decision were not pretex-
tual or that it would have made the same decision, even in the
absence of protected concerted activity. T&J Trucking Co., 316
NLRB 771 (1995).

12 The evidence shows that during his employment tenure at
Brandeis, he received the following onsite training: WA501 motor
systems and trouble shooting (March 26–28); excavator tune up (April
11–12); Blaw-Knox paver (April 15–19); and forklift operator and
training certification (May 22). (Tr. 218.)
13 Manno Electric, Inc., 321 NLRB 278, 280 fn. 12 (1996).
BRANDEIS MACHINERY & SUPPLY CO. 537
a. The General Counsel’s evidence
The undisputed evidence shows that the Respondent knew of
Benefield’s union affiliation and activity before Benefield was
disciplined. Prior to the reprimand, Brandeis’ Manager Free-
man was informed that Benefield and Cook had approached a
fellow employee about joining the Union. Freeman was also
faxed a letter from a union organizer indicating that Benefield
and Cook were attempting to organize the South Bend branch.
There is also ample evidence of the Respondent’s animus to-
ward the Union. This animus was evident in the policy state-
ment in the Brandeis’ employee handbook declaring opposition
to unions, as well as Snowden’s May 8 speech to the employees
reiterating the Company position. Further evidence can be
found in the disapproving and disparaging comments about
unions that Muraski and Freeman made during interviews with
Cook and Benefield, respectively.
The timing of an employer’s discipline is an element com-
monly used to support a showing of discriminatory motivation.
Packaging Techniques, Inc., 317 NLRB 1252, 1257 (1995).
The issuance of the written reprimand came within days after
Benefield was identified as a union organizer. Thus, the timing
of the adverse action taken by the Respondent is highly suspect,
and supports an inference that the discipline was taken because
of Benefield’s union affiliation and activity.
I therefore find that the General Counsel has satisfied her ini-
tial evidentiary burden. The burden now shifts to the Respon-
dent to persuasively establish by a preponderance of the evi-
dence that it would have disciplined Benefield and placed him
on extended probation, regardless of his union membership.
b. The Respondent’s evidence
The Respondent argues, and the evidence shows, that Bene-
field was a probationary employee and the reasons cited for his
disciplining Benefield were not fabricated. Specifically, Bene-
field’s discipline came only after several customers expressed
dissatisfaction with Benefield’s work. The evidence shows that
complaints were received from two of Brandeis’ largest cus-
tomers, as well as another customer. These customers credibly
testified that Benefield failed to successfully fix machinery
problems after multiple attempts. The customers asked that
Benefield no longer service their equipment in the future,
which effectively resulted in a loss of future business for the
Company. In addition, the costs of the repairs made by Bene-
field had to be absorbed by the Company thereby resulting in
an immediate financial loss for the Company. The evidence
also shows that the complaints by Montgomery brought the
matter to a head, and were made coincidently at the same time
that the Company found out about Benefield’s union affiliation.
If anything, the evidence viewed as a whole shows that the
Respondent used restraint in dealing with Benefield by not
outright terminating his employment.
The General Counsel nevertheless argues that Benefield was
not treated the same as nonunion affiliated employees. It argues
that Mike Karre also made several errors on the job, but was
not disciplined. I do not agree. Even though Karre did not have
anywhere near the same mechanical experience that Benefield
purportedly possessed, he nevertheless was given a verbal
warning and was written up for a mistake on the job. (Tr. 487.)
The credible evidence also shows that other employees were
disciplined, regardless of union membership. A shop mechanic
was fired prior to December for poor performance during his
probationary period, after only approximately 2 weeks at
Brandeis. (Tr. 240–241.)
The General Counsel also argues that Benefield did not re-
ceive the training required to service some of the equipment
that he failed to properly service. The undisputed evidence
shows Benefield represented to Freeman and Muraski that he
was a highly experienced mechanic who could fix anything so
long as he had a manual. Given that statement, and the increas-
ing frequency and variety of customer complaints that were
received in the first 2 months of his employment, the evidence
supports a reasonable inference that he significantly overstated
his abilities and experience, which could have affected the type
and amount of training that he received during that 2-month
period. That notwithstanding, the evidence shows that Bene-
field received the following onsite training prior to his extended
probation: WA501 motor systems and trouble shooting (March
26–28); excavator tune up (April 11–12); and Blaw-Knox paver
(April 15–19).14 (Tr. 218.) Given the fact that he only began
working for the Company in the early part of March, it is rea-
sonable that the amount of training that he received would be
progressive in order to enable him to engage in revenue produc-
ing work.
Based on the evidence viewed as a whole, I find that the Re-
spondent has persuasively established by a preponderance of
the evidence that its reason for disciplining Benefield was not
pretextual, and that it would have made this decision even in
the absence of Benefield’s union activity.
Thus, I find that the Respondent did not violate Section
8(a)(1) and (3) of the Act when it gave Benefield a written
reprimand and extended his probation. Accordingly, I shall
recommend the dismissal of paragraph 6(e) of the complaint.
I. Union Activity Continues
1. Facts
On May 9, Cook was working in the shop when Freeman
asked him to deliver a message to his union officials. He told
Cook that they should not contact him by phone, fax, or letter.
Instead, all communications should be addressed to Brandeis’
President Snowden. (Tr. 82.) Cook testified that Freeman also
pointed to a union button on Cook’s hat and told him that he
did not appreciate him wearing the button at work. (Tr. 83.)
Freeman did not deny making this statement to Cook. Instead,
Brandeis’ counsel asked Freeman if he recalled seeing Bene-
field wearing a union button on May 9. Freeman testified that
Benefield wore the button on top of the Brandeis’ logo, so he
asked him to remove the button from the logo. (Tr. 315.) Free-
man stated that he did not tell him he could not still wear the
button. Freeman also stated that he did not reprimand Cook for
wearing it in the first place. (Tr. 315.)
Also on May 9, a service meeting was held during which
Muraski told the employees that they could no longer take a 1-
hour lunch and they no longer could go to lunch at the same

14 After his probationary period was extended, Benefield attended a
forklift operator certification training (May 22).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 538
time. Rather, all lunches would be a half-hour long and lunches
had to be staggered so one person would go at a time. (Tr. 183.)
On May 10, Benefield asked Karen Bailey, a secretary, if her
husband would be interested in joining the Union.15 (Tr. 150.)
According to Benefield, Bailey responded, “No, absolutely not.
I have to put up with you here. It is not coming to my house . . .
Don’t send those people to my house, so help me God.” She
left and slammed the door behind her. (Tr. 184; 350.)
As Benefield was walking back to his workstation, Muraski
asked to speak with him. They walked back to the parts de-
partment, where unknown to Muraski, Benefield taped their
conversation. (Tr. 185.) Muraski effectively told Benefield that
he had walked in on the end of the exchange between Bailey
and Benefield. Although he did not hear the entire conversa-
tion, it was his understanding that Benefield could not solicit
employees who were working, even though Benefield was on
break or lunch. (GC Exh. 19.) Benefield asked Muraski, “so
that means that we can’t talk to anybody that’s working about
anything” and Muraski replied, “No, about soliciting your
stuff.” Benefield stated, “About soliciting what kind of stuff?”
and Muraski responded, “Your union.” Muraski did not deny
making the statement. Rather, he testified “it is just like I said
here in this transcript. I told him. I said, you know, after work,
before work, you know, do whatever you want to do but during
working hours, let us just—to keep the peace.” (Tr. 185; 505.)
On May 14 Cook was wearing a union hat, when Muraski
approached him carrying a hat with a Brandeis’ logo. Accord-
ing to Cook, Muraski handed him the Brandeis’ hat telling him
that he might want to wear the Brandeis’ hat, instead of wear-
ing the union hat. (Tr. 109.) Muraski did not deny making the
statement.
2. Analysis and findings
It is settled law that the display of items, such as union but-
tons, is protected by Section 7 of the Act, unless the employer
can show that special circumstances existed at its facility that
outweighed the employees’ statutory rights. Escanaba Paper
Co., 314 NLRB 732, 733 (1994). Freeman admitted that he
asked Benefield to remove his union button from on top of the
Company logo. There is no testimony, however, that Freeman
told Cook that he could still wear the union button somewhere
else on his uniform. The fact that Freeman did not threaten
Benefield with discipline for wearing the union button is not
pertinent to an analysis of this type of a violation of the Act.
Finally, there is no evidence, or argument, that special circum-
stances necessitated the removal of the button. Thus, I find that
Brandeis violated 8(a)(1) of the Act by prohibiting Benefield
from wearing a union button on the jobsite as alleged in para-
graph 5(e) of the complaint.
Wearing a hat with a union insignia is also protected by Sec-
tion 7 of the Act. Id. The unrebutted evidence shows that Mu-
raski strongly implied that Cook should remove his union hat
and replace it with a Company hat. Muraski did not indicate
that it was optional to wear the union hat. Again, no special
circumstances existed that would warrant Muraski making the
statement to remove the hat. Further, telling one employee that

15 Bailey’s husband owns an excavating company.
he should wear a Company hat, absent evidence that all other
employees are required to wear Company hats, is an additional
interference with an employee’s Section 7 rights. I therefore
find that the Respondent violated Section 8(a)(1) as alleged in
paragraph 5(g) of the complaint by impinging on Cook’s right
to wear a hat with a union insignia.
Paragraph 5(f) of the complaint alleges that the Respondent
violated Section 8(a)(1) of the Act orally promulgating a rule
that prohibited employees from discussing the Union during
working time, while allowing other nonwork related subjects to
be discussed during working time. When an employer imposes
a restriction on employees’ conversations, it violates Section
8(a)(1) of the Act if the restriction applies only to union-related
talk. Opryland Hotel, 323 NLRB 723, 729 (1997). See also,
Industrial Wire Products, 317 NLRB 190 (1995). The evidence
shows that Benefield tape-recorded a conversation in which
Muraski indicated that the restriction on nonwork related talk
was only applicable to union discussions. (GC Exh. 18, 19.)
Muraski admitted to imposing this restriction on union-related
talk. (Tr. 505.) Muraski also did not prohibit other nonwork
conversations such as conversations concerning sports or other
personal issues. (Tr. 527.) Accordingly, I find that the Respon-
dent violated Section 8(a)(1) of the Act by prohibiting only
union-related conversations during work hours.
Paragraph 6(f)(i) and (ii) allege that the Respondent violated
Section 8(a)(3) of the Act by implementing a staggered lunch
hour and by shortening the lunch period from 1 hour to 1-1/2
hour. The unrebutted evidence shows that in April 2002, em-
ployee Ken Lubinski went to lunch with Cook, who unsuccess-
fully tried to persuade him to join the Union. On May 1 and 2,
Karre went to lunch with Cook and also union organizer Phil
Overmeyer, where they tried to persuade him to join the Union.
The following day, Karre went to lunch with Freeman and Mu-
raski where he told them that he went to lunch with Cook and
Benefield where they tried to get him to join a union. Less than
1 week later, the Respondent changed the lunch procedure,
thereby making it difficult for employees to take their lunches
at the same time, and thereby inhibiting the Union’s organizing
efforts. Under these circumstances, and particularly in light of
the timing of the announced changes, I find that the General
Counsel has satisfied her initial Wright Line evidentiary burden.
The Respondent asserts that the reason for the changes were
best articulated at trial by Vice President Larry Shuck. He testi-
fied that when he and President Snowden visited the South
Bend facility on May 8, an incident occurred at lunchtime,
which underscored the need to have a mechanic available dur-
ing lunch. Specifically, a truck leased by a customer had
stopped running a short distance from the facility. Snowden and
Shuck drove over to the truck to render assistance, and then
returned to the facility to get a mechanic. Everyone was at
lunch, so they prevailed on Muraski to help the customer. A
short time later, Karre returned from lunch, relieved Muraski,
and made the repair. Shuck testified that as a result of this inci-
dent he suggested to Freeman that he stagger the lunches. (Tr.
440–441.)
A careful analysis of situation, however, discloses that the
changes imposed by the Respondent were not necessary to
resolve the problem. According to Shuck, there was someone
BRANDEIS MACHINERY & SUPPLY CO. 539
available to render assistance to the customer, i.e., Muraski.
Only 5 minutes passed before he was relieved by Karre, who
quickly fixed the problem. Nor does the evidence disclose that
this was an on-going or repeated problem or that similar situa-
tions were likely to occur in the future given the nature of the
Respondent’s business. For example, the field service mechanic
for the most part is out of the building and most likely would
not be available to render assistance, regardless of whether
lunches were staggered and shortened. There are two in-house
service mechanics, who normally do not perform field service
work, but who conceivably could provide the type of coverage
that Shuck envisioned if they, and they alone, staggered their
lunch hours. But the changes imposed by Freeman went far
beyond what was necessary to remedy Shrock’s concern be-
cause the changes affected all employees, like Ken Lubinski
and Kevin Hardy, who were not mechanics, and Benefield who
was a field service mechanic. Indeed, the changes restricted
everyone from taking lunch with anyone else and therefore
stymied any attempts to organize during lunch time, which is
when Cook and Benefield previously had spoken to employees
one-on-one about joining the Union. Thus, I find that the Re-
spondent has failed to persuasively show that in the absence of
a union organizing drive, the changes that it imposed on lunch
times would have been the same.
Accordingly, I find that the Respondent violated Section
8(a)(3) of the Act as alleged in paragraph 6(f) of the Act.
J. Scott Clark Complains About Benefield
On Friday, May 17, Benefield was sent to Clark Farm Ag-
gregates, owned by Scott Clark,16 to repair a bucket cylinder on
a loader. In the course of making the repair, Benefield allowed
several gallons of oil to spill on the ground. Benefield did not
take appropriate action to contain the oil spill. Clark, who hap-
pened to be working in the area, saw that the oil was draining
toward his water ponds, and began building a sand berm with a
loader. (Tr. 264.) Once the oil spill was contained, Clark tried
to soak up the oil with absorbent pads.
Scott Clark was so upset that he took photos of the oil spill.
(R. Exh. 1, 2.) He phoned Muraski complaining about Bene-
field and demanded that his property be environmentally
cleaned. He also demanded that Brandeis pay for the cleanup.
Finally, Clark told Muraski that Benefield would never be al-
lowed to work again for Clark Aggregates or Schrock Excavat-
ing.17 (Tr. 271–272.) Clark followed up the phone call with a
letter and a bill for $895 for the cleanup expenses. (R. Exh. 3,
4.) Muraski agreed to pay the bill for the cleanup.
K. More Union Activity
1. Facts
On May 23, Benefield, Cook, and Karre were about to begin
an in-house bobcat equipment training session, when Freeman

16 Scott Clark was also a manager for Schrock Excavating, another
large customer of Brandeis.
17 The evidence shows that since that time, Brandeis has not per-
formed any service work for Clark Farm Aggregates or Schrock Exca-
vating. James Montgomery now services the equipment for both com-
panies. (Tr. 281.)
called Benefield away from the group. Freeman had seen union
stickers on the dashboard of Benefield’s service truck. Accord-
ing to Benefield, Freeman told him that it was a Company
truck, to remove the stickers immediately, or pay the conse-
quences. (Tr. 190.) Freeman asked Benefield if he was going to
remove the union stickers, and Benefield responded affirma-
tively. Freeman then sent Benefield to a customer jobsite to
repair an equipment breakdown.
The week of May 27, Benefield was on vacation. He never-
theless reported to the South Bend facility to walk a picket line
posted by the Union. For the next 2 days, he walked the picket
line wearing his Brandeis’ uniform. (Tr. 191–192.) On one of
those days, Benefield testified that he saw Freeman and asked
him how he enjoyed his holiday.
On May 29, Cook stopped to talk to the pickets on his way
into work. At the same time, Freeman entered the facility.
When Cook went to the locker room to prepare for work, Free-
man entered the locker room to tell Cook not to start work until
he found out from headquarters whether he could work after
being on the picket line. Cook told Freeman that he was going
to work anyway. According to Cook, Freeman told him that he
was being insubordinate and that he could be fired. (Tr. 92.)
Freeman testified that he did not know whether Cook could be
on a picket line and also go to work on the same day. He stated
that he “asked him basically to cool his heels until I checked
with counsel. I simply didn’t know if he could do this or not.”
(Tr. 323.) Freeman denied telling Cook that he would be dis-
charged for being insubordinate. (Tr. 324.) He testified that
Cook “smarted off to me when I told him that I was going to
talk to [counsel].” Cook was allowed to work and nothing was
deducted from his pay.
For demeanor reasons, I credit Freeman’s testimony that he
did not threaten Cook with discharge on May 29. Freeman
credibly admitted that he was uncertain if Cook could work
after picketing that day and that he asked Cook to delay starting
work until he called headquarters to ascertain the answer. The
evidence further reflects that Freeman was acting in accordance
with the instructions given to him by Company President
Snowden to take no action against Cook and Benefield without
getting prior approval. The evidence reflects that when Free-
man asked Cook to wait while he made a phone call, Cook
became confrontational by telling Freeman he was going to
start work anyway. At that point, Freeman told Cook he was
being insubordinate. For these, and demeanor reasons, I find
that Cook’s version of the story is less plausible than Freeman’s
testimony. Thus, I credit Freeman’s testimony that he did not
threaten Cook with discharge in the course of this discussion.
On May 31, Cook approached Karen Bailey, who immediately
told him that she did not want to talk to him. She testified that she
told Cook that the employees did not want a union and that he
and Benefield were forcing themselves on the employees. She
ended the conversation with “a few choice words.” (Tr. 352; R.
Exh. 33.) Cook complained to Freeman and Bailey was repri-
manded by Freeman for using foul language. (R. Exh. 34.)
2. Analysis and findings
Paragraph 5(h) of the complaint alleges that the Respondent
violated Section 8(a)(1) of the Act by threatening Cook with
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 540
discharge after Freeman saw Cook speaking to members of the
picket line.
As noted above, the evidence does not show that Freeman
threatened to discharge Cook on May 29 nor does it show that
Freeman cautioned Cook about being insubordinate for picket-
ing. Rather, the credible evidence viewed as a whole shows that
when Freeman legitimately asked Cook not to start work until
he got guidance from higher management, Cook became con-
frontational by telling Freeman, the branch manager, that he
was going to start work anyway. I find that Freeman’s reference
to insubordination was a reaction to Cook’s confrontation posi-
tion on starting work and not the fact that he was on the picket
line. Thus, Freeman did not caution Cook about being insubor-
dinate because of his Union or protected concerted activity.
Accordingly, I find that Freeman did not interfere with
Cook’s Section 7 rights under the Act and I shall recommend
that the allegations of paragraph 5(h) be dismissed.
L. Benefield is Terminated
1. Facts
On May 30, Freeman received a letter from Scott Clark reit-
erating his complaint about Benefield’s failure to contain the oil
spill on May 17, and demanding that Brandeis pay for the cost
of the cleanup. (R. Exh. 3.) Freeman spoke with Shuck telling
him that he did not believe that Benefield had the ability to
function in the field based on all the complaints that he had
received and the business that they had lost and may lose in the
future. (Tr. 325, 444.) They discussed the possibility of moving
Benefield to the shop, but decided against doing so because
work was slow and because the mechanics in the shop had
completed their probation without incident. The decision was
made to terminate Benefield.
On June 3, Benefield returned from vacation. Muraski asked
him to sweep the shop floor until Freeman was ready to meet
with him. When Freeman met with Benefield, he told him he
was terminated for inability to work as a field mechanic. Free-
man also told Benefield that they had considered bringing him
into the shop, but the other two mechanics had been there
longer. (Tr. 193.) Benefield asked for a termination letter.
Freeman gave him the letter and asked for the Company credit
keys and credit cards. (Tr. 193; GC Exh. 6.)
When Benefield told Freeman that he would have to retrieve
the keys from the Company truck, Freeman told him that some
security guards would accompany him to the truck.18 (Tr. 193–
194.) Benefield was escorted to the truck by three security
guards, who would not allow him to enter the truck. They asked
him for the keys to the truck and told him that they would allow
him to get his personal belongings after they searched the truck.
(Tr. 194, 16.) John Weir, a security guard, told Benefield that

18 Freeman testified that he hired the security guards because he was
concerned about Benefield’s demeanor. (Tr. 48.) He stated that Bene-
field had engaged in strange behavior in the shop and that Cook had
told him that nobody could control Benefield. (Tr. 47-48.) He thought
Benefield would become very confrontational when he was terminated.
(Tr. 46.) He testified that he told the security guards to protect the em-
ployees and Company property and to escort Benefield home, if neces-
sary. (Tr. 49.)
he was aware that Benefield had a weapon’s permit and that he
wanted to check the truck before allowing Benefield inside the
truck. Benefield refused to turn over the keys complaining that
the security guards had no right to search his personal belong-
ings.19 When he attempted to enter the truck, one of the guards
bumped him with his chest and pulled his coat open to display
his badge and gun. Benefield tried to step around the guard,
who blocked his path again. He went to Muraski’s office where
he dialed 911 to summons the police. (Tr. 194–195.)
Cook saw Benefield walking briskly through the shop to-
ward his truck followed by three men. When he asked Bene-
field what was going on, Benefield told him that they wanted
his keys to search the truck, that they thought he had a weapon,
and that he had been fired. (Tr. 94.) When Cook asked one of
the security guards what was going on, he was told it was none
of his business. Cook went outside and called Overmeyer on his
cell phone and Overmeyer called 911. (Tr. 95.) Cook went back
inside the facility.
The police arrived and spoke with Freeman. (Tr. 195.) Bene-
field convinced the police to allow him to get his personal be-
longings. The security guards searched the truck. Once they
determined that Benefield did not have a weapon, they allowed
him to retrieve his tools, and drove him home. (Tr. 99, 196.)
2. Analysis and findings
The General Counsel alleges that Benefield was discharged
because of his union affiliation in violation of Section 8(a)(1)
and (3) of the Act. The Wright Line analysis is the appropriate
standard for determining whether Benefield’s discharge was
motivated by unlawful discrimination.
a. The General Counsel’s evidence
It has already been established that the Respondent knew of
Benefield’s union affiliation and activity. The Respondent’s
animus toward the Union has also been established. The timing
of the adverse action supports an inference that Benefield was
terminated because of his union membership. The termination
came only one month after the Respondent became aware of
Benefield’s union membership and activity.
I find that the General Counsel has satisfied the initial evi-
dentiary burden of proof. The burden of proof now shifts to the
Respondent to persuasively establish by a preponderance of the
evidence that it would have discharged Benefield regardless of
his union membership.
b. The Respondent’s defense
The Respondent argues that Benefield’s continued poor job
performance, and not union affiliation, necessitated his termina-
tion. It asserts that it had no choice but to fire Benefield after
his repeated mistakes which cost the Respondent future busi-
ness and money.
The evidence shows that after Benefield’s probation was ex-
tended due to several instances of poor service, he had another
problem performing field mechanic work and created more
customer dissatisfaction issues for the Respondent. During his
extended probation, Benefield failed to properly repair a cylin-

19 Benefield had his tools, wallet, keys to his house, cell phone, and
clipboard with notes in the truck. (Tr. 194.)
BRANDEIS MACHINERY & SUPPLY CO. 541
der for Clark Farm Aggregates. (Tr. 221; 264–267.) By Bene-
field’s own account, he spilled oil on Scott Clark’s personal
property. (Tr. 222.) The oil nearly polluted a pond on Clark’s
property and Clark demanded Brandeis pay for the costs of the
clean up. Clark also stated that Benefield would never perform
work with the two companies Clark was involved: Clark Farm
Aggregates and Shrock Excavating. (Tr. 270–272.)
I find that this incident, and the resulting additional loss of
business, precipitated the decision to end Benefield’s employ-
ment with Brandeis. Benefield’s carelessness at Clark Farm
Aggregates was the final straw in a less than satisfactory em-
ployment tenure with the Respondent. His multiple errors were
counterproductive to the overall goal of establishing the South
Bend facility, which was specifically set up to better serve cus-
tomers in the area. Instead, the evidence viewed as a whole
shows that his termination was precipitated by the Clark Farm
incident, which was a continuation of major customers com-
plaints about Benefield’s work. Thus, I am persuaded by the
Respondent’s argument that it would have terminated Benefield
even in the absence of a union.
The General Counsel argues that Benefield’s performance
did not warrant termination. However, the evidence shows that
Benefield had difficulties performing numerous tasks which
resulted in multiple customer complaints. The General Counsel
also argues that shop mechanic Karre was treated less harshly
than Benefield, but the evidence does show although Karre did
make some mistakes on the job, he also was disciplined. (Tr.
486–489.) Moreover, Benefield’s mistakes not only were more
frequent and severe in nature, they also had a direct and con-
spicuous effect on customer relations.
Accordingly, the credible evidence viewed as a whole shows
that Benefield was discharged because of his job performance,
and not because he was affiliated and active with the Union. I
therefore find that the Respondent did not violate Section
8(a)(1) and (3) of the Act and recommend the dismissal of
paragraph 6(g) of the complaint.
M. Searching the Toolboxes
During the course of events on June 3, 2002, a security guard
went over to Cook’s toolbox and moved a clipboard lying on
top. (Tr. 17, 96–98). Cook became agitated telling the guard to
get out of his toolbox. Muraski, who was standing nearby, sim-
ply watched.
Paragraph 5(i) of the complaint alleges, and the General
Counsel argues, the security guards, acting as agents of the
Respondent, violated Section 8(a)(1) of the Act by searching
Cook’s toolbox. I am not convinced that a search was con-
ducted simply because a security guard picked up the clipboard
and looked underneath it. But even if that conduct constituted a
“search,” the General Counsel does not explain in her posthear-
ing brief the Union or protected concerted activity that Cook
was engaged in at the time and how moving the clipboard inter-
fered with that activity.
The General Counsel argues that a violation should be found
because this case is strikingly similar to Hospital of Good Sa-
maritan, 315 NLRB 794, 810 (1994). I do not agree. In Good
Samaritan, the nurses had begun to disseminate union literature
outside the hospital premises and therefore were clearly en-
gaged in union activity. That prompted security guards to check
their bags and other items as they came to work, and at the
same time the guards told the nurses that they would be written
up if they brought union flyers into the hospital. The evidence
there supported a reasonable inference that the search was to
find and confiscate union flyers. Here, it is questionable
whether there was a search in the first place, and its unclear
what union activity Cook was undertaking.
Under these circumstances, I find that the Respondent did
not violate Cook’s Section 7 rights when the security guards
moved his clipboard. Accordingly, I shall recommend the dis-
missal of paragraph 5(i) of the complaint.
M. Cook Quits
Cook was on vacation the week of June 10. On June 17, he
returned to the South Bend facility and waited in the parking lot
for Muraski. When Muraski arrived at 7:50 a.m., Cook asked
him what he needed to do to get his vacation pay. Muraski gave
him a form to complete and Cook gave Muraski a letter stating
that he was going on strike to protest the unfair labor practices
committed by Brandeis. (CP Exh. 1.) He completed the form
and went into the Brandeis’ store to talk to an employee. Free-
man and Muraski followed Cook into the store, where Freeman
told Cook to get off the property. (Tr. 103–104.)
N. Removing Union Literature
According to Cook, on his way out of the building, he went
through the lunchroom, where he noticed that a union flyer that
he had posted on the employee bulletin board prior to going on
vacation was missing.20 When Cook asked Freeman if he knew
what happened to the flyers, Freeman told him that he regularly
removes dated materials from the bulletin board, and that he
removed the union flyer. (Tr. 105.)
Paragraph 5(j) of the complaint alleges that Freeman unlaw-
fully removed the union literature on June 17, while allowing
other nonwork related materials to remain posted. There is no
testimony or documentary evidence, however, showing that on
June 17, there were “non-work” related materials on the em-
ployee bulletin board. Rather, the General Counsel’s evidence
shows the following.
Cook testified that he and Benefield first posted union litera-
ture on the employee bulletin board shortly after they became
union organizers. (Tr. 103.) He further testified that the same
day “somebody would rip them down, take them down.” (Tr.
103–104.) Cook testified that on May 24, he asked Freeman
about the missing union literature and Freeman told him “he
regularly cleans off the bulletin board, any dated materials, he
just takes it down, and that he had cleaned it off.” (Tr. 105.) At
the same time, however, Cook asked and received permission
from Freeman to post the union literature on the employee bul-
letin board again. (Tr. 105.) Cook testified that he posted the
union literature a second time, but he did not check “how long
they stayed but I just know they were gone when I departed

20 Cook testified that in mid-May, he had obtained Freeman’s per-
mission to post the union flyers on the bulletin board. (Tr. 105.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 542
Brandeis.”21 (Tr. 104.) At that time, he mentioned it to Free-
man, but he did not respond. (Tr. 103.)
In an effort to illustrate that the union literature had been re-
moved in mid-May, the General Counsel introduced two pho-
tographs. GC Exh. 15, which purportedly shows the union lit-
erature posted on the bulletin board and GC Exh. 14, which
purportedly shows nonwork related literature on the bulletin
board. Cook testified that he took both photos on the same day
approximately 4–5 hours apart. (Tr. 106, 147.) However, in
General Counsel Exhibit 15, which was taken first, the clock on
the wall shows the time as 3:50 p.m. That means that the sec-
ond photo, GC Exh. 14, would have been taken between 8–9
p.m. Cook conceded on cross-examination, however, that he
normally got off work at 5 p.m. and that he never worked to 8–
9 p.m. (Tr. 148–149.) He could not explain the discrepancy in
his testimony. Cook also conceded that he never took any pho-
tos prior to taking these two photos, which raises the question
of why he had a camera at work on this particular day. Thus,
the circumstances surrounding the taking of the photos is sus-
pect, and I find that their probative value is negligible.
The sum and the substance of the General Counsel’s evi-
dence, therefore, is that Freeman regularly takes dated materials
off the employee bulletin board, that on May 24, he admitted to
Cook that he removed some union literature in accordance with
his practice, and that at the same time he gave Cook permission
to repost the union literature, which Cook did. There is no evi-
dence showing how long the union literature remained posted a
second time. It could have been a day, a week, or a month.
There is no evidence that there was nonwork related materials
on the bulletin board on June 17, or that Freeman failed to re-
move nonwork related materials that were dated in accordance
with his practice. The evidence therefore does not support the
allegations of the complaint.
Accordingly, I shall recommend the dismissal of paragraph
5(j) of the complaint.
O. Changes in Terms and Conditions of Employment
1. Alleged onerous and less desirable work
Paragraph 6(a) alleges that between May 3 and June 3, 2002,
Benefield was assigned more onerous and less desirable work.
Benefield testified that after May 3, he “was left in the shop and
Mike Karre was sent out on field work and I was up in the loft
going through shop manuals.” (Tr. 198.) The General Counsel
argues in its posthearing brief that between May 3–June 3,
Benefield “spent a total 26.5 hours engaged in such activities as
cleaning, sorting, and studying shop manuals.” (GC Exh. 21.)
Paragraph 6(b) alleges that between May 3 and June 17,
2002, Cook likewise was assigned more onerous and less desir-
able work. Cook testified that from May 6 to June 17, he per-
formed cleaning tasks and read manuals, instead of being as-
signed mechanic work. (Tr. 111.) He testified that from May 3
forward Mike Karre was doing all the mechanic work. The
evidence shows that Cook started doing general maintenance
around the shop on April 30. The General Counsel argues in

21 Cook’s last day of work was June 17, 2001. The evidence there-
fore shows that the second posting could have remained posted any-
where from a day to over a month.
her posthearing brief that during this time period Cook per-
formed a total of 52 hours on nonmechanical work. (GC Exh.
22.)
Service mechanic Mike Karre credibly testified that work
was very slow during May and June 2002. On many days, he
literally did nothing, studied manuals, cleaned, and/or pulled
weeds. (Tr. 471–473.) On one day, May 7, he leveled rock in
the Company yard. An analysis of Karre’s green sheets (a
Company document completed by the mechanic to record a
specific job and the hours devoted to that job) shows that be-
tween May 3–June 3, he spent 19 hours doing “nothing,” 10
hours cleaning, 12 hours washing the truck, 10 hours studying
manuals, and 2 hours leveling rocks for a total of 53 hours of
nonmechanic work. (R. Exh. 43.) He also attended various
training sessions, company meetings, and took vacation during
this time period. Thus, he spent approximately the same amount
of time as Cook doing nonmechanical work.
In addition, and contrary to Benefield’s assertions, Karre did
not perform all or most of the field mechanical work. The evi-
dence shows that Benefield performed field work on the fol-
lowing dates for the following customers: May 9—Shrock and
Newton County; May 13—Majority; May 14—Shrock and
Merrill Landscape; May 15—Shrock and Merrill Landscape;
May 16—R&R Excavating; May 17—Clarks Farm and R&R;
May 20, 21, 22, and 23—Reitt Riley; May 24—Brooks. (GC
Exh. 21.)
Based on the evidence viewed as a whole, I find that the tes-
timonies of Benefield and Cook on these points are not credible
and that the arguments of the General Counsel are unpersua-
sive. Rather, the credible evidence shows that there was not
much productive work available during May and June, and that
Karre, along with Benefield and Cook, spent many hours doing
nonmechanical work. The evidence also shows that Benefield
continued to do field service mechanic work.
Accordingly, I shall recommend the dismissal of paragraph
6(a) and (b) of the complaint.
2. Alleged refusal to assign overtime
Paragraph 6(c) of the complaint alleges that between May 3
and June 3, the Respondent refused to assign overtime to Bene-
field. Benefield did not testify about this issue. Neither the
General Counsel nor the Charging Party’s counsel addressed
the issue in their posthearing briefs. The record shows that
Benefield worked overtime on May 5, 19, and 26. In light of all
of the above, I find that the evidence does not support the alle-
gation in the complaint. Accordingly, I shall recommend the
dismissal of paragraph 6(c) of the complaint.
Paragraph 6(d) of the complaint alleges that between May 3
and June 17, the Respondent refused to assign overtime to
Cook. Cook testified that after May 6, he did not receive any
overtime. (Tr. 112.) His testimony is corroborated by the Com-
pany’s timesheets. (R. Exh. 38.) Although the General Counsel
did not address this issue in her posthearing brief, the Charging
Party’s counsel argued that the Respondent unlawfully dis-
criminated against Cook by assigning more overtime to Karre
and none to Cook.
The evidence shows that Karre worked 2 hours of overtime
in the month of May 2001, and 12.5 hours of overtime in June
BRANDEIS MACHINERY & SUPPLY CO. 543
2001, 1 hour of which occurred during the week that Cook was
on vacation. (R. Exh. 38.) Muraski credibly testified that over-
time was dispensed on an as-needed basis, whereby the me-
chanic working on a particular machine at the time would work
overtime on that equipment if the customer was willing to pay
for the overtime in order to complete the job on that day. (Tr.
498, 500.) With overall business being light, there was simply
not much overtime work and it happened to be on the equip-
ment worked on by Karre.
Based on Muraski’s credible and unrebutted testimony, I find
that the Respondent has persuasively shown that its reason for
assigning overtime to Karre after May 6, was not pretextual.
Accordingly, I find that the Respondent did not violate Section
8(a)(1) and (3) of the Act and I shall recommend the dismissal
of allegations in paragraph 6(d) of the complaint.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2) (6) and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(1) of the Act by
engaging in the following conduct.
(a) Questioning job applicants about their union membership
and affiliation.
(b) Promulgating, maintaining, and enforcing a written pol-
icy that encourages employees to report to management any
employees who solicit support for a union.
(c) Threatening job applicants with plant closure if its em-
ployees choose to be represented by a union.
(d) Verbally encouraging employees to report to manage-
ment any employees who solicit support for a union and stating
that the Respondent would put a stop to such union solicitation.
(e) Prohibiting employees from wearing union buttons and
union hats on the job during working hours.
(f) Verbally promulgating, maintaining and enforcing a rule
that prohibits employees from discussing the Union during
working time, while allowing nonunion and nonwork discus-
sions during the same time.
4. The Respondent violated Section 8(a)(3) of the Act by
staggering lunch hours and shortening lunch time in order to
stifle union activity.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
6. The Respondent did not otherwise engage in any other
unfair labor practices alleged in the complaint in violation of
the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent having discriminatorily changed lunch
hours and lunch times in order to stifle union activity in viola-
tion of Section 8(a)(3) and (1) of the Act, I shall order the Re-
spondent to restore the lunch hour and lunchtime practice that
existed at its South Bend facility prior to May 8, 2002.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended22
ORDER
The Respondent, Brandeis Machinery and Supply Company,
South Bend, Indiana, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Questioning job applicants about their union membership
and union affiliation.
(b) Promulgating, maintaining, and enforcing a written pol-
icy that encourages employees to report to management any
employees who solicit support for a union.
(c) Threatening job applicants with plant closure if its em-
ployees choose to be represented by a union.
(d) Verbally encouraging employees to report to manage-
ment any employees who solicit support for a union and stating
that the Respondent would put a stop to such union solicitation.
(e) Prohibiting employees from wearing union buttons and
union hats on the job during working hours.
(f) Verbally promulgating, maintaining, and enforcing a rule
that prohibits employees from discussing the Union during
working time, while allowing nonunion and nonwork discus-
sions during the same time.
(g) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of rights guaranteed them
by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, restore the
lunch hour and lunchtime practice that existed at its South Bend
facility prior to May 8, 2002.
(b) Within 14 days from the date of this Order, rescind and
remove from its employee handbook the provisions which en-
courage employees to report to management other employees
who solicit support for unions.
(c) Within 14 days from the date of this Order, rescind in
writing its verbal policy prohibiting employees from discussing
unions during working hours, while permitting nonunion and
nonwork discussions to occur during work hours.
(d) Within 14 days after service by the Region, post at its fa-
cility in South Bend, Indiana, copies of the attached notice
marked “Appendix.”23 Copies of the notice, on forms provided
by the Regional Director for Region 25, after being signed by
the Respondent's authorized representative, shall be posted by
the Respondent immediately on receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reasonable

22
If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
23 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.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 544
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
Respondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since May 8, 2002.
(e) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.