Cardinal Home Products

National Labor Relations Board - Board Decisions

Apr 28, 2003

338 N.L.R.B. 1004 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1004
Cardinal Home Products, Inc. and United Steelwork-
ers of America, AFL–CIO, CLC. Cases 6–CA–
31665, 6–CA–31720, 6–CA–31810, 6–CA–31848,
6–CA–32053, and 6–RC–11868
April 28, 2003
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND WALSH
These consolidated representation and unfair labor
practice cases arise in the context of an election con-
ducted in a bargaining unit of production and mainte-
nance employees at the Linesville, Pennsylvania manu-
facturing facility of Cardinal Home Products, Inc. (Re-
spondent). The United Steelworkers of America, AFL–
CIO, CLC (Union), lost the election. The judge found,
however, that the Respondent committed a number of
violations of the National Labor Relations Act (the Act)
before and after the election, and that these violations
impeded the election process and prevented the possibil-
ity of ensuring a fair rerun election. The judge accord-
ingly recommended that the Respondent be ordered to
bargain with the Union pursuant to NLRB v. Gissel Pack-
ing Co., 395 U.S. 575 (1969). As set forth below, we
affirm in part and reverse in part the judge’s unfair labor
practice findings. We further find that the coercive ef-
fects of the Respondent’s unlawful conduct can be
erased, and a fair rerun election ensured, by the use of the
Board’s traditional remedies. We accordingly reverse
the judge’s recommendation that a Gissel bargaining
order be issued and direct instead that a second election
be held.1
Introduction
We address the following matters in turn below. We
commence with a brief summary of the factual back-
ground of this proceeding, which is fully set forth in the
judge’s decision. Second, we address a number of unfair
labor practice findings made by the judge, which we
adopt for the reasons set forth in his decision. Third, the

1 On February 5, 2002, Administrative Law Judge Benjamin
Schlesinger issued the attached decision. The Respondent filed excep-
tions and a supporting brief. The General Counsel and the Union each
filed an answering brief to the Respondent’s exceptions. The Respon-
dent filed a reply brief. The General Counsel and the Union each filed
limited exceptions to the judge’s decision and a supporting brief. The
Respondent filed an answering brief. The Union filed a reply 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, and conclusions as modified below and to adopt the recom-
mended Order as modified and set forth in full below.
judge made several other unfair labor practice findings
which we adopt for the reasons set forth by the judge,
and for the additional reasons set forth below. Fourth,
we reverse several of the judge’s unfair labor practice
findings. Finally, we explain why a Gissel bargaining
order is not warranted in the circumstances of this case.
Factual Background2
The organizing campaign among the Respondent’s
employees commenced on July 29, 2000.3 A majority of
unit employees thereafter signed authorization cards and
the Union filed a representation petition on August 2.
On August 8, the Respondent laid off 11 temporary em-
ployees, which is not alleged to be unlawful, including
employees Christine Larson, Sam Thomas, and Ernest
Banks. The Respondent employs both temporary and
permanent employees because it manufactures certain
seasonal products. Permanent employees are rarely laid
off, while temporary employees are frequently laid off,
sometimes without being recalled; permanent employees
also receive benefits that temporary employees do not,
such as paid hospitalization, dental, disability, and re-
tirement plans.
On August 16 and 23, the Board’s Regional Office
held a representation hearing at which employees Chris-
tine Larson and Howard Simmerman testified. On Sep-
tember 25, approximately 2-1/2 weeks before the elec-
tion, the Respondent promoted five employees from
temporary to permanent employee status. The Respon-
dent also recalled temporary employees to work and
hired additional temporary employees in late September
and in October. The election was conducted on October
13. The tally of ballots showed 29 against and 16 for the
Union, with 6 nondeterminative challenged ballots.
Discussion4
1. The judge found, and we agree for the reasons set
forth in his decision, that the Respondent committed the
following unfair labor practices alleged in the second
amended consolidated complaint (hereafter complaint):
2 The judge explained that the “facts in this proceeding were hotly
contested” and that many of his conclusions were therefore based on
his credibility findings. The General Counsel, the Respondent, and the
Union have each 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 All dates are in 2000.
4 The Respondent has requested oral argument. The request is de-
nied as the record, exceptions, and briefs adequately present the issues
and the positions of the parties.
338 NLRB No. 154
CARDINAL HOME PRODUCTS 1005
the Respondent violated Section 8(a)(4), (3), and
(1) of the Act by not recalling employee Christine
Larson from layoff because of her union activity and
because she testified at the Board representation
hearing;
the Respondent violated Section 8(a)(1) of the
Act by plant manager Robert Keil’s informing em-
ployees Howard Simmerman and Wayne Slee that
he (Keil) would not recall Christine Larson because
of her testimony at the Board representation hearing;
the Respondent violated Section 8(a)(3) and (1)
of the Act by making employee Bonnie McGill a
salaried employee to deprive her of her right to vote
in the election, violated Section 8(a)(1) of the Act by
interrogating her regarding her union sentiment, and
violated Section 8(a)(3) and (1) of the Act by dis-
charging McGill; and
the Respondent violated Section 8(a)(4) and (1)
of the Act by threatening employee Howard Sim-
merman with disciplinary action in retaliation for his
union activity and because he gave testimony at the
Board representation hearing, violated Section
8(a)(4), (3), (1) of the Act by issuing Simmerman
written discipline, and violated Section 8(a)(1) by
thereafter interrogating Simmerman.

We further agree, for the reasons set forth in his deci-
sion, with the judge’s dismissal of the following allega-
tions:

the Respondent unlawfully failed to recall em-
ployee Sam Thomas from layoff because of his un-
ion activities; and
the Respondent unlawfully threatened employees
with loss of benefits by asserting at meetings with
employees that bargaining would start from “zero.”

The judge additionally dismissed numerous other unfair
labor practice allegations, and no party has filed exceptions
to these dismissals. We have set these forth in the margin.5

nder the Act.

5 No exceptions have been filed to the judge’s dismissal of the fol-
lowing complaint allegations: (1) surveillance of the representation
election; (2) transfer of employee Robert Richards to first shift because
of his union activity; (3) assignment of Richards to a more onerous job
because he filed an affidavit with the Board’s Regional Office; (4)
providing a new benefit to employees to influence the representation
election; (5) issuing verbal reprimands to employees Howard Simmer-
man and Wayne Slee; and (6) interrogating and threatening employee
Simmerman.
In addition, no exceptions have been filed to the judge’s finding that
the Respondent violated Sec. 8(a)(1) of the Act by Supervisor Paul Ball
telling employee Wayne Slee that employee Sam Thomas was not
recalled from layoff because of his support for and membership in the
Union.
2. We adopt the following unfair labor practice find-
ings made by the judge, for the reasons set forth in his
decision, and the additional reasons set forth below.
a. The Respondent’s unlawful no-solicitation/no-
distribution rules
The judge found unlawful two no-solicitation/no-
distribution rules—one applicable to permanent employ-
ees and one applicable to temporary employees. The
former rule was promulgated well before the union cam-
paign, while the latter was promulgated after the election.
The rules proscribe the following conduct:
Circulating petitions, selling of merchandise or ser-
vices, or solicitation of any kind on working time or in
working areas, includes: posting, removing, or distrib-
uting of literature on Company premises without Com-
pany approval.
Violation of these rules by employees constitutes an offense
under the Respondent’s disciplinary procedures.
The judge found that under settled precedent the rules
were overly broad on their face in two respects. First,
they prohibited solicitation in working areas on
nonworking time. Second, they prohibited distribution
of literature in nonworking areas on nonworking time.6
The judge found further that the Respondent’s
maintenance of these overly broad rules has a “chilling
effect” on employee protected activity which tends to
restrain and interfere with employee rights u
The Respondent in its exceptions does not dispute the
judge’s finding that the rules are overly broad. Rather,
the Respondent argues that it did not violate the Act be-
cause there is no evidence that it ever enforced these
rules. The specific question thus before us is whether the
Respondent’s maintenance of the rules is unlawful.
The Board has explained the settled legal principles
applicable to this question:
It is axiomatic that merely maintaining an overly broad
rule violates the Act. See, e.g., Our Way, Inc., 268
NLRB 394 (1983) (rule prohibiting solicitation during
“working hours” presumptively invalid as overbroad
because it includes employees’ own, nonworktime pe-
riods); NLRB v. Beverage-Air Co., 402 F.2d 411, 419
(4th Cir. 1968) (“mere existence” of an overbroad but
unenforced no-solicitation rule is unlawful because it
“may chill the exercise of the employees’ [Section] 7
rights”). Evidence of enforcement of the rule is not re-
quired to find a violation of the Act. See NLRB v. Van-
guard Tours, 981 F.2d 62, 67 (2d Cir. 1992), citing Re-
6 See, e.g., Our Way, Inc., 268 NLRB 394 (1983); TeleTech Hold-
ings, Inc., 333 NLRB No. 56, slip op. at 2 (2001) (not reported in Board
volumes).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1006
public Aviation Corp. v. NLRB, 324 U.S. 793 fn. 10
(1945). Indeed, the mere maintenance of an ambiguous
or overly broad rule tends to inhibit or threaten em-
ployees who desire to engage in legally protected activ-
ity but refrain from doing so rather than risk discipline.
Ingram Book Co., 315 NLRB 515, 516 (1994); J.C.
Penney Co., 266 NLRB 1223, 1224 (1983).
Grandview Health Care Center, 332 NLRB 347, 349
(2000), enfd. sub nom. Beverly Health & Rehabilitation
Services v. NLRB, 297 F.3d 468 (6th Cir. 2002).
We find, consistent with the above principles and in
agreement with the judge, that the Respondent’s mainte-
nance of its overly broad no-solicitation/no-distribution
rules is unlawful because such rules tend to chill em-
ployees’ exercise of their protected rights. The judge
acknowledged that there is evidence that employees dis-
tributed literature in nonworking areas without disci-
pline. The judge correctly reasoned, however, that the
overly broad rules would still have a chilling effect on
employees who may not have been courageous enough to
risk discipline for engaging in protected activity. In ad-
dition, the judge properly found that the Respondent had
failed to demonstrate to employees that it did not intend
to enforce these rules. Thus, their coercive impact re-
mained undiminished. Ichikoh Mfg., 312 NLRB 1022
(1993), enfd. 41 F.3d 1507 (6th Cir. 1994). To the con-
trary, the fact that the rule applicable to temporary em-
ployees was promulgated after the election would rea-
sonably convey to employees that the Respondent did
intend to enforce the prohibitions against engaging in
protected activity.7 Significantly, the “chilling effect” of
the Respondent’s maintenance of its rules is reinforced
by the Respondent’s antiunion animus, clearly estab-
lished by the findings in this proceeding of its unlawful
conduct, and its willingness to take unlawful action
against employees engaging in union activity.
Adtranz ABB Daimler-Benz v. NLRB, 253 F.3d 19
(D.C. Cir. 2001), relied on by the Respondent in its ex-
ceptions, is distinguishable from the instant case. In Ad-
tranz, the U.S. Court of Appeals for the District of Co-
lumbia Circuit declared that it would enforce Board rul-
ings that faithfully apply the Board’s traditional standard
of evaluating whether the workplace rule in question
would reasonably tend to chill employees in the exercise
of their statutory rights, provided that the Board ade-

7 The judge also found that the Respondent violated Sec. 8(a)(1) by
promulgating this rule. See NLRB v. Roney Plaza Apartments, 597 F.2d
1046, 1049 (5th Cir. 1979) (promulgating no-solicitation rule during
union campaign “strong evidence of discriminatory intent”). The Re-
spondent in its exceptions proffers no defense, and indeed omits any
reference, to its promulgation of the second rule after the election. We
agree with the judge.
quately explains the basis for its conclusion. 253 F.3d at
25. The court found that the Board had failed to do so in
Adtranz, however, and vacated the Board’s decision8
finding that the Respondent’s maintenance of rules in its
employee handbook barring abusive and threatening lan-
guage and limiting solicitation in the workplace violated
Section 8(a)(1) of the Act. The court held with respect to
the latter rule that the Board had failed to consider the
context in which the rule was imposed and its impact on
employees and, in the absence of antiunion animus, had
failed to cite evidence supporting the “chilling effect” of
the rule on protected activity. 253 F.3d at 28–29.
The case before us is distinguishable from Adtranz in
two important respects. First, as discussed above, the
rules in issue here were significantly more likely to chill
employees in the exercise of their Section 7 rights be-
cause their maintenance occurred in the context of nu-
merous other unfair labor practices evidencing the Re-
spondent’s substantial hostility to the union campaign.
Second, in Adtranz the Board’s unfair labor practice
finding was based solely on the employer’s maintenance
of rules in the employee handbook, while the instant case
additionally involves the Respondent’s unlawful promul-
gation of a no-solicitation/no-distribution rule. This
conduct, too, would reasonably tend to enhance the chill-
ing effect of the overly broad rules.
We accordingly agree with the judge that the Respon-
dent violated Section 8(a)(1) of the Act by promulgating
and maintaining its no-solicitation/no-distribution rules.
b. The Respondent’s unlawful promotion of employees
from temporary to permanent employee status
We agree with the judge’s finding that the Respondent
violated Section 8(a)(1) of the Act by promoting five
employees from temporary to permanent employee status
shortly before the election in order to convince these
employees to vote against the Union and to remind em-
ployees of its power to provide employees with impor-
tant benefits. The judge carefully considered, and
squarely rejected on credibility grounds, the Respon-
dent’s proffered lawful reasons—repeated in its excep-
tions before the Board—to explain the timing of these
promotions. We adopt the judge’s findings, as set forth
in his decision.
The Respondent additionally argues in its exceptions
that the judge erred by finding this conduct to be an in-
dependent violation of Section 8(a)(1) of the Act, be-
cause it was not so alleged in the complaint; it was rather
alleged as a violation of Section 8(a)(3) of the Act. We
find this exception to be without merit.
8 331 NLRB 291 (2000).
CARDINAL HOME PRODUCTS 1007
“It is well settled that the Board may find and remedy
a violation even in the absence of a specified allegation
in the complaint if the issue is closely connected to the
subject matter of the complaint and has been fully liti-
gated.” Pergament United Sales, 296 NLRB 333, 334
(1989), enfd. 920 F.2d 130 (2d Cir. 1990). We find that
the judge’s 8(a)(1) finding here meets the requirements
of this settled rule.
The 8(a)(1) violation found by the judge and the
8(a)(3) allegation in the complaint both plainly focus on
the same set of facts: the promotion of the five employ-
ees from temporary to permanent employee status. Fur-
ther, the ultimate issue is the same in both instances:
whether the Respondent promoted the five employees for
reasons that are unlawful under the Act. This issue was
fully litigated at the hearing, and the Respondent does
not argue to the contrary. We accordingly conclude that
the judge’s 8(a)(1) finding is closely connected to the
8(a)(3) allegation in the complaint, and the Respondent’s
argument that the unfair labor practice finding should be
reversed on procedural grounds must fail.
c. The Respondent’s unlawful questioning
of Howard Simmerman
The judge found, and we agree, that the Respondent
violated Section 8(a)(1) of the Act by Supervisor Dan
Webb’s questioning of employee Howard Simmerman
about Simmerman’s participation in an NLRB investiga-
tion.
The judge found that, after the Union had filed an un-
fair labor practice charge which alleged inter alia that
Supervisor Webb had engaged in unlawful surveillance
of employees’ union activity, Webb approached Sim-
merman in the shipping department and informed him he
wanted to ask him a question. First advising Simmerman
that he “wish[ed] this shit with the Union was over[,]”
Webb posed the following question: Had he (Webb) ever
“spied on” Simmerman at any of his union meetings?
Simmerman answered that he did not know. Webb per-
sisted, asking “What do you mean you don’t know?”
Simmerman responded that this conversation was not
appropriate. Webb agreed, and desisted from further
questioning Simmerman.
The record shows that Simmerman gave an affidavit in
connection with the above-referenced unfair labor prac-
tice charge. In his affidavit, Simmerman detailed an al-
leged instance of unlawful surveillance by Webb of
Simmerman’s union activity.
In determining whether an interrogation is unlawful,
the Board examines whether, under all the circumstances,
the questioning reasonably tends to interfere with, re-
strain, or coerce employees in the exercise of their Sec-
tion 7 rights.9 The circumstances here show that Webb
approached Simmerman, initiated the incident, engaged
in a deliberate course of questioning Simmerman about
supervisory surveillance of his union conduct, and im-
plied that he knew Simmerman had participated in
NLRB processes. The interrogation took place in the
context of substantial employer hostility to the union
organizational campaign. While the questioning oc-
curred on the factory floor, Webb holds a significant
management position,10 his method of interrogation was
persistent, and he repeated the questioning when Sim-
merman claimed lack of knowledge. Simmerman found
it necessary to fend off further inquiries by advising
Webb that such questioning was inappropriate. Notably,
Webb agreed with Simmerman that the questioning was
inappropriate. And significantly, the nature of the infor-
mation sought by Webb runs to the heart of the NLRA
statutory scheme to prevent unfair labor practices, be-
cause the Board cannot initiate its own proceedings but
rather implementation of the Act is dependent on the
filing of unfair labor practice charges. Nash v. Florida
Industrial Commission, 389 U.S. 235, 238 (1967). As
the Supreme Court has instructed, “Congress has made it
clear that it wishes all persons with information about
[unfair labor] practices to be completely free from coer-
cion against reporting them to the Board.” Id.11
We find meritless the Respondent’s argument in its
exceptions that Webb’s questioning was not coercive
because Simmerman was an open union supporter. As
the Fifth Circuit has stated, the mere fact that an em-
ployee “was a widely-known union adherent does not
validate otherwise coercive interrogation[.]” NLRB v.
Brookwood Furniture, 701 F.2d 452, 463 fn. 35 (5th Cir.
1983). “[E]ven open union adherents can be subjected to
invalid coercive interrogation[.]” Beverly California
Corp. v. NLRB, 227 F.3d 817, 835 (7th Cir. 2000), cert.
denied 533 U.S. 950 (2001).
We accordingly agree with the judge that Webb’s
questioning of Simmerman had the reasonable tendency
to restrain and coerce Simmerman in his willingness to
give an affidavit and otherwise participate in NLRB

9 See, e.g., Rossmore House, 269 NLRB 1176 (1984), affd. sub nom.
Hotel Employees Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985);
Sunnyvale Medical Clinic, 277 NLRB 1217 (1985). The Board consid-
ers factors such as the background of the interrogation, the nature of the
information sought, the identity of the questioner, and the place and
method of interrogation. 269 NLRB at 1178 fn. 20.
10 Webb is the quality manager and safety director. He reports di-
rectly to the plant manager. In some instances, he works directly with
the company president.
11 See NLRB v. Industrial Union of Marine & Shipbuilding Workers,
391 U.S. 418, 424 (1968) (underscoring the importance to the function-
ing of the Act of keeping people completely free from coercion against
making complaints to the Board).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1008
processes, and thereby violated Section 8(a)(1) of the
Act.
3. For the reasons set forth below, we reverse the fol-
lowing unfair labor practice findings made by the judge,
and dismiss these complaint allegations.
a. The failure to recall Ernest Banks from layoff
The Respondent excepts to the judge’s finding that it
violated Section 8(a)(3) and (1) of the Act by failing to
recall employee Ernest Banks from layoff. Assuming
arguendo that the General Counsel satisfied his initial
burden under Wright Line12 of establishing that Bank’s
union activity was a motivating factor in the decision not
to recall him, we find, contrary to the judge, that the Re-
spondent met its Wright Line burden of demonstrating
that it would not have recalled Banks in any event.
As noted above, on August 8, the Respondent laid off
11 temporary employees including Banks, which layoffs
were due to a decrease in production orders and are not
alleged to be unlawful. Immediately prior to his layoff,
Banks was employed on the Respondent’s second shift
and supervised by Leroy Davis.
When the Respondent was recalling employees from
layoff in late September, Supervisor Davis recommended
to Plant Manager Keil that Banks not be recalled. The
judge found that Davis “cogently” explained the basis for
his recommendation: Banks did not have the versatility
to run the variety of machines at the Respondent’s facil-
ity, which was particularly important on the second shift
due to limited staffing on that shift, and that Davis
“needed somebody else that was able to do more jobs.”
Davis testified, and the judge found, that Davis unsuc-
cessfully tried out Banks on a variety of machines, but
that other than on the press machines, Banks “failed at all
of them” because, inter alia, on one machine he could not
keep count as “his mathematical skills weren’t the great-
est,” on another machine “he wasn’t strong enough” and
complained that it hurt his back, and he was not fast
enough to keep up with a third machine. Plant Manager
Keil approved Davis’ recommendation, and Banks was
not recalled from layoff.
The judge essentially credited Davis’ testimony, which
was unrebutted,13 and found that “[b]ecause Respondent
needed employees with more skills, Banks became ex-
pendable. Anyone could perform his job, and Respon-
dent was justified in making the choice not to recall
him.” The judge accordingly concluded that the Re-
spondent met its Wright Line burden of showing that it
would not have recalled Banks from layoff in September,

12 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982).
13 Banks did not testify at the hearing.
even in the absence of what the judge termed Banks’
“minimal” union activities, because he lacked versatility
to run the various machines in the Respondent's plant.
The judge nevertheless found that the Respondent,
subsequently in early October, unlawfully failed to recall
Banks from layoff. The judge observed that in October
the Respondent was hiring on its first shift for press ma-
chine operators, which machine, as noted above, Banks
could operate satisfactorily. The judge reasoned that
Banks’ lack of skill versatility did not disqualify him
from being recalled to employment on the first shift, cit-
ing Supervisor Davis’ testimony that on the first shift,
“[i]f you have a couple of employees that aren’t great
producers or highly motivated people, you can move
them around and give them jobs that they are capable of
doing to keep them out of the way.” The judge accord-
ingly concluded that the Respondent did not prove any
lawful reason for failing to recall Banks to the first shift
in October.
The Respondent argues that Banks’ skill “deficiencies
were the same in October as they were in September”
and that it “should not be[] required to recall a bad tem-
porary employee only ‘to keep him out of the way.’” We
find merit in the Respondent’s exception.
This is not a case in which it is alleged that Banks was
unlawfully laid off or discharged, even though he was
performing his job satisfactorily. Rather, the claim is
that the Respondent should have recalled from layoff an
employee with admittedly limited skills. Although
Banks indisputably could operate the press machines, the
Respondent was entitled to consider Banks’ lack of ver-
satility in determining whether to recall him from layoff,
and reasonably may choose to recall other employees or
hire new employees in order to gain more optimal em-
ployment aptitude. In sum, the same reason the judge
relied on in finding that Banks was lawfully denied recall
in September persuades us that he was lawfully denied
recall in October. “By asserting a legitimate reason for
its decision and showing by a preponderance of the evi-
dence that the legitimate reason would have brought
about the same result even without the illegal motivation,
an employer can establish an affirmative defense to the
discrimination charge.” GSX Corp. v. NLRB, 918 F.2d
1351, 1352, 1357 (8th Cir. 1990). Based on the forego-
ing, we find that the Respondent has proved that it would
not have recalled Banks from layoff even in the absence
of his union activity. We shall accordingly dismiss this
complaint allegation.14
14 In light of our dismissal of this allegation, it is unnecessary to pass
on the Respondent’s assertion that it maintains the following policy:
once a temporary employee is deemed unworthy of recall once, that
employee would not be recalled again.
CARDINAL HOME PRODUCTS 1009
b. The allegations concerning Bill Richards
The judge found that the Respondent violated Section
8(a)(3) and (1) of the Act by reassigning employee Bill
Richards to a more onerous job because of his union ac-
tivity, and violated Section 8(a)(1) of the Act by affirm-
ing to Richards that it had reassigned him because of his
union activity. We disagree.
Approximately 3 months after the election, Richards, a
known union supporter, was transferred by his supervi-
sor, Henry Regester, from a job checking parts to a job
operating a machine. Richards had previously performed
that machine job. Richards thereafter initiated a conver-
sation with Supervisor Regester, in which Richards re-
peated an asserted rumor that Respondent’s president
Noll was “after” him and wanted to see him assigned to
machine work. Richards stated to Regester that Noll
“wants to see me work my ass off.” Regester remarked
“you got it,” and the conversation ended.
Under Wright Line, supra, it is the General Counsel’s
burden to establish that the Respondent’s animus against
Richards’ support for the Union was a motivating factor
in the decision to reassign him to the machine job. Here,
however, the General Counsel has failed to prove a nexus
between the Respondent’s antiunion animus, which as
we have observed above is established in this proceed-
ing, and the reassignment of Richards. First, there was
no mention in the conversation at issue of union activity
by Richards, the representation election, or indeed of any
union-related matter.15 The General Counsel has pre-
sented no other evidence linking the reassignment to un-
ion activity. Second, the reassignment occurred well
after the representation election, which was held ap-
proximately 3 months earlier. Third, there is no dispute
of the fact that Richards had previously performed the
machine job to which he was reassigned. Thus, this is
not a case where an employee is reassigned to a job he is
not capable of performing.
In these circumstances, the evidence does not establish
any link between protected union activity by Richards
and his reassignment. Plainly, no such link is established
by the brief conversation at issue here. While the Gen-
eral Counsel may rely on circumstantial evidence from
which an inference of discriminatory motive can be
drawn, the totality of circumstances must show more
than a “mere suspicion” that union activity was a moti-
vating factor in the decision. International Computaprint
Corp., 261 NLRB 1106, 1107 (1982). Here, the General
Counsel’s case rests on little more than suspicion, sur-

15 Our dissenting colleague asserts that “Supervisor Regester explic-
itly and unequivocally affirmed to Richards that president Noll wanted
Richards, a known union advocate, to work harder.” (Emphasis added.)
The italicized words were not spoken by Regester.
mise, and conjecture. In sum, we find that the General
Counsel has failed to adduce evidence sufficient to estab-
lish that antiunion sentiment was a substantial or moti-
vating factor in the Respondent’s employment decision
to reassign Richards. Consequently, there was nothing
unlawful in Regester’s remark, which merely acknowl-
edged that the machine job was more difficult. We shall
accordingly dismiss these complaint allegations.16
c. The interrogation of Steven Weika
We disagree with the judge’s finding that the Respon-
dent violated Section 8(a)(1) of the Act by interrogating
employee Steven Weikal. The record shows that on Oc-
tober 16—3 days after the election—Weikal was asked
by his supervisor, Leroy Davis, while on the plant floor
what he thought about the election. Weikal replied that
he thought it would turn out “pretty good.” Davis stated,
“[I]f you don’t mind me asking, which way did you
vote?” Weikal answered that he voted for the Union.
Davis asked why, and Weikal replied that he would like
to see a change. The conversation ended.
As we observed supra, the applicable test for determin-
ing whether the questioning of an employee constitutes
an unlawful interrogation is the totality-of-the-
circumstances test. Rossmore House, supra. We find
that the questioning here has not been shown to be coer-
cive. The question here was posed not by a high-level
manager, but by front-line supervisor Davis. The con-
versation occurred informally on the plant floor; Weikal
was not called away from work to the boss’s office.
Weikal, who was an open union supporter, did not hesi-
tate to answer truthfully, and indeed in his testimony
described this brief exchange as a “friendly conversa-
tion.” In these circumstances, we cannot find that the
16 Contrary to his colleagues, Member Walsh would adopt the
judge’s finding that the Respondent violated the Act with respect to
Richards. In his view, the General Counsel has met his Wright Line
burden by proving the elements of animus, union activity, employer
knowledge, and adverse employment action. The Respondent’s anti-
union animus is demonstrated by the numerous unfair labor practices it
committed, which continued during the postelection period when the
reassignment occurred. Supervisor Regester explicitly and unequivo-
cally affirmed to Richards that President Noll wanted Richards, a
known union advocate, to work harder. The Respondent does not dis-
pute that the job Richards was reassigned to was “a lot harder” than his
previous job. The record thus amply supports the judge’s finding that
the Respondent “reassigned a known [u]nion advocate to a more diffi-
cult job solely to ensure that he worked harder.” The nexus between
the Respondent’s antiunion animus and the reassignment of Richards is
thus firmly established here. Neither Noll nor Regester testified, and
thus, there is no evidence that the reassignment was for a legitimate
reason. Consequently, in Member Walsh’s view, the Respondent failed
to establish that it would have reassigned Richards even in the absence
of his union activity.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1010
questioning was coercive.17 We shall accordingly dis-
miss the complaint allegation that Davis unlawfully in-
terrogated Weikal.18
4. We find, contrary to the judge, that a bargaining or-
der is not necessary to effectuate the purposes of the Act
under the circumstances in this case. In NLRB v. Gissel
Packing Co., supra, 395 U.S. 575, the Supreme Court
“identified two types of employer misconduct that may
warrant the imposition of a bargaining order: ‘outrageous
and pervasive unfair labor practices’ (‘category I’) and
‘less extraordinary cases marked by less pervasive prac-
tices which nonetheless still have the tendency to under-
mine majority strength and impede the election proc-
esses’ (‘category II’).” Charlotte Amphitheater Corp. v.
NLRB, 82 F.3d 1074, 1077 (D.C. Cir. 1996) (quoting
Gissel, 395 U.S. at 613–614).19 “In determining the pro-
priety of a bargaining order, the Board examines the se-
riousness of the violations and the pervasive nature of the
conduct, considering such factors as the number of em-
ployees directly affected by the violations, the size of the
unit, the extent of dissemination among employees, and
the identity and position of the individuals committing
the unfair labor practices.” Garvey Marine, Inc., 328
NLRB 991, 993 (1999), enfd. 245 F.3d 819 (D.C. Cir.
2001). Accord: Holly Farms Corp., 311 NLRB 273, 281
(1993), enfd. 48 F.3d 1360 (4th Cir. 1995), cert. denied
in pertinent part 516 U.S. 963 (1995).
Where a substantial percentage of employees in the
bargaining unit is directly affected by an employer’s se-
rious unfair labor practices, the possibility of holding a
fair election decreases. Cogburn Healthcare Center, 335
NLRB 1397, 1399 (2001). Thus, serious employer mis-
conduct that is widespread and directly reaches all or a
significant portion of unit employees supports a bargain-
ing order. See, e.g., Power Inc. v. NLRB, 40 F.3d 409,
423 (D.C. Cir. 1994), enfg. 311 NLRB 599 (1993) (un-
fair labor practices directly reached nearly every em-
ployee in the bargaining unit); NLRB v. General Fabri-
cations Corp., 222 F.3d 218, 233 (6th Cir. 2000), enfg.
328 NLRB 1114, 1115 (1999) (serious unfair labor prac-

17 See Rossmore House, supra at 269 NLRB at 1176–1178 (casual
questions about an employee’s union activity posed to an open union
supporter not coercive under all the circumstances). APT Ambulance
Service, 323 NLRB 893 (1997), enfd. mem. 188 F.3d 514 (9th Cir.
1999), cited by the judge, is distinguishable. In that case, the employee
to whom the questioning was directed was not an open union supporter,
was nonresponsive to the questioning, and the questioner coercively
implied that the employee’s uncooperativeness would be held against
him in the future. 323 NLRB at 897.
18 Member Walsh finds it unnecessary to pass on this complaint alle-
gation, because the finding of an additional unlawful interrogation
would be cumulative and would not affect the Order in this proceeding.
19 The judge placed the Respondent’s violations in Gissel’s second
category.
tices directly affected the entire bargaining unit); M.J.
Metal Products, 328 NLRB 1184, 1185 (1999), affd. 267
F.3d 1059 (10th Cir. 2001) (same). Similarly, the Board
considers the extent of the dissemination of serious un-
fair labor practices to employees not personally affected
by them, in determining whether the unlawful conduct
created a “legacy of coercion” that was likely to have
poisoned the atmosphere in which any new election
would take place. See, e.g., Garvey Marine, Inc. v.
NLRB, supra, 245 F.3d at 827 (D.C. Circuit found that
Board reasonably concluded that news of the respon-
dent’s unfair labor practices would be disseminated
among the employees); Center State Beef & Veal Co.,
330 NLRB 41, 43 (1999) (respondent’s unlawful conduct
either affected or was disseminated to all unit employ-
ees). Unfair labor practices that impact only a small por-
tion of the bargaining unit, in contrast, do not qualify as
pervasive and do not support a bargaining order. See,
e.g., Be-Lo Stores v. NLRB, 126 F.3d 268, 281 (4th Cir.
1997); Somerset Welding & Steel, Inc. v. NLRB, 987 F.2d
777, 780 (D.C. Cir. 1993); Pyramid Management Group,
318 NLRB 607, 609 (1995), enfd. 101 F.3d 681 (2d Cir.
1996).
Although the Respondent’s unfair labor practices in
this case were serious,20 the record shows that they did
not impact a significant portion of the bargaining unit,
and thus, they are not likely to have so lasting an effect
that traditional remedies would be inadequate to ensure a
fair rerun election. With the exception of the Respon-
dent’s maintenance of no-solicitation/no-distribution
rules, none of the Respondent’s unfair labor practices
occurred on a unit-wide basis, nor in a setting where a
significant portion of the employee complement was
gathered. Rather, virtually all of the unfair labor prac-
tices committed by the Respondent occurred in one-on-
one situations between an employee and supervisor. The
record shows that the Respondent’s unfair labor prac-
tices, other than the Respondent’s unlawful rules, di-
rectly affected approximately 9 employees out of a bar-
gaining unit of approximately 60 eligible voters. This is
not a case where the Respondent’s serious unfair labor
practices directly affected all or a significant portion of
the bargaining unit.
The judge nevertheless found that a bargaining order
was warranted because there was “ample dissemination”
20 In particular, the Respondent committed two “hallmark” viola-
tions: the discharge of employee Bonnie McGill and the promotion of
five temporary employees to permanent status. See NLRB v. Jamaica
Towing, Inc., 632 F.2d 208, 212–213 (2d Cir. 1980) (“hallmark” viola-
tions regarded as highly coercive). As discussed infra, however, the
record does not show that the latter violation was widely disseminated
among the employees in the bargaining unit.
CARDINAL HOME PRODUCTS 1011
of the Respondent’s unfair labor practices among bar-
gaining unit employees. The Respondent in its excep-
tions challenges the judge’s dissemination finding as not
supported by the evidence. We find merit in the Re-
spondent’s exception.
The judge cited no specific evidence to support his dis-
semination finding. The sole, general finding, noted by
the judge in support of dissemination was that union
supporters who were temporary employees “changed
their minds about the Union after they were promoted” to
permanent employee status. The record shows, however,
that this description applies to only one employee (Art
Miller); the General Counsel and Union do not argue
otherwise.
The Union asserts, however, that there is evidence
establishing dissemination among unit employees of the
Respondent’s unlawful promotion of the five temporary
employees to permanent employee status. We have care-
fully considered this contention, because the Board has
said that unlawfully granted benefits may have “a par-
ticularly longlasting effect on employees and are difficult
to remedy by traditional means not only because of their
significance to the employees, but also because the
Board’s traditional remedies do not require a respondent
to withdraw the benefits from the employees.” Gerig’s
Dump Trucking, 320 NLRB 1017, 1018 (1996), enfd.
137 F.3d 936 (7th Cir. 1998). The Union, however, cites
only the testimony of one individual, employee Howard
Simmerman, that on a single occasion the employees
who received the promotion “talked openly” about it in
the lunchroom. Simmerman did not testify as to how
many employees were likely to have overheard this inci-
dent, or how many employees were present at that time.
Simmerman further testified that he did not have any
conversations with any other employees about this mat-
ter. Significantly, the Union does not call our attention
to corroborative testimony of even a single additional
employee regarding this incident, or any other evidence
of dissemination with respect to this matter. We are un-
able to conclude that a finding of widespread dissemina-
tion, sufficient to support a bargaining order, is estab-
lished by this limited evidence.21
In addition to the absence of a showing of widespread
dissemination of the Respondent’s unlawful conduct, we
note the lack of threats of plant closure or discharge

21 Compare Holly Farms Corp., supra at 281–282 (unlawful grant of
unit-wide wage increase which appears regularly in paychecks is par-
ticularly significant in terms of pervasiveness); Gerig’s Dump Truck-
ing, supra at 1017–1018 (announcement to all employees that respon-
dent would provide paid medical leave and disability insurance serves
as constant reminder that respondent, not union, is the source of such
benefits and that they may continue as long as employees do not sup-
port the union).
among the Respondent’s unfair labor practices involved
in this proceeding. The Board has emphasized that
threats of plant closure and other types of job loss are
among the most flagrant of unfair labor practices and are
likely to affect the election conditions negatively for an
extended period of time. See, e.g., Q-1 Motor Express,
308 NLRB 1267, 1268 (1992); Wallace International de
Puerto Rico, 328 NLRB 29, 30 (1999); Garney Morris,
Inc., 313 NLRB 101, 103 (1993), enfd. mem. 47 F.3d
1161 (3d Cir. 1995). Absent such threats as well as per-
vasive impact or dissemination of the Respondent’s
unlawful conduct, we conclude that the violations here
do not render slight the possibility of a fair rerun elec-
tion, but rather that the coercive effects of the Respon-
dent’s conduct can be erased by the use of our normal
remedies.22 We accordingly direct that a new election be
held.23
ORDER24
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, Cardinal Home Products, Inc., Linesville,
Pennsylvania, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Informing its employees that an employee would
not be recalled from layoff because he supported the
United Steelworkers of America, AFL–CIO, CLC (Un-
ion).
(b) Threatening its employees with disciplinary action
because they supported the Union or gave testimony at a
Board representation hearing.
(c) Interrogating its employees about their union ac-
tivities and sympathies and involvement in a Board in-
vestigation.
these motions.
22 Consistent with our finding that a Gissel bargaining order is not
warranted, we reverse the judge’s finding that the Respondent violated
Sec. 8(a)(5) of the Act by refusing to bargain with the Union.
The General Counsel and the Union each filed a motion to strike the
attachment to Respondent’s brief in support of exceptions. The at-
tachment purports to show posthearing employee turnover in the
bargaining unit, which the Respondent contends supports its position
that a bargaining order is not appropriate. The Respondent filed a
memorandum in opposition to the motions to strike, and alternatively, a
motion to reopen the record to admit current employee list. The
General Counsel filed a reply. The Union filed a statement of
opposition to Respondent’s motion to reopen the record. In view of our
decision that a bargaining order is not warranted in this case, we need
not rule on
23 We note that the judge, in recommending a bargaining order, in-
advertently incorrectly referred to the case number of the instant repre-
sentation proceeding. The correct number is Case 6–RC–11868.
24 We have modified the judge’s recommended Order to reflect the
violations found, and have substituted a new notice to comport with
these modifications.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1012
(d) Threatening its employees with unspecified repri-
sals because of their involvement in a Board investiga-
tion.
(e) Informing employees that another employee would
not be recalled from layoff because of her testimony at a
Board representation hearing.
(f) Issuing a disciplinary warning to employees be-
cause they engaged in union activities and appeared or
testified at a Board representation hearing.
(g) Maintaining and promulgating overly broad rules
that prohibit its employees from engaging in union solici-
tation in working areas on nonworking time and distribu-
tion of literature in nonworking areas on nonworking
time.
(h) Promoting its employees from temporary to per-
manent employee status in order to discourage them from
supporting the Union.
(i) Changing the employment status of its employees
from hourly to salaried in order to discourage them from
supporting the Union.
(j) Failing and refusing to recall its employees from
layoff, because its employees formed, joined, or assisted
the Union and engaged in union activities and to discour-
age its employees from engaging in these activities.
(k) Failing and refusing to recall its employees from
layoff, because its employees appeared or testified at a
Board representation hearing.
(l) Discharging its employees, because its employees
formed, joined, and assisted the Union and engaged in
union activities and to discourage its employees from
engaging in these activities.
(m) 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 from the date of this Order, offer
Christine Larson full reinstatement to her former job or,
if that job no longer exists, to a substantially equivalent
position, without prejudice to her seniority or any other
rights or privileges previously enjoyed.
(b) Within 14 days from the date of this Order, offer
Bonnie McGill full reinstatement to the job she held be-
fore the Respondent unlawfully changed her status from
an hourly employee to a salaried employee or, if that job
no longer exists, to a substantially equivalent position,
without prejudice to her seniority or any other rights or
privileges previously enjoyed.
(c) Make Christine Larson and Bonnie McGill whole
for any loss of earnings and other benefits suffered as a
result of the discrimination against them, with interest, in
the manner set forth in the remedy section of the judge’s
decision.
(d) Within 14 days from the date of this Order, remove
from its files any reference to its unlawful failure to re-
call from layoff Christine Larson, its unlawful change in
employment status and discharge of Bonnie McGill, and
its unlawful discipline issued to Howard Simmerman,
and within 3 days thereafter notify them in writing that
this has been done and that the failure to recall, the
change in employment status and discharge, and disci-
pline, respectively, will not be used against them in any
way.
(e) Rescind its unlawful no-solicitation/no-distribution
rules.
(f) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(g) Within 14 days after service by the Region, post at
its facility in Linesville, Pennsylvania, copies of the at-
tached notice marked “Appendix.”25 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 6, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to insure that the notices are not al-
tered, 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 facili-
ties involved in these proceedings, it shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since September 25, 2000.
(h) 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.

25 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.”
CARDINAL HOME PRODUCTS 1013
IT IS FURTHER ORDERED that the second amended con-
solidated complaint is dismissed insofar as it alleges vio-
lations not found.
IT IS FURTHER ORDERED that the election held in Case
6–RC–11868 is set aside and Case 6–RC–11868 is sev-
ered from Cases 6–CA–31665, et al. and remanded to the
Regional Director for Region 6 for the purpose of con-
ducting a new election.
[Direction of Second Election omitted from publica-
tion.]
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 a 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 inform you that an employee would not
be recalled from layoff because he supported the United
Steelworkers of America, AFL–CIO, CLC (Union).
WE WILL NOT threaten you with disciplinary action be-
cause you supported the Union or gave testimony at a
Board representation hearing.
WE WILL NOT interrogate you about your union activi-
ties and sympathies and involvement in a Board investi-
gation.
WE WILL NOT threaten you with unspecified reprisals
because of your involvement in a Board investigation.
WE WILL NOT inform you that another employee would
not be recalled from layoff because of her testimony at a
Board representation hearing.
WE WILL NOT issue a disciplinary warning to you be-
cause you engaged in union activities and appeared or
testified at a Board representation hearing.
WE WILL NOT maintain and promulgate overly broad
rules that prohibit you from engaging in union solicita-
tion in working areas on nonworking time and distribu-
tion of literature in nonworking areas on nonworking
time.
WE WILL NOT promote you from temporary to perma-
nent employee status in order to discourage you from
supporting the Union.
WE WILL NOT change your employment status from
hourly to salaried in order to discourage you from sup-
porting the Union.
WE WILL NOT fail and refuse to recall you from layoff,
because you formed, joined, or assisted the Union and
engaged in union activities and to discourage you from
engaging in these activities.
WE WILL NOT fail and refuse to recall you from layoff,
because you appeared or testified at a Board representa-
tion hearing.
WE WILL NOT discharge you, because you formed,
joined, and assisted the Union and engaged in union ac-
tivities and to discourage you from engaging in these
activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the Board’s Order, offer
Christine Larson full reinstatement to her former job or,
if that job no longer exists, to a substantially equivalent
position, without prejudice to her seniority or any other
rights or privileges previously enjoyed.
WE WILL, within 14 days from the date of the Board’s
Order, offer Bonnie McGill full reinstatement to the job
she held before we unlawfully changed her status from
an hourly employee to a salaried employee or, if that job
no longer exists, to a substantially equivalent position,
without prejudice to her seniority or any other rights or
privileges previously enjoyed.
WE WILL make Christine Larson and Bonnie McGill
whole for any loss of earnings and other benefits suffered
as a result of the discrimination against them, less any
net interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to our unlaw-
ful failure to recall from layoff Christine Larson, our
unlawful change in employment status and discharge of
Bonnie McGill, and our unlawful discipline issued to
Howard Simmerman, and WE WILL, within 3 days there-
after, notify each of them in writing that this has been
done and that the failure to recall, the change in employ-
ment status and discharge, and discipline, respectively,
will not be used against them in any way.
WE WILL rescind our unlawful no-solicitation/no-
distribution rules.
CARDINAL HOME PRODUCTS, INC.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1014
Kim Siegert, Esq. and Julie Stern, Esq., for the General Coun-
sel.
Mary G. Balasz, Esq. and Kerry P. Hastings, Esq. (Taft, Stettin-
ius & Hollister, LLP), of Cleveland and Cincinnati, Ohio,
for Respondent-Employer.
Richard Brean, Esq. and Theresa Merrill, Esq., of Pittsburgh,
Pennsylvania, for the Charging Party-Petitioner.

DECISION
FINDINGS OF FACT AND CONCLUSIONS OF LAW
BENJAMIN SCHLESINGER, Administrative Law Judge. This
consolidated unfair labor practice proceeding involves numer-
ous alleged violations of the Act, including a discharge and the
failure to recall three employees from layoff, so severe, the
complaint alleges, that a bargaining order under the authority of
NLRB v. Gissel Packing Co., 395 U.S. 575, 584 (1969), is war-
ranted. That would negate the results of the election that was
conducted in Case 6–RC–11868 on October 13, 2000,1 which
Charging Party United Steelworkers of America, AFL–CIO,
CLC (Union) lost, 29–16, with 6 challenged ballots. Respon-
dent Cardinal Home Products, Inc., denies that it violated the
Act in any respect or that it committed any objectionable con-
duct which would warrant the setting aside of the Board-
conducted election.2
Respondent, an Ohio corporation with an office and place of
business in Linesville, Pennsylvania, is engaged in the manu-
facture and nonretail sale of outdoor lawn and patio furniture
and picnic tables and structural jack posts and columns for the
building industry. During the year ended September 30, Re-
spondent sold and shipped from its Linesville facility goods
valued in excess of $50,000 directly to, and purchased and
received at its facility goods valued in excess of $50,000 di-
rectly from, points outside Pennsylvania. I conclude that Re-
spondent is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act. I also con-
clude that the Union is a labor organization within the meaning
of Section 2(5) of the Act.
Respondent has two production lines, the black line, which
manufactures the lawn furniture, and the red line, which manu-
factures the jacks and columns. The red line operates all year
round, but the black line is more seasonal, the busy season run-
ning from October or November and ending in May, sometimes
later. Respondent employs not only what it calls its permanent
employees but also, particularly during the busy season, a sub-
stantial number of temporary employees. Sometimes, Respon-
dent employs no temporaries; other times, 40 or 50. Temporary
employees sign a statement acknowledging that their job is
temporary. When Respondent has no need for temporary em-
ployees, they are laid off, sometimes without being recalled.

1 All dates are in 2000, unless otherwise indicated.
2 The charge in Case 6–CA–31665 was filed on October 17 and
amended on December 21, 2000. The charges in Cases 6–CA–31720,
6–CA–31810, 6–CA–31848, and 6–CA–32053 were filed on Novem-
ber 14, 2000, January 5 and 22, and May 2, 2001, respectively, and the
second amended consolidated complaint was issued on July 18, 2001.
The hearing was held in Meadville and Linesville, Pennsylvania, on
July 30 to August 1 and August 21–23, 2001.
They are always laid off before permanent employees, who are
rarely laid off. Permanent employees receive the following
benefits that temporary employees do not: an annual shoe al-
lowance of $40, and paid hospitalization, dental, disability, and
retirement plans. The temporary employees’ benefits are
minimal: paid holidays after 2 years and a paid vacation after 3.
A number of employees, particularly Howard Simmerman,
became interested in seeking the help of a union. Many be-
lieved that they had not received a raise for a number of years
(they had received bonuses), and Respondent’s president, Ron
Noll, at his annual visit from corporate headquarters in Solon,
Ohio, had just announced at a July meeting a 25-cent raise
which the employees apparently thought was inadequate. An-
other employee, Bonnie McGill, whose discharge is a subject of
the complaint, gave Simmerman the telephone number of the
Union. On Saturday, July 29, a first meeting was held at Sim-
merman’s house with Pete Passarelli, the Union’s organizing
coordinator for Pennsylvania, and employees Wayne Slee, Sam
Thomas, Shawn Dyne, Charles Alderman, John Wheeler, and
Steve Allen. Passarelli discussed how to organize and particu-
larly how to get authorization cards signed. He told the em-
ployees to have the potential signers read the card. He in-
structed the employees to tell others that they should sign the
cards only if they wanted to be represented by the Union and
not to get an election or because they were friends. In other
words, employees were not to sign cards if they were not inter-
ested in being represented by the Union.
The employees who attended the meeting seemed generally
to have followed Passarelli’s advice by limiting what they told
their fellow employees. Equally important, it seems that the
other employees were, at least initially, as enthusiastic as the
employee organizers, with as many as 47 signing cards, mostly
on Monday, July 31, and some others the following day. Ac-
cording to Simmerman, the employees were so eager to sign
that they were literally ripping the cards from the hands of
those who were trying to get signatures and complaining that
they had not been asked first. He testified that he could not
give them out quickly enough. With that number of cards
turned over to the Union, it filed a petition with the Regional
Office on Wednesday, August 2. The Union wrote on the peti-
tion that it served as a demand for recognition.3
There followed a representation hearing, held on August 16
and 23, at which Simmerman and Christine Larson, a tempo-
rary employee who had been laid off recently, testified on be-
half of the Union, in support of the contention that temporary
employees should be included in the appropriate unit. Another
temporary employee on layoff, Sam Thomas, had been subpoe-
naed to testify for the Union, but did not. He did, however,
attend the hearing, sitting with Larson. Respondent’s legal
position in the representation case was that the temporary em-
ployees should not be entitled to vote. The Regional Director
issued his decision and direction of election on September 15,
generally sustaining the Union’s position that temporary em-
ployees should be included in the unit.
3 In addition, on January 4, 2001, the Union wrote a letter requesting
recognition, which Respondent declined.
CARDINAL HOME PRODUCTS 1015
The Union announced that decision in a flyer distributed on
about September 18, celebrating “OUR FIRST VICTORY.” It
featured prominently a photograph of union supporters, among
them Simmerman, Larson, Thomas, Slee, Steve Weikal, Bill
Richards, and Ernest Banks, another employee who was on
layoff at the time of the hearing. The complaint alleges that
Respondent violated the Act by not recalling Larson, Thomas,
and Banks, and that Simmerman and Richards were otherwise
discriminated against. Respondent’s supervisors and manage-
ment were familiar with the flyer, and I find that Respondent
was well aware of these employees’ leanings toward the Union,
as well as the leanings of the others in the photograph: Alder-
man, Wheeler, Allen, Dyne, Tony Morabito, Ray Black, Rick
Chizmar, and Don Abrams.
The facts in this proceeding were hotly contested. Almost
without exception, all the allegations were denied. Witnesses
viewed the same incidents from utterly different perspectives. I
have recited the facts which, after most careful consideration
and deliberation, I find accurate. In making these and other
credibility findings, I have fully reviewed the entire record and
carefully observed the demeanor of all the witnesses. I have
also taken into consideration the apparent interests of the wit-
nesses, the inherent probabilities in light of other events, cor-
roboration or the lack of it, and the consistencies or inconsis-
tencies within the testimony of each witness and between the
testimony of each and that of other witnesses with similar ap-
parent interests. Testimony inconsistent with or in contradic-
tion to that on which my factual findings are based has been
carefully considered but discredited. See generally NLRB v.
Walton Mfg. Co., 369 U.S. 404, 408 (1962).
I have particularly considered the testimony of Simmerman,
who not only has in the past made up two curious tall tales but
also in this proceeding changed his testimony from the first day
to the second with utter abandon. I have not credited some of
his uncorroborated testimony. Other witnesses called by the
General Counsel also testified at variance with their investiga-
tory affidavits, and I have considered that, but note that most of
the variances were insignificant and often the result of their
failed attempts to read the poor handwriting of the Region’s
investigator. I have considered Respondent’s failure to call
Noll as a witness. He played a major role in a number of the
alleged unfair labor practices, and his absence was totally un-
explained. International Automated Machines, 285 NLRB
1122 (1987), enfd. mem. 861 F.2d 720 (6th Cir. 1988). I have
also considered the absence of one of Respondent’s supervi-
sors, whose testimony might have been enlightening and made
some difference in the results reached. Where necessary, I
have set forth the precise reasons for my credibility resolutions,
bearing in mind the oft-quoted advice: “It is no reason for re-
fusing to accept everything that a witness says, because you do
not believe all of it; nothing is more common in all kinds of
judicial decisions than to believe some and not all.” NLRB v.
Universal Camera Corp., 179 F.2d 749, 754 (2d Cir. 1950).
Because some of the credibility issues are so difficult, I deal
with a few unfair labor practice allegations out of order. My
resolution of them is at least helpful in explaining how I
reached some of my credibility findings. One of the principal
alleged violations on which the Union relies to support its claim
that a bargaining order is warranted is that, on about September
25, at the same time that Respondent was recalling employees
for the second shift, as we shall see below, Respondent pro-
moted five employees, Douglas Bilich, Robert Clark, Arthur
Miller, Jeremy Peterson, and Weikal, from temporary to per-
manent positions. The General Counsel contends that Respon-
dent did this to convince these employees to vote against the
Union in the election, which was scheduled just 2-1/2 weeks
later, to remind its employees of its power, and to sway the
votes of its employees by providing benefits.
There was no showing that Respondent intentionally targeted
union supporters or opponents for promotions. It knew only of
the sympathies of Weikal, whose photograph appeared on the
union leaflet. Although Miller and Peterson signed union au-
thorization cards, the General Counsel did not prove that
Respondent knew that they signed cards. Bilich and Clark did
not sign cards, and Respondent did not know that, either.
Indeed, Bilich opposed the Union. In sum, nothing can be
gleaned from Respondent’s selection of the employees whom it
promoted. They represented both union proponents and oppo-
nents.
By granting benefits before the election, an employer cer-
tainly takes some risks of being accused of doing so for unlaw-
ful purposes. No doubt, the action might change votes. But,
here, Keil testified that Respondent had a practice of trying to
keep about 40 permanent employees and that, when it em-
ployed less than 40, it generally promoted a number of tempo-
rary employees to permanent positions so that it would reach
that number. Cardinal’s roster of permanent employees had
declined from 44 in January to 35 in September. The 5 promo-
tions then brought the permanent roster back to 40.
Because Respondent appeared to maintain at least a practice
of promoting employees to permanent status, the General
Counsel now contends that the timing of the promotion was
what made it illegal. That contention was aided by Plant Man-
ager Robert Keil, who testified that, in the July meeting which
prompted the union organizing drive, Simmerman complained
to Noll that Respondent employed too few permanent employ-
ees and too many temporary employees; and he was concerned
that the temporary employees were going to replace the perma-
nent employees. Noll responded that he would address that
issue. Simmerman’s complaint predated the union campaign;
and, at the hearing, Keil was asked why he did not remedy the
complaint when the issue was first raised. Keil answered:

Because of the reasons I mentioned before. That’s not the pe-
riod of time we look at that. We did however, talk about
some people for when the event would develop, and when we
would make these people permanent.

Keil testified that the promotions occurred “almost always in
the fall.” They were timed to allow

us time to look at the last previous two quarters, see where
we’re at. It’s the low point in our business, volume of busi-
ness; volume is very low about that point because we basi-
cally have no Black Line activities. And we assess our insur-
ance costs and everything at that time. But that is the time we
determine, based also on the projected sales for the following
season, what we’re going to need.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1016

The problem with his explanation is that of 16 employees
whom Respondent promoted since 1993, only one was pro-
moted in the fall. Of the others who were promoted, one was
promoted in March, two in June, three in early July, three in
late July, and six in early August. Keil’s explanation did not
approach the truth.
An employer violates Section 8(a)(1) when, during a union
organizing campaign, it grants pay increases or other benefit
improvements “for the purpose of inducing employees to vote
against the union” or is reasonably calculated to impinge on
employees’ freedom of choice for or against unionization,
NLRB v. Exchange Parts Co., 375 U.S. 405, 409 (1964), or
“with an eye toward achieving union disaffection.” Acme Bus
Corp., 320 NLRB 458 (1995). The Board makes no presump-
tion that increases granted during an organizing campaign are
unlawful, but it will draw an inference of improper motivation
and interference with employee free choice from all the evi-
dence and Respondent’s failure to establish a legitimate reason
for the timing of the increases. Speco Corp., 298 NLRB 439
fn. 2 (1990), especially when it has ignored employee com-
plaints prior to learning of the organizing efforts. Pembrook
Management, 296 NLRB 1226 (1989).
Although there was a prior practice of promoting temporary
employees to permanent employees, undoubtedly to a number
higher than 40, because Respondent started the year with 44
permanent employees, Respondent gave no thought to continu-
ing that practice until the issue was first raised by Simmerman,
followed shortly after by the employees’ attempt to organize. It
must be remembered that the decision to make employees per-
manent is a decision that costs Respondent money, because it is
then obliged to grant various benefits that it did not have to
provide to its temporary employees. Respondent obviously
decided that it would not promote employees as it had in the
past, in July or as late as early August. Keil’s reason for the
delay of these promotions to shortly before the election was
blatantly false, and Noll’s failure to testify—he was the one
who answered Simmerman that he would look into his com-
plaint—contributes to the failure of Respondent to explain the
timing.
Alternatively, Respondent relies on its receipt of a series of
new purchase orders from customers in September, but two of
those were due for completion on September 24 and 26, the day
before and the day after Respondent promoted the employees.
The work, or at least the vast majority of it, had already been
completed before the date of the promotions. The remaining
order was received in October. In order to make the best of
that, Respondent’s counsel, through suggestive questions, led
Keil to testify that he would have known even before the re-
ceipt of a purchase order that someone was going to order
something; and that notice, although Keil admitted not being
“the authority on that,” could have been as much as a month or
two before. Of course, if notice had been received on the first
two orders long in advance, Respondent, under this theory,
would have made its promotions in July, as it normally did,
before any union cards were signed, which it did not do. I find
that Respondent has failed to explain credibly4 the timing of
these promotions. Accordingly, I conclude that Respondent
violated Section 8(a)(1) of the Act.5
My assessment of Keil’s credibility impacts on Respondent’s
failure to recall Larson. On August 8, Respondent laid off 11
temporary employees, including three known union supporters,
Larson, Thomas, and Banks. The complaint alleges that Re-
spondent never recalled those three to work in retaliation for
their union activities in violation of Section 8(a)(3) of the Act
and, in the cases of Larson and Thomas, because they testified
(Larson) or appeared (Thomas) at the representation hearing.
(Two other union supporters, Alderman and Wheeler, were
present at the hearing, but were not disciplined and are not the
subject of any of the complaint’s allegations.) Larson, who was
very active in the organizing campaign as a member of the
union organizing committee, applied for a job on October 19,
1998. Keil interviewed her, and she told him that she was a
single mother and would work only on the first shift. Keil
made a specific note of that on her application form and hired
her for the first shift, on which she worked continuously from
October 1998 until May 12, 2000, when she was laid off. She
was recalled on July 31 to the first shift, only to be laid off 8
days later. Her supervisor, General Manager Paul Ball, told her
that Respondent had lost a couple of accounts and was not go-
ing to need as many people as it had thought. He could not
predict when she would be recalled.
At the end of September, she met John Martell, who used to
be her departmental red line supervisor. He told her to speak
with Keil, because she was going to get her job back. So Lar-
son went to the plant and spoke with Keil, who said, according
to her, that Respondent did not have any opening on the first
shift at that time; but, if she were desperate, he had second-shift
work available. Larson said that she still could not do second
shift because her son was in school during the day, he would be
at home at night, and she could not get child care for him. Keil
asked about her efforts to get a job with another employer, and
she replied that she had to turn down the offer because it was
for second and third shifts. Larson asked about her old job in
stain booth, and he said that that job “probably wouldn’t be
fired up till October, some time. He didn’t know when. But,
he’d get a hold of me.” As Keil finished the conversation, he
noticed Larson looking at a pile of papers on his desk, promi-
nent among which was the union flyer with her picture on it.
Keil asked Larson whether she had seen that, and she said that
she had and that she was surprised that Respondent had even
wanted her to come back to work, because she had been so
vocal about the Union. She said that the situation should not
have come down to the organizational campaign, to which Keil
replied: “Yeah, careful what you ask for, you just might get it.”
She again asked about when Keil would contact her, “towards
the end of September?” and he said, “[H]e’d get a hold of me.”

4 It will be seen, below, that Respondent claims to have discharged
McGill in early November because it had lost business, business was
slow, and it was trying to save money.
5 The complaint alleges that the promotions also violate Sec. 8(a)(3),
but the remedy for the 8(a)(1) violation alone is exactly the same.
CARDINAL HOME PRODUCTS 1017
Keil’s recollections were quite different. He testified that he
had decided to recall Larson to the second shift in September,
despite his misgivings about the truthfulness of her testimony at
the representation hearing. He believed that, if he did not recall
her, Respondent would face an unfair labor practice charge. He
also testified, without explanation, that, if he did recall her, he
would also face an unfair labor practice charge. And so, with
misgivings, he telephoned her; but he was unsuccessful (her
phone had been disconnected), and he was going to mail her a
letter, when Martell told him that he had seen her at the post
office. So he sent Martell to retrieve her and bring her to his
office. Keil testified that he offered Larson a job on the second
shift, but she declined because of her child care obligations.
She asked about the stain booth, and Keil said that he had no
idea when Respondent was going to resume the operation.
Otherwise, Keil testified that he never gave any indication that
he intended to give Larson a second chance at employment and
never made any promise to call her again.
After the October 13 election, Larson went to Jerry’s Bar,
where she saw Supervisors Dan Webb and Leroy Davis. Ac-
cording to Larson, she asked why she had not been recalled,
saying that she thought she was a good employee; and Webb
replied that she and Thomas were on a list of people who were
not to be recalled because they were “out to screw the company
at all cost” through the Union. He added that the only reason
Larson was for the Union was that Respondent had treated her
badly. Webb suggested that if she had minded her own busi-
ness and kept her mouth shut, she would have been recalled.
She started to cry, insisting that she missed them and that they
were like family. At some point, Webb said that he could make
these comments because the election had concluded and he
could no longer get in trouble.
Larson’s narration of her first conversation makes it appear
that Keil wanted to see her only to tell her that there were no
first-shift jobs. He offered her a job on the second shift just as
an aside, if she were desperate, knowing that she was able to
work only on the first shift. If that narration was accurate, there
would have been no reason for her to ask Webb and Davis in
the second conversation why she had not been recalled, because
she was well aware that only second-shift jobs were available
and she had rejected Keil’s offer of a job on that shift. Also
improbable was her testimony that Webb confessed that Re-
spondent had treated her badly. That is not something that a
supervisor would normally say, and there is nothing in the re-
cord that would lead Webb to say that. I credit Webb’s and
Davis’ specific denials, noting that some of their testimony was
not mutually corroborative, including their recollections about
the length of the conversation and the number of drinks or-
dered. I credit specifically the testimony of Davis. Although
not crediting him always, I was impressed by his recall, candor,
and sincerity. Accordingly, I find that neither supervisor com-
mitted an unfair labor practice and further find that this conver-
sation does not support the General Counsel’s contention that
she was not rehired because of her union sympathies.
Returning to Larson’s September conversation with Keil, the
General Counsel contends that the recall of Larson in Septem-
ber was conducted differently from all other recalls. A person-
nel action form was completed for each employee who was
recalled to work. The forms, including Larson’s, note that the
employee was discharged for refusing to work the second shift.
(Larson, on a separate form, is listed as a “quit.”) Never before
had Respondent generated this type of documentation, and it
was done differently “because of the Union’s organizational
campaign.” The General Counsel is probably right, but that
does not make Respondent’s actions unlawful. Keil was trying
to protect himself in the event that a complaint about Larson’s
treatment arose, as it did. And, in furtherance of his attempt to
protect Respondent, it is improbable that, if he were really try-
ing to establish a reason to discharge Larson for turning down
the second-shift job, he would have made any mention, as Lar-
son testified, of calling her back later or making it appear that
the offer was anything less than the unconditional offer of one
position, to be filled immediately. Accordingly, I discredit her
narration of her conversation with Keil in September and find
that Keil offered her a job on the second shift, as he testified.
That finding does not fully dispose of the issues relating to
her recall. Keil knew, at least at the time when Larson first
applied for a job, that she would work on the first shift only.
Whether that stuck in his mind, and he, with calculation 2 years
later, offered her a job that he knew that she would decline, is
another matter. That is what the General Counsel and the Un-
ion really claim, and there is substantial basis for their position.
Ball had asked Larson shortly before the May 12 layoff
whether, if given the opportunity, she would choose between
going to second shift and being laid off. She told Ball that she
could not work second shift because she had no child care for
her son; and, as a result, she was laid off. On the first day of
her layoff, she went to Keil’s office to say goodbye. He asked
her if she was happy, and she replied that she was going to miss
work, but she did not have child care lined up, so it made things
easier.
Keil was also well aware that Larson was a working mother,
having helped her earlier in the year to get information about a
special medical plan for working parents, in part because he
had refused her request to become a permanent employee and
thus become entitled to medical benefits from Respondent.
And, assuming that Keil forgot Larson’s status as a working
mother, his recollection had to be refreshed when Larson testi-
fied at the representation hearing on August 24:

I was sort of in a homeless state. I was staying with a friend.
I didn’t have a house. My son, I couldn’t get him into school
until I had a permanent residence. I’m a single parent, and I
didn’t get child support, or anything like that. So, I need to
make money to support him.

Keil did not directly deny knowledge of her status, except to
contend that, during the time that Larson worked for Respon-
dent, she worked at Jerry’s Bar at night, a fact that he knew,
because she had served him. Larson testified that she did that
job for less than a month, for 5 hours twice a week, and that she
was able to do that because at the time, she was living in an
apartment over the bar, and her son could be close to her, even
though she did not have a sitter for him. That explanation may
be accurate, but it is not proof that Keil was aware of the cir-
cumstances of her working at night. On the other hand, Keil
had to recall that, later, she refused Ball’s offer of a second-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1018
shift position because she could not obtain child care for her
son. Another offer to her of a second-shift job would certainly
be rejected, as it was.
That, in Keil’s mind would solve two problems, the first be-
ing Larson’s union activities. The second was his belief that
Larson had lied at the representation hearing, as he told both
Simmerman and Slee in August or September, adding that for
that reason he would not recall her. At the hearing, Keil testi-
fied: “Her testimony implied that I had told her at her initial
interview that she would never be laid off, and I just don’t do
that.” Keil was wrong. Larson’s testimony at the representa-
tion case hearing was that, in response to her concern about the
chance that she might be laid off soon after she started, Keil
told her not to worry about it, that Respondent had not had a
layoff the past summer and “in a while.”
Keil also claimed that Larson also testified that Ball had told
her that she would become a permanent employee, and he never
did that. However, Larson merely testified that Ball never told
her that she would never become a permanent employee and
that as long as she gave the job her “100 percent,” she could
expect that she would become a permanent employee. She
gained that belief from reading a document that all temporary
employees had to sign on being employed, which was an un-
derstanding that the employee was temporary and entitled to
little. But the document held out hope of becoming a perma-
nent employee and stated that skill, ability, and physical quali-
fications would be used in determining whether an employee
would become permanent and that, if those were equal, atten-
dance and attitude would become determining factors.
I conclude that Larson did not lie at the representation hear-
ing, that she was truthful in stating her understanding, and that
Keil incorrectly inferred that she was lying and threatened in
violation of Section 8(a)(1), in his conversation with Simmer-
man and Slee, that he would not recall her because of her testi-
mony. His feeling about her testimony and about her union
activities motivated his recall of her in September to a job that
he knew she would not accept.6 His offer was a sham.7 He
never made a valid offer. His September conversation with
Larson only confirmed what he had known before, that she had
parental obligations that would not permit her to work on the
second shift.8
The conversation, however, also confirmed to Keil, or at
least should have, that Larson was anxious to return to Respon-
dent’s employ. Keil acknowledged that Larson wanted her job
back in the stain booth, a position that was ultimately available
in late November. And Larson made known her desire to work
to both Webb and Davis after the election and kept Respondent

6 Respondent contends that Larson’s father lived within 20 or 30
miles of its facility. There was no proof, however, that her father was
able to take care of her son.
7 In light of this finding, it is unnecessary for me to consider the le-
gitimacy or accuracy of Respondent’s professed practice of offering a
recall to an employee only once. Here, there was no legitimate first
offer.
8 This is shown by his admission that, no matter what he did, an un-
fair labor practice charge would result, thus recognizing that he was
doing something illegal by offering her a job that he knew she could
not accept.
apprised of her current address and telephone number so that
she could be reached. Yet Respondent never called her, despite
advertising for laborers in September and November9 and hir-
ing to positions that Larson could have worked dozens of new
employees from late October, many of whom were inadequate,
quitting or being fired within a brief period of time. And, while
Respondent was urgently looking for help, it never once ad-
vised Larson that it had discharged her or considered that, by
declining the recall, she was considered a “quit.” It never told
her that she had to reapply for a job, rather than wait to be re-
called. In sum, Respondent delivered a sucker punch, recalling
Larson to a job that it knew she could not accept and then deny-
ing her reemployment without informing her that she had to
apply for a job. I conclude that Respondent violated Section
8(a)(3) and (4) and (1) of the Act by not recalling her.
Before considering Respondent’s failure to recall Thomas
and Banks, the other two known union supporters who were
laid off on August 8, there was one alleged unfair labor practice
which pitted Simmerman and Larson against Keil, all of whom
have some problems stating facts. Simmerman and Larson
testified that, on election day, as they approached Respondent’s
facility from the outside to get to the stairway that led to the
voting location, they saw Keil, Webb, and Jack Mickle, Re-
spondent’s maintenance supervisor, on a platform that once had
been used as a loading dock, about 100 feet away from the
stairway. The complaint alleges that they were engaged in
surveillance, but there was no evidence that they were looking
at any of the prospective voters. To Simmerman, they were just
standing there; to Larson, they were talking. Thus, they were
not engaged in surveillance.10
In addition, Respondent’s witnesses rather uniformly testi-
fied that they were not even on the loading dock while the elec-
tion was going on. Keil testified that he went out for lunch
with Noll and Respondent’s attorney, Fred Englehart, and re-
mained at the restaurant during the entire period of the election,
because his attorneys had requested that he remain away from
the polling place. Mickle insisted that he was in the toolroom
during the entire election, busy operating a lathe. Webb testi-
fied that at the beginning of the election he was in his office in
the maintenance area with Supervisor Mike Moss, a design
engineer, and remained there until called by office manager,
Carol Brown, “to conduct some business that couldn’t wait in
the front office.” To get there, he had to pass through the tool-
room, where he saw Mickle working at the lathe. Webb con-
ducted his business in the front office and then returned to his
office by way of the toolroom, where Mickle was still present,
and remained in the toolroom until the election had concluded.
The only admission by Respondent to anybody being on the
dock was by Mickle, who stated that, after the election was
over, he went out onto the loading dock with Webb and Moss.
9 A job order indicates that on October 2, Respondent was looking to
hire 12 production workers.
10 On cross-examination of Simmerman, Respondent’s counsel
asked: “Now, you also described some management officials, Mr. Keil,
Mr. Mickle standing outside watching, I believe, is that right?” (Em-
phasis supplied.) Although Simmerman answered yes, he did not tes-
tify to that fact on his direct examination.
CARDINAL HOME PRODUCTS 1019
There were, however, a few discrepancies in the testimony of
Respondent’s witnesses. Employee Tim Geer, whose prejudice
is evident from, on one occasion, drawing swastikas all over a
union flyer and hanging it by a machine at work, and from dis-
tributing an antiunion petition, testified that he was present in
the toolroom, where he saw Moss, Webb, and Peterson, and
Vice President of Operations Tim Miller. No one else, how-
ever, seemed to have seen Geer, who was the only person who
said he saw Miller. Employee Rick Richards testified that he
and Peterson left to vote close to 4 p.m., stating that he told
Peterson they should get to the polls before they closed. On the
other hand, Mickle testified that Richards and Peterson left to
vote early in the 3 to 4 p.m. polling period.
There were problems with the General Counsel’s case, too, a
bit more substantial. Simmerman testified that he was able to
see the three supervisors from the steps leading to the polling
place, but that was impossible because the dock was set back
from the face of the building and the dock could not be seen
from the steps. Simmerman recognized that, amending his
testimony to state that he saw the supervisors before he started
up the stairs, and they could particularly be seen if one were
standing at the back of the line leading to the stairs. Rick Rich-
ards testified, however, that, when he went to vote shortly be-
fore the polls closed, there were about 10–15 employees lined
up, waiting to vote, all inside the building; and there seemed
ample room for even more people to wait inside the building.
That would create doubt, with 51 employees voting, that there
would have been a line outside at all. In addition, Simmerman
testified that he saw all three supervisors standing on the dock,
while Larson saw Keil only for a moment, as he “was outside,
but he kind of came outside, spun around and walked back in.”
Simmerman’s recollection of the route that the voters left after
voting was at variance with Larson’s: Simmerman, near or
through the door where the supervisors were standing, so that
he “had to walk right past them after [he] voted”; Larson, the
same way the voters came in. Respondent also contends that
Larson incorrect testimony about the starting time of the voting
as 4 p.m., whereas it was 3 p.m., destroys her credibility; but I
reject this argument, because even Respondent’s witnesses saw
her approach, accompanied by three or four other employees,
during the hours of voting.
There is not much to go by to resolve this utter conflict, but
the General Counsel did not sustain his case, presenting two
witnesses whose credibility was in doubt and whose testimony
was not wholly persuasive in supporting the contention that the
three Respondent’s representatives were on the dock. Besides,
even if the supervisors were where the General Counsel con-
tends, it is not wholly clear that Board law would sustain this
allegation. Performance Measurements Co., 148 NLRB 1657
(1964), and Electric Hose & Rubber Co., 262 NLRB 186
(1982), both relied on by the General Counsel and the Union,
found surveillance from the facts that supervisors sat or stood
in close proximity to the entrance to the voting areas, from 6 to
15 feet away, or in places where all the employees had to pass
in order to vote. Here, they were 100 feet away.
In addition, the record unfortunately makes it difficult to as-
sess who had to pass near them on the way to vote. From what
I can glean, most of the voters had to approach the voting area
from the outside steps,11 but it is unclear how a voter got to
those steps. I find that those employees who were working did
not have to pass the supervisors to get to the steps, and they
would have seen the supervisors only by turning their heads in
the direction of the loading dock. Those who were laid off or
otherwise not working, and the number was never spelled out,
except that Larson said that she went to vote with five others,
had to approach the steps from the parking lot, so they would
have been closer to the supervisors. The supervisors were in a
position to see the parking lot where these voters were coming
from and were visible to any of these employees coming to the
parking lot, whether on foot or in a vehicle, to get to the voting
area. But they appear to be in the distinct minority. Board law
does not make unlawful the innocent eye contact with a small
percentage of voters. For all the foregoing reasons, I dismiss
this allegation.
That brings us back to the two other temporary employees
who were laid off on August 8 but not recalled. Keil told Tho-
mas that he was laid off because of the loss of K-Mart as a
customer. Keil did not know when he would recall Thomas,
but said it would be a little while. He made no mention of any
problem with Thomas’ work performance. Indeed, but for
Respondent’s failure to recall Thomas in late September, one
would not know that Respondent was having any trouble with
Thomas at all. Hired as a full-time temporary employee on
October 9, 1998, Thomas worked continuously for Respondent
for 2 years, except for 1 day, prior to his 2000 layoff. At the
end of 1999, he quit to take a job with another company, but
was dissatisfied with that and, after missing one shift, was wel-
comed back by Ball, with the same seniority and at the same
rate of pay as he had before. Respondent raised his pay regu-
larly, and all increases that Respondent gave to its employees
were based on merit. Some raises exceeded the normal merit
raises, in recognition of his special contribution to Respondent.
Nothing uncomplimentary appears in his record. In March
2000, his then supervisor, Chris Dudenhaver, wrote that Tho-
mas was “Doing an Excellent job in the Red Line Area.” In
June or July, Thomas had approached Keil with a problem that
he was having with Martell. Keil was impressed that Thomas
took the initiative and was concerned about something being
done right. His work was thought of sufficiently well that Keil
selected him in January to take inventory of products in the
warehouse once a month because he was considered a good
organizer. In June his then supervisor, Henry Regester, with
Keil’s approval, gave him the authority to write up orders if
Regester was in a bind, a supervisory responsibility. Thomas
also testified that he overheard his new supervisor, Davis, tell-
ing Dudenhaver in July that “they . . . had made Thomas into a
good worker” and Dudenhaver responding that Thomas was a
good worker before he was employed by Respondent. Thomas
also testified that Davis asked him whether he had any brothers
who might want to be employed at Respondent. Davis denied
both conversations, and I believe him, principally because
Dudenhaver had already been relieved of his duties before
Davis started his job.

11 Those employees in and around the toolroom could walk down the
hall to the voting location.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1020
Davis, who had 17 years’ employment with Respondent as a
production employee, was hired in 2000 as a supervisor to in-
crease production on the second shift (and Davis has, by 50
percent) and to solve what Keil perceived were problems
caused by the fact that the employees “were running” Duden-
haver. Davis’ first day as a supervisor by himself (just before,
he shared supervisory duties with Regester for 2 weeks) was
July 18, and within a week he began having trouble with Tho-
mas, who was the material handler on the red line. Thomas
was responsible for ensuring that the tow motor (forklift) opera-
tor had the appropriate information to supply continuously
materials and components to the welders and the workers on
the production line so that production was not interrupted.
Davis wanted Thomas to anticipate the needs of the welders
and to ensure that they had sufficient materials to work on
when they needed them so that production would not be inter-
rupted. He specifically wanted bins of material brought down
while the welders were welding. Thomas told Davis that he
could not do that: it was a safety issue. Davis showed him that
it was not and that the material could be transported without
endangering anybody.
Thomas told Davis that he (Thomas) was “one of the first
ones doing this job and that it was his job and he thought he
was perfectly capable, seeing that he had done it, that his way
was basically the best way.” Davis disagreed, telling Thomas
that it was the way Davis wanted Thomas to do the job and not
the way that Thomas wanted to do it. An argument ensued.
According to Davis, “The more that I insisted that this is the
way we were going to do it, the louder Sam got with me and the
louder that I got with Sam; and it almost turned into a scream-
ing match.” Thomas admitted this incident, noting generally
that he knew the job better than Davis and that Davis “was
hollering, so I was above his holler.” Davis did not discipline
Thomas. He explained that he had been a supervisor only a
week and was trying to give everyone the benefit of the doubt
and trying to feel everybody out to see where everyone fit in
the best. But he did advise Thomas of the need to follow his
instructions.
The problems, however, continued. As Davis explained:

It didn’t matter what I went . . . to Sam, about. He was always
argumentative to me. He wanted to argue about everything.
He always had a smart answer to say to anything that you
wanted him to do. He had a smart comment or a smart, you
know, answer back to you. He was, basically, a difficult per-
son to work with. . . . Every time I told Sam to do something;
or even if I asked him an opinion, he would have a smart an-
swer.

The General Counsel has presented a prima facie case of dis-
crimination under Wright Line, 251 NLRB 1083 (1980), enfd.
662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982);
approved in NLRB v. Transportation Management Corp., 462
U.S. 393 (1983). Thomas was a union supporter and was pre-
sent at both representation hearings and sat with another union
supporter. He was one of three union supporters whose picture
appeared on the union leaflet and who was not recalled. Keil
assumed that he favored the Union. The General Counsel has
proved animus from the other unfair labor practices found in
this Decision and knowledge of his union activities and sup-
port. Respondent told him at the time of his layoff that it would
call him back to work, yet after his support of the Union be-
came known, Respondent did not recall him. In fact, Ball told
Slee in August that Thomas would not be recalled because “he
was a member of the union and he wouldn’t call him back be-
cause of his support.” Slee had nothing personal to gain by
testifying to this threat, which I conclude violated Section
8(a)(1) of the Act; and Ball had much to gain by denying the
allegation.
The finding of a prima facie 8(a)(3) case, however, does not
end matters. Board law holds that, even if Respondent failed to
recall Thomas for reasons that violate the Act, if Respondent
showed that it would have taken the same action even in the
absence of Thomas’ union activities, it would escape liability.
Wright Line, supra; Naomi Knitting Plant, 328 NLRB 1279,
1281 (1999); Manno Electric, 321 NLRB 278, 280 fn. 12
(1996). Respondent has demonstrated that it did not recall
Thomas, not because he was a bad worker, but because of his
failure to get along with Davis, and that it would have refused
to recall Thomas even in the absence of Thomas’ union activi-
ties. Davis did not want Thomas back

[b]ecause of problems that I had with Sam always wanting to
argue with me. I was trying to get control of a shift and he
was being defiant towards me, and other people were seeing
that and picking up on it and it was already a troubled shift
and it was just one less trouble I needed to have.

Keil agreed with Davis’ recommendation, recalling that
Martell had told him of incidents several months earlier when
Thomas had grabbed papers from Martell’s desk, accused
Martell of favoring first shift with his orders, and spoke to
Martell rudely and improperly, “[j]ust real argumentative and
combative.” Martell testified to the following experiences in
June or July:

Thomas would come in early to report to work and it
was during shift change. He would come in a little bit
early and get prepared, at which time I was dealing with
my employees plus dealing with the second shift supervi-
sor, trying to assign jobs for everybody.
He would come over while I was working at my desk
and he would grab paperwork out of the desk that I had
prepared for second shift, and he would tell me that I was
favoring first shift. He was making accusations where I
was favoring first shift, not writing up the orders, the big
orders for us and giving him the junk orders on second
shift so he would have to work harder and he’d get lower
production.

Martell thought that this conduct was clearly disrespectful,
although it technically did not constitute insubordination be-
cause Thomas was employed on the second shift, and Martell
was a supervisor on the first shift. But Keil heard about
Thomas’ conduct and cautioned him not to be disrespectful to a
supervisor. That could lead to insubordination, and Keil did
not want that to happen.
I accept Davis’ explanation that he found Thomas difficult
and on the “borderline” of insubordination; but, because he was
CARDINAL HOME PRODUCTS 1021
new on the job and the incidents occurred within the first 2-1/2
weeks of his taking sole supervision of the shift, he did not
formally reprimand Thomas. The constant arguments with
Davis were sufficient to constitute disrespect, “borderline,”
Davis testified, within the meaning of Respondent’s rules, and
sufficient to justify not recalling him. There is no telling what
would have happened had Thomas not been laid off, but the
relationship between the two was no doubt uncomfortable.
Thomas impressed me as convinced of his own infallibility and
unable to follow instructions of his supervisor or superior with-
out a comment or an argument. This is not to say that he was
always incorrect, but his attitude would surely not appeal to the
normal supervisor; and Davis, as a new supervisor, was not
ready to let an employee question his authority.
On making decisions concerning the selection of the laid-off
employees to recall, Davis was entitled to prefer those with
whom he had no trouble. Respondent does not always recall
laid off temporary employees. Respondent has refused to recall
others who were deemed unsatisfactory. For example, it did
not recall two other employees, Albert O’Neil and Wayne Phil-
lips, based on the fact that one started to miss work and the
other was lazy. (One had signed an authorization card, the
other had not.) The General Counsel contends that Davis was
capable of terminating an employee when he needed to, citing
former employee John Post. Post’s misconduct was much more
serious: unlike Thomas, Post refused Davis’ order and walked
off the job. I conclude that Thomas’ union support and his
appearance at the representation hearing (he did not testify) had
nothing to do with Respondent’s decision not to recall him.
Accordingly, I dismiss the allegation that Respondent’s deci-
sion not to recall Thomas under Davis’ supervision violated the
Act in any way. There has been no showing that jobs were
available for his skills under others’ supervision, to which he
should have been recalled.
The last of the three employees laid off on August 8 and not
recalled was Banks. The General Counsel and the Union con-
tend that, of all the employees, Banks did his work proficiently
and consistently met the production goals set for his job on the
inside and outside presses. There is a prima facie case here.
Banks was in the photograph and identifiable as a union sup-
porter, although there is no other evidence of his union activi-
ties. In fact, the General Counsel never offered an authoriza-
tion card for him. But the fact that he is one of three persons in
the photograph who was not recalled is sufficient to support an
inference of a discriminatory motive. In addition, he received
no discipline and was consistently given merit wage increases
based on positive evaluations by his previous supervisor. The
Union correctly points out that on April 14, 1999, Dudenhaver
gave Banks a merit increase and evaluated him: “Excellent
Attendance Good Attitude, making Rate Inside Press & other
machines.” Banks was recalled to the first shift on July 3, be-
fore the union organizing campaign, and was transferred to the
second shift on July 18, because he was “Needed for Inside
Press.”
However, the failure to meet production goals was not what
Respondent relied on in failing to recall him. Davis, who was
hired by Respondent to increase the production of the second
shift, wanted employees who would be able to operate more
than one machine, so that they could fill in for the absences of
their colleagues and operate other machines needed to produce
a particular product. Davis tried Banks at a variety of jobs
other than the ones that he so ably handled, and Banks failed at
all of them. Davis explained:

I tried Ernest at different jobs on the line. I took him over to
hang columns. He couldn’t do that. He wasn’t strong
enough. He said he was too small to do it. I took him to try
taking jacks off and taking columns off. He couldn’t do jacks.
He said that it hurt his back, stacking jacks. Taking columns
off, his mathematical skills weren’t the greatest. He couldn’t
keep count. He would lose count all the time. He says he
wasn’t physically able to stack the columns either and I kind
of. At the time, being a short shift, I kind of set [sic] “okay”
and I took him over and I threw him on an outside press and I
showed him how to run the outside press, which is one of the
easiest machines I have to run. That’s basically where I left
him. I tried him on the drill or on the thread rollers one night
and it lasted for about five minutes. It’s an air operated ma-
chine. You put the screw in it. You flip the lever. You flip it
one more time and it feeds itself in. It’s a fast machine and
Ernest wasn’t a very fast person. After about the fourth try, I
saw him there and I knew I would end up in the hospital with
him before the night was over. So, I pulled him right back off
there and took him to the outside press and he basically stayed
there for me for the couple of weeks that he was working.

In Davis’ opinion, Banks “didn’t catch on quickly. He
wasn’t able to do the jobs that I needed him to do. Basically, I
had to pick the easy jobs that I had to put Ernest on.” Although
Davis never reprimanded or issued a written warning to Banks
for his performance, he did talk with him to find out the reason
that he had low production when Banks produced less than he
should have, because Banks was working on the easy machines.
Banks did not testify, and there is no evidence to rebut
Davis’ testimony. Because Respondent needed employees with
more skills, Banks became expendable. Anyone could perform
his job, and Respondent was justified in making the choice not
to recall him. When Keil asked Davis about his assessment of
Banks, Davis knew that he could have only two machine opera-
tors, one maintenance man, one tow motor man, and enough
people to run the line. One of the machine operators was Al-
derman, a permanent employee, who, because of a prior injury,
was not able to run the line. So he could recall only one other
machine operator. He explained to Keil that the only two jobs
that he was going to be running were drills and thread rollers;
and he was

[scared] to death to have Ernest on the thread rollers and the
drills are a high maintenance machine and I didn’t think he
was capable of doing it and he already proved to me that he
couldn’t work the line. So, if somebody missed off the line,
called in sick or took a vacation day, I couldn’t even go over
to get him to come in and fill in.

Davis recommended to Keil that Banks not be recalled, that
he “needed somebody else that was able to do more jobs.” He
cogently explained his reason:

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1022
On first shift, if you have a couple of employees that aren't
great producers or highly motivated people, you can move
them around and give them jobs that they are capable of doing
to keep them out of the way. On second shift, being so lim-
ited to the amount of people that I could have, everybody has
to be able to do just about everybody's job and be able to fill
in for. Just like I say, one or two guys are absent to the point
that it almost shuts my line down.

The General Counsel and the Union contend that Respon-
dent’s decision not to recall Banks resulted from disparate
treatment and that two less qualified employees, Don Kephart
and James Grogan, were recalled instead of Banks. There are
some severe difficulties with their position, not the least of
which is the fact that both Kephart and Grogan, albeit not pic-
tured in the union leaflet, were union supporters, having signed
union authorization cards. Kephart was thought to be valuable
enough of as an employee, despite what might appear on first
blush as unimpressive production statistics, that he was not laid
off with the other employees on August 8. Grogan, unlike
Banks, could run the drill machine, a skill that Davis needed.
Banks was not recalled due to lack of versatility, not lack of
productivity. In addition, the fact that Kephart and Grogan may
have performed poorly on certain machines did not mean that
they performed worse on the variety of machines that Davis
needed them to run. Even their production records are not nec-
essarily meaningful. Davis, who formerly worked for Respon-
dent as a production employee, cogently explained that produc-
tion is subject to numerous variables, such as mechanical or
maintenance problems, and comparisons of the difficulty of
operating machines is almost impossible. Finally, the fact that
the Union attempts to compare the production records of other
employees who have so few days working on machines indi-
cates that they did not work primarily on machines, but were
able to do the kind of line work that Banks could not.
I find that Respondent’s decision not to recall Banks was not
the result of disparate treatment and conclude that Respondent
has demonstrated, under Wright Line, supra, that it would not
have recalled Banks in September, even in the absence of his
minimal union activities. However, in contrast to the General
Counsel’s failure regarding Thomas to prove the availability of
other jobs for his skills, a job order12 demonstrates that on Oc-
tober 2, Respondent was looking for production workers to run
machines, including presses, on the first shift. Respondent did
not prove any lawful reason for failing to recall Banks to the
first shift, on which Davis explained, quoted above, “[I]f you
have a couple of employees that aren't great producers or highly
motivated people, you can move them around and give them
jobs that they are capable of doing to keep them out of the
way.” There is no question that Banks could have ably operated
the presses. Accordingly, I find that Respondent has not met its
burden of proving that it would not have recalled Banks, even
without his union activities. Accordingly, I conclude that Re-
spondent violated Section 8(a)(3) and (1) of the Act.
Before mid-May 2000, one other employee, Janet Hart,
worked in the front office with Office Manager Brown. Hart

12 GC Exh. 107.
was the receptionist. She answered telephones and helped to
coordinate, print, and send orders to the shipping department.
Because business was slow, Hart was laid off. Respondent had
no need for two full-time employees in the office; but, in order
to cover the telephones before Brown came to work at 8:30
a.m., it assigned McGill, who, among other duties, processed
paperwork, checked on orders, recorded incoming material,
shipped UPS packages, computed costs of outgoing freight,
selected freight carriers, prepared master manifests, and made
and designed labels in the shipping department, to work in the
office from 7:30 to 8:30 a.m. She was also to spell Brown for
the hour that she took lunch, and she was to assume Brown’s
duties when she took vacations. Her assignment occurred be-
fore the representation petition was filed and is not the subject
of the complaint.
But the complaint does allege an 8(a)(3) violation, when on
October 6, precisely a week before the election, Respondent
made her a salaried instead of an hourly employee. Respondent
tried to explain to McGill at the time and to prove at the hearing
that the change benefited McGill, but it is not clear that it did
so. Certainly, Respondent would no longer deduct hours from
her pay when she went to medical appointments; and she would
no longer pay $5 per week for uniforms or pay for her steel-
toed shoes. On the other hand, when McGill compared her new
flat salary rate with what she made before, which included
overtime for which she would no longer be paid, she thought
that she would be losing $500. Respondent did not prove that
she was incorrect. When McGill questioned Keil that she
would actually be losing money and asked whether the change
to a salaried status was optional, he told her: “[T]hat’s the way
Ron Noll wants it.” Noll, whom Keil consulted before making
this decision, did not testify in this proceeding, and I infer that
he would have had nothing favorable to say on Respondent’s
behalf.
Respondent’s change of her method of payment, from hourly
to weekly, had nothing to do with benefiting or hurting her.
Keil explained that the change was prompted by her spending
more time in the office, that there were sensitive documents in
the office (“orders coming down, other documents coming
down with prices and monetary information of some type”),
and that there were meetings conducted in the conference room.
“I thought it was appropriate if she was going to be in that type
of position that she should be a salaried person.” He clearly
implied that she was going to be an office worker. But her
duties never changed. She spent only an additional 20–30 min-
utes per day in the office, remaining after Brown arrived in the
morning until McGill finished whatever she was working on at
the time. As she had been doing for 5 months, she answered
telephones, sorted and filed some papers, and did some typing.
She never handled or worked with any personnel-related issues,
payroll, timecards, or anything remotely confidential. She
spent her remaining time of about 5-1/2 hours per day in the
shipping department. I conclude that Keil’s testimony was
false.
McGill was a union supporter, attending union meetings, and
even recording the minutes of one. But she left another one
before it was over and before the photograph of the union sup-
porters was taken, the one that ended up on the union flyer.
CARDINAL HOME PRODUCTS 1023
There is no evidence, however, that Respondent knew of these
activities. On the other hand, if McGill’s testimony is to be
believed, during September and in October, up to the time of
the election, she spoke with Gagen about the Union two or
three times a week, the conversations often starting with
Gagen’s negative comments about the Union. “[H]e’d ask me
if I was for the union. He’d ask me why I was for the union or
what the union could do for me. And he’d continue with how
bad they were and all the bad things that would happen if they
got in.” According to McGill, she replied: “I was for the union,
that I thought they’d help out, help some of the people out in
there.”
She specifically recalled one conversation that occurred after
one of Respondent’s mandated antiunion meetings, which
commenced shortly after the Union filed its representation peti-
tion, when Gagen asked her, Simmerman, and Slee how the
meeting went. McGill replied that “[a]t least we didn’t call
anybody names.” (During the meeting, Geer had called anyone
with prounion interests, “Communist bastards.”) Gagen started
again telling the employees how bad the Union would be.
McGill said that she thought the Union would help protect
some of the people that were being picked on, such as some of
the retarded people or the women. This conversation, however,
was not corroborated by either Simmerman or Slee, nor were
any of the other conversations that McGill testified to, despite
the fact that she recalled that sometimes Simmerman and Slee
were there. The only testimony from Simmerman was that
Gagen had to be aware of McGill’s sympathies because Sim-
merman and she talked openly and freely around him, that he
saw them with union flyers at breaktime, and that they never
tried to hide the fact that they supported the Union. But McGill
never corroborated Simmerman’s testimony that she engaged in
any conversations in favor of the Union with Simmerman when
Gagen was present, or that she and Simmerman gave Gagen
union literature during those conversations. And Simmerman
testified that McGill never said in his presence “out loud” to
Gagen that she was in favor of the Union.
On the day of the election, Noll came into the shipping de-
partment and told McGill that he needed her to vote against the
Union, which he said was bad because he was in one. He said
that he would not retaliate against anyone who voted for the
Union, but he would still like her to vote against it. He paused,
waiting for a response; but McGill did not reply immediately.
So Noll “got up and started pacing, and asked . . . if I would
vote against the Union.” McGill answered that she would. Noll
left, followed by Gagen; and they stopped and talked for 10
minutes. Gagen returned and said that Noll did not believe her
and thought she “was still pro-Union.” (Emphasis supplied.)
Gagen denied that this took place and denied that he knew
anything about McGill’s sympathies, although he admitted that,
later in the day of the election, at quitting time,

Bonnie said “Can I talk to you for a minute?” It was kind of
strange because she doesn’t say a lot to me. She will say
“Good night” and that’s it. I said “What do you want, Bon-
nie? I’m busy.” She said “Jim, I just want to let you know. I
voted no for the union.” And I looked at her and I thought, I
didn’t want to get into this conversation. I said “Bonnie,
that’s your right, your God-given right.” She said “Well, wait
a minute. I discussed it with my mother and I thought it was
for the betterment of the situation and I voted no.” I said
“Bonnie, I can’t discuss this with you.” I said “Thank you”
and I walked away from her.

As noted above, Noll did not testify. I infer that he learned
from Gagen about McGill’s prounion feelings and, to avoid her
unfavorable vote, converted her into a salaried employee a
week before the election, in order to urge that she was an office
clerical employee, a class of employees that had been specifi-
cally excluded from the appropriate unit. In fact, Respondent
challenged McGill’s vote, consistent with the motive I have
found and Noll’s belief that she was not going to vote against
the Union, as he had urged, and despite the fact that McGill’s
name appeared on the Excelsior list.
It is utterly improbable that the reasons Keil gave for her
change of status could be truthful, in light of his testimony that
from the outset of her employment, 6-1/2 years ago, he had
noticed that she was slow and unmotivated. Transferring her to
an office clerical position, her unsatisfactory conduct contin-
ued—“[S]he was very, very slow. She was very, very unmoti-
vated”—as could only be expected from his prior experience.
In fact, Keil now described her as “lazy.” Why he would decide
to transfer a slow, unmotivated employee into the office, where
she would presumably handle documents of great importance to
Respondent, was left unexplained. Keil could equally expect,
as he confirmed in his testimony, that Brown would have “a
great deal of difficulty in working with her.” And that is what
happened. And his transfer of McGill to an office position
where she would be exposed to confidential material was
unlikely in light of the fact that both Keil and Brown harped on
an incident that occurred a few years before: when McGill, who
was then not working in the office, told Gagen, her supervisor
in the shipping department, about the fact that an employee was
going to quit before the employee actually did. Her alleged
breach of confidentiality and her slow working habits and lack
of motivation are no reasons for making her a salaried em-
ployee. The reasons must be other than those that Keil relied
on. In fact, according to Keil, the decision to make her a sala-
ried employee was what Noll wanted; and Noll did not testify.
I conclude that Respondent violated Section 8(a)(3) of the
Act by changing McGill’s employment status in an attempt to
deprive her of her right to vote in the election and in an attempt
to discriminate against her for her support of the Union. I also
conclude that Noll tried to convince McGill unlawfully to vote
against the Union. That McGill walked up to Gagen and
spilled out her heart, as Gagen testified, about how she voted
makes sense only if she had had her previous encounter with
Noll. Noll’s conversation the morning of the election consti-
tuted an unlawful interrogation about how McGill intended to
vote in the election. Even though Noll, Respondent’s principal
officer, said that he would take no action against those who
voted against the Union, he obviously tried to pressure and
coerce McGill. Gagen’s return to her after his discussion with
Noll to tell her that Noll did not believe her had to create more
coercion. Although I find McGill’s testimony about the num-
ber of times that she had similar conversations with Gagen
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1024
inflated and exaggerated, I am nonetheless convinced that
Gagen asked her about her feelings regarding the Union and
relayed McGill’s responses to Noll, which prompted Noll’s
attempt to gain her vote and which caused him to believe that
she was “still” prounion. Finally, Gagen unlawfully interro-
gated her at a time when Respondent was committing other
unfair labor practices. I conclude that both Noll and Gagen
violated Section 8(a)(1) of the Act. Medcare Associates, Inc.,
330 NLRB 935, 939 (2000); Rossmore House, 269 NLRB 1176
(1984), enfd. sub nom. Hotel & Restaurant Employees Local 11
v. NLRB, 760 F.2d 1006 (9th Cir. 1985).
Three weeks after the election, on Friday, November 3, Keil
fired McGill, telling her that Noll had been looking for an out-
side source to make labels, that Keil had found someone else to
do them, that her job no longer existed, and that she would be
laid off permanently with no call back. In fact, Respondent did
not contract out any label making until March 2001. So the
reason given by Keil for McGill’s immediate termination, a
decision that he made after consulting with Noll, was false.
With the showing of McGill’s union sympathies, Respondent’s
knowledge of them, Respondent’s earlier attempts to deny
McGill an opportunity to cast a ballot in the Board-conducted
representation case, and Noll’s displeasure with her prounion
sympathies and his failure to testify, thus warranting an infer-
ence that his testimony would have been unfavorable to Re-
spondent, the General Counsel has presented a strong prima
facie case of an 8(a)(3) violation.
Respondent contends that it would have discharged her any-
way, Keil justifying his termination of her as “no[t] so much
based on performance issues, it was based on business down-
turns.” Contrary to what Keil told McGill when he terminated
her, Keil claimed at the hearing that an employee from the
marketing department of Respondent’s Cleveland office de-
signed the labels, which were sent to McGill, whose duty was
to transfer the text into a label form and then produce a label.
Respondent lost business from three customers, including
Menard’s, a million dollar account, which required labels.
Thus, Respondent was no longer going to design them; and
McGill no longer had enough work making labels.13 What was
left of her label-making duties was something that other people,
including supervisors, could do. Respondent did not want to
keep her in the front office, because she and Brown did not get
along. Regarding the rest of her duties, Gagen had to take over
some of the clerical work that he had to do before. Gagen sup-
ported Keil’s claim, in part, by testifying that his department
was not that busy and, when told by Keil that he was going to
discharge McGill, he offered no resistance.
The resolution of this issue narrows to whether or not I be-
lieve Keil, who made up facts and testified so improbably in
defense of Respondent’s decision to make McGill a salaried
employee.14 In addition, he gave McGill a false reason about

13 Gagen contradicted Keil, testifying that Keil’s emphasis when
terminating McGill was on the fact that orders were slowing down, the
furniture business was at 20 percent of 100 percent, and that there was
not enough for McGill to do. Respondent’s records reveal that McGill
was laid off because of lack of work.
14 I note also that I do not believe Keil’s testimony that, when his
counsel sent him a position statement supplied to the Regional Office,
the reason for her termination; and he testified that the decision
to discharge her resulted from discussions between him and
Noll, from whose lack of testimony I draw an adverse infer-
ence. McGill had been an exemplary employee for 6-1/2 years.
She had never been disciplined. She had first worked in the
front office in about 1996 or 1997, filling in for Brown when
she was sick or went on vacation. Even after Hart had been
hired, McGill filled in from time to time. She ran the shipping
department when Gagen was not there. As late as late Septem-
ber, Gagen said that he would go crazy if McGill were not
around to help him. The shipping department was not idle, as
Gagen testified. McGill said that she was very busy, very often
giving up her breaktime to continue working. Contrary to
Keil’s testimony that McGill’s label making functions had
dried up, she estimated that the customers which were lost
made up at most 10–20 percent of her time spent in making
labels, which averaged about 1-1/2 hours. Even Gagen testified
that, before the loss of those customers, McGill spent 45 min-
utes or an hour making labels; and, after, 1 hour. So, the loss
did not materially affect the amount of her work. She still had
ample work to do.
Respondent claims that business generally was slow, but less
than 2 months before, Respondent promoted five employees
from temporary to permanent, on the ground that work was
picking up, even citing the acquisition of new business. And,
assuming that work was slow in the beginning of November,
Keil admitted that Respondent’s need for temporary employees
typically began in November, to produce its summer line of
outdoor furniture. In fact, Respondent placed newspaper adver-
tisements for laborers and welders in September and Novem-
ber, and its job order showed that it intended to hire 12 more
employees, thus, leading to the production of more items and,
presumably, the shipment of more products by the shipping
department.
Finally, Respondent contends that it must have terminated
her because she was no longer needed because it did not replace
her in the shipping department; but it certainly added to the
work of Gagen, who Keil recognized wanted her as an em-
ployee so that she could handle some of his paperwork. In
addition, it appears that Respondent transferred much of the
label producing to Denny Buzikowski, who, even though he
worked in the same location as the shipping department, was
not a member of it. (Although not a supervisor, neither was he
a unit employee.) Respondent replaced McGill in the office
with Brown’s sister-in-law for 5 hours daily. Work that McGill
did before in the shipping department, such as combining bills
of products sent to the same place, was given to Gagen, who
then took it to the office, where the papers were worked on and
then returned to the shipping department. So, this newly hired
employee, Brown’s sister-in-law, was doing McGill’s work,
albeit in a different location.

he did not read it for accuracy. In addition, Keil also tried to minimize
McGill’s ability to make labels by showing how easy it was, citing a
recent example of correcting a particular problem in 10 minutes.
Gagen testified, however, that Keil did not solve the problem and that
no one could, because Respondent did not have a printer that was able
to make the label that the customer had requested.
CARDINAL HOME PRODUCTS 1025
At a time when Respondent had incurred increased labor
costs by promoting five employees and was hiring new em-
ployees, its discharge of McGill was not an attempt to save
money because of a downturn of business. I do not find Keil
credible. Accordingly, I conclude that, under Wright Line,
Respondent has not proved that it would have terminated
McGill but for her union activities and that Respondent violated
Section 8(a)(3) and (1).
There are three other union advocates whom, the complaint
alleges, Respondent discriminated against because of their un-
ion activities. Bill Richards worked on the second shift. Ac-
cording to Simmerman, Richards was the key organizer on the
second shift. Although Richards had asked repeatedly for years
to be transferred to the first shift, it was not until September 22,
4 days after his likeness appeared in the union leaflet, that he
was reassigned to first shift. Respondent had a vacancy for a
tow motor operator on the first shift. Keil claimed that he knew
that Richards, who operated a tow motor, had wanted to move
to the first shift for a long time; and so he reassigned Richards
to that shift for that job. He forgot, however, at least so he
testified, that Roger Cramer had successfully bid in January
2000, 8 months before, for the tow motor position on first shift.
As a result of a work slowdown, Cramer had lost his tow motor
position and been put back on the line. He still had more sen-
iority than Richards and was upset that Richards was given the
job that was rightfully Cramer’s. He successfully claimed that
job, and Richards lost it.
The General Counsel contends that Respondent transferred
Richards to rid itself of the leading union activist on the second
shift. Simmerman testified that Richards “[j]ust did a better job
with people on second shift than the other fellows did. Talking
to them and letting them know what was going on.” However,
there was no proof that Respondent had any inkling of Rich-
ards’ status, other than his being pictured on the union leaflet.
Others who were pictured, union committeepersons Weikal and
Alderman, were left on the second shift. Around the same
time, Respondent transferred employees Miller and Black, both
union supporters whose pictures also appeared on the union
leaflet, to the second shift. The result of Richards’ move to the
first shift, in other words, did not leave the Union helpless in
espousing its cause; and it is difficult on the basis of this record
to find that this transfer—and transfers of employees from one
shift to another were not unusual—was at all harmful to the
union cause or caused harm to the union movement, such that
an affirmative finding could be made that this was the reason
for the transfer. Without proof of an unlawful motive, this
allegation must be dismissed.
I am also persuaded that Keil was attempting to fill a need
that Respondent had, at the same time trying to please Rich-
ards, who had long sought to move to the first shift. The Gen-
eral Counsel questions the motive behind Richards’ transfer by
contending that there was no longer any one on the second shift
qualified to operate the tow motor. But Black, a temporary
employee, to whom the position had been assigned, although
not having the experience in operating the tow motor, was de-
scribed by Keil as “a welder and a very versatile guy in every
way” and, perhaps more importantly, as stated above, was pic-
tured in the same leaflet as Richards. Finally, there is no proof
that Respondent attempted to punish Richards, who, although
professing that by the year 2000 he was at last satisfied to be on
the second shift, and thus by implication dissatisfied with his
new assignment, never asked to be reassigned to his old posi-
tion. More than that, he told Davis he was happy to move to
the first shift. According to Davis, Richards was so excited and
elated that Davis said: “God, I can’t wipe the smile off of your
face today, can I?” and Richards laughed and replied: “Nope.
You sure can’t.” Richards’ later bid on a second shift position
is not the same as directly indicating to Keil his dissatisfaction
with his new assignment.
That Richards later became dissatisfied with working on the
first shift was unfortunate, but not a violation of the Act. Keil
had not seen Cramer operating the tow motor for 4 or 5 months
and simply forgot about him. When Cramer objected, Keil
recognized his mistake, put Cramer back on the tow motor, but
kept Richards on first shift, thinking that he was happier there.
I conclude that the General Counsel did not establish a prima
facie case. There is no proof that the transfer was discrimina-
tory. Assuming that it was, I am persuaded that Respondent
would have transferred him in any event, except if Keil had
remembered to check on Cramer’s seniority. I dismiss this
allegation.
In January 2001, Richards’ supervisor, Regester, transferred
Richards from a job where he had been checking parts, a job
which did not require him to work on a machine, replacing
Richards with a temporary employee, to a job where Richards
had to work on a machine, a job that he had performed before.
Richards, having heard a rumor about Noll being “after” him
and wanting him assigned to machines, repeated the rumor to
Regester: “[Y]eah, . . . Ron [Noll] wants to see me work my ass
off,” to which Regester answered: “[Y]ou got it.” Richards
explained in detail that his new job was “a lot harder,” and
Respondent offered no proof that it was not. In fact, Regester
did not testify; and so what is left in this record is proof that
Respondent reassigned a known union advocate to a more diffi-
cult job solely to ensure that he worked harder. Noll did not
testify, and so there is nothing to show that the reassignment
did not result from Richards’ union activities or that Regester’s
remark was harmless banter or a “joke,” as Respondent insists,
or that Respondent would have made the same decision even in
the absence of any union animus.
I conclude that Respondent violated Section 8(a)(3) and (1)
of the Act by assigning Richards to the more onerous job. In
addition, by making the assignment in the manner he did,
Regester violated Section 8(a)(1) of the Act by affirming to
Richards that it had assigned him to a more onerous job be-
cause of his union activities. The General Counsel also con-
tends that the same action was taken by Respondent because
Richards had provided an affidavit on November 8 about a
statement made by Webb and that Respondent must have un-
derstood that evidence on that issue could have been provided
only by Richards. (Richards alleged that he was walking to the
Arlington Hotel for a union meeting after work, and Webb
drove by, rolled down his window, and told Richards to have a
nice meeting.) Although Respondent knew that Richards filed
an affidavit, there is nothing in this record to prove the date that
Respondent gained that knowledge. Accordingly, there is no
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1026
evidence that Respondent reassigned him to a more difficult job
because of his participation in the Region’s investigation. Ac-
cordingly, I dismiss further the allegation that Respondent’s
conduct also violated Section 8(a)(4) of the Act.
Respondent had a rule that no one other than employees
were allowed in its building. That rule existed at least since
1995, but was honored in the shipping department somewhat in
its breach. For example, Simmerman’s wife used to bring him
coffee or breakfast. She would walk in the door, about 30–35
feet or more away from where he worked, and bring it to him.
But in about 1995, Respondent reprimanded Simmerman. So,
she stopped coming in the building, but would still bring him
coffee, stopping outside; and he would go out and get it at
breaktime. On occasion, however, when it was snowing or cold
outside, Gagen invited her to come in and sit in the office while
she waited. Gagen and the employees also ordered pizza on
occasion, and Gagen would permit the delivery person to enter
the shipping department.
In December 2000, Simmerman’s wife stopped outside the
“man” door (as distinguished from the overhead door) to the
shipping department, as she usually did, and Simmerman went
out to get his coffee, only to see Noll driving his car around
Simmerman’s van. The day after, Keil called Simmerman to
his office and told him that he was going to be written up for
insubordination. Simmerman asked why, and Keil said that
Simmerman’s wife had dropped off his coffee and she was told
not to enter the building. Simmerman protested that she did not
come in the building. Keil told Simmerman to go back to
work, without giving him a reprimand. Later in the day, Gagen
told Simmerman to report to Keil’s office, adding that Sim-
merman would be happy with what “we” did for you today.
There, Keil told him that he was just going to receive a verbal
warning and said that he thought that was going to make Sim-
merman happy. Simmerman replied that he did not see how
any warning or any reprimand would make him happy, because
he had done nothing wrong. Keil said that he was a man of
“fine integrity” and that, no matter what anybody wanted,
Simmerman should just go on home. He was not going to get
anything. Although Keil admitted that he told Simmerman that
he was not going to place the warning that he had previously
prepared in his file, Keil retained the warning, unsigned, in his
desk, in a file marked “personnel”; but Simmerman was never
told that that was what Keil was going to do or did.
A number of weeks later, in early January 2001, Gagen said,
somewhat rhetorically, “[Y]ou’re not happy with that coffee
incident with your wife are you?” When Simmerman said noth-
ing, Gagen said that he knew that Simmerman had filed an
unfair labor practice charge against Respondent. Simmerman
stated that that answered Gagen’s question. Gagen then said
“[Y]ou were told to keep this between us and keep your mouth
shut.” The clear implication of all this is that Respondent’s
owner, Noll, who rarely came to the plant,15 was distressed at
seeing Simmerman’s wife on the property and had instructed
Keil to take action. Keil prepared a written warning for Sim-
merman even before discussing the incident with him, but ulti-

15 Noll began to visit the Linesville facility more frequently after the
Union filed its representation petition.
mately relented; he could not do it. But the event was to be
kept quiet, so that Noll would not know; and Gagen was upset
that Simmerman had filed a charge over the incident.
The General Counsel contends that, by these actions, Re-
spondent threatened Simmerman with disciplinary action in
retaliation for his union activity and because he gave testimony
at the representation hearing. I agree. Simmerman’s wife had
delivered coffee to him for years, without interference. She had
violated no rule, nor had he. The original discipline no doubt
emanated from Noll, who suddenly objected for reasons that,
because he did not testify, can only be inferred. Those reasons
must have been Simmerman’s union activities and his appear-
ance at the representation hearing, because those facts are the
only ones that were new. I conclude that Respondent violated
Section 8(a)(1) and (4) of the Act. Keil claimed that he did not
sign the warning so he did not actually issue it; but, in the cir-
cumstances, he did, although Simmerman was unaware of it.
Keil maintained the warning. He did not throw it away. It
must have been meant for use, possibly at a later date, to me-
morialize what happened. I conclude that, by actually issuing
written discipline, Respondent violated Section 8(a)(3), (4), and
(1) of the Act and shall recommend that the warning be ex-
punged.
The General Counsel also contends that Gagen’s warning
that he was to have kept his mouth shut implied to him that he
would suffer unspecified reprisals for filing an unfair labor
practice charge. Although I have the feeling that what was
really meant by the remark was that, despite Noll’s desire to
discipline Simmerman, Keil and Gagen were going against his
wishes and merely wanted Simmerman not to discuss the mat-
ter any more, without any explanation from Gagen, I conclude
that Respondent, by Gagen, violated Section 8(a)(1) of the Act.
I do not find, however, that Gagen was interrogating Simmer-
man about the nature of the unfair labor practice investigation,
but merely about Simmerman’s reaction to the entire incident.
The complaint alleges that Respondent provided a new bene-
fit to influence the employees’ votes. Weikal, then a temporary
employee, worked on Saturday during the week of Labor Day
and was paid time and a half for that Saturday. The complaint
alleges that the overtime payment was an inducement to tempo-
rary employees to vote against union representation. Keil testi-
fied, however, without contradiction, that the payment was no
different from Respondent’s policy: when any employee, tem-
porary or permanent, had an excused absence during a week,
whether for illness or a holiday, Saturday work was paid at the
premium rate. Respondent’s policy was based on the rationale
that an employee would have been there, but for the excused
absence, if work was available. Therefore, the employee
should be eligible for overtime pay. Labor Day was considered
an excused absence. There is no other testimony that Respon-
dent provided a new benefit. Weikal testified only that, as a
temporary employee, he had never received time and a half for
any work he “had done around the time of a holiday.” He never
testified that he had worked on a Saturday during a week in
which there had been a holiday and had not been paid for it at a
premium rate. I dismiss this allegation.
The complaint alleges that Respondent, in addition to grant-
ing this benefit, through Noll, threatened employees with loss
CARDINAL HOME PRODUCTS 1027
of benefits. The allegation arose from one or more “bargaining
from zero” statements made at antiunion meetings held by Re-
spondent. The governing law was stated by the Board in Tay-
lor-Dunn Mfg. Co., 252 NLRB 799, 800 (1980), enfd. mem.
679 F.2d 900 (9th Cir. 1982):

It is well established that “bargaining from ground zero” or
“bargaining from scratch” statements by employer representa-
tives violate Section 8(a)(1) of the Act if, in context, they rea-
sonably could be understood by employees as a threat of loss
of existing benefits and leave employees with the impression
that what they may ultimately receive depends upon what the
union can induce the employer to restore. On the other hand,
such statements are not violative of the Act when other com-
munications make it clear that any reduction in wages or
benefits will occur only as a result of the normal give and take
of negotiations.

The employees’ recollections were, at best, inconsistent.
Simmerman recalled that Noll warned the employees at one
meeting in late September that they could not always believe
the Union. “You don’t always gain more when you negotiate.
When you go to negotiations, you start at zero. Sometimes you
get more, and sometimes you get less. Sometimes you stay the
same.” Slee testified on his direct examination that the one
statement that struck him was Noll saying: “[I]f the union
comes in, we’d start at zero.” But Slee quickly changed his
testimony, noting that that was his “interpretation of it. Every-
thing that we have was on the line. We would have to negoti-
ate, just to get back to where we was.” On cross-examination,
Slee was not so sure about what was said. He could remember
only that Noll said that he had worked for union shops before
and “that things just don’t start—you don’t start from where
you’re at.” The other statement that he clearly recalled was
“Everything was on the table.”
Weikal testified that both Keil and Noll stated at more than
one meeting that “we would start from zero. We’d have to
negotiate everything over again.” They specifically threatened,
in front of all of the employees and on more than one occasion,
that “we’d lose all seniority.” On cross-examination, Weikal
also recalled that Noll said that everything would be on the
table. “We could gain. We could lose. Or, it would stay the
same.” McGill recalled either Keil or Noll (“They were both
talking”) saying that “we would start negotiations back at zero,
we would lose everything to start with, seniority, vacations,
everything like that.” Bill Richards recalled that Noll talked
about negotiations and said that “when you go into bargaining,
you need to start out at zero, with nothing, and from there
sometimes you take and do not get what you already have, and
sometimes you get what you have or more.” On cross-
examination, Richards also recalled that Noll made additional
remarks: “that in bargaining, it can go up, you can go down, it
can stay the same” and “there was no guarantees in bargain-
ing.”
Five witnesses called by Respondent, including two employ-
ees, testified that they never heard any management statement
about bargaining from zero, except in answer to a question of
another employee or, in the case of Webb, “a lot of employees”
pursuing the question “[Y]ou mean we start from zero, we start
from scratch?” (Webb was the only witness who heard the
word “scratch.”)
I find nothing illegal in the recollections of Simmerman and
Richards. For example, an employer cannot take anything from
zero. One cannot end up with less than zero. Yet, that is how
the General Counsel must interpret Simmerman’s and Rich-
ards’ testimony to find a violation, because the statement made
indicates that one starts from zero and then takes away from it.
And so, what was really being talked about was the give and
take of negotiations, in compliance with the Act. The other
recollections are more serious, indicating that Noll, who did not
testify to answer this particular complaint, crossed the line and
threatened that the employees would have to gain back what he
intended to take away if the Union won the election. On the
basis of the record as a whole, including the inconsistent recol-
lections of the witnesses called by the General Counsel and the
acknowledged emphasis on the give and take of negotiations,
testified to by all, I find that Simmerman and Richards testified
accurately and that at no time was the threat made that benefits
would be taken away and that bargaining would be conducted
to reinstate those benefits. Although mention was made of
bargaining from zero, in context, I conclude that Respondent
did not violate Section 8(a)(1) of the Act.
Since at least July 11, and undoubtedly much earlier, because
Respondent denied in its answer that it enforced the rule in the
last 12 years,16 Respondent maintained the following rule
which, if violated, constituted an offense under Respondent’s
disciplinary procedures:

Circulating petitions, selling of merchandise or services, or
solicitation of any kind on working time or in working areas,
includes: posting, removing, or distributing of literature on
Company premises without Company approval. NOTE:
Charitable collections for employees will be permitted on
Company time with approval of the Plant Manager.

On about November 1, it posted and promulgated the identical
rule (without the “NOTE”), applicable to temporary employees,
the violation of which also constituted an offense under Re-
spondent’s disciplinary procedures.
Both rules are unlawful in two respects. First, Board law
embodies a “long-held standard that rules banning solicitation
during working time state with sufficient clarity that employees
may solicit on their own time.” Our Way, Inc., 268 NLRB 394,
395 (1983); Stoddard-Quirk Mfg., 138 NLRB 615 (1962).
Respondent’s rules unlawfully restrict employees from solicita-
tion in working areas on nonworking time. Second, although
Respondent may lawfully prohibit employee distribution in
work areas at all times, Respondent may not prohibit distribu-
tion in nonworking areas. Hale Nani Rehabilitation, 326
NLRB 335 (1998). Its rules limit distribution on “Company
premises,” which includes nonworking areas, such as Respon-
dent’s parking area or lunchroom.
It is true that, prior to the election, employees distributed lit-
erature in both the parking area and the lunchroom without
discipline. On the other hand, the rules have a “chilling effect”

16 Respondent did not, however, defend against this allegation on the
basis of Sec. 10(b) of the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1028
on employees’ concerted and protected activities, particularly
those employees who are not courageous enough to risk disci-
pline. The mere existence of an overly broad rule of this kind
tends to restrain and interfere with employees’ rights under the
Act, even if the rule is not enforced. Brunswick Corp., 282
NLRB 794, 795 (1987). When a rule of this kind is found pre-
sumptively unlawful on its face, the employer bears the burden
to show that it communicated or applied the rule in a way that
conveyed a clear intent to permit distribution of literature in
nonworking areas during nonworking time. TeleTech Hold-
ings, Inc., 333 NLRB 402, 403 (2001). Respondent never did
so. In fact, the second rule was enacted after the election and,
although containing language almost identical to the other rule,
was aimed solely at the temporary employees. Respondent did
not demonstrate to its temporary employees, many of whom
remain for only short periods of time, that it did not intend to
enforce its newly adopted rule.
LaFayette Park Hotel, 326 NLRB 824, 826 (1998), enfd. 203
F.3d 52 (D.C. Cir. 1999), relied on by Respondent, which held
that a rule against making false, vicious, profane, or malicious
statement had “no more than a speculative effect on employees’
Section 7 rights, which is too attenuated to warrant a finding of
an 8(a)(1) violation” has not been applied to no–
distribution/no-solicitation rules. Adtranz ABB Daimler-Benz v.
NLRB, 253 F.3d 19 (D.C. Cir. 2001), also relied on by Respon-
dent, is distinguishable because the rule there applied only to
conduct during working time and in working areas. Accord-
ingly, I find both rules too broad and conclude that Respondent
violated Section 8(a)(1) of the Act by adopting and maintaining
them.
Three days after the election, on October 16, Davis, who was
Weikal’s supervisor, asked Weikal, after making small talk
about his daughter, what he thought about the election. Weikal
replied that he thought that it would turn out “pretty good.”
Davis said, “If you don’t mind me asking, which way did you
vote?” Weikal answered that he voted for the Union. Davis
asked why he would do that, and Weikal said that he would like
to see a change. At that time, the ballots had been impounded
because of Respondent’s appeal from the Regional Director’s
Decision and Direction of Election, which was subsequently
upheld by the Board on March 19, 2001, and the ballots were
counted on March 23, 2001. For whatever reason, Davis was
trying to find out from Weikal, a union supporter, how he
voted. In the context of all the other unfair labor practices, I
conclude that this constitutes an unlawful interrogation in viola-
tion of Section 8(a)(1) of the Act. APT Ambulance Service, 323
NLRB 893, 897 (1997), enfd. mem. 188 F.3d 514 (9th Cir.
1999).
A month later, on about November 17, Webb approached
Simmerman at work, said that he “wish[ed] this shit with the
Union was over,” and told him that he wanted to ask him a
question. Then, he asked whether he had ever spied on Sim-
merman at any of his meetings. Simmerman said that he did
not know, to which Webb asked, “[W]hat do you mean you
don’t know?” Simmerman stated that he did not think it was
appropriate for them to be having that conversation, and Webb
agreed and walked away. This conversation might seem in-
nocuous had it not been for the fact that, about this time, the
Union had filed an unfair labor practice charge, subsequently
dismissed, which included an allegation that Webb had watched
Simmerman as he walked into the Driftwood Restaurant at
lunchtime. Webb’s questioning of Simmerman about his par-
ticipation in an NLRB investigation can inhibit an employee’s
willingness to give any statement or otherwise participate in
Board processes and violates Section 8(a)(1) of the Act. Astro
Printing Services, 300 NLRB 1028, 1029 fn. 6 (1990).
In March 2001, Gagen gave verbal reprimands to Simmer-
man and Slee for mistakes that they had made in the course of
their work. Simmerman sent certain goods to the wrong place.
The General Counsel does not object to the discipline itself, but
to Gagen’s statement that accompanied the discipline:

Mr. Gagen told us at that time, Mr. Slee and myself, with the
atmosphere the way it is in the shop now, I can’t cover up any
mistakes or protect anybody the way I have done in the past.
He said if something was made wrong, skidded wrong, and
tagged wrong, and we loaded it believing it to be correct, we
would be held responsible.

Slee did not corroborate this incident; and, with my general
distrust of Simmerman’s credibility, I refuse to credit Simmer-
man’s testimony. Besides, Gagen credibly denied that he had
ever covered up for Simmerman’s mistakes. Rather, he re-
ported most of them to Keil, except when the mistakes were
minimal and Gagen was able to correct them without expending
any money. However, while recognizing that “everybody
makes a mistake,” he and Keil cautioned Simmerman: “[T]hese
mistakes cost money. Right now, times aren’t that good.
We’ve got to watch this.” Keil said to Gagen: “Let’s watch
your department. Let’s be more careful. We’ve got to correct
this.” Gagen followed this up over the next week, “Hey, guys,
listen. No more mistakes. Let’s be careful.” And to Simmer-
man, in particular, he said:

Howard, under these circumstances, when something gets out
of here and I can control it and I can get it free freighted back
or I can get it dead-headed back and there is no cost involved,
I can take care of this. But when we’ve got a problem or we
are sending something out and I am paying the cost down.
I’m paying the cost back. Repacking. I can’t take of this.
There is a cost factor here. Accounts payable and receivable
will have it. I’ve got to write you up.

I find Gagen’s explanation compelling and further find that
Respondent did not change its policies regarding the handling
of errors because of the activities of Simmerman and Slee on
behalf of the Union. I conclude that Respondent did not violate
Section 8(a)(1) of the Act.
Finally, on April 18, 2001, about 2 weeks after the first
amended consolidated complaint issued, Gagen asked Sim-
merman why the Union had not dropped all its charges against
Respondent. He wished that “this . . . all . . . could be over with
and done with.” Simmerman said that it could be done with that
day, if Noll wanted it. The General Counsel contends that
Gagen, thus, interrogated and impliedly threatened Simmer-
man. I find no violation, even crediting Simmerman, who was
unable to recall this incident independently, without referring to
his prehearing investigatory affidavit. First, I find nothing re-
CARDINAL HOME PRODUCTS 1029
motely threatening in Gagen’s remarks. Second, the way that
Simmerman related the conversation, there was nothing that
indicated at all that Gagen’s question was anything more than
rhetorical.
The Bargaining Order and Additional Findings
and Conclusions
As noted above, the General Counsel requests a bargaining
order, which requires an examination of the Union’s majority
status and the nature of Respondent’s unfair labor practices.
With respect to the former, the General Counsel contends that
as of July 31, 3 days before the Union made its initial demand
for recognition by filing its representation petition, or by Au-
gust 5, 3 days later, the Union attained the support of a majority
of Respondent’s employees in the following unit of permanent
and temporary employees, a unit which is appropriate for the
purposes of collective bargaining within the meaning of Section
9(b) of the Act:

All full-time and regular part-time production and
maintenance employees employed by Cardinal Home
Products, Inc., at its Linesville, Pennsylvania, facility; ex-
cluding all office clerical employees and guards, profes-
sional employees and supervisors as defined in the Act.
The Unit includes certain employees whom Cardinal
Home Products, Inc., calls “temporary.”

As of those dates, and between those dates, Respondent em-
ployed 65 employees; and 33 is a majority. I count the cards of
Simmerman, Larson, McGill, Thomas, Slee, Weikal, Wheeler,
Alderman, Dyne, O'Neil, Bill Richards, David Brown, and
Russell Crate, who authenticated their own cards. The parties
stipulated to the authenticity of the card of Regis Kardos. I also
count the cards of the following employees: Albert Abbott, Don
Abrams, Allen, Black, Theodore Bolharsky, Richard Chizmar,
Bob Claypoole, Cramer, Raymond Ellis, Scott Felix, Bill Free,
George Freeman, Stacy Gillette, Grogan, Tim Hunter, Daniel
Isenberg, James Jenkins, Kephart, George Lucas, Chuck
McCusker, Richard Messeral, Arthur Miller, Thomas Mirabito,
Terry Motter, Alan Moyer, Peterson, Rick Richards, Robert
Watts, and Alan Zoner. All the cards were signed on July 31,
except the cards of Chizmer, Crate, Dyne, Jenkins, and Zoner,
five which were signed on August 1 and the card of Isenberg,
which was signed on August 3. Thus, as of July 31, 37 em-
ployees had signed cards for the Union, and as of August 5, 43
had signed cards, a clear majority of the 65 employees. The
important date here, for the purposes of an 8(a)(5) violation, is
August 2, because then the Union demanded representation. Q-
1 Motor Express, 308 NLRB 1267, 1269 fn. 10 (1992), enfd. 25
F.3d 473 (7th Cir. 1994), cert. denied 513 U.S. 1080 (1995).
In so finding, I discredit as false and the result of leading
questions Cramer’s testimony that the cards were intended
solely to ask the Union to talk to the employees. I do not find
the testimony of Allen, who also signed the antiunion petition,
accurate, either. In any event, he never told Kardos or Cotter-
man that the sole purpose of the cards was to get an election or
that the unambiguous language of the cards should be disre-
garded. I reject Respondent’s contention that all of Simmer-
man’s testimony should be rejected. No doubt, he changed his
testimony from the first to the second day regarding employees
who either signed in his presence or personally delivered their
cards to him. While it is understandable that he may have for-
gotten who did what (others did also), it is less than under-
standable for him to sign an affidavit and then testify to certain
facts on one day and change his testimony on the next. That
indicates that he does not take too seriously the oath that he has
taken.
On the other hand, the difference in his testimony about the
cards, as well as others, has little legal effect; because the fact
that an employee returned his card to the authenticating witness
is sufficient to authenticate the card. Don the Beachcomber,
163 NLRB 275 fn. 2 (1967), enfd. denied on other grounds 390
F.2d 344 (9th Cir. 1968). Indeed, two of the card signers, as to
whom one of the General Counsel’s witnesses wavered, were
called by Respondent and never denied that they either signed
their cards in the presence of the authenticating witness or de-
livered them to him. In addition, Respondent undoubtedly had
a sufficient number of sample signatures of each of the em-
ployees in its personnel files to question the validity of any of
the cards and did not do so. It also had access to all the em-
ployees to subpoena them to testify and did not do so. In these
circumstances, I find Simmerman’s testimony probable, even in
the alternative, and credit it.
Having found that the Union represented a majority of the
employees, I turn to the question of the need for a bargaining
order. The Board wrote in Canter State Beef & Veal Co., 330
NLRB 41, 43 (1999), enfd. in part 227 F.3d 817 (7th Cir.
2000):

Under Gissel, the Board will issue a bargaining order, absent
an election, in two categories of cases. The first category in-
volves “exceptional cases” marked by unfair labor practices
so “outrageous” and “pervasive” that traditional remedies
cannot erase their coercive effects, thus rendering a fair elec-
tion impossible. The second category involves “less extraor-
dinary cases marked by less pervasive practices which none-
theless which nonetheless have a tendency to undermine ma-
jority strength and impede the election processes.” In this sec-
ond category of cases, “the possibility of erasing the effects of
past practices and of ensuring a fair election . . . by the use of
traditional remedies, though present, is slight and . . . em-
ployee sentiments once expressed [by authorization] cards
would, on balance, be better protected by a bargaining order.”
[Gissel, 395 U.S.] at 613–615.

I have found that Respondent failed to recall Larson, a lead-
ing union supporter, and Banks and discharged McGill. The
latter two were supporters of the Union, but less active than
Larson. At least with respect to her, that is a “hallmark viola-
tion” of the Act, an unfair labor practice that is highly coercive
and has a lasting effect on election conditions, NLRB v. Ja-
maica Towing, 632 F.2d 208, 212–213 (2d Cir. 1980). Noll,
Respondent’s principal officer, seems to have aimed his atten-
tion at a longtime employee, McGill, who was subjected to at
least several interrogations by Gagen. Noll, dissatisfied by her
union support, changed her job so she would be deprived of a
vote, unlawfully interrogated her about how she was going to
vote, and still was dissatisfied even when she finally agreed to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1030
vote against the Union and challenged her ballot. Then, 3
weeks later, without any actual change of conditions, Respon-
dent fired her. In her case and those of Larson and Banks, “the
seriousness of the conduct, coupled with the fact that often it
represents complete action as distinguished from mere state-
ments, interrogations or promises, justifies a finding without
extensive explication that it is likely to have a lasting inhibitive
effect on a substantial percentage of the work force.” NLRB v.
Jamaica Towing, Inc., 632 F.2d 208, 213 (1980). The employ-
ees, both permanents and temporaries, surely will learn from
these events that, if they support the Union, they jeopardize
their jobs.
Added to these unlawful activities, Respondent threatened
that it would not recall Larson because of her testimony in a
Board proceeding and Thomas because of his union activities,
promoted five employees before the election, interrogated other
employees before and after election, assigned Bill Richards to a
more onerous job and told him that it did so because of his
union activities, disciplined Simmerman with an oral warning
because of his testimony before the Board as well as his union
activities, threatened Simmerman with unspecified reprisals for
filing unfair labor practice charges, adopted and maintained
unlawful no solicitation—no-distribution rules before and after
the election. Those violations, in Gissel’s second category, are
sufficient to warrant the grant of a bargaining order. They de-
stroyed any chance for a fair rerun election.
In recommending a bargaining order, I reject a number of
Respondent’s contentions. First, Respondent recognizes that I
am bound by the Board’s holding that the bargaining unit in-
cluding temporary employees is appropriate, but raises this
issue to preserve it for further review. I can do nothing. Sec-
ond, there was ample dissemination of the unfair labor prac-
tices, including union supporters, temporary employees, who
changed their minds about the Union after they were promoted
to permanent employees. Third, regarding the fluctuating
number of temporary employees, the majority of the employees
were permanent and remained fairly stable. To the extent that
there was some turnover, the Board does not consider turnover.
Overnite Transportation Co., 329 NLRB 990, 994 (1999).
Having concluded that the appropriate relief shall include a
bargaining order and that Respondent had the duty to bargain
with the Union as early as August 2, I find that Respondent
never gave the Union prior notice or an opportunity to bargain
over the following: the August 8 layoff of Banks, David
Brown, Grogan, Hunter, Larson, Lucas, Ray Melvin, O’Neil,
Phillips, Thomas, and Watts; the grant of wage increases to
Miller on about August 7, to Hunter on about September 7, and
to Weikal on about October 16; the recall of various employees
from layoff on August 21 and September 21; the November 1
rule barring solicitation and distribution that applied only to
temporary employees; the September 22 change of Bill Rich-
ards’ work schedule; the promotion of Bilich, Clark, Miller,
Peterson, and Weikal to permanent employees; and the October
6 change of McGill’s employment status from an hourly to a
salaried employee. I conclude that Respondent, in violation of
Section 8(a)(5) and (1) of the Act, unlawfully refused to bar-
gain with the Union and unilaterally changed those terms and
conditions of employment, about which the Union had the
statutory right to bargain.
The Objections to the Election
The critical period here extended from August 2, the date of
the filing of the petition, through the October 13 election date.
Ideal Electric & Mfg. Co., 134 NLRB 1275, 1278 (1961). On
March 27, the Union filed timely objections, which, with one
exception, complain about the same conduct alleged in the
complaint. The objections were consolidated into this proceed-
ing by Order of the Regional Director, dated April 6, 2001.17 I
have found nothing in the record, including the exhaustive brief
filed by the Union, that relates to Objection 23, surveillance by
Davis. I therefore dismiss it. I also dismiss Objections 3, 5, 7,
12, 13, 15, 20, 21, and 22 for the reasons expressed above.
Objection 18 was dismissed during the hearing. I also dismiss
Objections 6 and 8 on the ground that Respondent did not re-
fuse to recall Larson during the preelection period. I have
found the following unfair labor practices which occurred be-
tween the filing of the representation petition and the election
and which constitute objectionable conduct as alleged in Objec-
tions 1, 4, 10, 11, 16, and 19. Despite my findings of objec-
tionable conduct, because I have recommended that a bargain-
ing order issue, I recommend that the election be set aside, that
Case 1–RC–15542 be dismissed, and that all proceedings in
connection therewith be vacated. Trading Port, 219 NLRB 298
(1975).
REMEDY
Having found that Respondent has engaged in certain unfair
labor practices, I find that it must be ordered to cease and desist
and to take certain affirmative action designed to effectuate the
policies of the Act. Because Respondent discriminatorily dis-
charged McGill, it must offer her reinstatement and make her
whole for any loss of earnings and other benefits, computed on
a quarterly basis, from the date of her discharge, and backpay
liability shall continue to run to the date of Respondent’s proper
offer of reinstatement, less any net interim earnings, as pre-
scribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus
interest as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987). In addition, McGill shall be reimbursed
for any loss of earnings that she may have suffered by reason of
Respondent’s change of her status from an hourly to a salaried
employee, with interest as computed above.
The normal remedy for Respondent’s refusal to recall Larson
and Banks is very similar: Respondent must offer them rein-
statement and make them whole for any loss of earnings and
other benefits, computed on a quarterly basis from the dates
when it is determined in compliance proceedings that positions
were available to them to be recalled, and backpay liability
shall continue to run to the date of Respondent’s proper offer of
reinstatement, less any net interim earnings, in the manner set
forth above. In the case of Larson, the date that backpay should
commence for the 8(a)(3) violation shall be no later than No-
vember 28, 2000, when the stain booth reopened. However, I
have also found that Respondent violated Section 8(a)(5) by

17 During the hearing, the Union withdrew Objections 2, 9, 13 (as it
related to Black), 14, and 17.
CARDINAL HOME PRODUCTS 1031
making a number of unilateral changes. For those unilateral
changes, which include the August 8, 2000 layoff of Larson
and Banks and others, Respondent shall be ordered to rescind
them, on request of the Union, and to make any employee ad-
versely affected whole for any loss of earnings and other bene-
fits, in the manner set forth above, with interest. The record
does not demonstrate that Larson and Banks would have neces-
sarily been selected for layoff, had there been bargaining with
the Union. Hedison Mfg. Co., 249 NLRB 791, 794 (1980),
enfd. 643 F.2d 32 (1st Cir. 1981). Finally, I shall also order
Respondent to expunge the oral warning to Simmerman, which
Keil retained in his files.
[Recommended Order omitted from publication.]