Demco New York Corp.

National Labor Relations Board - Board Decisions

Jul 26, 2002

337 N.L.R.B. 850 (N.L.R.B. 2002)

850 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Demco New York Corp. and International Brother-
hood of Electrical Workers, Local 910, AFL–
CIO. Case 3–CA–22798
July 26, 2002
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS COWEN
AND BARTLETT
On September 10, 2001, Administrative Law Judge
Jesse Kleiman issued the attached decision. The Re­
spondent filed exceptions, a supporting brief, and a reply
brief. The General Counsel filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions as
further discussed below and to adopt the recommended
Order as modified.1
In his decision, the judge found that the Respondent,
by Foreman William Grant,2 interrogated employee Paul
Castor about his union membership, activities, and sym­
pathies in violation of Section 8(a)(1) of the Act. For the
following reasons, we agree with the judge.
Facts
The facts, relevant to the interrogation finding, may be
briefly stated. On September 18, 2000,3 the Respondent
hired employee Paul Castor to work as an electrician’s
helper at its Manor at Woodside, Poughkeepsie, New
York jobsite. On September 27, the Respondent trans­
ferred Castor to its St. Lawrence University jobsite to
work with Foreman William Grant. Castor testified that
during the first couple of days that he worked with Grant,
they talked about several different things as they got to
know each other.
During a morning break on September 29, Castor
made a comment to Grant about starting to become an
expert in lighting when he worked at a company called
Lowe’s prior to working for the Respondent. In response
to Castor’s comment, Grant asked Castor who he worked
for at Lowe’s and Castor replied, “Matco.” Castor testi­
fied that Grant’s tone of voice changed when Grant asked
Castor if Matco was a union company. Castor hesitated
before responding in the affirmative. Grant then asked,
1 We shall modify the judge’s recommended Order to conform to
Excel Container, Inc., 325 NLRB 17 (1997), and substitute a new no­
tice in accordance with our recent decision in Ishikawa Gasket Amer­
ica, Inc., 337 NLRB No. 29 (2001).
2 No exceptions were filed to the judge’s findings that Grant is a
statutory supervisor and agent of the Respondent within the meaning of
Sec. 2(11) and (13) of the Act, respectively.
3 All dates are in 2000, unless stated otherwise.
inter alia, if Castor was a journeyman and a union mem­
ber. Castor replied “no” to both questions, and Grant
said, “Since when does a union hire out of union?” Cas­
tor replied that he was hired as an unindentured appren­
tice and asked Grant if he had a problem with the union.
Grant responded that he did not believe in what the un­
ions stood for. Grant then told Castor a story about a
good friend with whom he worked, the friend being a
union member, unbeknownst to Grant. One day the
friend advised Grant that he had to picket and Grant was
shocked by the announcement. Grant told Castor that
thereafter he only could allow his friend to work on me­
nial tasks because he could not trust him. Grant also
stated that he would not allow that type of incident to
happen to him again.
Analysis
Interrogation is not a per se violation of Section 8(a)(1)
of the Act. Rossmore House, 269 NLRB 1176 (1984),
affd. sub nom. Hotel Employees Local 11 v. NLRB, 760
F.2d 1006 (9th Cir. 1985). In determining whether an
interrogation is unlawful, the Board examines whether,
under all the circumstances, the questioning reasonably
tends to interfere with, restrain, or coerce employees in
the exercise of their Section 7 rights. Rossmore House,
269 NLRB at 1177–1178; Emery Worldwide, 309 NLRB
185, 186 (1992). Under the totality of circumstances
approach, the Board examines factors such as whether
the interrogated employee is an open and active union
supporter, the background of the interrogation, the nature
of the information sought, the identity of the questioner,
and the place and method of interrogation. Rossmore
House, 269 NLRB at 1178 fn. 20; Bourne v. NLRB, 332
F.2d 47, 48 (2d Cir. 1964); Sunnyvale Medical Clinic,
277 NLRB 1217, 1218 (1985).
Applying the above principles to the facts of this case,
we find that the totality of the circumstances establishes
that Grant’s questioning of Castor about Castor’s union
sentiment reasonably tended to interfere with, coerce,
and restrain the exercise of Castor’s Section 7 rights.4
We acknowledge that several factors weigh against
finding the interrogation coercive. The questioning took
place in an informal setting (the tailgate of Castor’s
4 In reaching this conclusion, we do not rely on the testimony of em­
ployee Brian Shaw that Project Foreman Dick Tucci questioned Shaw
about his union membership at the Respondent’s Victor, New York
jobsite a year prior to the incident involving Castor. The Respondent
contends in its exceptions that Shaw’s testimony is not relevant because
it involves a different supervisor and employee at another jobsite, and
occurred more than a year prior to Castor’s conversation with Grant.
We agree with the Respondent that Shaw’s testimony is not relevant.
We find, however, for the reasons set forth below, that even without
considering Shaw’s testimony, the record evidence establishes that the
Respondent (through Grant) violated Sec. 8(a)(1) of the Act.
337 NLRB No. 135
DEMCO NEW YORK CORP. 851
truck), the conversation began amicably, and Grant was a
relatively low-level supervisor.
However, other factors weigh in favor of finding the
interrogation coercive. First, Castor was not an open
union supporter and he had not revealed his union senti­
ment prior to the September 29 conversation with Grant.
The conversation occurred early in Castor’s employment,
i.e., his second or third day at the St. Lawrence worksite
and within 3 weeks of the start of his employment with
the Respondent.
Second, the nature of the questioning here was coer­
cive. Grant asked Castor if he were a union member. In
addition, the tone of the questioning changed to hostile as
soon as the Union was mentioned. Thus, when Grant
heard that Castor had previously worked for a union em­
ployer, Castor testified that Grant suddenly became “up-
set” and “excited.”
Most significantly, the questioning did not occur in a
context free of other coercive conduct. Grant informed
Castor of a past situation in which Grant, upon learning
that a good friend and employee was associated with a
union, no longer trusted the friend and began assigning
him menial work. Grant ominously told Castor that he
would not allow such a situation to happen to him again.
We find that these comments sent a clear message to
Castor that Grant distrusted union employees, and that he
would consider an employee’s union affiliation when
assigning work. These comments are particularly coer­
cive here because Grant, although a low-level supervisor,
was nevertheless the highest-ranking official at the St.
Lawrence jobsite, and was responsible for the assignment
of work at that site. This implied threat to link job as­
signments to an employee’s union support would rea­
sonably have caused Castor to believe that Grant’s ques­
tioning could result in an adverse change in Castor’s
working conditions.5
After considering the totality of the circumstances, we
find that the factors mitigating the coerciveness of
Grant’s questioning are outweighed by those supporting
a finding that the questioning was coercive. Therefore,
we conclude, in agreement with the judge, that the Re­
spondent interrogated Castor in violation of Section
8(a)(1) of the Act.
ORDER
The National Labor Relations Board adopts the rec­
ommended Order of the administrative law judge and
5 The complaint did not allege that the Respondent violated the Act
by this implied threat, and we therefore do not find a separate violation
based on this conduct. Nevertheless, we note that the Respondent did
not object to the testimony regarding this implied threat, nor did the
Respondent except to the judge’s consideration of this conduct as part
of the circumstances of Grant’s questioning.
orders that the Respondent, Demco New York Corp.,
East Syracuse, New York, its officers, agents, successors,
and assigns shall take the action set forth in the Order as
modified.
1. Substitute the following for paragraph 2(a).
“(a) Within 14 days after service by the Region, post at
its facility in East Syracuse, New York, copies of the
attached notice marked “Appendix.”17 Copies of the
notice, on forms provided by the Regional Director for
Region 3, 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 ensure 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 facil­
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no­
tice to all current employees and former employees em­
ployed by the Respondent at any time since September
29, 2000.”
2. Substitute the attached notice for that of the admin­
istrative law judge.
APPENDIX
NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE

NATIONAL LABOR RELATIONS BOARD

An Agency of the United States Government

The National Labor Relations Board has found that we 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 interrogate you about your union mem­
bership, activities, and symp athies.
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.
DEMCO NEW YORK CORP.
852 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Greg Lehmann, Esq. and Beth Matimore, Esq., for the General
Counsel.
Subhash Viswanathan, Esq. (Bond, Schoeneck & King, LLP),
for the Respondent.
Dennis Affinati, for the Union.
DECISION
STATEMENT OF THE CASE
JESSE KLEIMAN, Administrative Law Judge. Upon the basis
of a charge and amended charge filed by International Brother-
hood of Electrical Workers, Local 910, AFL–CIO (the Union)
on November 13, 2000, and January 23, 2001, respectively,
against Demco New York Corp. (the Respondent), a complaint
and notice of hearing was issued on February 21, 2001, alleging
that the Respondent had violated Section 8(a)(1) of the National
Labor Relations Act (the Act) by interrogating an employee
about his union membership, activities, and sympathies. By
answer timely filed, the Respondent denied the material allega­
tions in the complaint.
A hearing in this matter was held before me in Syracuse,
New York, on July 17, 2001. Subsequent to the closing of the
case, the General Counsel and the Respondent filed briefs.
On the entire record and the briefs of the parties, and on my
observation of the witnesses, I make the following
FINDING OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent, a corporation, with an office and place of
business at 6701 Manlius Center Road, East Syracuse, New
York (the Respondent’s facility), has been engaged as an elec­
trical contractor installing electrical conduits, wire fixt ure de-
vices, and equipment in buildings. During the past 12 months,
the Respondent, in conducting its business operations, pur­
chased and received at its East Syracuse, New York facility,
goods valued in excess of $50,000 directly from points located
outside the State of New York. The complaint alleges, the
Respondent admits, and I find that the Respondent is now, and
has been at all times material herein, an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the Respondent admits, and I find that
the Union, at all material times, has been a labor organization
within the meaning of Section 2(5) of the Act. The complaint
alleges and the Respondent admits that Gregg Slocum, project
manager, is a supervisor of the Respondent within the meaning
of Section 2(11) of the Act and an agent of the Respondent
within the meaning of Section 2(13) of the Act. However,
while the complaint also alleges that William Grant, foreman, is
also a supervisor and agent of the Respondent under the Act,
the Respondent denies this.
III. THE ALLEGED UNFAIR L ABOR PRACTICE
The Evidence
The Respondent is an electrical contractor installing electri­
cal conduits, wire fixture devices, and equipment in buildings.
Gregg Slocum is the Respondent’s project manager who over-
sees the Respondent’s work projects, at times up to six in num­
ber. Slocum testified that his job duties encompass “analyzing
the subcontract, purchasing materials for the project, scheduling
the labor for the project, scheduling the tasks for—the direction
of the foremen on the project, close-out documents, change
orders, receiving final payments, etc. . . . I also hire the staff
for the field. I also terminate the staff, if need be.” Slocum
added that all these responsibilities retain to maintaining and
the completion of the project.
Slocum hired employee Paul Castor on September 18, 2000,
and assigned him to work at the Manor at Woodside, Pough­
keepsie, New York. Walter Vaeth was the Respondent’s fore-
man on this project. Castor’s rate of pay was $10 per hour and
$15 hourly for overtime. He was then transferred to the Re­
spondent’s St. Lawrence University site in Canton, New York,
on September 27, 2000, where William Grant was the Respon­
dent’s foreman on the job. Castor was terminated on October
20, 2000. Slocum testified that when he hired Castor he di­
rected him to follow his foreman’s instructions with respect to
job assignments and to direct any questions he had about his
job assignments to his foreman. Slocum stated that this was
“common policy.”
Slocum testified that Grant’s duties as foreman was to “carry
out tasks that I have set up as a schedule for the project. He
would then take the people, manpower, and set up tasks for them
to complete those areas of the project.” Slocum added that
“[N]o, he’s not responsible for all aspects for the completion of
the project.” However, in a sworn statement given to a Board
agent during the investigative stage of this case, Slocum stated
that “a foreman is responsible for all aspects of completion of a
project, including employee safety, employee productivity,
maintaining customer relations, timeliness, etc.”1 In explaining
what he meant when he testified that a foreman “is not respon­
sible for all aspects of completion of a project” Slocum testi­
fied, “Well, there are aspects of the job that he can’t be respon­
sible for. He doesn’t do the final negotiations of the contract.
He doesn’t do closeout documents. He doesn’t hire employees.
He doesn’t shift manpower from one job to another. These are
some of the responsibilities are solely my responsibilities.”
Slocum testified that foremen do not hire or fire employees,
have no authority to lay off employees, or transfer them to an-
other jobsite. Nor can foremen suspend or discipline employ­
ees. Slocum has the authority as to the above. Slocum added
that while foremen can “direct an individual off the job” they
then would report to him that they have done so.
Slocum related that he is responsible for usually no more
than six projects with a foreman on each one. He stated that he
“interacts” with the foreman on each of these jobs daily to see
if the scheduled work is completed, if there are any problems
1 Slocum testified that:
I meant that, because I can’t be on the project every day, that
the foreman on the project has responsibilities to the employee
safety, making sure that the tasks are carried out and the hours
that allotted for that particular task. He has to also work with the
customers, which are the general contractors, making sure that
they’re satisfied and happy. And, that basically, we keep coordi­
nated with the other trades, so we don’t fall behind schedule.
DEMCO NEW YORK CORP. 853
with the work, are there the proper materials present for future
tasks, discussing the scope of the work, and reviewing drawings
to make sure that the work is being done properly.
The Respondent’s sole witness, William Grant,2 testified that
as foreman he instructs employees as to what work is to be
done such as pulling wires, running conduit, or whether work
has to be done underground. Grant’s hourly rate of pay is $25.
Grant began working at the Respondent’s St. Lawrence Univer­
sity jobsite in September 2000. Grant stated that he does not
hire employees. When he feels additional workers are needed
he calls the project manager for more help. Grant does not
have the authority to transfer or lay off employees. According
to Grant when the job is winding down he notifies the office
and tells them there is a “need to remove some people.” While
Grant denied that he issued any discipline, he added that if
there occurred a “bad discipline” by an employee, at work, he
would have the authority to “tell him to get off the job, to call
the office,” I assume to report this, but such an incident, ac­
cording to Grant, has never happened.
Grant testified that he did not have any “responsibility” for
giving raises or promoting employees but could recommend to
the project manager that they were doing a good job or not.
Grant stated that his authority lay in the area of assigning and
directing the work of the Respondent’s employees on the job-
site. Grant also relays company policies to the employees.
While the Respondent issues an employee handbook to each
new employee, the handbook specifically directs employees to
speak to their foreman if they have questions regarding their
job assignments and the Respondent’s rules and policies
throughout the company. Grant does have the authority to tell
employees when to take their breaks and lunches, and change
these times based on job needs. Moreover, Grant is the highest
level representative of the Respondent at the St. Lawrence Uni­
versity jobsite, and between October 2 and 20, 2000, was the
foreman for two of the Respondent’s employees on this site.
Grant admitted that project manager, Gregg Slocum, depends
substantially on him as foreman on the job, since Slocum never
visited the St. Lawrence University jobsite, and would rely
heavily on recommendations by him “with regard to employees
and to work as well.”
Paul Castor, an apprentice electrician, testified that when he
was hired by the Respondent’s project manager, Gregg Slocum,
as an electrician’s helper, he was assigned to work at the Re­
spondent’s Manor at Woodside jobsite in Poughkeepsie, New
York, where he was told to report to Walter Vaeth, the foreman
on that job. Castor related that Slocum instructed him to direct
any questions he had about job duties and assignments to the
foreman on the job, Vaeth. Thereafter, he was transferred to
the Respondent’s St. Lawrence University jobsite where he
reported to William Grant, the foreman on the job. Grant ex­
plained to Castor the Respondent’s policies and rules such as:
hours of work, breaktimes, and the need for safety equipment
such as hard hats, glasses, and safety shoes. Castor related that
Grant told him he would not be docked for time if he came 10
2 Grant started working for the Respondent in 1991 as an electrician
and with the Respondent’s predecessor company Donohue since 1988.
In 1994 Grant became a foreman with the Respondent.
minutes late, that the work hours were 7 a.m. to 3:30 p.m., that
morning break was at 9 a.m. and a half-hour lunchbreak at 12
noon.
Castor testified that at first Grant worked alongside him in
digging trenches about 20 percent of the time. About a week
later another employee, Charlie Dekin, came to work at the
jobsite and Grant then only worked “at best, ten percent,” with
these employees. Castor stated that then Grant “did a lot of
layout work and worked with the other trades foreman on the
job (steel riggers, carpenters, masons). Castor related that
Grant “directed us at our work, explained what he wanted done,
how he wanted it done, assigned the employees new tasks when
they completed their assignments, inspected the quality of their
work, changed breaktimes as required by the necessity of the
work, and set the time of work at 7 a.m. Castor also uncontra­
dictedly testified that Grant asked Castor to work overtime on
occasion. Grant signed Castor’s time sheets, sent employees
home when there wasn’t enough work, and called Castor back
to work the following day. Castor also testified that he asked
Grant for bereavement leave but was turned down on the basis
that he didn’t qualify because this occurred during his proba­
tionary period and, “I just left it at that.”3
Castor testified that he and Grant and then Dekin would all
take their morning and lunch breaks together, generally, at the
job trailer. Castor stated that he and Grant had conversations
about “several different things” during the first few days they
worked together getting “to know each other. Castor related a
particular conversation he had with Grant on September 29,
2000, a Friday, about 9 o’clock in the morning, while sitting on
his truck’s tailgate during a break. Castor “made a comment
about starting to become an expert at lighting and how I had
worked at Lowe’s prior to this in rewiring of lighting and
stuff. . . . And, he asked me who did I work for there at
Lowe’s. And, I told him, you know, Matco. He goes, aren’t
they down from Binghamton area? And, I explained, Yes.
And, he got like—his tone of voice just changed and, he goes,
aren’t they union? And, I kind of hesitated because of the na­
ture there and I go, Yeah.”
Castor continued:
I told him, yes, they’re union. And, he goes. Are you a Jour­
neyman? I says, No. He goes, Since when does a union—He
asked me if I was a union member at that point. And, I said,
No. He says, Since when does a union hire out of union?
And, I told him they hired me on as an unindentured appren­
tice. . . . He was just getting all excited. He said that he . . .
just couldn’t believe it.4
3 In Castor’s affidavit he stated that he also had asked project man­
ager, Gregg Slocum, for bereavement leave, but denied any inaccuracy
in his testimony, about this.
4 Castor testified that, “[a]s soon as he found out that I had worked
for Matco and he questioned me whether or not . . . I was union, he was
right up off my truck tailgate with—His voice was excited, you know,
lifted. He seemed upset.”
Castor stated that during this conversation with Grant, Grant did not
threaten him. Additionally, Castor admitted that, “after that day, the
subject of unions or union activity never came up again.”
854 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Castor then told Grant how he had been looking for work to
satisfy his unemployment insurance requirement and although
hired by the Respondent in August, was not “put to work right
away or at all” and therefore the union hall called him and sent
him to work for Matco.
I went on to explain all this to him and I could just see the
way he was, just, you know totally upset. Then, I went on
and asked him, I go,[w]ell, what’s your problem with the un­
ion? . . . Bill Grant said, I don’t believe in what the unions
stand for.
Castor related that Grant then told him a story about a good
friend of Grant’s and a good worker, who worked with Grant
and who 1 day advised Grant that he had to picket. Grant said
he “was just totally in shock.” Castor stated that Grant then
told him that thereafter he only could allow this fellow “menial
tasks because he couldn’t trust him.”5 Castor added that Grant
ended this conversation by stating that “he would not allow that
to happen again.”6 Moreover, the following Monday, both
Castor and Charlie Dekin were told to park their vehicles away
from the job trailer where they had previously parked.
Castor testified that after his conversation with Grant about
the Union on September 29, Castor felt that Grant did not trust
him anymore. Castor also admitted that he was upset at having
been terminated by the Respondent.
William Grant testified that upon his request for additional
help on the St. Lawrence University jobsite, Paul Castor was
sent there on September 27, 2000. Both Grant and Castor at
first dug and laid conduit in a trench as part of the job. The
Respondent sent Charlie Dekin to assist them at the task on
October 8, 2000. Grant stated that there was a 9 a.m. morning
break and a half hour lunch break at 12 noon, these breaks usu­
ally being taken at or in the job trailer or on the employees’
truck tailgates.
Grant testified that he had lots of conversations with Castor
about sports, politics, etc. Grant stated, “[P]robably the first
week, I was trying to get to know him,” Grant asked Castor
where he had worked before, also in order to gage his skills in
doing electrical work. Grant related that he made no comment
in response to Castor telling him that he previously worked at
Lowe’s in Watertown. Grant denied that during this conversa­
tion or any other conversation with Castor did the subject of
Castor’s union activity come up. Grant testified that it’s not
important to him whether or not an employee is union or non-
union but only the quality of his work, if they are good work­
ers, “it doesn’t matter what they are.”
Grant testified that while on the Respondent’s Vestal Wal-
Mart jobsite, in late 1999–spring 2000, employee Mark Pittsley,
employed there about 6 to 8 weeks, had come to him and said
that he was a member of the IBEW and the Union had asked
5 Castor testified that Grant had told him that he could only assign
tasks to this employee that could be completed in 1 day since he didn’t
want jobs to remain unfinished if the employee left work to picket.
Also, Castor’s affidavit mentions nothing about Grant stating he could
not trust this employee.
6 While Castor testified clearly about this September 29, 2000 con­
versation with Grant, he could not recall what else he and Grant talked
about during their other morning and lunchbreaks.
him to picket the site. Grant responded that, “[y]ou do what
you got to do. I, of course, have to call my office and tell them.
And, when you get done, come back and talk to me.” Grant
added that Pittsley returned and worked at the Vestal Wal-Mart
job for 2 more months and then left to work on a nuclear plant.
Subsequently, Pittsley sought to return to work for the Respon­
dent but job location resulted in his not returning.
Slocum testified that while employee Paul Castor worked at
the St. Lawrence University jobsite, he never visited the site.
Slocum stated that he terminated Castor based on the reports by
foreman William Grant of Castor’s poor work performance “on
the installation of the underground’s” and the “slow installation
of a back box.” Slocum admitted that he never observed Cas­
tor’s work himself. The reason given for Castor’s discharge on
his termination notice was that the 30-day probation perform­
ance appraisal was poor on two projects. These projects were
the Woodside Manor and the St. Lawrence University sites.
Slocum denied, however, that Grant had ever suggested or rec­
ommended that Castor be discharged.7 Slocum testified that
while he relies on the reports that a foreman on the jobsite re­
lates back to him, and that he had testified earlier that he based
Castor’s termination on Grant’s report, about Castor’s work,
Slocum stated that although he had spoken to Grant about Cas­
tor’s job performance, he never asked, “[W]hat Grant’s opinion
should be on what [Slocum] should do with Castor.”
The General Counsel also called as its witness, Brian Shaw,
a journeyman electrician who had previously worked for the
Respondent at its B.J. Wholesale Club project in Victor, New
York, beginning September 21, 1999. Shaw testified that Rich­
ard Tucci was the foreman on the job to whom he reported each
day. Shaw stated that other employees were also hired at the
same time who he knew to be organizers for Local Union 86,
International Brotherhood of Electrical Workers. Shaw related
that there was an organizing campaign going on at B.J.’s and he
was a “volunteer organizer.”
Shaw testified about a conversation he had with Tucci on
September 22, 1999. He stated:
Early in the day, at lunchtime, Jim Hynes and Mike Farrell let
it be known to everyone that they were organizers for Local
86, Rochester, New York local in the IBEW. And, later in the
afternoon when I was talking to Mr. Tucci for my next job as­
signment, he asked me if I was a member in the local.
Shaw indicated that after he responded, “yes,” Tucci informed
him that he can only talk about the benefits of belonging to a
union during nonworking time, such as breaks and lunchtime.8
7 While Slocum had originally testified that he relied solely on
Grant’s reports of Castor’s poor work performance to terminate him, he
now testified that he also considered his conversations with Walter
Vaeth, the foreman on the Manor at Woodside job regarding Castor’s
work. However, in his affidavit Slocum stated that when he spoke to
Vaeth about Castor’s job performance, Vaeth offered no comment one
way or the other, but instead stated, “that it was too early to tell.”
Slocum explained that Vaeth’s failure to praise Castor’s work lead him
to believe that Castor was “not really performing.”
8 Shaw testified that, “[w]hen I first answered yes, he sounded a little
bit surprised, because I caught him off guard. But, his tone of voice
went back to normal and he stayed calm.” Shaw admitted never having
DEMCO NEW YORK CORP. 855
Shaw added that only he and Tucci were present when this
occurred and the conversation lasted 2 or 3 minutes.
Credibility
As to the credibility of witnesses, after carefully considering
the record evidence, I have based my findings on my observa­
tion of the demeanor of the witnesses, the weight of the respec­
tive evidence, established and admitted facts, inherent prob­
abilities, and reasonable inferences which may be drawn from
the record as a whole. Gold Standard Enterprises , 234 NLRB
618 (1978); V & W Castings, 231 NLRB 912 (1977); and
Northridge Knitting Mills, 223 NLRB 230 (1976). I credit the
testimony of Paul Castor since his testimony was given in a
forthright manner and consistent with other believable evidence
in the record.9 Moreover, some of his testimony was corrobo­
rated by the Respondent’s own witness, William Grant. Fur­
ther, based on his demeanor, and other facts in the record, I find
him to be a more trustworthy witness. I also find the testimony
of Brian Shaw creditable since also given in a trustworthy and
forthright manner and more importantly, not being currently
employed by the Respondent, he has an uncontroverted disin­
terest in these proceedings.10
This is not to say that I discredit all of the testimony of
Gregg Slocum, called as a witness for the General Counsel
(under FRE 611(c)), and the Respondent’s witness, William
Grant.11 While I admit that I was not unimpressed by their
demeanor as witnesses, yet I found, for example, significant
inconsistencies in the testimony of Slocum regarding the duties
of Grant and the reason for Castor’s termination, as between his
testimony and his affidavit given to a Board agent. Addition-
ally, Grant’s testimony on cross-examination concerning his
report of Paul Castor’s job performance, appeared guarded and
defensive. I therefore only credit their testimony where it is not
in conflict with that of Castor’s, or where it is consistent with
the evidence in the record as will be set forth hereinafter.
Analysis and Conclusions
The complaint alleges that the Respondent by William Grant
interrogated an employee about his union membership, activi­
ties, and sympathies, in violation of Section 8(a)(1) of the Act.
met William Grant or being on the St. Lawrence University jobsite on
September 29, 2000.
Moreover, it should be noted that there is no evidence in the record
that either the Union or Shaw ever filed a charge with the Board regard­
ing this. Also, the jobsite was different, and the foreman different from
the instant case. Only the Respondent itself remains the same as em­
ployer.
9 I am aware that Castor testified that he was upset because he was,
terminated by the Respondent, and although I did note some minor
inconsistencies in his testimony, despite this, it appeared to me that
Castor was attempting to relate truthfully what actually happened.
10 The General Counsel offered the test imony of Brian Shaw, “to
show that the Respondent has a tendency of interrogating its employees
through its job foremen at various sites about their union activities,”
and as “background information, showing a tendency that the alleged
interrogation in the case actually did, in fact, occur.”
11 It is not unusual that, based upon the evidence in the record, the
testimony of a witness may be credited in part, while other segments
thereof are discounted or disbelieved. Jefferson National Bank, 240
NLRB 1057 (1979), and cases cited therein.
The Respondent denies this allegation.
Supervisory and Agency Status
The complaint alleges that Gregg Slocum, general manager,
and William Grant, foreman, are supervisors within the mean­
ing of Section 2(11) of the Act and agents of the Respondent
within the meaning of Section 2(13) of the Act. The Respon­
dent admits to the status of Gregg Slocum as a supervisor and
agent of the Respondent, but denies that William Grant is either
a supervisor or its agent.
Section 2(11) of the Act provides:
The term “supervisor” means any individual having the au­
thority, in the interest of the employer, to hire, transfer, sus­
pend, layoff, recall, promote, discharge, assign, reward, or
discipline other employees, responsibility to direct them, or to
adjust their grievances, or effectively to recommend such ac­
tions, if in connection with the foregoing the exercise of such
authority is not of a merely routine or clerical nature, but re-
quires the use of independent judgment.
In enacting Section 2(11), Congress emphasized its intention
that only truly supervisory personnel vested with “genuine
management prerogatives” should be considered supervisors
and not “straw bosses, leadman, set-up men and other minor
supervisory employees.” S. Rep. No. 105, 80th Cong. 1st Sees.
4 (1947).
The status of supervisor under the Act is determined by an
individual’s duties, not by his or her title or job classification.
New Fern Restorium Co., 175 NLRB 871 (1969); and Long­
shoremen ILA v. Davis, 476 U.S. 380, 396 fn. 13 (1986). It is
well settled that an employee cannot be transformed into a
supervisor merely by the visiting of a title and theoretical
power to perform one or more of the enumerated functions in
Section 2(11) of the Act. Advanced Mining Group, 260 NLRB
486 (1982); and Magnolia Nursing Home, 260 NLRB 377
(1982). To qualify as a supervisor, it is not necessary that an
individual possess all of these powers. Rather, possession of
any one of them is sufficient to confer statutory status. Cy­
press Lawn Cemetry Assn., 300 NLRB 609 (1990); Superior
Bakery, 294 NLRB 256 (1989), enfd. 893 F.2d 493 (2d. Cir.
1990); and NLRB v. Bergen Transfer & Storage Co., 678 F.2d
679 (7th Cir. 1982).
However, consistent with the statutory language and legisla­
tive intent, it is well recognized that Section 2(11)’s disjunctive
listing of supervisory indicia does not alter the essential con­
junctive requirement that a supervisor must exercise independ­
ent judgment in performing the enumerated functions. HS
Lordships, 274 NLRB 1167 (1985); and NLRB v. Wilson-
Crissman Cadillac, Inc., 659 F.2d 728 (6th Cir. 1961). Indeed
as the court stated in Beverly Enterprises v. NLRB, 661 F.2d
1095 (6th Cir. 1981). “Regardless of the specific kind of su­
pervisory authority at issue, its exercise must involve the use of
true independent judgment in the employer’s, interest before
such exercise of authority becomes that of a supervisor.” Thus,
the exercise of some supervisory authority “in a merely routine,
clerical, perfunctory or sporadic manner does not elevate an
employee into the supervisory ranks,” the test must be the sig­
nificance of his judgment and directions. NLRB v. Wilson-
856 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Crissman Cadillac, Inc., supra; Lakeview Health Center , 308
NLRB 75 (1992); and Hydro Conduit Corp., 254 NLRB 433
(1981). Consequently, an employee does not become a super-
visor merely because he gives some instructions or minor or­
ders to other employees. NLRB v. Wilson-Crissman Cadillac,
Inc., supra.
Nor does an employee become a supervisor because he had
greater skills and job responsibilities or more duties than fellow
employees. Federal Compress & Warehouse Co. v. NLRB, 398
F.2d 631 (6th Cir. 1968). Additionally, the existence of inde­
pendent judgment alone will not suffice for “the decisive ques­
tion is whether [the employee has] been found to possess au­
thority to use independent judgment with respect to the exer­
cise . . . of some one or more of the specific authorities listed in
Section 2(11) of the Act.” Advance Mining Group, supra; and
NLRB v. Brown & Sharpe Mfg. Co., 169 F.2d 331 (1st Cir.
1948). In short, “some kinship to management, some empa­
thetic relationship between employer and employee must exist
before the latter becomes a supervisor for the former.” Ad­
vance Mining Group, supra; and NLRB v. Security Guard Ser­
vice, 384 F.2d 143 (5th Cir. 1967). Moreover, in connection
with the authority to recommend actions, Section 2(11) of the
Act requires that the recommendations must be effective.
The burden of proving that an employee is a “supervisor”
within the meaning of the Act rests on the party alleging that
such status exists. Pine Brook Care Center , 322 NLRB 740
(1996); Ohio Masonic Home, 295 NLRB 390 (1989); RAHCO,
Inc., 265 NLRB 235 (1982); and Tucson Gas & Electric Co.,
241 NLRB 181 (1979).12 Where the possession of any one of
the aforementioned powers is not conclusively established, or
“in borderline cases” the Board looks to well-established sec­
ondary indicia, including the individuals’ job title or designa­
tion as a supervisor, attendance at supervisorial meetings, job
responsibilities, authority to grant time off etc., whether the
individual possess a status separate and apart from that of rank-
and-file employees. NLRB v. Chicago Metallic Corp., 794 F.2d
531 (9th Cir. 1986); Monarch Federal Savings & Loan Assn.,
237 NLRB 844 (1978); and Flex-Van Service Center, 228
NLRB 956 (1977). However, when there is no evidence that an
individual possesses any one of the several primary indicia for
statutory status enumerated in Section 2(11) of the Act, the
secondary indicia are insufficient by themselves to establish
statutory supervisory status. J. C. Brock Corp., 314 NLRB 157
(1994); and St. Alphonsus Hospital, 261 NLRB 620 (1982).
Additionally, whenever there is inconclusive or conflicting
evidence on specific indicia of supervisory authority, the Board
will find that supervisory status has not been established with
respect to those criteria.
In NLRB v. Health Care & Retirement Corp., 511 U.S. 571
(1994), the Supreme Court set forth the test for determining
whether an individual is to be deemed a supervisor. The Court
noted that in making a determination on the question of one’s
supervisory status:
12 However, in NLRB v. Health Care & Retirement Corp. of Amer­
ica, 987 F.2d 1256 (6th Cir. 1993), the Sixth Circuit held that the Gen­
eral Counsel has the burden of establishing supervisory status.
[T]he statute requires the resolution of three questions and
each must be answered in the affirmative if an employee is to
be deemed a supervisor. First, does the employee have au­
thority to engage in one of the 12 listed activities [in section
2(11)]? Second, does the exercise of that authority require
“the use of independent judgment”? Third, does the em­
ployee hold authority “in the interest of the employer”?
511 U.S. 573–574.
Based on the totality of the evidence I find and conclude that
William Grant is a supervisor within the meaning of Section
2(11) of the Act. While it is clear from the record that Grant
has no authority to hire, transfer, suspend, lay off, recall, pro-
mote, discharge, reward, or discipline other employees, it
would appear that he can effectively recommend whether or not
an employee is retained or discharged. With respect to oral
evaluations of employees, foremen, in response to Slocum’s
specific inquiries, may advise him how a particular employee is
doing. In this case Slocum asked Grant how Castor was per-
forming his job. When Grant responded that he was doing
poorly, Slocum then discharged Castor. Slocum testified that
he relied solely on Grant’s reports of Castor’s poor work per­
formance to terminate him, having never observed Castor
working on the St. Lawrence jobsite himself. Moreover, Grant
testified that Slocum, never having visited the St. Lawrence
University jobsite, relied heavily on Grant’s recommendations
“with regard to employees and to work as well.” Therefore,
Grant’s response to Slocum had an effect on Castor’s terms and
conditions of employment.13
Moreover, under the circumstances present in this case,
Grant, as foreman, does have the authority to responsibly direct
and assign employees, and, that his exercise of such activity
requires the use of independent judgment in some instances.
Applying the indicia of assignment and responsibly to direct
to the facts of a specific case is often difficult. There are no
hard and fast rules: instead each case turns on its own particular
facts. Clearly, not all assignments and directions given by an
employee involve the exercise of supervisory authority. NLRB
v. Security Guard Service, supra. Consequently, the Board
analyzes each case in order to differentiate between the exercise
of independent judgment and the giving of routine instructions,
between effective recommendations and forceful suggestion
and between the appearance of supervision and supervision in
fact. McCullough Environmental Services , 306 NLRB 565
(1992), enf. denied 5 F.3d 923 (5th Cir. 1993).
In considering whether Grant is a supervisor under Section
2(11) of the Act, I also in this case look to Slocum’s description
of Grant’s duties as foreman. Slocum testified that “the fore-
man on the project has responsibilities to the employee’s safety,
making sure that the tasks are carried out and the hours allotted
for that particular task. He has also to work with the customers,
which are the general contractors, making sure that they’re
satisfied and happy. And, that basically, we keep coordinated
with the other trades, as we don’t fall behind schedule.” Grant
additionally was the highest ranking representative of the Re-
13 Also, in view of the above, I do not credit Slocum’s testimony that
when he spoke to Grant about Castor’s job performance, he never asked
Grant his “opinion” about what Slocum should do about Castor.
DEMCO NEW YORK CORP. 857
spondent on the St. Lawrence University jobsite; was paid sub­
stantially more as foreman than the other employees including
Castor; told employees when to take their breaks and lunches
and to change these based on need; assigned employees new
tasks when they had completed their work assignments, in­
spected the quality of their work; signed employee timesheets;
sent employees home when there wasn’t enough work; and
called them back when there was. Moreover, Castor testified
that Grant has asked him to work overtime on occasion.
Grant’s duties also included many functions not entrusted to
other employees, such as working with the other trades foremen
on the job and the general contractors representative, discussing
with Slocum, the project manager, the scope of the work, and
reviewing drawings to make sure the work is being done prop­
erly. Additionally, Grant’s performance as a supervisor was on
a regular, ongoing basis and was not merely sporadic. Laser
Tool, Inc., 320 NLRB 105 (1995).
I also find that the record contains ample evidence that Wil­
liam Grant is an agent of the Respondent acting on its behalf.
Section 2(13) of the act provides:
In determining whether any person is acting as an “agent” of
another person so as to make such other person responsible
for his acts, the question of whether the specific acts per-
formed were actually authorized or subsequently ratified shall
not be controlling.
Legislative history dictates that the Board is to apply common
law principles of agency in determining who is an agent under
the Act. See Longshoremen ILA (Coastal Stevedoring Co.),
313 NLRB 412, 415 (1993), remanded 56 F.3d 205 (D.C. Cir.
1995). In Coastal Stevedoring Co. supra, the Board noted that
“when applied to labor relations, however, agency principles
must be broadly construed in light of the legislative policies
embedded in the Act.” Moreover, in Shen Automotive Dealer-
ship Group, 321 NLRB 586, 593 (1996), the Board held that
the “common law principles of agency incorporate principles of
implied and apparent authority.” See Service Employees Local
87 (West Bay Maintenance), 291 NLRB 82 (1988), in which
the Board noted:
Apparent authority is created through a manifestation by the
principal to a third party that supplies a reasonable basis for
the latter to believe that the principal has authorized the al­
leged agent to do the acts in question. NLRB v. Donkin’s Inn,
532 F.2d 138, 141 (9th Cir. 1976); Alliance Rubber Co., 286
NLRB 645, 646 fn. 4 (1987). Thus, either the principal must
intend to cause the third person to believe that the agent is au­
thorized to act for him, or the principal should realize that this
conduct is likely to create such belief. Restatement 2d,
Agency § 27 (1958, Comment). Two conditions, therefore,
must be satisfied before apparent authority is deemed created:
(1) there must be some manifestation by the principal to a
third party, and (2) the third party must believe that the extent
of the authority granted to the agent encompasses the contem­
plated activity, Id. at § 8.
See also Great American Products , 312 NLRB 962, 963
(1993); and Dentech Corp., 294 NLRB 924 (1989).
As stated in a more subjective manner, “an employer can be
responsible for the conduct of an employee, as an agent, where
under all the circumstances the employees would reasonably
believe that the individual was reflecting company policy and
acting on behalf of management.” Kosher Plaza Supermarket,
313 NLRB 74, 85 (1993); and Shen Automotive Dealership
Group, supra. The Board has also held that the burden of proof
is on the party asserting that an agency relationship exists.
Shen Automotive Dealership Group, supra.
Project manager, Gregg Slocum, testified that it was “com­
mon policy” to direct employees to follow the instructions of
his foreman with respect to job assignments and duties and
direct any questions about this to his foreman and he advised
Castor of this when he was hired. William Grant testified that
as foreman, he relays company policies to the employees.
Moreover, the Respondent’s employee handbook directs em­
ployees to speak to their job foreman if they have questions
regarding their job assignments and the Respondent’s rules and
policies. Castor testified that Grant explained the Respondent’s
rules and policies to him when Castor was transferred to the St.
Lawrence University jobsite. He stated that while Grant at first
worked alongside him about 20 percent of the time, after Char-
lie Dekin, another employee came to the jobsite, Grant worked
only “at best ten percent” of the time with these employees,
representing the Respondent with the other trades’ foremen on
the job part of the other times. Castor stated that Grant also
“directed us at our work, explained what he wanted done, how
he wanted it done.” Grant stated that his authority lay in the
area of assigning and directing the work of the Respondent’s
employees on the jobsite, and the record evidence shows that
the employees were aware of this.
Thus, from William Grant’s real and perceived authority
over the Respondent’s employees, including all of the above,
the Respondent can be held responsible for his conduct, as its
agent, “where under all the circumstances the employees would
reasonably believe that the individual [Grant] was reflecting
company policy and acting on behalf of management.” Shen
Automatic Dealership Group, supra; Kosher Plaza Supermar­
ket, supra.
The test for agency is whether, under all the circumstances,
an employee could reasonably believe that the alleged agent
was reflecting company policy and speaking for management.
Waterbed World, 286 NLRB 425, 426–427 (1987). Moreover,
as Section 2(13) of the Act provides, “the question of whether
specific acts performed were actually authorized or subse­
quently ratified shall not be controlling.”
I therefore find and conclude that William Grant is an agent
of the Respondent acting on its behalf within the meaning of
Section 2(13) of the Act.
Interrogation
The consolidated complaint alleges that the Respondent, by
William Grant, interrogated an employee about his union mem­
bership, activities, and sympathies. The Respondent denies this
allegation.
The Board, in Blue Flash Express, 109 NLRB 591 (1954),
set forth the basic test for evaluating whether interrogations
violate the Act; whether under all the circumstances the inter-
858 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
rogation reasonably tends to restrain, coerce, or interfere with
rights guaranteed by the Act. This longstanding test was reiter­
ated in Rossmore House, 269 NLRB 1176 (1984), affd. 760
F.2d 1006 (9th Cir. 1985). In Sunnyside Medical Clinic, Inc.,
277 NLRB 1217, 1218 (1985), the Board stated:
The Board in Rossmore House outlined some areas of inquiry
that may be considered in applying the Blue Flash test, stress­
ing that these other relevant factors were not to be mechani­
cally applied in each case. Thus, the Board mentioned the
background, the nature of the information sought, the identity
of the questioner, and the place and method of interrogation.
Evidence of actual coercion is not necessary and in determining
whether the conduct tends to be coercive, an objective standard
is applied. The Board considers all the surrounding circum­
stances and in addition to the above criteria other relevant fac­
tors such as, whether the interrogation was aimed at the em­
ployee, whether the employer displayed antiunion animus, and
whether the interrogation had any lawful purpose. Sunnyside
Medical Clinic, supra. The words themselves, or the context, in
which they were used, must suggest an element of restraint,
coercion, or interference.
The totality of the circumstances herein establishes that the
Respondent, by William Grant, unlawfully interrogated Paul
Castor, an employee about his union membership, activities,
and sympathies. Castor credibly testified that on September 29,
2000, William Grant asked Castor whether the company he had
previously worked for was union. When Castor answered yes,
the whole nature of their conversation changed. Grant asked
Castor if he was a union member and Castor answered, “No.”
Grant questioned him about the circumstances of his previous
hire. Castor stated that Grant had become “excited” and “up-
set” during this union discussion. After Castor asked Grant
“What’s your problem with the union?” Grant responded, “I
don’t believe in what the unions stand for.”
Here, the questioning of the employee, came from the Re­
spondent’s foreman, Grant, who regularly exercised apparent
and actual authority whenever he acted as the Respondent’s
spokesman on the jobsite. As part of his daily responsibilities,
he acted as the conduit for relaying the Respondent’s rules and
policies to employees. Grant’s questioning of Castor had no
valid purpose other than to unlawfully question him about his
union sentiment, which relates directly to his protected activity
and seeks to elicit the precise type of information that employ­
ees are privileged to keep from their employers.14
Therefore, from all of the above, I find and conclude that the
Respondent unlawfully interrogated an employee about his
union membership, activities, and sympathies, in violation of
Section 8(a)(1) of the Act.15
14 Royal Manor Convalescent Hospital, 322 NLRB 354, 362 (1996);
Advance Waste Systems, 306 NLRB 1020 (1992); and Club Monte
Carlo Corp ., 280 NLRB 257 (1986), enfd. 821 F.2d 354 (6th Cir.
1987).
15 Rossmore House, supra; Sunnyside Medical Clinic, supra; DeJana
Industries, 305 NLRB 845 (1991); Cannon Industries, 291 NLRB 632
(1988); and Pennsy Supply, Inc., 295 NLRB 324 (1989) (it is unlawful
interrogation for an employer to question an employee, who is not an
open union supporter, about union activity, especially where the em-
IV. THE EFFECTS OF THE U NFAIR LABOR PRACTICE S ON
COMMERCE
The activities of the Respondent set forth in section III,
above, found to constitute unfair labor practices occurring in
connection with the operation of the Respondent described in
section I, above, have a close, intimate, and substantial relation-
ship to trade, traffic, and commerce among the several states
and tend to lead to labor disputes burdening and obstructing
commerce and the free flow thereof.
REMEDY
Having found that the Respondent has engaged in certain un­
fair labor practices, I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to effec­
tuate the policies of the Act.
Because of the nature of the unfair labor practices found
here, and in order to make effective the interdependent guaran­
tees of Section 7 of the Act, I recommend that the Respondent
be ordered to refrain from in any like or related manner abridg­
ing any of the rights guaranteed employees by Section 7 of the
Act. The Respondent should also be required to post the cus­
tomary notice.
CONCLUSIONS OF LAW
1. Demco New York Corp., is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. William Grant, the Respondent’s foreman, at all material
times, has been a supervisor of the Respondent within the
meaning of Section 2(11) of the Act, and an agent of the
Respondent acting on its behalf within the meaning of Section
2(13) of the Act.
4. By unlawfully interrogating an employee about his union
membership, activities, and sympathies, the Respondent has
been interfering with, restraining, and coercing employees in
the exercise of the rights guaranteed in Section 7 of the Act, in
violation of Section 8(a)(1) of the Act.
5. The unfair labor practice described above affects com­
merce within the meaning of Section 2(6) and (7) of the Act.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended16
ployee gives defensive answers to the questions, thereby indicating that
the conversation is not merely casual or amicable).
Moreover, given the position in which the Respondent had placed
Grant, it was reasonable for Castor to believe that as foreman, Grant
was reflecting company policy and acting for management when Grant
engaged in the conduct found to be unlawful. Victor’s Café, Inc., 52,
321 NLRB 504, 513 (1996); and Great American Products, 312 NLRB
962 (1993).
16 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom­
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purpose.
DEMCO NEW YORK CORP. 859
ORDER
The Respondent, Demco New York Corp., East Syracuse,
New York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Interrogating employees about their union membership,
activities, and sympathies.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
in Section 7 of the Act.
2. Take the following affirmative action necessary to effec­
tuate the policies of the Act.
(a) Within 14 days after service by the Region, post at its fa­
cility in East Syracuse, New York, copies of the attached notice
marked “Appendix”17 Copies of the notice on forms provided
17 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.”
by the Regional Director for Region 3 after being signed by the
Respondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in con­
spicuous places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced,
or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees ad former employ­
ees employed by the Respondent at any time since November
13, 2000.
(b) Within 14 days after service by the Region, file with the
Regional Director for Region 3, a sworn certification of a re­
sponsible official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply with this
Order.