Diamond Electric Manufacturing Corp.

National Labor Relations Board - Board Decisions

Apr 14, 2006

346 N.L.R.B. 857 (N.L.R.B. 2006)

DIAMOND ELECTRIC MFG. CORP.
346 NLRB No. 83
857
Diamond Electric Manufacturing Corporation and
International Union, United Automobile, Aero-
space and Agricultural Implement Workers of
America (UAW), AFL–CIO. Cases 7–CA–41236
and 7–CA–41918
April 14, 2006
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On June 20, 2001, Administrative Law Judge John H.
West issued the attached decision. The Respondent filed
exceptions and a supporting brief, and moved to reopen
the record. The General Counsel and the Charging Party
filed answering briefs and briefs in opposition to reopen-
ing the record. The Respondent filed a reply to the Gen-
eral Counsel’s answering brief and responded to the
briefs opposing the reopening of the record.1
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
adopt the judge’s rulings, findings,2 and conclusions only
to the extent consistent with this Decision and Order.
The judge found that the Respondent committed two
unfair labor practices in violation of Section 8(a)(1) and
(3) after signing a settlement agreement and a Stipulated
Election Agreement with the Union. As a result of these
postsettlement violations, the judge concluded that the
Regional Director had correctly set aside the parties’
settlement agreement. The judge further found that the
Respondent committed numerous violations of Section
8(a)(1) and (3) by its presettlement conduct. Based on
the presettlement and postsettlement violations, the judge
concluded that a Gissel bargaining order was necessary.
See NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).
For the reasons explained below, we adopt the judge’s
decision only with respect to one of the two postsettle-

1 The Respondent has requested oral argument. The request is denied
as the record, exceptions, and briefs adequately present the issues and
the positions of the parties.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all of 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.
In affirming the judge’s credibility determinations, however, we do
not rely on his finding that Supervisor Sherry Nevins “lied under oath”
as a basis for entirely discrediting her. The judge failed to explain
exactly what Nevins lied about or why he thought she had lied. We
rely, instead, on the judge’s crediting of other witnesses over Nevins
and his overall assessment of the demeanor of the witnesses.
ment violations found by the judge and conclude that this
isolated violation does not warrant setting aside the set-
tlement agreement and imposing a Gissel order.3
A. Factual and Procedural History
The Respondent is a manufacturer of ignition coils for
cars in Dundee, Michigan. In July 1998, the Union be-
gan a campaign at the Respondent’s Dundee facility to
organize the full-time and regular part-time production
and maintenance employees. On August 3, 1998, the
Union filed a representation petition with the Board.
The Respondent opposed the Union, which then filed
unfair labor practice charges with the Board. On No-
vember 30, 1998, the General Counsel issued a com-
plaint that, as amended, alleged that the Respondent
unlawfully interrogated numerous employees, threatened
several employees with job loss, created the impression
that employees’ union activities were under surveillance,
and maintained and promulgated unlawful work rules. In
addition, the complaint alleged that the Respondent
changed the breaktime of one employee and transferred
another because of their union activism and issued rep-
rimands to and otherwise harassed the foremost union
supporters because of their union activities.
A representation election was held on September 24,
which the Union lost. The Union filed objections to the
election, and, on January 27, 1999,4 the parties signed a
stipulation setting aside the election and agreeing to hold
a new election on April 29. The parties also entered into
an informal settlement agreement to settle the Union’s
charges. The Regional Director approved both agree-
ments on February 1.
On March 18, the Respondent discharged union sup-
porter Robert Bomia. On March 23, the Respondent
gave union activist Peggy Heiden a final warning. The
Union filed charges on April 1, alleging, inter alia, that
the Respondent had unlawfully discharged Bomia and
issued a final warning to Heiden because of their respec-
tive union activity. On June 23, the Regional Director
set aside the settlement agreement in light of his finding
merit to the newly filed charges and issued a second
amended consolidated complaint, incorporating the pre-
settlement and postsettlement allegations against the Re-
spondent.

3 Because we decline to issue a Gissel order in this case for the rea-
sons stated below, we find it unnecessary to decide whether the judge
properly allowed the General Counsel to amend the complaint at the
hearing to include an allegation of the Union’s majority status and an
express request for a bargaining order. For the same reason, we need
not rule on the Respondent’s motions to reopen the record to adduce
additional evidence regarding the Union’s majority status and turnover
at the Respondent’s Dundee facility; all of the proffered evidence re-
lates to the appropriateness of a bargaining order.
4 Henceforward, all dates refer to 1999.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD858
B. Discussion
Although the judge concluded that the Respondent had
committed both presettlement and postsettlement viola-
tions of the Act, we find that the case turns on the two
allegedly unlawful actions taken by the Respondent after
it entered into the informal settlement agreement with the
Union: (1) the discharge of Robert Bomia, and (2) the
final warning given to Peggy Heiden. While we5 agree
with the judge that Heiden’s final warning was unlawful,
we6 find that the discharge of Bomia was not unlawful.
Our reasons follow.
1. Discharge of Robert Bomia
a. Facts
On March 17, Robert Bomia, a known union sup-
porter, was assigned to work the midnight shift on the
rail coil assembly line with a coworker, Shannon Purkey.
The rail coil line has two workstations. At the first sta-
tion, the worker places bobbins in the coil casing and
sends the part into a machine that wraps wire onto the
bobbins. The part then enters a soldering machine,
which solders the wires at various points and passes the
part to the second station for visual inspection and test-
ing. Purkey worked at the inspection station of the line
for the first 4 hours of the shift, and Bomia worked at
that station for the rest of the shift. At the end of the
shift, an employee on the next shift pointed out to Bomia
that a number of the coils were improperly soldered and
reported the problem to Bomia’s supervisor, Bryan Kil-
burn. After a half-hour investigation, Kilburn estimated
that there were 300 defective parts, all of which Respon-
dent managed to salvage.
Kilburn recommended to Human Resources Manager
Gene Bialy that Bomia be discharged for the error dis-
cussed above. Bomia was summoned to Bialy’s office
but, before Bomia arrived, Bialy consulted with Plant
Manager Paul Lefief about the matter. Lefief told Bialy
that if Bomia could not provide an explanation for the
production line error, he would support the recommenda-
tion that Bomia be discharged. Bialy then met with
Bomia. He asked Bomia to explain what caused the pre-
vious night’s error on the line. After Bomia stated that
he had no explanation for the error, Bialy informed him
that he was discharged for the error. Bialy also told
Bomia that his discharge was based on his “problems in

5 Chairman Battista and Member Liebman agree on the Heiden vio-
lation. Member Schaumber finds it unnecessary to pass on whether the
Respondent unlawfully issued a final warning to Peggy Hei-
den. Assuming arguendo that the Respondent did so, he finds that this
violation is insufficient to warrant setting aside the settlement agree-
ment.
6 Chairman Battista and Member Schaumber agree as to the Bomia
discharge. In her separate opinion, Member Liebman dissents.
the past.” Bomia understood this as a reference to the
fact that 3 months earlier, his probationary hire period
had been extended 30 days (ending in February) due to
dishonest conduct on the job, discussed more fully be-
low.
b. Analysis and conclusion
To establish that Bomia’s discharge was unlawful, the
General Counsel must show, by a preponderance of the
evidence, that his union activity was a motivating factor
in the Respondent’s termination decision; once the Gen-
eral Counsel has made this showing, the burden shifts to
the Respondent to show that it would have taken the
same action even in the absence of the protected activity.
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982), ap-
proved in NLRB v. Transportation Management Corp.,
462 U.S. 393, 399–403 (1983). Even in the absence of
direct evidence of animus, extant Board precedent pro-
vides that unlawful motivation may, in appropriate cases,
be inferred from circumstantial evidence, including evi-
dence that the employer’s stated reason for its action was
a pretext—that is, either false or not in fact relied upon.
See, e.g., Whitesville Mill Service Co., 307 NLRB 937
(1992); Fluor Daniel, Inc., 304 NLRB 970 (1991), enfd.
976 F.2d 744 (11th Cir. 1992).
In finding that the General Counsel met his burden of
showing unlawful motivation, the judge relied on evi-
dence that other employees who had made similar or
more serious on-the-job errors than Bomia’s were not
discharged,7 and on his finding that Bomia had not been
certified to perform the particular task to which he was
assigned when his error occurred. In exceptions, the
Respondent argues that this evidence fails to meet the
General Counsel’s burden of showing that Bomia’s dis-
charge was unlawfully motivated. We find merit in this
exception.
As noted above, the judge found that the discharge of
Bomia was unlawful. Our dissenting colleague agrees
with the judge and, in doing so, relies on the same evi-
dence of unlawful motivation that the judge relied upon.
In addition, however, she relies on alleged 8(a)(1) and (3)
violations found by the judge as “background evidence
of the Respondent’s anti-union animus” toward Bomia,

7 The judge relied primarily on three instances of allegedly disparate
treatment. First, Purkey, who worked on the inspection station of the
rail coil line for the first half of the shift, received an oral warning.
Second, Wayne Jeffers received an oral warning when his failure to
catch improperly soldered coils resulted in 688 pieces of scrap. Finally,
Chad Naugle was not discharged after his failure to correctly reassem-
ble a mold caused 580 parts to be recalled from the customer as defec-
tive; he received a written warning as a result of this error and three
subsequent performance errors that caused damage to the molds or
produced defective parts.
DIAMOND ELECTRIC MFG. CORP. 859
notwithstanding that these violations were encompassed
by the informal settlement agreement discussed above.
We reject this “evidence” for two reasons. First, the
judge himself did not rely on these alleged presettlement
violations to find the Bomia discharge unlawful. Second,
as a matter of law, our colleague is precluded from rely-
ing on the alleged presettlement violations as evidence of
Respondent’s union animus. The informal settlement
agreement signed by the Respondent and the Union con-
tained a nonadmission clause and the agreement ex-
pressly settled all the alleged violations on which our
colleague seeks to rely as evidence of the Respondent’s
animus in this postsettlement portion of the case. As
stated in Steves Sash & Door Co., 164 NLRB 468, 476
(1967), a “settlement agreement contain[ing] a nonad-
mission clause . . . ‘may not itself be used to establish
anti-union animus’” in postsettlement proceedings (cita-
tions omitted). See also Parker Seal Co., 233 NLRB 332,
335 (1977) (“an informal settlement with a nonadmission
clause do[es] not . . . constitute competent evidence of
the prior alleged unlawful conduct of the settling party;
nor [is it] admissible to show animus” regarding postset-
tlement conduct).
Our colleague’s reliance on Electrical Workers 613
Local, 227 NLRB 1954 fn.1 (1977), is not to the con-
trary. That case applied the rule of Joseph’s Landscap-
ing Service, 154 NLRB 1384 fn.1 (1965), which, as
stated in Morton’s IGA Foodliner, 237 NLRB 667, 669
(1978), “permits the use of presettlement conduct as
background evidence to establish a motive or object of
the [r]espondent in its postsettlement activities, . . . [but]
the latter holding did not extend to permit the introduc-
tion of an informal settlement agreement (with a nonad-
mission clause) itself as direct evidence of such con-
duct.” Thus, we cannot accept the settlement agreement
itself to shed light on postsettlement conduct. Nor can
we adjudicate the presettlement conduct as unlawful. In
this latter regard, we have accepted the settlement, and
that acceptance precludes a finding that the presettlement
conduct was unlawful.
However, our colleague says that she would rely upon
presettlement facts to shed light on postsettlement con-
duct. More particularly, she would rely on such facts to
support the inference that Bomia’s discharge was unlaw-
fully motivated. We disagree. The presettlement facts
did not involve Bomia, and there is no evidence that the
Respondent made any statements to Bomia indicative of
antiunion animus. We do not, of course, suggest that ad-
judicated unfair labor practices directed at certain em-
ployees cannot constitute evidence of antiunion animus
to establish an 8(a)(3) violation as to others. Here, how-
ever, no presettlement unfair labor practices have been
found.
With respect to the circumstantial evidence that the
judge did rely on, we find it insufficient to warrant an
inference that Bomia’s discharge was unlawfully moti-
vated. First, we agree with the Respondent that the judge
erred in finding evidence of disparate treatment here.
Unlike other employees who received lesser discipline
for assertedly similar on-the-job errors, Bomia had been
counseled for dishonest conduct about 3 months before
his discharge and just over 2 months after his hire. At
that time, Kilburn spoke with him about the fact that he
had, on more than one occasion, clocked in early when
he was scheduled to be working overtime and, instead of
going directly to work, had first gone on break with the
employees whose regular shift was in progress. As a
result of this misconduct, Kilburn extended Bomia’s pro-
bationary period. None of the other employees who
committed similar on-the-job errors and were treated
more leniently had a similar history of dishonest conduct.
We conclude that Bomia was not similarly situated to
those employees. See Hoffman Fuel Co. of Bridgeport,
309 NLRB 327, 329 (1992) (no disparate treatment
where employer discharged employee for unauthorized
absence from jobsite, although other employees had not
been disciplined for same conduct, because other em-
ployees did not have past disciplinary history like dis-
charged employee).
Moreover, Bomia admitted that, at his termination
meeting, Human Resources Manager Gene Bialy indi-
cated that his discharge was for his performance error
and for problems in the past. Thus, the Respondent
clearly relied on Bomia’s disciplinary history, not only
his error, in discharging him. As explained, because it
included dishonest conduct, that history differentiated
him from the other employees who had made similar
performance errors.
Our dissenting colleague asserts that the dishonest
conduct reason given by Bialy for Bomia’s discharge is
“unavailing” because it was not relied on by the Respon-
dent in discharging Bomia. The basis for our colleague’s
assertion is that Plant Manager Lefief, not Bialy, was the
“ultimate decision-maker” regarding Bomia’s discharge,
and Lefief testified that his decision was based on
Bomia’s “blatant disregard” for his soldering inspection
duties. But Lefief’s testimony does not render “unavail-
ing” the dishonesty reason given by Bialy for the dis-
charge. Lefief may have been the ultimate decision-
maker in Bomia’s discharge, but Bialy clearly was an
instrumental participant in that outcome. He recom-
mended it. Lefief approved the recommendation. Fur-
ther, it was Bialy, not Lefief, who communicated the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD860
discharge decision to Bomia, citing Bomia’s dishonesty
in addition to his production line error.
Our colleague states that “[h]ad Lefief simply rubber-
stamped Bialy’s recommendation, this might be a differ-
ent case, because then Bialy’s reasons would also be Le-
fief’s reasons.” Based on Lefief’s testimony, we find
that he simply concurred, without independent inquiry,
with Bialy’s discharge recommendation. Lefief did not
testify that he was the sole decisionmaker regarding
Bomia’s discharge. Rather, he testified that he “lis-
ten[ed] to what had gone on [and] . . . agreed to the deci-
sion.” (Tr. 617.)
Thus, this case is not, as our colleague seeks to de-
scribe it, one in which a discharge can be found pretex-
tual on the basis of shifting reasons given for it. See, e.g.,
U.S. Coachworks, Inc., 334 NLRB 955, 957 (2001).
Bialy specified two reasons for Bomia’s discharge—his
production line error and dishonest conduct. Lefief speci-
fied the production line error but did not disavow the
dishonesty reason mentioned by Bialy. In these circum-
stances, given that Lefief’s discharge decision was based
on Bialy’s recommendation, it cannot be said that the
Respondent did not rely on Bomia’s dishonesty as a rea-
son for his discharge.
In inferring unlawful motive, the judge also relied on
his finding that Bomia had not been certified on the sol-
der inspection station of the rail coil machine. Contrary
to the judge, we find that whether Bomia was actually
trained is not the issue. The issue is not whether it is
“fair” to discharge an employee for poor performance on
a job for which he has not been certified. The issue is
whether poor performance rather than union activity was
the reason for the discharge. Thus, the question is
whether Plant Manager Paul Lefief, who ultimately ap-
proved the discharge, acted on a reasonable belief that
Bomia’s error warranted discharge. See Jordan Marsh
Stores Corp., 317 NLRB 460, 476 (1995), and Goldtex,
Inc., 309 NLRB 158 fn. 3 (1991) (for the proposition that
a respondent has not acted unlawfully if it shows that it
discharged an employee based on a reasonable belief that
the employee had engaged in conduct warranting dis-
charge). We relied on this precedent recently in Framan
Mechanical, Inc., 343 NLRB 408, 416 (2004), to find
that the respondent therein lawfully disciplined two em-
ployees (Harris and Lanza) based on a reasonable belief
that they, like Bomia, “performed work improperly.”
Our dissenting colleague states, however, that during
Lefief’s discussion with Bialy about whether Bomia
should be discharged, a question arose as to whether
Bomia had received adequate training on the production
line to spot the error and, therefore, in light of this uncer-
tainty, Lefief could not have held a reasonable belief that
Bomia had disregarded his duties. But this contention
overlooks the fact that Bomia was provided the opportu-
nity to clear up the uncertainty about whether a training
inadequacy was the cause of the production line error.
As noted above, following the mishap on the line, Bomia
was invited to an interview and was asked to explain
what happened. If he lacked the training necessary to
prevent the production line failure, he certainly did not
offer that lack as a reason for the failure. Nor did he
provide any other reason. He simply acknowledged the
production line error, and only then did the Respondent
decide to discharge him.
The foregoing is significant because the “failure to
conduct a meaningful investigation or to give the em-
ployee [who is the subject of the investigation] an oppor-
tunity to explain” may, under appropriate circumstances,
constitute an indicia of discriminatory intent. K&M Elec-
tronics, 283 NLRB 279, 291 fn. 45 (1987). The Board
has considered this factor in several recent cases to find
discharges unlawful where employees were denied the
opportunity to provide a potentially exculpatory explana-
tion prior to being discharged,8 and to dismiss allegations
of unlawful discharge where such an opportunity was
provided.9 We conclude, therefore, that because Bomia
failed to avail himself of the opportunity given to him by
the Respondent to explain his production line error and
what role, if any, lack of training may have played in it,
the judge’s finding and our colleague’s contention that
Bomia’s discharge was unlawful are unsupported by the
record.
Because the General Counsel failed to demonstrate
that Bomia’s discharge was unlawfully motivated, we
find that the Respondent did not violate Section 8(a)(1)
and (3).
2. Final Warning Issued to Peggy Heiden10
a. Facts
On March 16, a temporary employee was assigned to
union activist Peggy Heiden’s production line. After

8 Sociedad Espanola De Auxilio Mutuo y Beneficencia De P.R., 342
NLRB 458, 459–460 (2004) (discharge of Romero unlawful where
respondent “simply accepted the complaints [about Romero] as true,
without affording Romero an opportunity to refute them”); Rockline
Industries, 341 NLRB 287, 293 (2004) (discharge of employee Kennan
for union solicitation during worktime unlawful where “Kennan was
not asked for his version of the encounter” which indicated that solici-
tation lawfully took place during breaktime).
9 Caesar’s Atlantic City, 344 NLRB 984, 999 and fn. 44 (2005) (dis-
charge of employee LoManto lawful where he was “afforded 2-1/2
hours to write his account of the March 5 events [for which he was
discharged], . . . suggest[ing] that management wished to give him the
opportunity to make a full written presentation of his side of the
story”).
10 Member Liebman joins this portion of the Board’s opinion.
DIAMOND ELECTRIC MFG. CORP. 861
another line worker complained that the temp was slow-
ing down production, Production Manager Steve Burnett
removed him from the line. The next morning, however,
Burnett again assigned the temp to Heiden’s line. The
other line workers again complained, this time to Nathan
Iott, who was temporarily in charge of the line, and who
again removed the temp. Shortly thereafter, Sherry
Nevins, who was the line supervisor, but was on light
duty in the human resources office for medical reasons,
placed the temp back on the line. Heiden paged Burnett
and Iott in order to have the temp removed, but Nevins
answered the page and told her that the temp would re-
main on the line because they needed his help.
Nevins then came onto the production floor and told
Heiden she needed to speak with her in the human re-
sources office. Nevins began a loud discussion with
Heiden about her behavior in paging Burnett and Iott,
asserting that she was still under Nevins’ supervision.
Heiden stated that Nevins’ supervisor, Burnett, had in-
formed her that Nevins was no longer her supervisor
because she was on light duty. Heiden asked that Human
Resources Manager Bialy be present for the remainder of
their discussion, but Nevins refused. As the intensity of
the discussion increased, Heiden mouthed to several em-
ployees standing near the office, who observed the
heated confrontation through an office window, to call
Bialy. According to Heiden, Nevins shoved her when
she refused to sit down and again when she attempted to
leave the office, but finally allowed her to leave.
That evening, Bialy called Heiden at home to discuss
the incident. He spoke with the Monroe County deputy
sheriff, whom Heiden had contacted because she be-
lieved Nevins had assaulted her.11 Bialy told him that the
confrontation had evolved out of Heiden’s union activi-
ties. The next day, Bialy and Lefief suspended Heiden
and Nevins with pay in order to investigate the incident.
As a result of the investigation, Heiden received a final
warning and Nevins received a written warning. Hei-
den’s warning reprimanded her for a “pattern of behav-
ior” and stated nine bulleted reasons for the discipline,
including “[d]isruptive activity in the workplace[;] [d]is-
respectful conduct toward supervision[;] [s]ubstandard
and intentionally poor work performance[;] . . .
[a]ttempting to reassign work assigned to you, or take
over work assigned to another employee[;] [r]efusing to
perform tasks assigned to you[;] [e]ncouraging other
employees to ‘slow-down’ their work.” In exceptions,
the Respondent asserts that Heiden’s discipline was
“primarily for her insubordinate action” in reassigning

11 Heiden did not file criminal charges against Nevins and did not
indicate to Bialy, in the course of their conversation, that she intended
to do so.
the temp contrary to Nevins’ wishes, and that Nevins’
discipline was “for her irrational response to Heiden’s
insubordination.”
b. Analysis and conclusion
We agree with the judge that the General Counsel
demonstrated that the Respondent’s animus toward Hei-
den’s union activity was a motivating factor in issuing
the final warning. Thus, the record shows that the Re-
spondent demonstrated sustained antiunion animus
against Heiden. As the judge found, Nevins repeatedly
interrogated and threatened Heiden about her active sup-
port for the Union and told Heiden several months prior
to the temp incident that she would never stop harassing
Heiden. This evidence—combined with Human Re-
source Manager Bialy’s statement that the confrontation
evolved from Heiden’s union activities, undermine the
bona fides of Respondent’s investigation prior to the dis-
cipline, and they support the view that the Respondent’s
stated reasons for the discipline were pretextual. We,
thus, conclude that the discipline was unlawfully moti-
vated.
Bialy’s statement to the deputy sheriff—that the con-
frontation between Nevins and Heiden evolved from
Heiden’s union activities—is strong evidence that Hei-
den’s discipline was unlawfully motivated. As the judge
found, Nevins had been harassing Heiden for her union
activism for months prior to the temp incident. Nevins
had promised that the harassment would never stop.
Nevins then seized on the temp incident to confront Hei-
den. The temp incident, in turn led to the confrontation
with Heiden and to the final warning issued to Heiden.
Bialy’s awareness of the situation is evident from the fact
that he identified the source of the confrontation to the
deputy sheriff as Heiden’s union activities. In this con-
text, we find that Bialy’s statement was essentially an
admission that Heiden’s discipline was motivated by her
union activity.
Furthermore, we agree with the judge that the particu-
lar facts of this case raise substantial doubts as to legiti-
macy of Respondent’s investigation of the temp incident
prior to disciplining Heiden, providing additional cor-
roborative evidence of unlawful motive. While Lefief
and Bialy stated at the hearing that they viewed Heiden’s
behavior as insubordinate because she had herself reas-
signed the temp, Bialy acknowledged that he did not ac-
tually know whether Heiden had done so.12 No one from

12 Lefief and Bialy testified that their belief was based on the report
of Nevins, who by her own account was not present when the temp was
actually moved. The Respondent now argues that whether or not Hei-
den herself reassigned the temp, her conduct in seeking his removal by
supervisors other than the one who had made the assignment was nev-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD862
Heiden’s line was interviewed during the investigation to
determine if Heiden had done so, and the judge found
“no credible evidence” to support that assumption.13
Although the Respondent now asserts that Heiden’s in-
subordinate conduct regarding the temp was its primary
reason for the discipline, Bialy testified that there was
nothing wrong with contacting supervision to request a
temp’s removal, as Heiden—and others—had done.
Thus, the investigation failed, by Bialy’s own admission,
to provide a reasonable basis for the conclusion that Hei-
den had in fact behaved insubordinately.
The record makes clear that the Respondent’s stated
reasons for Heiden’s discipline are pretextual. As indi-
cated above, there was no basis for the Respondent to
conclude that Heiden had been insubordinate regarding
the temp reassignment, and, although the final warning
refers to a “pattern of behavior,” there is no documenta-
tion in Heiden’s personnel file of any previous miscon-
duct. Moreover, the fact that the Respondent now relies
on “insubordination,” rather than the list of misconduct
stated in the warning, is in itself evidence of pretext.
See, e.g., Aratex Services, 300 NLRB 115, 116 (1990).
Finally, as the judge found, the Respondent failed to give
Heiden notice or any opportunity to respond to the mat-
ters alluded to in the final warning. As stated above in
discussing the Bomia discharge, an employer’s failure to
permit an employee to defend herself before imposing
discipline may, under appropriate circumstances, consti-
tute evidence of pretext that supports an inference of
unlawful motive. Given the substantial other evidence
indicative of a sham investigation, such an inference is
appropriate here.
The Respondent’s assertion that Heiden’s discipline
was in any case justified by the fact that she sought to
have a temp assigned by one supervisor removed by an-
other is unavailing. The Respondent cannot rebut a
showing of unlawful motivation simply by pointing to a
potentially legitimate reason for its adverse action.
Rather, it must show that it would have taken the same
action absent Heiden’s union activism. T & J Trucking
Co., 316 NLRB 771, 771 (1995). The Respondent has
done neither. Thus, Bialy admitted that there is nothing
wrong with contacting supervision to request removal of
a temp, as the evidence indicates that Heiden had done.

ertheless insubordinate. As discussed below, the evidence does not
support that view.
13 It is not surprising that the investigation failed to substantiate the
Respondent’s contention that Heiden was insubordinate. The investiga-
tion seems to have been directed at almost anything but Heiden’s con-
duct with regard to the temp incident. The litany of the Respondent’s
stated grievances against Heiden (see text, above) suggests that the
Respondent was seeking to find any possible reason to discipline Hei-
den, whether or not it concerned the temp incident.
And, the Respondent apparently did not discipline the
other line workers, who, when the temp was originally
reassigned by Burnett, asked Iott to remove him. The
Respondent has not explained why this conduct would
have resulted in a final warning for Heiden but not even
a reprimand for her coworkers. Finally, having origi-
nally based Heiden’s discipline on the laundry list of
factors included in the warning, the Respondent cannot
now plausibly argue that it would have issued the same
discipline for insubordination alone, absent her union
activities.14
Based on the pretext evidence and the evidence of an-
tiunion animus directed at Heiden, we agree with the
judge that the General Counsel has shown that the final
warning was unlawfully motivated and that the Respon-
dent has failed to demonstrate that it would have taken
the same disciplinary action absent Heiden’s union activ-
ism.
The judge also found, as alleged in the complaint, that
the Respondent’s suspension of Heiden immediately af-
ter the March 17 incident with Nevins was unlawful. We
disagree, because we find no evidence that the suspen-
sion of Heiden was unlawfully motivated. The record
indicates that the Respondent suspended both Nevins and
Heiden—both with pay—and that it did so in order to
limit further workplace hostilities while it investigated
the temp incident. But even if we were to infer that the
Respondent’s antiunion animus was a motivating factor
in the decision, the record supports a finding that the
Respondent would have suspended Heiden—as it did
Nevins—regardless of Heiden’s union activism in order
to deal with a potentially explosive situation. We there-
fore dismiss this allegation of the complaint.
Conclusion
We find that the Respondent violated Section 8(a)(1)
and (3) of the Act by issuing the final warning to Heiden,
but that its discharge of Bomia was not unlawful. We
conclude that Respondent’s disciplinary action against
Heiden alone is insufficient to warrant overturning the
parties’ settlement agreement. See Coopers Interna-
tional Union, 208 NLRB 175 (1974). We shall therefore
reinstate the agreement and dismiss the complaint allega-
tions concerning presettlement conduct.

14 Lefief testified that Heiden’s behavior regarding the temp alone
would have sufficed to justify discharge because she was insubordinate.
But Lefief’s testimony was based on his view that Heiden had herself
reassigned the temp. He was not asked, as was Bialy, whether contact-
ing supervision to have the temp removed, as the evidence indicates
Heiden had in fact done, in itself would have warranted discipline.
DIAMOND ELECTRIC MFG. CORP. 863
REMEDY
Turning now to the remedy, we consider the appropri-
ateness of issuing a Gissel order in this case. A Gissel
order is warranted where the employer’s course of con-
duct “clearly demonstrates that the holding of a fair elec-
tion in the future would be unlikely and that the ‘em-
ployees’ wishes are better gauged by an old card major-
ity than by a new election’.” M. J. Metal Products, 328
NLRB 1184 (1999) (quoting Charlotte Amphitheater
Corp. v. NLRB, 82 F.3d 1074, 1078 (D.C. Cir. 1996)).
Even when an employer’s unlawful conduct is not “out-
rageous and pervasive,” a Gissel order may nevertheless
be appropriate based on the extensiveness of the em-
ployer’s unfair labor practices and “the likelihood of
their recurrence in the future.” M. J. Metal, 328 NLRB
at 1184 (quoting Gissel, 395 U.S. at 614–615). How-
ever, a Gissel bargaining order of either category is an
extraordinary remedy. The preferred route is to provide
traditional remedies for the unfair labor practices and to
hold an election, once the atmosphere has been cleansed
by those remedies. The Gissel (nonelection) route is to
be used only in circumstances where it is unlikely that
the atmosphere can be cleansed by traditional remedies.15
In this case, we have found only one unfair labor prac-
tice, specifically, an instance of discriminatory disci-
pline. This single violation of the Act is neither pervasive
nor as “highly coercive” and severe as “hallmark” viola-

15 See, e.g., Abramson, LLC, 345 NLRB 171 (2005) (Gissel order
unwarranted despite respondent’s having unlawfully threatened em-
ployees with job loss, loss of benefits, and plant closure if union won
election); Hialeah Hospital, 343 NLRB 391 (2004) (Gissel order un-
warranted despite respondent’s having unlawfully discharged employee
in retaliation for union activities, threatened employees with discharge
and other unspecified reprisals, created impression of surveillance,
implied that support for union would be futile, solicited employee to
dissuade other employees from supporting union and promised him
benefits for doing so, enforced rules more strictly, removed benefits,
and engaged in unlawful surveillance); Desert Aggregates, 340 NLRB
289 (2003) (Gissel order unwarranted despite respondent’s having
unlawfully laid off two union supporters and solicited and promised to
remedy employee grievances in unit of 11 employees); Aqua Cool, 332
NLRB 95 (2000) (Gissel order unwarranted despite respondent’s hav-
ing, in unit of eight employees, unlawfully solicited grievances from
employees and promised to remedy them, threatened employees that
they were likely to lose their benefits and that respondent would bar-
gain from scratch if employees elected union representation, implied to
employees that voting for union would be futile, threatened employee
that facility would close and implied that jobs would be lost, granted
employees benefit by hiring warehouse worker to perform tasks for-
merly assigned to drivers, and granted new benefits to its drivers and
improved their terms and conditions of employment by awarding them
new routes on basis of seniority and by ceasing to harass them for tak-
ing sick leave); Burlington Times, Inc., 328 NLRB 750 (1999) (Gissel
order unwarranted despite respondent’s having unlawfully threatened to
close plant, made noneconomic grants of benefits, promised to improve
wages and other benefits, and solicited grievances, in unit of 11 em-
ployees).
tions, such as plant closing threats or discriminatory dis-
charges. See M. J. Metal, 328 NLRB at 1184 (citing
NLRB v. Jamaica Towing, 632 F.2d 208, 212–213 (2d
Cir. 1980)); Sunbeam Corp., 287 NLRB 996, 999 (1988)
(employer’s 8(a)(1) violations and a single 8(a)(3) refusal
to recall were “isolated incidents” not sufficient to war-
rant issuing a Gissel order). In addition, the Respondent
pledged in its settlement agreement with the Union to
refrain from future unlawful conduct. We do not find
Respondent’s single postsettlement violation sufficient to
undermine its intention as expressed in the agreement to
avoid future violations of the Act. See Coopers Interna-
tional Union, 208 NLRB at 175. We therefore decline to
issue a Gissel order in this case.
ORDER
The National Labor Relations Board orders that Dia-
mond Electric Manufacturing Corporation, Dundee,
Michigan, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Issuing final warnings to employees because they
engaged in union activities and to discourage employees
from engaging in these and other protected concerted
activities.
(b) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of
their rights under 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 expunge
from its records any reference to the March 23, 1999
final warning to Peggy Heiden, and within 3 days there-
after notify her in writing that this had been done and
that the unlawful action will not be used against her in
any way.
(b) Within 14 days after service by the Region, post at
its facility in Dundee, Michigan, copies of the attached
notice marked “Appendix.”16 Copies of the notice, on
forms provided by the Regional Director for Region 7,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings the Re-

16 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD864
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since March 23, 1999.
(c) 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.
MEMBER LIEBMAN, dissenting in part.
Shortly after it settled a dozen or more allegations of
unlawful conduct and pledged to obey the Act, the Re-
spondent renewed its unfair labor practices. As Chair-
man Battista and I agree, the Respondent issued a final
warning to one union activist (Peggy Heiden), after a
cursory investigation, in connection with an incident in-
volving a supervisor whose antiunion motivation was
essentially admitted by the Respondent’s human re-
sources manager. In my view, contrary to my col-
leagues, the Respondent also seized upon the production-
line error of an untrained union supporter (Robert
Bomia) to discharge him, although the comparable errors
of other employees had been tolerated. Based on these
incidents, the judge was correct to set aside the settle-
ment agreement and to find that the Respondent’s preset-
tlement conduct violated the Act. In turn, a Gissel bar-
gaining order is warranted here.
I.
The Respondent asserts that it discharged Bomia on
March 18 for his failure to correctly inspect the soldering
on rail coils that he and a coworker, Shannon Purkey,
produced during the March 17 night shift. But, the ex-
tensive evidence of the Respondent’s antiunion animus,
and the evidence that Bomia was treated more harshly
than his coworker on the night of the incident and than
other employees who made more serious on-the-job er-
rors, warrant an inference of unlawful motive. More-
over, the Respondent has not shown it would have taken
the same action absent Bomia’s union activities. Wright
Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982).
The Respondent’s antiunion animus is well docu-
mented. As the judge found, prior to signing the settle-
ment agreement, the Respondent violated Section 8(a)(1)
of the Act on at least 12 separate occasions by promul-
gating and maintaining unlawful work rules, by interro-
gating or threatening employees, and by creating an im-
pression of surveillance of employees’ union activities.
In addition, the Respondent committed five violations of
Section 8(a)(1) and (3) by changing a union-activist em-
ployee’s breaktime so that she took breaks alone, trans-
ferring one of the foremost union supporters without ex-
planation, and discriminatorily disciplining and other-
wise harassing the most active union supporters. These
presettlement violations provide substantial background
evidence of the Respondent’s antiunion animus, which
bears on the Respondent’s postsettlement conduct. Elec-
trical Workers Local 613, 227 NLRB 1954 fn. 1 (1977).1
The majority asserts nonetheless that the Respondent’s
abundant antiunion animus cannot support a finding that
Bomia’s discharge was unlawfully motivated because
there is no evidence that it was specifically directed at
Bomia. Board law does not support such a requirement.
Becker Group, Inc., 329 NLRB 103, 104–105 (1999).
See also Sherwin-Williams Co., 313 NLRB 163 fn. 5
(1993) (citing Whitesville Mill Service Co., 307 NLRB
937 (1992)).
Further, the disparate treatment evidence found by the
judge strongly suggests that Plant Manager Paul Lefief’s
stated reason for discharging Bomia—the March 17 error
that resulted in 300 improperly soldered parts—was a
pretext. Thus, Wayne Jeffers failed to catch 688 improp-
erly soldered parts while working on the rail coil line, as
compared with the 300 parts missed by Bomia, and re-
ceived only an oral warning. Mold maintenance em-
ployee Chad Naugle received only a written warning
after he made an error that resulted in 580 defective parts
being shipped out and then recalled from a customer.
According to his warning, Naugle’s disciplinary history
was more extensive than Bomia’s, including four inci-
dents in as many months of Naugle’s damaging molds or
causing scrap parts to be produced as a result of careless-
ness. Finally, Bomia’s coworker on the night of the
incident, Shannon Purkey, who was certified on the rail
coil line and worked the inspection station for the first
half of the shift, received only an oral warning for the
incident, although the Respondent acknowledged in the
warning that “[w]e are unable to determine at what point
the solder machine had failed during the shift.” There is
no evidence of any other employee having been dis-
charged for a first on-the-job error.

1 As explained in part II, below, I would approve the Regional Di-
rector’s action setting aside the parties’ settlement agreement, and I
would affirm the violations the judge found based on presettlement
conduct. The majority, however, has reinstated the settlement agree-
ment, which precludes finding any presettlement violations. Neverthe-
less, the Board may rely on a respondent’s presettlement conduct as
evidence of animus in its postsettlement actions, even though the Board
has not found the presettlement conduct unlawful. See Local 613,
supra, 227 NLRB 1954 fn. 1. Here, I would rely on the Respondent’s
presettlement conduct as evidence of animus. (The settlement agree-
ment itself, of course, does not constitute evidence of animus.)
DIAMOND ELECTRIC MFG. CORP. 865
My colleagues assert that Bomia’s discharge for his er-
ror cannot be compared with the lesser discipline meted
out to other employees because Bomia had previously
been disciplined for dishonest conduct.2 This distinction
is unavailing, because the Respondent did not rely on it
in firing Bomia. Plant Manager Lefief, who the judge
found was the ultimate decisionmaker, testified that his
decision resulted from Bomia’s “blatant disregard” of his
solder inspection duties on March 17. Lefief expressly
testified that Bomia’s work history played no part in the
decision to terminate him.
The majority cites the testimony of Human Resources
Manager Gene Bialy that Bomia was discharged in part
because of his previous “dishonesty.” That is what Bialy
told Bomia, and Bialy may have relied in part on that
conduct when recommending Bomia’s discharge. But
Lefief, not Bialy, made the final decision to fire Bomia,
and by his own admission, Lefief did so only because of
Bomia’s production error on the night of March 17–18.3
In relying on Bialy’s testimony to find that other factors
contributed to the final discharge decision, the majority
relies on the testimony of a witness who did not make the
final decision.
The judge’s finding that Bomia was not fully trained in
both aspects of the rail coil process further indicates that
the Respondent seized on Bomia’s error as a pretext for
discharging him. The judge credited Lefief’s testimony
that there had been problems with the solder machine on
the rail coil line since December 1998 and that employ-
ees had to be retrained to better manage these problems.
However, Bomia’s personnel file did not contain a certi-
fication of training for the solder inspection station of the
rail coil line, and the judge discredited the testimony of
Bomia’s supervisor, Bryan Kilburn, that he had person-
ally trained and certified Bomia on the inspection sta-
tion.4 Apparently, the Respondent assigned Bomia to run
the rail coil machine, notorious for its technical prob-

2 Bomia’s supervisor, Bryan Kilburn, extended Bomia’s probation-
ary period for clocking in prior to actually starting work. The majority
characterizes this misconduct as dishonest but the Respondent did not
apparently view it as sufficiently serious to warrant documenting it in
Bomia’s personnel file.
3 Had Lefief simply rubber-stamped Bialy’s recommendation, this
might be a different case, because then Bialy’s reasons would also be
Lefief’s reasons. However, that is not what happened here.
Contrary to the majority’s claim, I do not accuse the Respondent of
offering shifting reasons for Bomia’s discharge. I simply find that
when Lefief, who made the decision to fire Bomia, admitted that he did
so solely because of his production error, Lefief (and not Bialy) was
speaking for the Respondent.
4 The judge rejected as incredible Kilburn’s assertion that he dis-
carded the rail coil certification document after Bomia was discharged,
as there was no evidence that such documentation was ever discarded
except for employees who quit before completing their training.
lems, although he had not been fully trained to perform
this work.5
The majority asserts that the issue here is not whether
Bomia had been adequately trained, but whether Lefief
reasonably believed that he had received such training.
Because Lefief held such a belief, Bomia’s discharge was
an appropriate penalty for neglect of his job duties. The
majority observes that the Respondent gave Bomia an
opportunity to explain what went wrong on the night of
March 17–18 and that he failed to say that he had not
been properly trained.
This reasoning does not withstand scrutiny. First, even
if Lefief reasonably inferred that Bomia had been trained
on the rail coil line, coworker Purkey (who was fully
trained) received only an oral warning, while Bomia was
fired. The majority fails to explain how Lefief could
honestly have believed that Bomia’s error warranted dis-
charge while Purkey’s identical error did not.
Second, the record does not support the majority’s
finding that Lefief held a reasonable belief that Bomia
had been trained. As the judge found, the credible evi-
dence establishes that Bomia had not been fully trained
on the rail coil line and that Lefief knew it when he ap-
proved Bomia’s discharge. Lefief admitted that during
his discussion with Bialy and Kilburn concerning what
discipline would be appropriate, someone informed Le-
fief, correctly, that Bomia had not been trained. Al-
though Lefief testified that Kilburn claimed that he had
trained Bomia, the judge discredited that testimony.
Thus, there is no credited evidence that anyone said any-
thing to Lefief that would have cast doubt on the state-
ment that Bomia had not been trained.
At the very least, the statement to Lefief that Bomia
had not been trained must have raised a serious doubt on
that score in Lefief’s mind. Thus, Lefief could not hon-
estly have believed that Bomia had “blatantly disre-
garded” his responsibility by failing to catch a problem
he might not have known how to detect. Under similar
mitigating circumstances, the Respondent issued only an
oral warning.
Lefief testified that Wayne Jeffers was given only an
oral warning when he failed to catch 688 improperly
soldered rail coils in December 1998 because the Re-
spondent had just discovered the problems with the sol-
dering machine and could not have expected Jeffers to be
skilled at detecting and managing them. Thus, the Re-

5 Although Lefief testified that the Respondent had found ways of
addressing many of the solder machine’s technical problems by the
time of Bomia’s oversight, a malfunction in the solder machine caused
the soldering problem on Bomia’s shift. It is not at all clear that Bomia
would have been skilled in identifying or handling such a problem
without having been certified in the rail coil process.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD866
spondent clearly took into account the reasonableness of
expecting Jeffers to know what to look for and how to
handle malfunctions. Yet, it failed to do so when faced
with a doubt as to whether Bomia had been adequately
trained to handle the same problems.
The majority infers lawful motivation from the fact
that the Respondent offered Bomia an opportunity to
explain his production error. This fact, however, does
not overcome the pervasive evidence, detailed above,
that the Respondent seized on Bomia’s error as an excuse
to get rid of a known union advocate. Given this evi-
dence and the Respondent’s numerous other unlawful
acts, the Respondent’s letting Bomia give his side of the
story does not undermine the judge’s finding that
Bomia’s discharge was unlawfully motivated.
Nor has the Respondent shown that it would have dis-
charged Bomia absent his union activities. When asked
about his reasons for the discharge decision, the final-
decision maker, Lefief, testified that the basis was the
inspection error. Yet Lefief admitted that a question
arose about whether Bomia was even trained to perform
inspection on the rail coil line. Moreover, the Respon-
dent failed to explain why it gave only an oral warning to
Bomia’s shift partner, Purkey, although the warning ex-
pressly acknowledged that it was unclear when during
the shift the problem arose and hence presumably unclear
whether the error occurred under Purkey’s or Bomia’s
inspection duty. This evidence, together with the Re-
spondent’s more lenient treatment of other employees
who made more serious production errors, makes clear
that the Respondent’s justification for discharging Bomia
was a pretext. Shattuck Denn Mining Corp., 151 NLRB
1328, 1336 (1965), enfd. 362 F.2d 466 (9th Cir. 1966);
Limestone Apparel Corp., 255 NLRB 722 (1981), enfd.
705 F.2d 799 (6th Cir. 1982).
II.
Because the Respondent, by its unlawful discharge of
Bomia and unlawful disciplining of Heiden, breached the
terms of its settlement agreement with the Union, that
agreement was correctly set aside. R. T. Jones Lumber
Co., 303 NLRB 841, 843 (1991).6 Moreover, I agree
with the judge that the Respondent committed a substan-
tial number of unfair labor practices prior to the settle-

6 In their settlement agreement, the parties agreed to “comply with
all the terms and provisions of [the] Notice.” The notice stated that the
Respondent would not “do anything that interferes with [the employees
Section 7] rights” and would not “take adverse action against, counsel
or otherwise discriminate against employees . . . because of their activi-
ties on behalf of or in support of the Union or other protected concerted
activities.” Obviously, by its discharge of union supporter Bomia and
issuing of a final warning to Heiden as a result of their union activism,
the Respondent contravened its obligations as expressed in the notice.
ment. The severity of the Respondent’s unlawful con-
duct taken as a whole, and the Respondent’s persistence
in violating the Act, establish the need for a Gissel bar-
gaining order as recommended by the judge. See Gen-
eral Fabrications Corp., 328 NLRB 1114, 1115 (1999),
enfd. 222 F.3d 218 (6th Cir. 2000) (employer’s continu-
ing postelection violations strongly indicate that its
unlawful conduct will continue in the event of another
organizing effort); Garney Morris, Inc., 313 NLRB 101,
103 (1993), enfd. mem. 47 F.3d 1161 (3d Cir. 1995)
(same).
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 issue written final warnings to employees
because they engaged in union activities or to discourage
them from engaging in these and other protected con-
certed activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
their rights as stated above.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful final warning issued to Peggy Heiden and, WE WILL,
within 3 days thereafter, notify her in writing that this
has been done and that the unlawful action will not be
used against her in any way.
DIAMOND ELECTRIC MANUFACTURING
CORPORATION
DIAMOND ELECTRIC MFG. CORP. 867
A. Bradley Howell, Esq., for the General Counsel.
Theodore R. Opperwall, Esq. (Kienbaum, Opperwall, Hardy &
Pelton, P.L.C.), of Birmingham, Michigan, for the Respon-
dent.
Georgi-Ann Bargamian, Esq., of Detroit, Michigan, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
JOHN H. WEST, Administrative Law Judge. On June 23,
1999, the Regional Director for Region 7 of the National Labor
Relations Board (the Board) issued an Order, which vacated an
informal settlement agreement, consolidated cases, and was a
second amended consolidated complaint and notice of hearing.
The second amended consolidated complaint (the complaint)
(a) refers to a charge filed by the International Union, United
Automobile, Aerospace and Agricultural implement Workers of
America (UAW), AFL–CIO (the Union) in Case 7–CA–41236
filed on August 3 which was amended on October 9, 1998, and
a charge filed by the Union in Case 7–CA–41918 which was
filed on April 1 and amended on April 13 and May 19, 1999,
(b) alleges numerous violations of Section 8(a)(1) and (3) of the
National Labor Relations Act (the Act) by Diamond Electric
Manufacturing Corporation (Respondent), and (c) indicates in
paragraph 26 thereof that
The [a]cts and conduct described above . . . are so se-
rious and substantial in character that the possibility of
erasing the effects of these unfair labor practices and of
conducting a fair election by the use of traditional reme-
dies is slight, and the employees’ sentiments regarding
representative, having been expressed through authoriza-
tion cards, would, on balance, be protected better by issu-
ance of a bargaining order . . . than by traditional remedies
alone. The General Counsel further seeks all other relief
as may be just and proper to remedy the unfair labor prac-
tices herein alleged.
In its answer to the order and complaint, the Respondent ar-
gues that the Regional Director lacks authority under Board and
court precedent to vacate the parties’ informal settlement
agreement; that it and the Union had a bilateral stipulation to
set aside election and agreement to conduct second election;
that the stipulation specifically addressed and disposed of cer-
tain of the allegations now reasserted by the Regional Director;
that the Union caused the cancellation of the second election in
contravention of its agreement in the stipulation, and now im-
properly seeks relief precluded by its own stipulation; that it did
not violate the Act as alleged in the second amended consoli-
dated complaint; that, as affirmative defenses, certain of the
allegations in the amended consolidated complaint are pre-
cluded by 10(b)’s charge-filing/timeliness requirements, are
precluded by the prior settlement and stipulation, and have been
rescinded or otherwise remedied pursuant to the prior settle-
ment; and that each of the actions complained of in the
amended consolidated complaint was motivated by legitimate
business considerations.
A hearing on these consolidated cases was held before me in
Detroit, Michigan, on December 6, 7, and 8, 1999, and on Feb-
ruary 7, 8, 9, and 10, 2000.1 Upon the entire record in this pro-
ceeding, including the demeanor of the witnesses, and after due
consideration of the briefs filed by the General Counsel, the
Union, and the Respondent in April 2000, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, with an office and place of
business in Dundee, Michigan, is engaged in manufacturing
components for the automotive industry. The complaint al-
leges, the Respondent admits, and I find that at all times mate-
rial, the Respondent has been an employer engaged in com-

1 At the beginning of the first day of the 7-day hearing counsel for
the General Counsel moved with GC Exh. 4 to amend the complaint to
add the following:
7(b) In or about the period from July 27, 1998 until Septem-
ber 2, 1998 a majority of the employees in the Unit de-
scribed in paragraph 7 above designated the Charging Party
as their exclusive representative for purposes of collective
bargaining within the meaning of Section 9(a) of the Act.
Also, counsel for the General Counsel moved to amend the affirmative
portion of the prayer for relief by adding the following:
2(h) Recognize and upon request meet and bargain in good
faith with the Charging Party as the exclusive collective
bargaining agent of the employees in the Unit with respect
to wages, hours and other terms or conditions of employ-
ment.
As noted above, par. 26 of the complaint already requested the issu-
ance of a bargaining order. Counsel for the General Counsel indicated
that the complaint did not originally plead majority status, which was
an oversight, but the Respondent was placed on notice a week before
the hearing commenced and counsel for the General Counsel contended
that it was a timely amendment and it did not substantially change the
complaint. The Respondent argued that it was surprising that this issue
would be brought up a few days before the trial; that the Board in a
similar case, New York Post Corp., 283 NLRB 430 (1987), found that
“where the General Counsel had been aware of a theory that was not
advanced in the complaint or a problem, a claim, in effect, to use a
cliche, had hidden the ball and then popped it on the Respondent during
the trial [and] allowing the amendment was improper in those circum-
stances.” Tr. 14. In New York Post Corp., supra, the General Counsel
first moved to amend the complaint on the last day of a 3-day hearing.
There the Board indicated that it did not share the judge’s confidence in
finding that the Respondent was not prejudiced by the 11th hour
amendments. There the Board indicated that the Respondent may have
been misled about the nature of the evidence required for its defense.
That is not the case here. Here, the Respondent was placed on notice
by par. 26 in the June 23, 1999 complaint that the General Counsel was
seeking the issuance of a bargaining order; that the employees’ senti-
ments regarding representation had been expressed through authoriza-
tion cards; and that the involved unfair labor practices were so serious
and substantial in character that the possibility of conducting a fair
election by use of traditional remedies was slight. Here on the first day
of the hearing on December 6, 1999, almost 6 months after the issuance
of the complaint, the General Counsel did not surprise the Respondent
with an amendment which he gave the Respondent notice of in advance
of the commencement of the hearing. The amendment does not change
the General Counsel’s theory and the Respondent was not misled about
the nature of the evidence required for its defense. The Respondent
was not prejudiced by the amendment. The motion of the General
Counsel to amend the complaint to the extent indicated above was
granted. The ruling stands.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD868
merce within the meaning of Section 2(2), (6), and (7) of the
Act, and the Union has been a labor organization within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Facts
The General Counsel introduced the Respondent’s (a) em-
ployee handbook which was effective “11/1/97,” General
Counsel’s Exhibit 9, and (b) no-fault attendance policy, Gen-
eral Counsel’s Exhibit 10.
On December 18, 1997, the Respondent’s employee, Janice
Hatcher, received the following discipline record form, Re-
spondent’s Exhibit 5:
For approx. 6–8 weeks Jan has displayed insubordinate
and disrespectful behavior which according to our disci-
pline policy is considered a major infraction which could
result in termination. This attitude was again apparent on
12–17–97 when I tried to present her with her policy hand-
book in front of other members and she refused. This atti-
tude over this period is not only directed at management
members but her peers, and it is having a profound impact
on the overall well-being & harmony of the organization.
This behavior of disrespect & insubordination must
stop immediately or Jan will be subject to further disci-
pline up to and including discharge.
Hatcher refused to sign the discipline and she did not write any
comments in the section of the form provided for this. By letter
dated January 22, 1998, the president of the Respondent, Shi-
gehiko Ikenaga, advised Hatcher, who he described as a good
employee with an outstanding attendance record, that the disci-
pline was proper and would remain in her file. On cross-
examination, Hatcher testified that Supervisor Sherry Nevins, a
production supervisor who was hired by the Respondent in
December 1997, commented about the speed and efficiency of
her work. On redirect, Hatcher testified that she bid on a posi-
tion in quality control and the job was given to someone who
she believed was less qualified than her; that the employee who
was given the job, unlike her, did not have a perfect attendance
record, had less seniority, and was on medical leave so she
could not fill the position right away; that she was upset that the
other employee got the job and she told Gary Seivert in human
resources and Ikenaga that she did not think that the other em-
ployee deserved the job; and that she was told that was their
final decision and she had a bad attitude.
In June 1998, according to the testimony of Sherry Nevins,
the Respondent launched the rail coil line. She testified that it
was a very difficult launch, it was not very well planned and the
Respondent was really struggling with the launch of that new
product; that this resulted in a lot of overtime for the employees
and the hiring of a lot of new employees; and that to increase
production the Respondent commenced rotating breaks and
lunches so that the machines would be running for all 8 hours
of the shift.
In the summer of 1998, the Union commenced an organizing
campaign of the Respondent’s full-time and regular part-time
production and maintenance employees at the Dundee facility.
A number of the Respondent’s employees signed an authoriza-
tion petition, General Counsel’s Exhibit 5, which states as fol-
lows:
We are the Union!
We believe that only through collective bargaining can we
have a voice in our workplace; achieve fair treatment for all;
and establish seniority, job security and better benefits, wages
and working conditions. Therefore, this will authorize the
United Automobile, Aerospace and Agricultural implement
Workers of America, UAW to represent me in collective bar-
gaining. This will also authorize the UAW to use my name
for the purpose of organizing Diamond Electric.
Hatcher signed the union authorization petition on July 27,
1998, General Counsel’s Exhibit 5(B). She testified that she
read it before she signed it and that she delivered it to another
employee.
On July 27, 1998, the Union held a meeting for Respon-
dent’s afternoon-shift employees at Laborer’s Local 465 in
Monroe, Michigan. Duane Balinski, who is an organizer with
the UAW, testified that there was a sign-in sheet at the meeting,
General Counsel’s Exhibit 39, and he knew the nine employees
on the list and they attended the meeting, Kenneth (Ike) Pope,
Sherry Grodi, Matthew Heiden, Jean Dozier, Becky Nagy,
Larissa Manwaring, Billy Robbins, Tim Tennyson, and Dennis
May; that he saw these nine employees, who are the first nine
employees who signed General Counsel’s Exhibit 5(A) starting
from the left column, sign the union authorizing petition on
July 27, 1998; that the nine were sitting at a table; that while
Tennyson and May wrote “2/27/98” with their signatures, he
saw them both sign on July 27, 1998, and the Union did not
have an organizing drive going on at February 27, 1998; and
that he wrote Diamond Electric in the upper left-hand corner in
the block on General Counsel’s Exhibit 5 prior to the workers
signing the petition. Balinski sponsored General Counsel’s
Exhibit 5(A), one page of the authorization petition, with re-
spect to the nine signatures in the left and middle column. It is
noted that there is no date in the block signed by Pope.
After she found out about the union organization drive on
July 28, 1998, Shannon Ruetz, who was an employee of the
Respondent from March 9, 1998, to March 9, 1999, began
wearing union buttons, a union cap, and she carried a note pad
and pencils with the union logo on them at work. Ruetz testi-
fied that she also helped with the union newsletter, distributed
them, talked to coworkers on breaks and lunches, and obtained
signatures on the union authorization petition.
On July 28, 1998, Sally Cook (Jernigan after September 24,
1998), an employee of the Respondent who helped the Union
organize, signed the Union’s authorization petition, General
Counsel’s Exhibit 5(C). She testified that she saw the follow-
ing of the Respondent’s employees on July 28, 1998, at the
Laborer’s union hall in Monroe, Michigan, signing the Union’s
authorizing petition, General Counsel’s Exhibit 5(C): Ron Ka-
zensky, John Kryston, Amy Neidinger, and Jolene Naugle.
Also on July 28, 1998, Respondent’s employee Peggy Hei-
den, who was a volunteer organizer for the Union who wore
union hats and buttons at work, signed the Union’s authoriza-
tion petition. General Counsel’s Exhibit 5(B). Heiden testified
that she read the petition before she signed it at the union hall;
DIAMOND ELECTRIC MFG. CORP. 869
and that she saw Janice Jackson, Dawn Winkleman, Julie
Liedal, Elaine Bazzy, Peggy Bayer, Peggy Chlebos, Heidi Ost,
and Coke Sherry Winkelman sign the authorization petition.
General Counsel’s Exhibit 5 (B) was received with respect to
the printed matter on the page and the signatures of these em-
ployees.
On the morning of July 30, 1998, the Respondent had a
meeting in the lunchroom with the first-shift production em-
ployees. The Respondent’s president, Ikenaga, spoke to the
assembled employees. There are differing accounts with re-
spect to what Ikenaga said during this meeting. Employee
Janice Hatcher, who was on the employees’ volunteer organiz-
ing committee, wrote newsletters for the Union’s newspaper,
passed out flyers, wore union hats and buttons to work, and did
home visits with a union organizer, testified that at this meeting
Ikenaga said that he heard rumors of a union coming, and if the
Union came, he would have to close the doors, he could not
understand what was so terribly wrong with the Company.
Hatcher testified that she then said, “poor management” and
Manager Don Lynch replied that he did not think so. On cross-
examination, Hatcher testified that toward the end of his speech
Ikenaga said that his dad was sick with cancer and he was leav-
ing for Japan because of the surgery that his dad, who was the
CEO of the Respondent, was going to have; that Ikenaga said
that the business was losing $4.5 million; that Ikenaga was
emotional and he said he heard rumors of union talk and that if
the Union came in he would have to close the doors; that in an
affidavit she gave to the Board she indicated Ikenaga said that
he was sorry that the Company would have to close its doors if
the Union came in; and that during management’s meeting with
the employees in the cafeteria she asked Ikenaga to recognize
the Union but no one replied. Peggy Heiden testified that she
attended the July 30, 1998 employee meeting at 10:45 a.m.; that
at this meeting Ikenaga started the meeting with the statement
that he heard that there was a very strong union organizing
meeting going on in the plant, he was saddened by that, he
could not work with the union, and there would be no future for
the plant with a union; and that Ikenaga also mentioned that his
father was ill. On cross-examination, Peggy Heiden testified
that during this employee meeting Ikenaga also said that the
Company had a deficit of she believed $4.5 million. Supervi-
sors Gary Silvert, Sherry Nevins, and Bob Williams were pre-
sent. When asked by the Respondent’s attorney what subjects
he wanted to talk to the employees about on the morning of
July 30, 1998, Ikenaga testified as follows:
I learned that more Union [this was the second attempt
to organize the involved employees] is trying to organize
our Company. Then at that time we have a business dis-
cussion at that time so I wanted to share our kind of prob-
lem with our employees and try to share that information
and try to resolve those problems together by teamwork.
Ikenaga also testified that he told the employees at this meeting
that the Company had a loss of about $4.5 million, and that he
had to go to Japan the next day because his father was going to
have surgery for cancer. Ikenaga answered, “No” to the fol-
lowing questions of the Respondent’s attorney: “did you say I
will have to close the doors if the Union comes in,” “[d]id you
say you could not work with the Union,” and “[d]id you say
there will be no future with the plant with a Union.” (Tr. 735,
736.) On cross-examination, Ikenaga testified that at the time a
bank was threatening to pull the Company’s loan and
Daihmler-Chrysler was threatening to terminate their contract.
Nevins testified that she was present at the July 30, 1998
meeting in the cafeteria where Ikenaga spoke; that, with respect
to what Ikenaga said,
Well he was talking about we had lost four and a half
million dollars and our production was not very good, we
were having a lot of problems and complaints from our
customers not being able to make shipments and about
communication, we were having some communication is-
sues between Management and the employees. And also
about hearing rumors about a Union drive and that he
apologized to everybody for working all the overtime and
taking the people away from their families and he wanted
communication to improve an wanted everybody to work
together as a team.
Nevins testified that she did not recall Ikenaga saying any-
thing about his father at this meeting; that Ikenaga did not say
that he would have to close the doors if the Union came in or
that he could not work with a union or that there will be no
future for the plant with the Union.
Steve Hill, who was a manager with the Respondent at the
time, testified with respect to the July 30, 1998 employee meet-
ing that
Shige had called the meeting, and when we got to the
meeting he was there. It appeared that most of the people
in the building that were in the production and the produc-
tion management were called into that meeting. Shige
said that there were rumors of some activities going on–
organizing activities.
He elaborated on a lot of things that were going on at
Diamond at the time. He remarked that we were $4.5 mil-
lion in the red. He told some information that I was aware
of, because the Material Manager that we had had prob-
lems with the launch of the rail coil.
. . . .
He surprised us all, I was not aware of it and he told us
about his father being ill and having to have some surgery.
. . . .
He really expressed the interest that he wanted to work
together without an intermediary. He just wanted to work
together. He felt that Diamond was a family and he just
wanted to keep it that way.
Hill answered, “[n]o” to whether Ikenaga said that he would
have to close the doors if the Union came in, that he could not
work with the Union, or there would be no future for the plant
with the Union.
During their lunchbreak on July 30, 1998, a group of em-
ployees, including Hatcher, Peggy Heiden, Sherry Winkelman,
John Kryston, and Amy Neidinger, went to Ikenaga’s office
and gave him a petition signed by 22 employees, including
Hatcher and Peggy Heiden. General Counsel’s Exhibit 7. One
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD870
of the employees, Janice Jackson, read the petition to Ikenaga,
who said nothing. The petition reads as follows:
GOOD NEWS!!
To our Friends and Co-Workers
This letter is to inform you that we are members of the UAW
Volunteer Organizing Committee. We are going to be exer-
cising our federally guaranteed rights as outlined by the Na-
tional Labor Relations Act.
Section 7 of the act states, in part . . . “Employees shall
have the right to self-organization, to form, join or assist
labor organizations, to bargain collectively through rep-
resentatives of their own choosing, and to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection.”
We understand that it would be illegal for management to do
any of the following:
• Threaten to close the plant because of union organi-
zation.
• Threaten employees with demotion, or loss of bene-
fits because of union activities.
• Refusal to bargain in good faith with the employees’
union on matters pertaining to wages, hours and con-
ditions of employment.
• Say unionization will take away vacations or other
benefits presently in effect.
• Threaten employees with economic reprisal for par-
ticipating in union activities,
• for example, threatening to move your location, close the
business, curtail
• operations or reduce your hours or benefits.
• Tell employees that overtime, premium pay, bonuses
or other economic benefits will be discontinued if the
company is unionized.
WE WILL EXERCISE OUR RIGHT TO GAIN
RECOGNITION OF OUR UNION AND A SIGNED
CONTRACT
Peggy Heiden testified that the march on management con-
sisted of a number of day-shift employees, including herself,
who were on the volunteer organizing committee (VOC) pre-
senting a petition, General Counsel’s Exhibit 7, to President
Ikenaga, notifying him that the employees were trying to organ-
ize. On cross-examination, Ikenaga testified that he did not
recognize General Counsel’s Exhibit 7 but that some employ-
ees did come into his office after the July 30, 1998 meeting and
they did give him a paper with signatures on it which he read
and then turned over to human resources; and that he did not
know what the paper was for.
On July 30, 1998, Shannon Ruetz signed the union authori-
zation petition with the above-described language. General
Counsel’s Exhibit 5(C). She testified that she read the authori-
zation petition before signing it. On cross-examination, Ruetz
testified that she understood that by signing the authorization
petition she was designating the Union as her union.
According to the testimony of Diana McKeever, she left the
Respondent, on August 16, 1998, and about 3 weeks before that
she signed a union authorization petition, General Counsel’s
Exhibit 5(A). McKeever testified that Dozier gave her the peti-
tion.
General Counsel’s Exhibits 15 through 36 are exemplars for
22 of the Respondent’s employees who allegedly signed the
union authorization petition, namely David Courter, Kevin Carl
Crego, Tina Marie Domansky, Jean A. Dozier, Jill R. Edson,
Charles R. Fetterman, Sherry Grodi (she signed the union au-
thorization petition on July 27 and 30, 1998), Bryan S. Kilburn,
Dennis R. May Jr., Larissa D. Manwaring, Diana L. McKeever,
Becky J. Nagy, Chad Naugle, Janelle T. Ost, Yaseni C. Pil-
beam, Billy Joe Robbins, Douglas B. Russ, Brian Schwartz,
Barbara L. Shier, Lois Shroyer, Todd A. Stoner, and TimTen-
nyson. As noted below, Kilburn, who signed the petition on
July 30, 1998, became a supervisor on September 8, 1998. As
indicated by the General Counsel, General Counsel’s Exhibits
5(A), (B), (C), (D), and (E), to the extent they were not already
received, were offered to compare the signatures thereon with
the signatures in the aforementioned exemplars of 14 employ-
ees, namely Bryan Kilburn, Janelle Ost, Yaseni Pilbeam, Tina
Domansky, David Courter, Lois Shroyer, Brian Schwartz, Jill
Edson, Charles Fetterman, Kevin Crego, Chad Naugle, Bargara
Shier, Todd Stoner, and Douglas Russ, and they were received
with that understanding.
On August 1, 1998, according to the testimony of Peggy
Heiden, Nevins approached her at her work station in the as-
sembly department, with Peggy Chlebos present. Peggy Hei-
den testified that Nevins inquired as to whether she could ask
her some questions; that Nevins asked her why she was trying
to bring the Union into the plant; that Nevins said that Heiden
would be the first one to “bitch” when the plant closed down;
that Nevins said that she had worked with another union in a
previous job and that the Japanese would not work with the
union at Diamond Electric; that there was no future for the
plant with Diamond; that later that day she was present when
Nevins asked Matt Heiden why he was wearing a prounion
button; that when Matt Heiden responded that he wanted the
union Nevins asked him what he was going to do without a job
if the plant closes, the Company could lose the Chrysler busi-
ness; and that Nevins said that the Japanese would not allow the
Union. On cross-examination, Peggy Heiden testified that
before the Union drive Nevins had been very nice to her and
had confided in her, they had a good relationship at work, and
they joked around on the line.
Nevins testified that there were a lot of rumors going around
on the floor about the plant closing but she would never discuss
that; that when plant closing, what the Japanese would or would
not do, and what the future would or would not be came up she
would say, “[N]o that is not true”; and that as indicated in Re-
spondent’s Exhibit 13, which is a company handout dated Au-
gust 10, 1998, the answer to question 7 therein, namely “Will
Diamond Electric close the plant because the UAW wins the
election?” is “ABSOLUTELY NOT”; that she did not tell
Peggy Heiden that she would be the first to bitch when the
plant closes or that the Japanese would not work with a union
or there would be no future for the plant with the Union; and
DIAMOND ELECTRIC MFG. CORP. 871
that she did not recall having a conversation with Peggy and
Matthew Heiden where she said to them “what would you do
without a job if you lose Chrysler and the plant closes,” and she
did not say this or that the Japanese would not allow a Union.
On August 3, 1998, the Union filed a petition for certifica-
tion of representative in Case 7–RC–21388. General Counsel’s
Exhibit 2(A). On August 14, 1998, the parties entered into a
Stipulated Election Agreement. General Counsel’s Exhibit
2(B).
The first week in August 1998 Ruetz had her break and
lunchtimes changed by her supervisor, Joe Bitz. Formerly she
took her breaks and lunch with other employees but after the
change she took her breaks alone. Ruetz helped with the union
newsletter, distributed it, talked with coworkers on break and
lunches about the Union, obtained signatures on the union au-
thorization petition, and wore union buttons, union caps, and
carried notepads and pencils with the union logo on them. The
change lasted for about 3 to 4 weeks. On cross-examination,
Ruetz testified that the change in her breaktime occurred when
the Respondent began running the machine in her department
through breaks; that when a machine is running someone has to
be there; and that she covered other employees’ breaks by tak-
ing her breaks early.
Hill testified that after June 1998 the Respondent tried to
keep the machines running all 8 hours of the shift and so the
employees breaktimes were staggered so that the machine do-
ing the rail coils could run continuously during the shift; and
that everybody in the department would have gone on some
type of alternating beak so that the Respondent could keep the
machine running.
On August 8, 1998, Peggy Heiden and Nevins had another
conversation. Peggy Heiden testified that she was at her work
station in assembly and Nevins initiated the conversation; that
Nevins told her that her feelings were hurt by the newsletter the
employees who were the organizers for the Union published
and that if the employees wanted a fight, “then you’ve got it.”
On cross-examination, Peggy Heiden testified that Nevins took
the newsletter personally and it hurt her feelings that it said lies,
cries, and alibis; and that this conversation did not refer to a
specific reference to Nevins in the newsletter.
Nevins testified that she did not tell Heiden “if it is a fight
you want, you have got it.”
A day or two later, according to the testimony of Peggy Hei-
den, she had another conversation with Nevins. That morning
Nevins approached her line with a company newsletter against
union organizing. Nevins told her to take a few minutes and
read the letter. About 15 minutes later, Nevins returned and
asked her if she could talk to her. Peggy Heiden testified that
she was led into the lunchroom, they sat down and Nevins
asked her to discuss the company newsletter; that she told
Nevins that she did not want to talk about the Union; that
Nevins then said that she thought that they needed to discuss it,
and she told Nevins that she did not want to discuss the Union;
that she got up and was going to leave when Nevins said, “You
will sit down and we will discuss this or I write you up for in-
subordination” (Tr. 357); that she sat down and Nevins was
trying to ask her more questions about the newsletter; that she
then told Nevins that she did not have to talk about it because it
was about the Union; that Gary Seivert, who was with human
resources, walked into the room and asked what was going on;
that she told Seivert that Nevins was trying to talk to her about
the Union and she asked Seivert if she had to do this; that
Seivert did not reply and she left the lunchroom; and that as she
was leaving the cafeteria she saw Executive Vice President
Dave Bagnel standing there.
Nevins testified that in one of her conversations with Peggy
Heiden about one of the Union’s newsletter, which conversa-
tion took place in the lunchroom, Heiden said that she did not
want to discuss it and they did not discuss it anymore; that she
did not tell Heiden that she had to stay and talk with her; that
she did not suggest to Heiden that it would be insubordinate for
her to leave; that she did not recall Gary Seivert coming by and
Peggy Heiden just said she did not want to discuss it, she
wanted to go back out to the line and she went back to the line;
and that she did tell Heiden that she felt bad that the Union
would take away her, Nevins’, right to represent employees and
if there was a third party, the employees would go through the
third party and the communication between the employees and
her would be “broke down.” On cross-examination, Nevins
testified that she asked Heiden to come to the lunchroom with
her; that she asked Heiden to sit down; that she asked Heiden to
read the company newsletter which indicated that the Union
was not necessary; that she asked Heiden what was the most
important question in the Company’s newsletter for her; that
Heiden then said that she did not want to talk about the Union
and she was told not to; that she then asked Heiden, “Are you
sure we can’t just talk about one of the issues on here?” (Tr.
971); that she had been instructed that she was not supposed to
ask employees about their union activity or about why they
support the Union, and she knew this when she took Heiden to
the lunchroom; that she understood that it was Heiden’s legal
right not to talk about her support of the Union; and that Heiden
was not calm, she was nervous. Nevins further testified that
she passed out the company newsletter to all of her employees;
that she did not take the employees to the lunchroom after her
discussion with Peggy Heiden but she asked the employees
what was the most important question on the newsletter for
them; and that this was part of the Company’s campaign, and
she was doing her job.
Later that same day, Peggy Heiden had another conversation
with Nevins. Peggy Heiden testified that it was about 3:15 p.m.
and she had closed down her line for the day; that she walked to
the testing department to speak with coworker Karen Coffey
and Nevins asked her what she was doing there; that she told
Nevins that she was talking to Coffey about signing the union
authorizing petition; that Nevins said that she should go back to
her own department and she was not supposed to leave her
department; that Nevins then said that they were told to watch
the organizers and they were not supposed to leave their de-
partment, they were not supposed to be congregating; that her
shift was just finishing and Coffey was just coming on to her
shift in the testing department; that before this she had not been
advised that she could not leave her department; that employees
Lorri Iott and Ron Bauer, both of whom wore “Vote No” but-
tons, left their production areas; and that when she worked with
Iott she recorded that Iott left the line 16 times in 1 day. On
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD872
cross-examination, Peggy Heiden testified that while Coffey
was not working, they were both on the clock.
Nevins testified that she saw Peggy Heiden, who works in
assembly in the front of the building, talking with Coffey in the
testing department, which is in the back of the building; that
when she asked Heiden what was going on Heiden said that she
was trying to have Coffey sign a union card; that she told Hei-
den that she needed to go back to her own department and Cof-
fey needed to get on with her business; and that she would not
have said that she was supposed to watch union organizers.
Lefief testified that Heiden told him that she felt that she was
being picked on with respect to being away from her work area.
Nevins testified that several times she told Steve Burnett that
Peggy Heiden was leaving her machine without permission and
Burnett talked to Heiden. There is nothing in Heiden’s person-
nel file memorializing such talks. Nevins further testified that
she never recommended that Heiden be written up for walking
away from her machine without permission; that she com-
plained to Burnett about Peggy Heiden’s production but she did
not make any suggestion as to what disciplinary steps should be
taken against her; and that she asked management to counsel
Peggy Heiden about production because no matter what she
said to Heiden it was not working.
General Counsel’s Exhibit 37 is a stipulated list of the 71
employees who were in the proposed bargaining unit for the
weekly payroll period ending August 14, 1998. The General
Counsel and the Respondent stipulated that the unit described
in paragraph 7 of the complaint is an appropriate unit within
Section 9(a) of the Act. Respondent’s Exhibit 6, which is the
Excelsior list or voter eligibility list, was by stipulation created
as of August 8, 1998, and submitted to the Board on August 21,
1998. Respondent’s Exhibit 7 was described by the Respon-
dent’s attorney as a supplemental sheet showing employee
movement in and out of the unit. Respondent’s Exhibit 7 lists
31 employees and is titled “Employed in period of 7/1/98–
9/30/98 but not on voter eligibility list dated 8/8/98 and submit-
ted to NLRB on 8/21/98.” The Respondent stipulated (Tr.
1074) that the unit that was described in the Stipulated Election
Agreement and in the complaint is an appropriate unit; that
those employees named on General Counsel’s Exhibit 37 are
members of the unit as of August 14, 1998, and those on this
list who signed the cards (also described as the authorization
petition) included in General Counsel’s Exhibit 5 were in the
unit both when they signed the cards and on the August 14,
1998 payroll measurement date.
On August 20, 1998, Tim Carter, who worked for the Re-
spondent from April to October 1998, signed the above-
described authorization petition. General Counsel’s Exhibit
5(F). When asked if he read the words on the petition when he
signed it, Carter testified (Tr. 40), “I signed it, but I was speak-
ing with a union organizer at the time and I understood what
was going on and what the about the volunteer organizing
committee.” After signing the sheet, he told the new quality
control manager, Jerry Folmer, that he fully intended to support
the organizing by the Union at Diamond Electric and he began
to wear his union pin.
Carter testified that in late August 1998 his immediate su-
pervisor, Mardi Reid, asked him to step outside the break area
to a picnic table outside the cafeteria to have a conversation.
According to Carter’s testimony (Tr. 44), he and Reid said the
following:
A She had indicated to me that she wanted to give me,
basically a verbal warning. It had come to her attention
that there . . . [were] four areas, I believe, that she talked
about, wandering the floors, talking to people I wouldn’t
normally be talking to, irritability at meetings, taking ex-
cessive breaks, smoke breaks. We discussed this.
. . . .
A I had asked her if this had anything to do with the
union organizing activity. And she had indicated it didn’t.
And I had responded I thought it was kind of funny a cou-
ple days after I declare my support for the union that I
would be getting a verbal reprimand when nothing else. . .
you know, she had never said anything before that.
According to Carter, before this nothing had been said to him
about wandering the floor or talking to people that he normally
did not talk to. On cross-examination, Carter testified that
Reid’s verbal warning was not documented and that during that
period he may have went over the allotted time for a break
once or twice or taken an extra one.
Reid testified that Carter extended his breaks quite often and
he was not always at his workstation when required; that she
spoke to Carter about this three times but she did not discipline
him; that after the union organizing effort was well known,
Carter asked to talk with her several times over a week to 10
days and when she finally had time she sat down and talked
with him at the picnic table outside the building; that this con-
versation occurred after a break when Carter told her that he
still needed to talk to her and she told him that she was free;
that Carter told her that he believed that since he started wear-
ing a union button he was being watched by upper manage-
ment, Vice President Dave Bagnell specifically, and he wanted
to tell her where he stood with the Union and why he felt that
he wanted the Union; that before this she had seen him wearing
a union button; that Carter told her he believed that his job was
in jeopardy because he had started wearing a union button; that
she told him that if he was doing his job and was at his work
station, he had nothing to worry about; that she told him to
watch his breaks and make sure that he was at his workstation;
that this was not discipline and she was not warning him; and
that this was the same friendly conversation they previously
had. On cross-examination, Reid testified that she did not write
up Carter for wandering away from his station and she did not
make a notation in his personnel file; that she talked to Carter
two times before the final time; that the first time was probably
in May 1998 and the second time was probably late June or
July 1998; that Carter was taking five or six breaks a day be-
cause he had an excessive smoking habit; and that she did not
think that his conduct warranted any discipline.
On September 2, 1998, Shannon Ruetz saw Tabbitha
McDonald sign the union authorization petition. General
Counsel’s Exhibit 5(G). Sally Cook was present. The lan-
guage on the authorization petition is different from that quoted
above in that on this sheet it reads as follows:
DIAMOND ELECTRIC MFG. CORP. 873
We are the Union!
We the undersigned employees of Diamond Electric authorize
the United Automobile, Aerospace and Agricultural Imple-
ment Workers of America, UAW, to represent us in collective
bargaining. We also authorize the UAW to use our names
and this prtition to show our support for the union.
Sally Jernigan (Cook) testified that she saw the Respondent’s
employee Tabbitha McDonald sign the Union’s authorization
petition, General Counsel’s 5(G) which is dated “9–2–98,” and
that they were in the smoking breakroom on break on Septem-
ber 2, 1998, she had previously talked to McDonald about sign-
ing the petition, McDonald said that she wanted to, so she got
the petition, and she slid it over to McDonald, who signed it
and slid it back. On cross-examination, Jernigan testified that
Shannon Reutz may have been present when McDonald signed
the petition.
In the first week in September, Peggy Heiden was talking
with temporary Lori Sidebottom about her cats while they were
working. Peggy Heiden testified that the conversation did not
stop production and the line continued to run; that the Company
did not have a rule which prohibited employees from talking to
others while they were working; that Nevins took Sidebottom
and another temporary employee off her line and brought a
replacement worker to her line and told her that she had to talk
with her; that they went to human resources, to the office of
Gary Sievert; that Nevins, in the presence of Sievert, asked her
if she was trying to organize the temporary employees and told
her that she was not supposed to talk about the Union during
working hours; that she told Sievert that the harassment had to
stop, Nevins had been following her into the ladies room, tim-
ing her breaks, timing her lunch hours, and she could not talk to
anyone and nobody could talk to her; and that Nevins denied
harassing her and said that bringing in the Union was taking
away Nevins rights as a supervisor. On cross-examination,
Peggy Heiden testified that in that time period her line did have
periodic stoppages when they were out of parts, it could be a
machine breakdown, to make an adjustment, or someone could
have left the line; that Nevins asked her if she was trying to
organize the “temps”; and that during this conversation Nevins
did not accuse her of stopping the line.
On September 8, 1998, Peggy Heiden was given the follow-
ing writeup, General Counsel’s Exhibit 13:
I had a conversation with Peggy Heiden about the
work stoppage that occurred on 9–4–98 at 1:15 pm. I ex-
plained to Peggy about the importance of keeping the line
running and being a mentor to our new team members as
well as our temporary operators.
Given to team member on 1:50 pm 9/8/98.
Team member did not sign.
The writeup is signed by Nevins who told Peggy Heiden that it
would go into her file. The document notes “PLACE A COPY
OF THIS IN EMPLOYEES FILE.” Peggy Heiden testified
that there was no work stoppage or any kind of a work slow-
down, and that she told Nevins the line did not stop and she
would not sign the document. Also Peggy Heiden testified that
she never deliberately did anything to cause a stoppage and
other than General Counsel’s Exhibit 13, she had never been
accused of causing deliberate stoppages on the line.
Nevins testified that she did not follow Peggy Heiden
around; that she was too busy to follow anybody around; that
on September 4, 1998, they had an additional person, who was
a temporary, in the assembly area to increase production; that
Heiden was doing the core operation, which is the first part of
the operation, and when Heiden started to talk to Sidebottom
the temporary employee did not have any coils to work with;
that the line stopped for a couple of minutes; that she went over
to the line and told Heiden and Sidebottom to get back to work;
that employees can talk on the line as long as the line keeps
moving; that she asked Heiden to come to the human resources
department; that Seivert, who was the human resources man-
ager, was present while she spoke with Heiden; that she talked
with Heiden about the importance of keeping the line running
and, as the most senior employee there, to mentor new employ-
ees and keep them working; that when Heiden said this all has
to do with the Union she told Heiden that it had nothing to do
with the Union; that they told Heiden that it was not a disci-
pline; that she did not recall any discussion during the meeting
about Heiden trying to organize the temps or talking to the
temps or other employees about the Union or that she should
not talk with them about the Union; that she did not tell Heiden
that she was taking away her rights as a supervisor; that at this
meeting she denied Heiden’s allegations that she was following
her, harassing her, and constantly on her case; and that Heiden
refused to sign the writeup saying that she did not stop the line.
On September 10, 1998, Nevins came up to Hatcher on the
assembly line and told her that Don Lynch wanted to speak to
her. The conversation took place in what was then Dave Vag-
man’s office. Hatcher testified that Lyons told her that he
called her in there because he felt that she was headed down the
wrong path; that she asked him what he meant by that; that
Lyons told her that some of her peers had come to him with
concerns about her production; that when she asked for specif-
ics Lyons would not say; that Lyons told her that he decided to
put her back in Testing that day; that she asked why and when
he did not give a reason she told him that she wanted to take it
to the committee to find out why she was being moved; and
that Lyons never did tell her what the so called complaints
about her production were about and he gave her no specifics.
Hatcher had worked in Testing from July 1995 to January 1998.
She bid out to Assembly in early 1998, worked in Winding, and
then returned to Assembly. On cross-examination, Hatcher
testified that at one point in September 1998 she attended a
safety meeting and Supervisor Steve Burnett started to talk to
her in the presence of another employee about claims of low
production which were being made against her; and that she
took out a notebook and started writing, and Burnett, who had
said that her production was low, said that he was not going to
meet with her if she was going to take notes.
On the morning of September 11, 1998, Hatcher spoke with
Lynch in the human resources department. Hatcher testified
that she asked Lynch what she had done wrong and Lynch told
her “leave the line”; that when she told him she was not a wan-
derer, and he let Ron Bauer and Laura Iott use the telephone,
give keys to their children, and go out and start their cars in the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD874
winter time before the shift ends, Lyons told her not to go there;
and that Bauer and Iott wore “vote no” buttons. That afternoon
Lyons approached Hatcher in the testing area and, according to
Hatcher’s testimony, told her “that the Company had decided
not to further indict me because there wasn’t enough evidence
or documentation for my production” and that “he was putting
me back in the testing area to keep me out of harms way.” (Tr.
266.)
Nevins testified that in September 1998 Hatcher was moved
to the rail coil assembly line to work with Laura Iott and Bauer
who had been previously trained on that line; that prior to
Hatcher’s transfer the line struggled but it met production; that
after Hatcher’s transfer to the line it was not meeting the pro-
duction goals; and that Bauer and Laura Iott complained about
Hatcher’s production and Lynch got involved in the decision
that Hatcher be moved back to the testing department where the
Respondent needed help.
In mid-September 1998, Jerry Folmer told Timothy Carter
that he had to show him a movie about unions. Carter testified
that he told Folmer that he did not need to see it because his
mind was made up in that he had worked in a UAW shop for 20
years and he supported the Union; that he and Folmer had a
long discussion about the Union that night at work and Folmer
asked him if he was a union organizer; that Folmer told him
that night at work that he had heard that he was put in the plant
to organize Diamond Electric; that Folmer then asked him if he
had been “salted” there; and that when the movie showed an
international union taking over the bargaining and not giving
the local any say in it, Folmer asked him if that was how it
happens, and he told Folmer that he was not an organizer, he
had never been in that situation, and he would not know.
On September 18, 1998, Hatcher had a conversation with
Shige Ikenaga about her September 10, 1998 transfer to testing.
Hatcher testified that the conversation occured in Ikenaga’s
office; that just she and Ikenaga were present; that she told
Ikenaga that she was concerned about why she was moved to
testing and she asked him if he knew why she was moved; and
that Ikenaga said that he knew why she was moved but he had
to be very careful of what he could say and that he could not
tell her. Ikenaga testified that Hatcher asked for this meeting;
and that when she asked him why she had been transferred he
told her that he knew the reason but he could not tell her at the
time; that she was transferred because employees Laura Iott and
Bauer complained that “[s]he is slow or quality problem and
sometimes she go out, often she go out from the working place”
(Tr. 737); that Hatcher was transferred to avoid a conflict be-
tween employees; and that he did not want to tell Hatcher who
complained because he did not want additional conflict; and
that he did not remember Hatcher saying that she did not want
to be transferred. On cross-examination, Ikenaga testified that
the proper thing to do under company procedure would have
been to bring any problems Hatcher may have had to her atten-
tion so she would be able to improve her performance; that he
knew at the time of the transfer that the employees were at-
tempting to organize and he knew that Hatcher was one of the
union supporters; that he did not know if Bauer and Laura Iott
were union supporters; and that he never gave Hatcher a chance
to tell her side of the story as to who was causing the slow pro-
duction (assuming that the production was slow).
As shown by the involved tally of ballots, General Counsel’s
Exhibit 2(D), the election was held on September 24, 1998, and
of 65 eligible voters, 27 voted for the union petitioner, 32 voted
against the Union, and there were 5 challenged ballots. The
Union filed objections, a charge and an amended charge.
Ruetz testified that when she went to vote in the Board elec-
tion on September 24, 1998, at 7:30 a.m. she saw Supervisors
Gary Seivert and Steve Hill standing at a table in the break area
20 to 30 feet from her when she picked up her ballot in the
polling booth area. See Respondent’s Exhibit 2. On cross-
examination, Ruetz testified that she went into the breakroom
three times during her shift on September 24, 1998, she went
into the breakroom after her shift at 7:30 a.m. to vote, and she
went into the breakroom for the vote count at 4 p.m. that day;
that when she left the breakroom after voting Seivert and Hill
were not still there; that she saw Seivert and Hill in the break-
room only for the few seconds that it took her to walk past them
when she entered the breakroom; that when she saw Seivert and
Hill in the breakroom on September 24, 1998, at 7:30 a.m. un-
ion observer Iva Pilbeam, employee Janet Hatcher, and the
Board agent were in the breakroom; and that she also went into
the breakroom when she came for the beginning of her 11 p.m.
shift on September 24, 1998. Sally Jernigan testified that she
got off her night shift late on the day of the vote on September
24, 1998, so she did not vote until between 7:35 or 7:45 a.m.,
and she did not see Reutz voting; that in her affidavit to the
Board she indicated that she arrived to vote between 7:30 and
7:35 a.m.; and that she was the only one in the polling area
when she voted.
Hill, who no longer worked for the Respondent when he tes-
tified at the hearing herein and who was the material manager
when he worked for the Respondent, testified that he was at the
involved facility on the day of the election, September 24,
1998; that he held a shift meeting from 7 to 7:15 a.m. and
Seivert was present; that the standup meeting was held by the
double doors leading from the production area to the front of-
fice; that he did not go into the voting area between 7 and 8
a.m. or 3 and 4 p.m. because he was instructed not to be in the
voting place during these times; and that he and Seivert abso-
lutely did not go into the lunchroom or the cafeteria during the
two polling periods. On cross-examination, Hill testified that
he did go into the cafeteria before 7 a.m. on September 24,
1998, to get something to drink.
Hatcher testified that she was moved back from the testing
area to assembly “right after the election.” Nevins testified that
when the testing department became pretty much established
Hatcher was transferred back to assembly.
Nevins testified that shortly after the election Tammy Clark
told her that Heiden, Hatcher, Ruetz, and Cook wanted to get
Nevins fired; and that Ron Bauer told her that Heiden wanted to
get her fired.
Clark, who is a testing line leader, testified that sometime in
August or September 1998 she and Peggy Heiden were alone in
the warehouse repackaging parts and Heiden
DIAMOND ELECTRIC MFG. CORP. 875
was mad at Sherry and she persisted to complain about how
we needed to get rid of her, that we used to be friends, which
was never true, and that she said that ever since the Union
came in, that she has been on her and riding her, and that she
was a “f–king bitch” and that we needed to get rid of her. [Tr.
1062.]
Clark further testified that she told Heiden that she did not re-
call her ever having a friendship with Nevins and then she told
Nevins and Burnett what Heiden had said. On cross-
examination Clark testified that ever since Nevins came to the
Respondent Peggy Heiden hated her; that she was not a Union
supporter; and that she did not have any reason to stop in to talk
to Gene Bialy in March 1999. On redirect Clark testified that
she did not remember signing a statement that was given to
Bialy; that it was her signature which was dated March 20,
1999 on a document which counsel for the Respondent showed
her; and that she did not recall talking with Bialy about Nevin’s
working relationship with Peggy Heiden in March 1999. Sub-
sequently Clark testified that between January or February
1998, before the Union activity commenced and shortly after
Nevins was hired, Peggy Heiden told her “that she couldn’t
stand Sherry [Nevins], and she wanted her out, no matter what-
ever it took to get rid of her.” (Tr. 1071.) On recross, Clark
testified that a number of people complained about Nevins
“[o]nly because they heard a couple other people complain
about her, [four or five] so they went along with them” (Tr.
1073); and that she did not recall whether she told Nevins about
Peggy Heiden’s January or February 1998 comment.
Toward the end of September 1998 Hatcher examined her
personnel record. She testified that there was nothing in her
personnel record with respect to complaints about her produc-
tion. On redirect, Hatcher testified that the only people that she
worked with on the production line were Peggy Heiden and
Peggy Chlebos; and that before the union campaign she was
never told that she was going to be disciplined for production.
Nevins testified that she reported to higher management
about Hatcher’s production; that she realized how important it
is to document discipline; that while General Counsel’s Exhibit
8, which is the November 5, 1998 Herrmann memorandum
covering his meeting with Hatcher about wearng a hairnet, is
the only written discipline in Hatcher’s file, she counseled
Hatcher “many times”; that she was aware that under the Com-
pany’s disciplinary procedure, there is a step for an oral warn-
ing and a form that is supposed to be filled out for an oral warn-
ing; and that the form is supposed to be placed in the personnel
file. As noted above, no such forms were found in Hatcher’s
personnel file. Nevins testified that she recommended to higher
management that Hatcher be disciplined and no action was
taken. She also testified that the Company keeps production
records and there is a way of verifying whether somebody
meets their production goals; that she complained to higher
management three or four times about Hatcher not making her
production and Hatcher would be counseled; and that she was
not sure if there was a record of this in Hatcher’s personnel file
(there was not). On cross-examination, Nevins testified that at
the beginning Hatcher worked with Peggy Heiden, Peggy
Chlebos, and a temp and there were no complaints about Hei-
den’s production; that subsequently in August or September
1998 Laura Iott and Ron Bauer complained about Peggy Hei-
den not carrying her load; that Peggy Heiden also complained
about Hatcher not pulling her weight; and that Laura Iott and
Ron Bauer were opposed to the Union. On redirect, Nevins
testified that production records would show production for a
date or a shift or a line or a product; that they were not kept by
individual employee in assembly; that in testing, records were
kept so that the daily production of an individual employee
could be determined; and that such records are kept for 7 years
for QS-9000.
Hill testified that it was not possible to reconstruct individual
production data in the testing department.
At the hearing herein, the General Counsel’s motion to
amend paragraph 14(a) of the complaint was granted so that it
now reads that Respondent by its agent, Tanya Brodie, at its
Dundee facility on September 28, 1998, and in mid- to late
October 1998 coercively interrogated an employee as to his/her
support for and sympathies on behalf of the Charging Party.
The Respondent stipulated that to the extent that Brodie was
involved in an employment interview around that time, she was
an agent and a supervisor of the Company. This stipulation is
noted in General Counsel’s Exhibit 38, which also notes when
12 named individuals acted in a supervisory capacity on behalf
of the Company, and notes that employee Bryan Kilburn, who
was hired June 8, 1998, was promoted to a supervisory position
on September 8, 1998, which he continued to hold as of the
date of the letter, December 1, 1999.
Denise Thorp, who was an employee of the Respondent
when she testified herein, testified that she was hired in the
middle to the end of October 1998; that she had two interview-
ers, namely Brodie and Burnett; that during an interview Brodie
asked her what her views are on the Union and she told Brodie
that she did not have any views; and that she was told that she
was hired and she should report to Bryan Kilburn the following
Monday. On cross-examination, Thorp testified that after her
interview she had to fill out a questionnaire; and that Brodie
asked her what her views were on a union. Thorp was able to
give many details on cross-examination with respect to what
else was said during the interview.
Ryan Clark testified that when he interviewed with Brodie in
November 1998 she did not ask him any questions about un-
ions. Clark, who at the time was still a full-time student at a
community college, told Brodie that he could not start until
January 1999.
On November 5, 1998, Hatcher had a conversation with Su-
pervisor Nevins about the Company’s hair net policy. Hatcher
testified that she was working in assembly at the time; that she
was wearing her hair net but her hair from her earlobes to her
shoulder was out of the net; that Nevins told her that she had to
put all of her hair under the net; that she told Nevins that if she
had to do it why didn’t everyone else have to do it; that Nevins
told her that if she had a problem with that she should go see
human resources; that she and Nevins spoke with Will
Herrmann in human resources; that she told Herrmann that
other named employees wore some of their hair outside the net
or a hat; that Herrmann told her that she had to follow a reason-
able order of her supervisor; that she then stood up, said thank
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD876
you, and said that she “had to take it to a higher source” (Tr.
272); that she went to the restroom and tucked all of her hair up
underneath the hair net; that Nevins walked into the restroom,
said, “Jan this isn’t a beauty contest” and told Hatcher
Herrmann wanted to see her in the human resources office; that
Herrmann told her that he felt what she said was a public out-
burst and she was being very sarcastic, and she told Herrmann
that she was sorry that he felt that way, that she did not mean
for it to be sarcastic and she did not mean for it to be a public
outburst; and that in her view she did not have a public outburst
and she had not been sarcastic. On cross-examination, Hatcher
testified that Peggy Heiden, who was a very visible prounion
employee, had her pony tail and her bangs hanging out of her
baseball cap; and that she was not in the hallway when she said,
“[T]hank you, I will take this to a higher source.”
The Respondent stipulated that Herrmann was a supervisor
from October 1998 through early November 1998, including
the time of the November 5, 1998 warning to Hatcher.
On November 9, 1998, Hatcher received the following
memorandum, General Counsel’s Exhibit 8, from Herrmann:
This letter confirms our conversation on Thursday,
November 5, 1998, wherein we discussed your obligation
to follow the reasonable direction of your supervisor and
that public outbursts, such as you displayed, are inappro-
priate and unacceptable in the workplace.
Please be advised that the company views both of
these behaviors as serious situations. Repetition of these
acts, or any other acts which are inappropriate in the
workplace are considered to be grounds for the issuance of
corrective discipline, up to and including discharge.
Peggy Heiden testified that in the fall of 1998 the Company
put into effect a policy requiring that operators on a machine on
the production floor had to wear a hair net; that later these em-
ployees were allowed to wear hats; and that she saw Laura Iott,
who worked in assembly, not wearing a hair net and Nevins
was present when this happened. On cross-examination, Peggy
Heiden testified that she wore her hair in a pony tail outside the
hairnet and Nevins never made an issue out of that; and that it
was her understanding that as long as the employee’s hair was
in a pony tail behind the hairnet it was acceptable.
Lefief testified that Heiden complained to him that she was
the only one that had to wear hair nets, saying that “nobody else
had to wear hair nets.”
Reid testified that the hairnet policy was put into effect in the
production area to keep hair out of the product; that if hair gets
into the product, it can create a short; and that the rule was
followed by most employees.
Nevins testified that Hatcher and Heiden did not want to
have their hair up in hair nets or ball caps; that all employees in
the production area had to comply with the rule; and that they
would tell her when they did not believe that she was enforcing
this policy consistently. With respect to what occurred on No-
vember 5, 1998, with Hatcher, Nevins testified that she told her
that she had to have the sides of her hair up; that Hatcher told
her she did not believe that that was fair because other people
were wearing baseball caps and their hair would hang out in the
back; that she told Hatcher that if she had a problem with that
they could go to human resources; that they spoke with
Herrmann; that Hatcher started yelling very loud about not
being fair, harassment against her, and other people were wear-
ing their hairnets like that; that Herrmann told Hatcher that she
needed to calm down and follow the directions of her supervi-
sor; that they asked Hatcher to go to the restroom and take care
of her hair; that as Hatcher went from Herrmann’s office into
the hallway and into the restroom she was yelling that this was
not fair and they were just harassing her; that the area is a high
traffic area; that at Herrmann’s behest she got Hatcher back
into his office; that she did not say anything to Hatcher about a
beauty contest; that Hermann told Hatcher that that kind of an
outburst was uncalled for, it was disruptive to the other em-
ployees, and it could not be tolerated in the workplace; and that
she did not play a role in the preparation of General Counsel’s
Exhibit 8.
On November 30, 1998, Region 7 of the Board issued a com-
plaint, report on objections, order consolidating complaint,
objections and amended objections, and notice of consolidated
hearing in Cases 7–CA–41236 and 7–RC–21388.2
In mid-December 1998, Day-Shift Supervisor Nevins had a
conversation with employee Robert Bomia about 6:45 a.m. in
the assembly area of the plant. Bomia testified (Tr. 134 and
135) that Nevins
said that she heard through the grapevine that somebody said
that if we got a Union that we would top out at $15.00 an
hour, and she said that would be good, that would be grand,
but then they would have to raise the prices on our ignition
coils to pay everybody that kind of money. And if they raised

2 GC Exh. 1(e). The complaint alleges that the Respondent (A) vio-
lated Sec. 8(a)(1) of the Act by (1) indicating to employees that it
would be futile to elect the Union as their representative by telling them
that it would not continue to operate the Dendee facility if they chose to
be represented by the Union, (2) coercively interrogating employees on
more than one occasion about their activities on behalf of and in sup-
port of the Union, (3) threatening employees with loss of employment
and unspecified reprisals if they chose to be represented by a labor
organization, (4) creating the impression among its employees that their
activities on behalf of and in support of the Union were under surveil-
lance by telling the employees that it was watching them, by escorting
employees while walking through its facility, by telling employees that
they were wandering in the plant, talking to unauthorized persons and
overstaying their breaks, and by telling employees that it had heard
from a supervisor that they were “salts,” (5) orally promulgating new
work rules which prohibiting employees from congregating and leaving
their assigned departments, and which prohibited employees from
talking to one another about the Union during working hours, (6) ques-
tioning employees’ loyalty to it because they engaged in activities on
behalf of and in support of the Union, (7) engaging in surveillance or
employees’ activities on behalf of and in support of the Union, (8)
harassing its employees by telling them that their coworkers had raised
concerns about their work performance, then later telling them that it
would not charge them with these offenses because of lack of docu-
mentation, and (9) maintaining an overly broad no-solicitation rule at
its Dundee facility, and (B) violated Sec. 8(a)(1) and (3) of the Act by
(1) changing the breaktimes of employee Shannon Reutz, (2) counsel-
ing employee Peggy Heiden pursuant to an overly broad rule prohibit-
ing employees from talking to one another about the Union during
working hours and memorializing this counseling in writing, and (3)
transferring employee Janice Hatcher to a new department.
DIAMOND ELECTRIC MFG. CORP. 877
the prices on ignition coils then Chrysler would go to a differ-
ent Company. She didn’t specify names, she just said com-
pany.
Nevins testified that during shift changeover Bomia came up
to her desk and told her that he heard that if the UAW came in,
he would get $15 an hour pay; that Bomia asked her if it was
true and he said that he had been told this by UAW members;
and that she told Bomia that if the Company paid $15 an hour,
the price of the ignition coil would have to be raised, and then
that could cause some of our customers to look for a cheaper
ignition coil.
In mid-December 1998, Hatcher was assigned cleanup work.
She testified that the machines went down and Nevins ordered
her, Peggy Heiden, and Peggy Chlebos to do extensive clean-
ing; that they pulled up floor mats, were down on their hands
and knees to pick up bolts, and they vacuumed and swept the
floors; and that Bauer and Laura Iott were standing out by the
timeclock; that she had cleaned up in the past but not as exten-
sively; and that this happened another time in December 1998.
Peggy Heiden testified that in December 1998 before Christmas
Peggy Chlebos, Hatcher, Bauer, Laura Iott, and herself were
working in the assembly department; that Nevins assigned her,
Hatcher and Chlebos to pick up the mats off the floor, sweep
underneath the mats, sweep under the machine, and sweep the
machines; that they had to get down on their hands and knees
and pick up parts under the machines; that Bauer and Iott did
not do that type of work at that time but rather they were stand-
ing by the timeclock; and that she had never done cleanup work
to that extent before in that she had never before got down on
her hands and knees to pick up things off the floor or pick up
big, heavy, rubber mats off the floor. On cross-examination,
Peggy Heiden testified that Bauer and Iott were working on her
line on this occasion and they were not told to clean up; that
Bauer and Iott just left and she was not sure if they went to
another department; that she saw Bauer and Iott standing by the
timeclock when she was cleaning; that it was the end of the
shift when she saw Bauer and Iott by the timeclock; and that
Bauer and Iott were gone from her area for about 2 hours.
Lefief testified that it would be a part of a production em-
ployee’s routine to lift the cushioning mats and clean under
them, and clean in, around and underneath all of the machinery;
that he did not consider this to be inappropriate or onerous
work for a production employee; that a major or special clean
occurred on average once a month and there were two in De-
cember 1998; that Heiden complained to him that she had been
picked on to do cleaning; and that Hatcher complained about
the cleaning responsibilities of her job.
Nevins testified that whenever the lines were down or visi-
tors from Chrysler or the CEO was coming they did extra
cleanup which involved cleaning under the rubber mats and
machines; that she did not single out Hatcher and Peggy Heiden
out for this duty; that everyone had to clean; and that Hatcher
and Peggy Heiden did not accuse her of singling them out for
this duty.
Hatcher also testified that in mid-December 1998 the em-
ployees asked Nevins and Steve Burnett if there was weekend
overtime and they were told that there was not; and that some-
time later they were told by a temporary employee, Jason Ma-
linkowski, that he worked in the testing department the in-
volved weekend with some other people. Peggy Heiden testi-
fied that overtime is assigned on the basis of seniority; that she
has the third highest seniority in production; that she felt that
she was denied overtime in mid-December 1998 when she was
told by Nevins that there was no overtime work on a Sunday;
and that she later learned from a temporary employee named
Jason that he worked on the Sunday in question. On cross-
examination, Peggy Heiden testified that she worked overtime
on weekends after December 6, 1998; that she worked Saturday
December 12, 1998, but not Sunday December 13, 1998; that
she believed that she worked on Saturday December 19, 1998;
that when Malinkowski worked on the weekend in question he
did 100-percent inspection which is a job that she had done in
the past; and that her knowledge of the involved Sunday over-
time came strictly from what Malinkowski told her. On redi-
rect, Peggy Heiden testified that Sunday was double time pay.
Lefief testified that the 100-percent inspection operation is
not considered a permanent operation in the Dundee facility
and temporary employees and not regular employees are used
in the operation; that two of the temporary employees used in
this operation are Jason Malinkowski and Deborah Cole; that
the inspection is actually a cosmetic inspection of the parts
which the testing people are not involved in; that occasionally
regular employees did get involved in the 100-percent inspec-
tion operation; that he did not remember Hatcher or Peggy
Heiden working as 100-percent inspectors; that in his view
somebody familiar with production testing would have imme-
diately transferable skills to 100-percent inspection; that he and
Burnett arranged the overtime for people who worked in as-
sembly, winding, potting and testing; that Jerry Folmer, who
was the quality assurance manager, and his assistant, Kathy
Miller, would have scheduled the overtime work on Saturday
December 12, 1998, by Malinkowski and Cole in 100-percent
inspection; that the Company’s Christmas Party was held on
December 12, 1998; and that production employees had been
working a lot of overtime and management decided that the
production employees would have the weekend of the Christ-
mas party off.
Nevins testified that the employees had been working a lot of
overtime and in December 1998 Ikenaga shut the plant down
for a couple of weekends; that the employees did not work the
weekend of the Christmas party; that the employees also did
not work the following weekend; that there was no production
on these 2 weekends; that she did not have anything to do with
the scheduling of Jason Malinkowski or Cole, who were tempo-
raries who did 100-percent visual inspection of coils in quality
control before they were shipped; and that she found out after
the fact that these two temporaries worked on the Saturday of
the Christmas party.
Hill testified that there was a lot of overtime up to the begin-
ning of December 1998 and then it was basically limited to
100-percent visual inspection of the finished part; that the qual-
ity department did the 100-percent visual inspection work; and
that two temporaries in that department, Cole and Jason, took
their direction from Kathy Miller in the quality control depart-
ment and her boss was Folmer.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD878
Gene Bialy, who is the Respondent’s vice president of hu-
man resources, sponsored Respondent’s Exhibit 17 which
shows the overtime worked by Peggy Heiden between Novem-
ber 30, 1998, and January 3, 1999, and Respondent’s Exhibit
18 which shows the overtime worked by Janice Hatcher during
the same period. He testified that generally the plant did not
work overtime on the weekend of December 12 and 13, 1998,
which was the weekend of the holiday party, the weekend of
December 19 and 20, 1998, and the weekend of December 26
and 27, 1998; that temporaries Malinkowski and Cole both
worked about 4 hours on Saturday, December 12, 1998, doing
100-percent testing getting shipments prepared for shipment to
Chrysler the first thing Monday morning; that Quality Manager
Folmer would have scheduled this overtime; and that Peggy
Heiden or Hatcher should not have been called for this over-
time because the decision to work in 100-percent inspection
was sometimes very spontaneous and Cole slices sample cores
as part of a quality test and he did not think that anyone else
had this skill.
Bryan Kilburn, who at one time was a member of the UAW
volunteer organizing committee and later was the midnight
shift supervisor in mid-December 1998 (he became the mid-
night shift manager in January 1999), testified that a week be-
fore Christmas 1998 he spoke with Robert Bomia about the fact
that when Bomia was working overtime he came in between
6:50 and 7 p.m. and when the afternoon shift took their lunch at
7 p.m. he went with them a couple of times and sat in the cafe-
teria for their 30-minute lunchbreak while he was on the clock;
that Bomia’s normal shift began at 11 p.m.; that he told Bomia
that it showed a lack of integrity on his part and his probation
was being extended; and that there was no mention of the
length of such extension. Kilburn also testified that shortly
after this discussion Bomia thanked him for putting in a good
word for him so he would not lose his job but he was not going
to rely on him anymore for his job security, he had decided to
go with the Union. On cross-examination, Kilburn testified that
he did not make any reference to the indefinite extension of the
probation in Bomia’s personnel file.
Hatcher quit the employees’ VOC at the end of December
1998. She testified that she was tired of the Company harass-
ing her so she decided to keep a low profile.
Peggy Heiden testified that as a member of the safety com-
mittee she reminded coworkers to wear safety glasses and to
speak to supervisors if the employees were not wearing safety
glasses; that between September and December 1998 there
were certain employees who she observed not wearing their
safety glasses from time to time, namely Laura Iott and Sue
Barnier; that in December 1998 she spoke to Nevins about Iott
not wearing her safety glasses and Nevins told her to mind her
own business and get back to her line; that Iott did not start
wearing her safety glasses after that; and that there were occa-
sions that she did not have her safety glasses on the minute she
got back to her workstation and Nevins was there to remind her
to put them on. Nevins denied telling Heiden to mind her own
business and get back to the line.
Kilburn testified that in January 1999 he was approached a
couple of times by Bialy and Burnett regarding Bomia not fol-
lowing the Company’s safety glasses policy; that he also saw
Bomia not complying with the safety glasses policy and he
gave Bomia a form to get company-paid safety glasses; that he
provided Bomia side shields on numerous occasions; that he
and Bialy decided to extend Bomia’s probation indefinitely;
that Bomia asked him the status of his probation at his 120-day
mark; and that he never told Bomia that his probation had come
to an end. On cross-examination, Kilburn testified that despite
the fact that the wearing of safety glasses was a chronic prob-
lem with Bomia, he never wrote Bomia up for this.
On January 13, 1999, according to Peggy Heiden’s testi-
mony on cross-examination, Nevins told her and the other
members of her line that their production had been low for a
very long time and Heiden disagreed with Nevins. On redirect,
Peggy Heiden testified that for 3 to 4 hours Nevins stood by her
line and watched the employees working; that the employees
asked her why she was standing there and Nevins said it was
because the employees had pretty bad production for a long
time; and that she then told Nevins that that was not true and in
fact Kanomi Gomo, who was the assistant to Nevins, had just
told them that there production had been better in the past 3
months than it had ever been. On recross, Peggy Heiden testi-
fied that Gomo was a production tracker; and that what he said
was that for the 3-month period, October to December 1998,
the output had been higher from her line than a prior 3-month
period of October to December. Subsequently, Peggy Heiden
testified that Gomo was referring to the day-shift production
and overtime does not count toward day-shift production but
rather overtime would count toward the next shift.
Peggy Heiden testified that at the end of January 1999 she
was working with Peggy Chlebos, and Jan Hatcher and Nevins
asked her why Chlebos was stocking the line; that she told
Nevins that she did not know but perhaps it was because they
needed material; that anyone running a line in the assembly
department is allowed to stock the line; and that she asked
Nevins if she was ever going to stop the harassment and Nevins
said that she would never stop. On cross-examination, Peggy
Heiden testified that this occurred right after Nevins had them
on their hands and knees cleaning up the area, which was some-
thing that they normally did not do; and that there were many
times that they cleaned up.
Nevins testified that as production grew the material han-
dlers were not able to stock all the departments and so a fourth
person was added to the assembly area and that person was
supposed to stock the line so that the other employees would
not have to leave the line; that the job of stocking would rotate
on a daily basis; that on the day in question it was Peggy Hei-
den’s turn to do the stocking of the line; that the reason a desig-
nated person does the stocking is to make sure that the first
person on the line, the one who is doing the coring, sets the
pace for the production line and should stay on the line and not
be stocking; that she saw Chlebos off the line doing her own
stocking and Peggy Heiden was talking to a temp; that she took
Chlebos’s place and she asked Heiden why she was not doing
the stocking; that there are six points on the line which have to
be stocked about every 2 hours; that Heiden asked her if she
was going to keep harassing her and she told Heiden no but she
wanted Heiden to do her job; and that she did not say that she
was not going to stop harassing her.
DIAMOND ELECTRIC MFG. CORP. 879
The Respondent and the Union, as indicated above, entered
into a settlement agreement which was approved by the Re-
gional Director for Region 7 on February 1, 1999. General
Counsel’s Exhibit 3. The agreement contains a nonadmission
clause and indicates that the Respondent would comply with
the terms and provisions of a notice which it posted. The notice
indicates that the Respondent will not (1) do anything to inter-
fere with the employees’ Section 7 rights, (2) indicate to em-
ployees that it would be futile to elect the Union as their repre-
sentative by telling them that it would not continue to operate
its Dundee facility if they chose to be represented by the Union,
(3) take adverse action against, counsel or otherwise discrimi-
nate against employees, including changing the breaktimes of
Reutz or making departmental transfers of Janice Hatcher be-
cause of their activities on behalf of or in support of the Union,
(4) question employees’ loyalty to the Company because they
engaged in activities on behalf of or in support of the Union, (5)
coercively interrogate employees about activities on behalf of
or in support of the Union, (6) threaten employees with loss of
employment or unspecified reprisals because of their activities
on behalf of or in support of the Union, (7) engage in surveil-
lance of its employees’ activities on behalf of or in support of
the Union or create the impression of surveillance, and (8)
maintain or enforce an overly broad no-solicitation rule or simi-
lar rule, and the Respondent will rescind (A) the counseling of
Peggy Heiden on September 4, 1998, and (B) any overly broad
no-solicitation or similar rule. The RC case was settled with
the Respondent and the Union agreeing to a rerun election on
April 29, 1999.
On February 6, 1999, the Respondent changed its no-
solicitation and distribution policy, General Counsel’s Exhibit
11, so that it prohibited its employees from soliciting during
their working time or the working time of the employee being
solicited, and prohibited employees from distributing literature
in working areas at any time or in nonworking areas during
their working time.
Peggy Heiden testified that Nevins had gone on medical
leave and returned in February 1999; that Steve Burnett, who
was the production manager, told the employees in assembly
that Nevins would no longer be their supervisor and she was in
human resources doing light duty; that after that she reported to
Steve Burnett; and that Nevins continued to work in human
resources all of March.
Ryan Clark, who was hired by the Respondent through a
temporary agency in January 1999, testified that in late Febru-
ary or early March 1999 Nevins, who he thought was a supervi-
sor on the day shift, approached him and some other temporary
employees, including Tim Proskie, about 3 or 4 a.m. Clark
testified (Tr. 65) that Nevins
inquired about if anyone had been bothering us about voting
for the union. And I stated, no. And then I kind of tuned her
out. Well, she had the conversation with the other people be-
cause I was busy setting bobbins. And she went out [sic] to
state that Diamond would not have any . . . would not tolerate
anyone bothering us to vote for the union. And then she went
on to say that Diamond would lose its small close atmosphere,
like the small work place atmosphere if the union got in there.
And she hinted about Diamond losing customers if the union
did get into Diamond.
Clark also testified that he had never been harassed at Diamond
Electric by anyone to vote for the Union, and he had never
complained to anyone in management at Diamond Electric
about any kind of harassment. On cross-examination, Clark
reiterated that he could not recall the words Nevins used when
she referred to losing customers and a small atmosphere.
Nevins testified that she knew Clark in that she and Brodie
interviewed Clark; and that she did not have the above-
described conversation or discussion with Clark.
On March 16, 1999, according to the testimony of Peggy
Heiden, Tonya Brodie, who worked in human resources,
brought a temporary employee into the factory to work on the
line she was working on, Peggy Chlebos complained because
the temporary was slowing down production, and she paged
Steve Burnett and the temporary was taken off the line.
On the morning of March 17, Burnett brought the temporary
back to help on her line. Peggy Heiden testified that Chlebos
complained again and the temporary was taken off the line
again; that less than 1-hour later Nevins put the same temporary
back in her line again; that Chlebos started to complain again
because the temporary was not able to keep up; that Chlebos
paged Supervisors Burnett or Nathan Iott over the factory’s
public address system; that when they did not reply, she paged
“Steve Burnett or Nathan Iott to the assembly area”; that
Nevins then telephoned her and asked her what she wanted;
that she told Nevins that she wanted to speak to Burnett or Na-
than Iott and Nevins said that if it was about the temporary
employee she could forget about it because he was staying on
the line; that when she asked Nevins why Nevins said
“[b]ecause I said so and because you need the help”; that she
told Nevins “fine,” hung up the telephone and went back to her
department; that shortly thereafter Nevins approached her and
said that they had to talk; that she told Nevins it was not a good
time because they had to make production; that Nevins told her
that they would talk then or she would have to punch out and
go home; that Nevins led her into Gene Bialy’s office in human
resources; that neither Bialy nor anyone else was in the office at
the time; that Nevins closed the office door and stood in front
of it; that Nevins said, “I want you to sit down and you will not
dictate to me. I am still your supervisor. You will listen to
what I tell you to do. I am sick of your crap” (Tr. 384); that she
asked to have Bialy present and Nevins said that she did not
care what she wanted and she should sit down; that when she
refused to sit down unless Bialy was there, Nevins “kind of
shoved” her and Nevins said, “I wouldn’t have to shove you if
you would sit down and shut up”; that she tried to get out of the
room and Nevins “kind of stopped” her; that she told Nevins
that Burnett had said that Nevins was not her supervisor at the
time and Nevins said that she did not care what anybody told
her, she was still in charge and she was still her supervisor and
Heiden would listen to her; that she could see three woman
standing at the desk outside the human resources office through
the window in the office, and as she attempted to leave the
office and Nevins again pushed or shoved her and she yelled at
the women outside the office “Would one of you guys please
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD880
call Gene Bialy in here,” that none of the women responded to
her request; that she then again attempted to leave the office
and this time Nevins moved out of the way saying, “This isn’t
over. This isn’t over yet. We’re not finished with this yet.”;
that subsequently one of the three women, Debbie Stevens,
approached her and she asked Stevens why she did not help her
in the office; that Stevens said that she did not know what to
do, she could not believe what she was seeing, and Nevins had
no right to touch her like that; that later that day she spoke with
Bialy twice but he told her that he did not have time to talk to
her and she should go home and he would telephone her at 4:30
p.m.; that when Bialy did not telephone her by 7:30 p.m. she
telephoned the Monroe County sheriff’s department to report
what she believed was an assault by Nevins; that a deputy sher-
iff came to her home and took her statement; that while the
deputy sheriff was at her home Bialy telephoned her and said
that he was going to try to talk with her the following day; that
the deputy sheriff asked to talk with Bialy; that she overheard
part of the conversation on another telephone; that Bialy told
the deputy sheriff that he believed that the confrontation
evolved from her union activities; that she did not file the com-
plaint against Nevins; that she telephoned Bialy back later that
night after the deputy sheriff left; and that Bialy told her that
they would discuss the incident the next day. On cross-
examination, Peggy Heiden testified that she refused to sit
down in Bialy’s office because Nevins yelled at her to sit down;
that she told Nevins in Bialy’s office that she was not her su-
pervisor; that she tried to leave the office; that Nevins placed
her hand on Peggy Heiden’s shoulder preventing her from leav-
ing the room; that Nevins actually pushed her toward a chair as
she tried to leave; that it was not a common touch because
Nevins was pushing her back trying to get her to sit down, and
it was like a shove but it was not a hard shove; that she was
able to get out the door when Nevins moved away from the
door when she yelled for the “girls” to get Gene Bialy; that she
just talked to the deputy sheriff and she did not fill out any
forms; that she decided not to pursue a criminal complaint
against Nevins because she wanted to see if the Company could
take care of it without further involving the sheriff’s depart-
ment; that she asked the deputy sheriff if he could go to Dia-
mond and speak to someone in management, and he told her
that if she was not filing charges, there was no point; and that
the deputy sheriff told her that he told Bialy that she had de-
cided not to file charges.
Nevins testified that while at the time she was still doing a
lot of her duties on the floor, there was an assignment in human
resources as of late January or February 1999 because she was
having a real hard time standing all of the time with her back;
that she was still a supervisor and she did the start of the shift
meetings every day; that she was still Peggy Heiden’s supervi-
sor on March 17, 1999; that on March 17 she put a new tempo-
rary employee, the only temporary employee that she had that
day, on the assembly line working with Peggy Heiden; that she
went out on the floor and saw that the temporary employee was
not on the line and the line was down to three employees; that
she spoke with Nathan Iott and she took the temporary back to
the line and told Heiden that the temporary needed to stay on
the line; that Heiden said, “well fine”; that a couple of minutes
later she heard Heiden page Nathan Iott over the public address
system; that she called Peggy and asked her what she needed to
speak to Nathan Iott about; that she told Heiden that if it was
about the temp, he needed to stay; that Heiden hung up on her;
that later she found out that Heiden had requested Nathan Iott
to take the temporary employee back out of the area; that she
went to talk to Steve Burnett and Nathan Iott; that they agreed
with her that if a temp is placed in a job, that person should stay
there; that Burnett said that she should talk to Peggy Heiden
about it; that she asked Peggy Heiden to come with her to hu-
man resources; that Heiden did not resist going to human re-
sources; that she took Heiden into an office and the door was
closed; that she asked Heiden to have a seat and Heiden re-
fused; and that she told Heiden that
she had not right to give other job assignments to employees
and I am the Supervisor on the floor and that is the only temp
we had and that I needed him to work there and that she did
not have the right to call Nathan Iott to undermine my author-
ity by having him change what I had done. [Tr. 854.]
Nevins further testified that Heiden said the temp was too slow
and she told Heiden that there wasn’t anyone else and they
needed that fourth person; that Heiden asked to have Bialy
there; that she told Heiden that she did not need Bialy there;
that it was heated and loud in the room; that no physical contact
occurred between the two; that she was standing by the door;
that Heiden again asked for Baily and she asked the girls out-
side the office to get Baily; that Heiden said that she wanted to
leave the office and she told Heiden that they should discuss the
situation; that Heiden said that she wanted to go, she wanted to
get out of the office; that she was standing in front of the door
and she pulled the door open and Heiden left the office; that
they might have brushed shoulders but that was it; that at no
time in Baily’s office did she have contact between her hand
and Heiden’s shoulder or vice versa; that she did not say to
Heiden as she was leaving that this isn’t over yet or we are not
finished; and that she went and talked with Steve Burnett, who
was her supervisor at the time, and Baily. On cross-
examination, Nevins testified that after she hurt her back she
would occasionally work on the line as a working supervisor
but she spent about 4 hours a day in human resources doing
clerical work; that on a day-to-day basis other supervisors had
to answer pages when employees needed some help and the
machines were down but they usually paged her first; that she
still passed out all of the assignments; that Nathan Iott was the
potting supervisor, who worked in the potting department and
he was helping out on the floor when she was in human re-
sources; that Nathan Iott was not a supervisor he was a team
leader; that Peggy Heiden had told Nathan Iott that the temp
was slow and he was slowing everybody down; that Peggy
Heiden did not tell the temp to get out of there and go do some-
thing else; that after she told Peggy Heiden over the telephone
that the temp had to stay on the line she heard Heiden paging
Nathan Iott again; that she was upset; that she was not standing
between Heiden and the door in Bialy’s office in that she by the
opposite side of Bialy’s desk; that she was by the door but she
was not in front of the door; that Heiden mouthed the words
“call Gene Bialy” to the employees outside the office; that she
DIAMOND ELECTRIC MFG. CORP. 881
told Heiden that they did not need Bialy; that she did not re-
member who opened the door; and that she did not put her
hands on Heiden.
On March 18, 1999, Peggy Heiden met with Bialy and Paul
LeFief, the plant manager. She testified that she was told that
she should go home until she was told to come back.
Nevins testified that on March 18, 1999, she met with Bialy
who told her that Heiden had reported the incident to the police
and he thought that it would be best if she went home so that
they could investigate and find out what was going on; and that
on that day she explained to Bialy what happened.
On March 18, 1999, the Respondent’s employee Robert
Bomia was terminated. He began working for the Respondent
on October 5, 1998, as an assembly worker on the midnight
(first) shift. Bomia testified that he became a union supporter
before the Respondent’s annual Christmas shutdown and he
demonstrated his support by wearing a UAW button on his shirt
while he was at work; that he began wearing the UAW button
after the shutdown when they came back from vacation; that he
showed his supervisor, Bryan Kilburn, the UAW button he was
wearing in December 1998 right before the shutdown and he
told Kilburn that from that point on he was with and for the
Union; that later that day Kilburn asked him if he put the Union
button due to the Steven Burnett incident;3 that the day after the
Burnett incident, Kilburn told him that his 90-day probationary
period was going to be extended for an additional 30 days be-
cause of the incident the day before; that he completed his pro-
bationary period “towards the middle of February” 1999 when
Kilburn told him that he was off probation; that he began wear-
ing the UAW pin from the end of December and continued
wearing it for the next 2 months; that he attended union meet-
ings and he talked to his coworkers in the cafeteria during lunch
in support of the Union; that he generally worked on the igni-
tion coil assembly line; that the Company has a training proce-
dure under which assembly employees are certified after they
are trained on a particular job; that he was certified on the igni-
tion coil assembly line; that General Counsel’s Exhibit 6 is the
training check list for the ignition coil assembly; that the rail
coil assembly line is a different job on a different assembly
line; that he was never certified on the rail coil assembly line
and he never filled out any training check list for rail coil as-
sembly; that there are two job stations on the rail coil assembly
line; that at the first job station on the rail coil assembly line the
employee places bobbins in the cases and then the unit is sol-
dered by the machine; that at the second job station on the rail
coil assembly line the employee makes sure that the unit is
properly soldered, puts a lid on it, places it on an electric test
machine, and then places the unit on a metal tray along with
four other units and sends it off on the line; that before March
17, 1999, he had worked at the first station on the rail coil line
but he had never been assigned to work the second station; that
he was not trained on any particular aspect of the job at the
second station on the rail coil line; that the last night he worked
for the Respondent he worked the first 4 hours at the first sta-

3 The Burnett incident involved Burnett in late November or early
December 1998 asking Bomia if he clocked in 15 minutes before his
starting time and telling him not to do it again.
tion of the rail coil assembly line; that for the second 4 hours he
made sure that the solder was on and he tested the units at the
second station of the rail coil line; that he did not notice that
there was anything wrong while he worked at the second sta-
tion; that when the day shift came in Laura Iott asked him if he
knew that there was a problem with the parts and he said no;
that Iott showed him that the solder was not equally leveled and
the parts had to be reworked; that Iott did not specify how
many parts had to be reworked; that he did not notice the prob-
lem while he worked at the second station because he had not
been told what to look for; that he stayed beyond his shift and
helped fix the parts; that about 8 a.m. Burnett told him that
Gene Bialy and Bryan Kilburn wanted to see him in the human
resources office; that Bialy, with Kilburn present, said that he
appreciated his help fixing the problem with the rail coils, they
would have to shut down the day shift so they can fix the parts,
that was a serious problem, and he was terminated and should
empty his locker and leave; that the only reason given by Bialy
at this meeting for the termination was “problems in the past”;
that the only past problem he was aware of was the extension of
his probation for 30 days; that Shannon Perky worked with him
on the rail coil assembly line that last night; and that Perky was
certified on the whole rail coil assembly line.
On cross-examination, Bomia testified that on Monday,
March 1, 1999, he started training on the rail coil line with two
mentors; that the week of March 8, 1999, he was taken off the
rail coil line on Thursday and Friday and sent back to ignition
coils; that on March 15 and 16, 1999, he worked on the ignition
coil line, and on the night of March 17, 1999, which was his
last night working for the Respondent, he was sent back to the
rail coil line; that at the second station on the rail coil line the
test could show that it was fine even though it was not soldered
properly; that he was aware that in December 1998 there was a
problem with defective rail coils being returned from Chrysler
because they were not properly soldered; that he did not know
that the machine had been changed since December 1998; that
since machines can have problems, the most significant thing
that the employee did on the second half of the rail coil assem-
bly line was to inspect the solder; that on the night of March 17
and the morning of March 18, 1999, he and Perky made a total
of 340 rail coil units during their 8-hour shift, and about one-
half of these units went through when he was at the second
station; that on the morning of March 18, 1999, he and Laura
Iott inspected about 170 of the rail coil units that were produced
during the second half of the shift and more were bad then were
good; that he did not know how the rail coil units produced
during the first half of the shift turned out; that during his meet-
ing with Bialy he did not tell Bialy that he just let the defective
rail coil units just slip by, and he did not tell Bialy that he in-
tentionally let it happen; that Nevins spoke to him twice, on
November 9, 1998, and in January 1999, about the eyeglass
safety requirement; that he received a pair of company prescrip-
tion safety glasses, lost them and was given another pair; that in
December 1998 Bialy talked to him because he was out of
compliance with the eyeglass rule; that Kilburn asked him
twice about wearing safety glasses; that the eyeglass safety rule
was not discussed at his March 18, 1999 termination meeting
with Bialy and Kilburn; that he started wearing a union button
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD882
right before the Christmas shutdown; that he estimated that at
that time there were 20 to 30 employees wearing union buttons;
that according to his affidavit to the Board, when he inter-
viewed with the Company in September 1998 he took a pencil
and paper test, there was a question in the test asking “do you
think a Union would be good for the Company” and three an-
swers, namely, “yes,” “no,” or “it does not matter,” and he
choose the last answer; and that this assertion was a mistake on
his part in that there was no such question on the test.
On redirect, Bomia testified that he was not disciplined re-
garding wearing safety glasses and he had not ever received a
writeup for not wearing his safety glasses; that when Nevins
spoke to him in the fall of 1998 it was the end of his shift, he
was not working, and he had removed his eyeglass side shields;
that Kilburn spoke to him when he first came in one night and
Kilburn got him a pair of side shields; that Bialy spoke to him
about safety glasses after he took the side shields off as his shift
was just about over; that when he worked on the rail coil line
during the week of March 1, 1999, and for a part of the week of
March 8, 1999, he worked on the first half of the line and never
the second half; that the defective rail coil units produced on
the midnight shift of March 17–18, 1999, had solder but not
enough solder; that no one told him how much solder had to be
on each of the coils until the morning he was fired; that there is
a certification process for the rail coil line and the process in-
cludes forms similar to General Counsel’s Exhibit 6; that he
never received a writeup from the Company charging him with
the theft of company time or dishonesty; and that Laura Iott
told him not to feel bad because it was not just his parts.
On recross, Bomia testified that on March 18, 1999, after it
was recognized that there was a problem, he visually inspected
the machine and he saw where the solder was improperly
curled up and around in the machine; that he could not see the
area where the machine malfunctioned with respect to the sol-
der when he was working the second half of the rail coil line;
that there were two spools of solder and one was going but the
other one was not, resulting in the joints getting soldered but
they were not getting enough; and that the rule at the plant is
that safety glasses have to be worn while a person is in the
plant.
Subsequently, Bomia testified that he had never filled out
another application at another company with the language
about a union in it and he could not explain where such lan-
guage came from; and that it would be difficult for someone
who had no experience to determine whether there was a suffi-
cient amount of solder on the poles of the rail coils.
Bomia further testified in response to questions of the Re-
spondent’s counsel that the midnight shift of March 17–18,
1999, was the first time he had worked at the second station on
the rail coil assembly line; that the reason he included the asser-
tion in his affidavit about the question regarding unions in his
preemployment profile with the Respondent is that he was ver-
bally asked during the interview process how he felt regarding
unions and he told them it didn’t matter either way; and that
when he first started at the Respondent it was still going
through all the union stuff. Bomia later testified that Brodie
and Burnett verbally asked him about his feelings about the
Union and this fact was not included in his affidavit to the
Board. Neither Brodie nor Burnett testified at the trial herein.
Respondent’s Exhibits 8 and 9 are a photograph of the open
rail coil unit and a drawing of the unit, respectively.
Peggy Heiden testified that she worked with Bomia on over-
time and he was a very good worker; that she worked the day
shift at the time that Bomia was terminated and he worked the
midnight shift; that between 7:15 and 10:45 a.m. she repaired
between 50 and 60 defective parts which were incorrectly sol-
dered and there were also wire mis-routes; that she and Ron
Bauer repaired the rail coils and Laura Iott was taking the de-
fective coils off the potting line; that she did not know how
long Bauer continued to repair the defective coils after she
stopped at 10:45 a.m.; that she had worked on the rail coil as-
sembly line herself; that the Company has a certification proce-
dure to qualify for a particular job; that there is a certification
procedure for the rail coil line; and that to be certified the em-
ployee has to be trained by a certified operator
to know how to run all of the automation, to know how to do
the beginning and the end of the line, which is coring and test-
ing and the soldering. You have to know how to visually in-
spect them. You have to know to look for any quality defects,
either mis-routes or bad solders. You also have to inspect
cases—it’s a visual inspection on cores and the bobbins. You
are required to differentiate the different codes on the test ma-
chine. To actually run the automation. You know, when an
alarm goes off, to know, you know, what is wrong. [Tr. 410.]
Subsequently Peggy Heiden testified that when she ran the coil
line it was an everyday occurrence that they had to repair be-
tween 10 and 15 parts by removing the plastic cover from the
unit; and that at that time the cover was put on after the visual
inspection and before the part was tested.
Ruetz, who was a tester on the midnight shift until the third
week of February 1999 when she went to Molding, testified
that while she worked at the Respondent she heard about em-
ployees Laura Iott, Ron Bauer, and Chad Naugle producing
defective parts; that in February 1999 Naugle took a mold apart
and put it back together in the wrong firing order and there was
quite a few pieces that were already potted and shipped to
Chrysler by the time the problem was found; that in December
1998 Laura Iott and Bauer ran over 2000 pieces with bad sol-
der; that Iott and Bauer wore management “walk and talk”
buttons4 and they were not terminated; and that Chad Naugle
had been a union supporter at one time but he was no longer
supporting the Union when his mistake occurred, and he was
not terminated. On cross-examination, Ruetz testified that she
had already left the Respondent when the incident occurred
which resulted in Robert Bomia’s termination; that Kathy
Miller in quality control told her about the bad solders done by
the day shift and since at the time Laura Iott and Bauer were the
only ones certified to run rails on day shift, she concluded that
the bad solders were done by Iott and Bauer; that in December
1998 the Company did have quality problems on the rail coil

4 According to Ruetz, they meant if the Union was not voted in,
management would work with the employees to make it a better place
to work.
DIAMOND ELECTRIC MFG. CORP. 883
line; that approximately 1 week before the September 1998
Board election Naugle switched his allegiance to the Company
and this previously visible union supporter told everyone that
he had switched his allegiance to the Company; and that she
took into consideration, in determining the number of parts
Naugle made the mistake on, usually four crates are shipped to
Chrysler every morning and there are 380 parts in each crate.
Jernigan (Cook) testified that Bomia asked her about orga-
nizing for the Union, he wore a union button and sometimes the
shirts (on Friday dress down days) at work and he talked about
the Union on his breaks and at lunch. Jernigan also testified
that in February or early March 1999 Rachel Saylor was train-
ing for a material handling job and she picked up three cases of
rail coils and accidentally damaged beyond repair about 400
rail coils; that she was aware that the parts involved in the
Bomia discharge were repaired; that Saylor still worked for the
Respondent at the time of the hearing herein; that she was not
aware of Saylor being disciplined over the 400 units which
could not be repaired; that Saylor told her that she was a vote
against the Union; that she was aware that in February 1999
Chad Naugle cleaned a mold and did not put the firing order
numbers back in the mold in the proper order resulting in 6000
cases having to be repaired or scrapped; that she was not aware
whether Chad Naugle, who did not support the Union, was
disciplined over this; and that at one time Chad Naugle sup-
ported the Union but he told her that he did not support the
Union from about 2 weeks before the election in September
1998. On cross-examination, Jernigan testified that she person-
ally assisted in sorting out the defective parts after Chad Naugle
accidentally switched the firing numbers on the molds; that she
talked to Saylor about the 400 rail coils she damaged; that Say-
lor was not a new employee but she was new to the job she was
doing when she damaged the 400 rail coils; that she damaged
the 400 rail coils when she hit a heating duct while operating a
forklift; and that she did not see Saylor’s accident.
Lefief, who no longer worked for the Respondent at the time
he was called as a witness by the Respondent at the trial herein,
testified that previously there had been soldering problems
extensively on the rail coil line; that at the outset, the manufac-
turer of the machine was at the Respondent’s Dundee facility
on a weekly basis reprogramming the machine; that alarms
were installed to indicate when the solder was not feeding; that
employees were trained and then given more extensive training;
that the employee who operated the second position on the rail
coil line was retrained to be more diligent on the inspection of
the terminals through the process; that there were many defec-
tive rail coils because of soldering problems up until Christmas
1998; that Bomia’s probationary period was extended because
Bomia was punching in and not going to his workstation, but
rather he went on break with the other shift and he was paid for
it; that he did not believe that the extension was for a specific
period of time and he and Bomia’s supervisor, Bryan Kilburn,
were going to look at him during a period of time but there was
no set period; that the training for the two positions on the rail
coil line was combined and not separate; that Bomia was not
trained just on the first position on the rail coil line because the
teams were trained on both operations; that each operation in
the facility has instructions at the station, and the instructions at
the second station on the rail coil line explains the inspection of
the solder joints; and that he viewed the defective parts and
some were not soldered at all and others were inadequately
soldered; that he was a participant in the discussions regarding
the decision to terminate Bomia and he agreed with the deci-
sion to terminate Bomia because:
We had gone through a period of very very difficult
time with this piece of equipment. The training was ex-
tensive. The criticality of the operation was known
throughout the plant. . . . And it seem[ed] to be [a] blatant
disregard for the responsibility of the job. [Tr. 617.]
Lefief further testified that someone did say Bomia had not
been trained on that job but Kilburn said that was ridiculous, he
had trained Bomia, and Bomia had gone through the training
and became a certified operator; that he did not know who
raised the issue of lack of training; that he did not know that
Bomia was a union supporter; that if the employee working the
second station on the rail coil line gets three parts which are not
soldered properly the employee is supposed to inform the su-
pervisor of the problem; that the task of watching the part come
through the solder machine, visually inspecting it is the same
task on the other two nonrail coil assembly lines; that for
Bomia to miss finding that 300 pieces were not properly sol-
dered in one night was a “blatant disregard for . . . [his] respon-
sibility. . . . Okay. Nobody misses that many solders. Nobody”
(Tr. 623); that while Saylor, who was in her training period,
took more than the Hi-Low could handle, lost the load and
dropped the parts, it was her instructor’s fault; that Chad
Naugle was not fired for causing a number of parts to be re-
called from Chrysler because Naugle’s supervisor did not make
sure that the part was in conformance with the specification, he
did not catch the mistake; that all of Naugle’s responsibilities
were his supervisor’s, Burnett’s, responsibilities; and that Bur-
nett left the Company. On cross-examination, Lefief testified
that he did not discipline Burnett over the Naugle incident
where 580 parts had to be taken back from Chrysler after it was
determined that they were defective; that because Naugle was
in training he was willing to cut him some slack with respect to
his problems; and that Bomia was pretty new to the rail coil
line. On redirect, Lefief testified that visual inspection of sol-
der joints and running a continuity test are tasks that Bomia had
done on other lines and he was trained in those particular tasks
on all lines; and that he did not know if Naugle was a union
supporter. Subsequently, Lefief testified that when an automo-
bile manufacturer such as Daihmler-Chrysler audits the Re-
spondent’s work one of the things they want to establish that
the employees that the Respondent is using are certified to con-
duct the function they are performing; that the automobile
manufacturer wants to be able to look at a document which
certifies that an individual can perform the function that he is
doing; that for Bomia there is a document, a certification show-
ing that he was trained at station two on the rail coil line; that
he could not determine looking at General Counsel’s Exhibit 6
that Bomia was certified at station two on the rail coil line; that
he personally had observed Bomia working at station two on
the rail coil line at least 10 times (described as a couple of
weeks worth) before March 17–18, 1999; that General Coun-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD884
sel’s Exhibit 6 refers to line numbers one and two but not to
line number three, which is the rail coil line; that it takes about
a week to become certified on a line; and that it is possible that
the time he saw Bomia on the second station on line three be-
fore March 17–18, 1999, he was working on getting his certifi-
cation. The Respondent stipulated that the only training check
list form in Bomia’s personnel file is the one represented as
General Counsel’s Exhibit 6.
Reid testified that Respondent’s Exhibit 12 is the work in-
structions which tell the operators how to perform their jobs;
and that each station has its own work instructions. Reid did
not remember how many stations there are on the rail coil line.
Subsequently, Reid testified that the instructions do not indicate
exactly how much solder should be placed on the terminals but
that would come from a workmanship standard which is sepa-
rate from the instructions; that the workmanship standards
would be a part of the training for the certification; and that the
employee would be taught the workmanship standard first and
then he would work with a mentor as part of the training proc-
ess. On redirect, Reid testified that when an operator joins the
Company he or she is trained in the workmanship standard for
solder and whatever line he or she is working on it is the same
standard. Reid did not believe that there would be any separate
training on a workmanship standard for solder with respect to
the rail coil line that would not apply to the other assembly
lines. On recross, Reid did not know that there is a specific
difference between the lines for certification. Reid believed
that there is only one certification. Subsequently, Reid testified
that if the operator learns what a good solder is and a bad solder
is, it should pertain across the board on any of the assembly
lines, and as far as the inspection of soldering is concerned,
there would not be a need for a separate certification for the rail
coil line.
Nevins testified that she noticed that Bomia did not have his
side shields or safety glasses on and she went to human re-
sources and got him a pair; that she told Bomia that the Com-
pany paid for safety glasses; that later she saw Bomia again
without his safety shields on and she got him another pair; and
that she told Kilburn and Bialy about Bomia not following the
safety eyeglass rule. Subsequently, Nevins testified that she
believed that QS-9000 speaks to maintaining certification re-
cords for employees even after the employee leaves the Com-
pany; that as a supervisor she oversaw the training and certifi-
cation process for her employees and she turned the certifica-
tions over to human resources; that if an employee completes
training and is certified that certification is turned over to hu-
man resources and if the employee then leaves, she did not
believe that it would be the prerogative of the supervisor to
discard the certification; and that she has never discarded a
completed certification because an employee left the Respon-
dent. On further direct, Nevins testified that with respect to
terminated employees she is not personally aware of the QS-
9000 record keeping requirements for training checklists or
certifications.
Kilburn testified that Bomia underwent rail coil training the
first 2 weeks of March 1999; that in the preceding 5 months
Bomia had worked on the ignition coil and side pole assembly
lines where his performance was fine; that Bomia had a ten-
dency to wander away from his station; that he initialed
Bomia’s checklist (certification) for “Assembly,” General
Counsel’s Exhibit 6, which covers all except the rail coil line;
that as far as the soldering part of the job is concerned the rail
coil line is similar to the other lines in that they are automated
soldering machines and a good solder is the same; that he was
present during the first 2 weeks in March 1999 when Bomia
was trained on the rail coil line; that he checked Bomia’s pro-
gress on the training checklist and towards the end he had
Bomia perform the task, observe it and then sign the training
checklist; that he approved Bomia’s training checklist for the
rail coil line and he placed it in a box on his desk; that at the
end of March 1999 he went through the box on his desk and
since Bomia had been terminated he threw the certification
away; that the certifications are done to comply with QS-9000
and the Company gets audited; that spot checking would not
occur for a terminated employee; that he is not aware of a situa-
tion where there was a problem with a part and there was a
post-audit to see if the person who worked the part was certi-
fied; that in the past he has thrown away training checklists
where the employee is short term or temporary, they had just
started the checklist, and they quit; that when Bomia asked him
to sign the certification he was working the second station of
the rail coil line and he, Kilburn, asked Wayne Jeffers if Bomia
was ready to be certified; that Jeffers replied in the affirmative;
that the second station on the rail coil line is the same as the
other assembly lines, except for the wire wrap; that on Monday
March 15, 1999, Bomia worked on the ignition coil line be-
cause the Respondent was short-handed on that line; that the
rest of that week Bomia was assigned to the rail coil line; that
on March 18, 1999, at 7:15 a.m. Ron Bauer told him that there
was a problem with the solder machine on the rail coil line; that
the solder was not flowing properly and it was backed up to a
degree indicating that it had not been working for about 3
hours; that the area where the solder was backed up was visible
from station two on the rail coil line; that observing the solder-
ing operation would be a part of the duties of the operator at the
second station; that the solder was not good on about 300 coils;
that he told Bialy what happened and he and Bialy spoke with
Bomia; that during the meeting Bomia was asked if he had been
trained to do the job and Bomia answered yes; that Bomia said
that he did not know how it happened; that Bialy told Bomia
that they appreciated the fact the Bomia stayed to help with the
situation but he was terminated in view of his past record, the
problems he had, the fact the he had never gotten off of proba-
tion, and the issues of his integrity and work habits; and that
Shannon Purkey was given an oral warning. On cross-
examination, Kilburn testified that when he wrote up the disci-
pline for Purkey, General Counsel’s Exhibit 40, he had not
determined yet at what point the solder machine had failed on
the shift. In the writeup Kilburn indicated as follows: “We
were unable to determine at what point the solder machine had
failed during the shift. That meant that all coils assembled had
to be 100 percent audited, pulled off the pallets, and repaired.
Thus, we lost one shift of manpower plus one shift of produc-
tion needlessly.” Kilburn further testified on cross-examination
that while Bomia submitted a “Right To Be Heard” form re-
garding his termination, General Counsel’s Exhibit 41, he did
DIAMOND ELECTRIC MFG. CORP. 885
not believe that someone who was terminated could use this
approach; that the Company did not tell him that he could
throw away a certification after someone is gone; that he did
not speak to anyone in management about discarding Bomia’s
certification; that it was during the second week of March 1999
that Bomia completed his training and was certified; that there
is nothing on General Counsel’s Exhibit 12, the work instruc-
tion sheet, that tells someone to check the solder cup to see if
excess solder is dripping down; that when he first met with
Bialy on March 18, 1999, he recommended to Bialy that Bomia
be terminated; and that Bialy decided to terminate Bomia after
he spoke with him on March 18, 1999. On redirect, Kilburn
testified that he prepared Purkey’s writeup at about 7:35 a.m.
on March 18, 1999; and that the machine has an alarm for the
temperature of the solder but it does not have any way of telling
when the malfunction occurred. Subsequently, Kilburn testi-
fied that he actually witnessed Bomia performing the tasks on
station 2 on the rail coil line before initialed Bomia’s certifica-
tion; that he witnessed Bomia working at station 2 on the rail
coil line on 8 or 9 different days; that he was satisfied, based on
his personal observation of Bomia working at station 2 on the
rail coil line that he was proficient with respect to the inspec-
tion and testing; that once the certifications are completed they
are turned in to and kept in human resources; and that he never
asked human resources for permission to discard training
checklists or certifications. The Respondent stipulated that the
certification for the other two assembly lines, General Coun-
sel’s Exhibit 6, was contained in Bomia’s personnel file after
his termination.
Bialy testified that it came to his attention that in December
1998 Bomia punched in prior to his start time; that Kilburn
explained to him that Bomia was a relatively inexperienced
employee and he did not believe that the behavior was on pur-
pose or malicious; that it was decided to extend Bomia’s proba-
tion for an indefinite period of time until he could demonstrate
that he was a “good and loyal” (Tr. 1106) Diamond employee;
that there is no documentation in Bomia’s personnel file regard-
ing this but while Kilburn said that he provided the documenta-
tion to human resources, it never actually was placed in
Bomia’s file (The Respondent did not supply such documenta-
tion even if it was not placed in Bomia’s file.); that it was re-
ported to him by Nevins and Kilburn in December 1998 or
January 1999 that Bomia was not wearing his safety glass side
shields; that on March 18, 1999, Burnett told him that some of
the rail coils had gotten through without proper solder; that
later Kilburn came in and told him that Bomia was responsible
for checking the solder, Bomia was the cause of the problem
and that Bomia should be terminated; that he told Kilburn to
bring Bomia to his office; that while Kilburn went to get Bomia
he, Bialy, spoke to Lefief who said that if Bomia could not
provide any justification, he would support the recommenda-
tion of Burnett and Kilburn to terminate Bomia; that when he
and Kilburn subsequently met with Bomia he asked Bomia if
he could provide an explanation and Bomia said that he did not
have an explanation for what happened; that Bomia said that he
knew that he was supposed to inspect the solders and he was
trained on that aspect of the job; that when he received Bomia’s
right to be heard form he sent a letter back to Bomia indicating
that it did not apply to termination decisions; that it was his
“observation that the training [of Bomia] on that station [two on
the rail coil machine] had been completed by Bryan Kilburn”
(Tr. 1114); that with respect to the Rachel Saylor incident, Le-
fief told him that the damage was caused by the Japanese advi-
sor, Mr. Mitsumi, who had instructed Saylor to get the load and
move it back into the warehouse, and the load was too large and
it tipped; and that with respect to Chad Naugle, Lefief told him
that Naugle was not responsible since it was a highly technical
and complex job and most of the responsibility for what oc-
curred was Burnett’s since he did not test and catch the problem
before it got into production. On cross-examination, Bialy
testified that he knew employee Wayne Jeffers; that he recog-
nized General Counsel’s Exhibit 46 as a Diamond discipline
record form from the file of Jeffers; that this form relates to an
oral warning for an incident on November 23, 1998, when
Jeffers, while on the rail coil assembly line, produced 688
pieces of scrap because he failed to be sure that all terminals
were soldered; that the Jeffers form is not signed by Jeffers or
anyone in supervision; that he did not believe that employees
were disciplined at that time on the rail coil assembly line, he
thought that the incident was the first time that the problem had
surfaced, and he believed that it was attributed to a failure of
design in process; and that the Respondent does not generally
keep records of discipline that is never issued.
On about March 20, 1999, according to the testimony of
Peggy Heiden, Bialy telephoned her and told her that she was
going to get some time off with pay, the Company brought in
its own investigators to investigate the matter and they were
going to be interviewing people and when they are finished she
could come back to work.
On March 23, 1999, Bialy telephoned Peggy Heiden and told
her that the interviews were finished and she could return to
work the next day. Also on March 23, 1999, Baily telephoned
Nevins and told her to come to the plant the following day.
On March 24, 1999, according to her testimony on direct,
Peggy Heiden met with Bialy and Lefief. She testified that
Bialy said that they had taken the matter very seriously because
she telephoned the police and they had talked to the people in
the factory; that Lefief said that she did an excellent job and she
was there every day; that Lefief then presented her with a final
warning, General Counsel’s Exhibit 14, which reads, as here
pertinent, as follows:
This is a final warning to you regarding your observed and
reported behavior on the plant floor. You have been violating
Diamond Electric’s work requirements, rules, and practices in
that you have shown a pattern of behavior that includes:
• Disruptive activity in the workplace which affects per-
formance of other employees and the plant’s production.
• Disrespectful conduct toward supervision.
• Substandard and intentionally poor work performance.
• Statements made to other employees that you are work-
ing to cause a supervisor to be fired.
• Leaving your assigned work without authorization or
proper reason.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD886
• Attempting to reassign work assigned to you, or take
over the work assigned to another employee.
• Refusing to perform tasks assigned to you.
• Encouraging other employees to slow-down’ their work.
• Extending your breaks; taking extra breaks without au-
thorization.
This is a final warning that unless these inappropriate behav-
iors that have a negative impact on production and the coop-
eration we expect from all team members stop immediately,
we will have no other alternative than to end your employ-
ment with Diamond Electric.
Peggy Heiden testified that she told Lefief and Bialy that she
did not believe this was happening, they were making it look
like she did something wrong and she did not do these wrong
things; that they did not give her the specifics regarding any of
the alleged incidents, and she had never been disciplined in the
past for any of the instances of misconduct alleged in this final
warning; that she never told other employees that she was go-
ing to cause a supervisor to be fired; that she had never engaged
in any kind of a work slowdown; that she has come back late
from a break but she does not routinely do that; that she was not
in the practice of taking unauthorized breaks; that the outside
investigators did not contact her to get her side of what may
have happened in these alleged incidents; that Lefief and Bialy
did not go through the allegations and try to get her explanation
with respect to the alleged incidents; and that other than
Nevins’ above-described writeup, General Counsel’s Exhibit
13, she had never received any discipline in the 6 years she
worked for the Company; and that she never intentionally
worked below standards, or reassigned work that was assigned
to her. On cross-examination, Peggy Hardin testified that she
actually came back 1 day later, March 25, 1999, because of a
personal reason; that March 24, 1999, was another day of paid
leave for her; that during the March 25, 1999 meeting Lefief
told her that she was a good worker and her production had
been good; that she considered General Counsel’s Exhibit 14
discipline and she was told that it would be placed in her file;
that she did not make statements to other employees that she
was working to cause a supervisor to be fired; that about one
week prior to March 17, 1999, she was in the accounting de-
partment during her work time and Nevins talked to her about it
and also Nevins spoke to her about speaking to Coffey in an-
other department at the end of the day shift; and that otherwise
Nevins had not previously discussed any of the subjects which
were listed in General Counsel’s Exhibit 14. On redirect,
Peggy Heiden testified that 1 week prior to March 17, 1999, she
had a problem with sick time on her paycheck, she had gone on
break and went to human resources, and she was told to speak
to Debbie Stevens, who was the head of payroll; that she was
still on her break when she was speaking to Stevens and Nevins
came into the payroll office and asked her why she was there;
that she was in the payroll office a couple of minutes after the
end of her breaktime and she told Nevins that she had to get her
sick leave taken care of; that Nevins told her not to worry about
her sick leave and she needed to get back to work; and that
Nevins told Stevens to forget it and she would take care of it.
Lefief testified that Nevins told him that she had been pro-
voked by Peggy Heiden and Heiden was trying to run the as-
sembly floor; that the Respondent’s attorney, Shelly Cole, was
asked to interview everyone who she felt was in the area or
could add responsible information to what happened in this
encounter; that he gave General Counsel’s Exhibit 14 to Heiden
and Respondent’s Exhibit 11 to Nevins wherein he concluded
that Nevins lost control of the situation when she met with Hei-
den on March 17, 1999; that Heiden did indicate that Nevins
was not her boss; that he did not know that Steve Burnett, who
was a production manager, told Heiden that Nevins was not her
supervisor anymore; that he did not believe that Nevins was
ever removed from active duty out on the floor; that two em-
ployees said that Heiden told them that she was working to
cause a supervisor to be fired; that with respect to the next-to-
last bullet in Heiden’s final warning, he could not give a spe-
cific instance, he “never heard . . . [Heiden] say to someone, “I
need you to slow down.” (Tr. 653 which is testimony given on
February 7, 2000 minutes before we adjourned for the day)5;
and that he felt that Heiden during the March 17, 1999 incident
exhibited a blatant disregard for supervision and it was insub-
ordinate. On cross-examination, Lefief testified that Heiden
told him that Nevins had touched her and she was trying to
leave the situation and Nevins would not let her leave; that
Nevins did not concede to him that she had put her hands on
Heiden; that Cole was one of the attorneys that was represent-
ing the Company in response to the union organizing campaign;
that he did not know if Cole was told to investigate Heiden’s
work history in general and he believed that Cole was looking
into the Nevins-Heiden March 17, 1999 incident; that he was
not aware of and he did not rely on General Counsel’s Exhibit
13 in deciding to write up Heiden on March 23, 1999 (The
Respondent stipulated that the only discipline in Heiden’s file
before the March 23, 1999 discipline is an attendance discipline
dated “10/9/98”.); that it was reported to him that Heiden had
been heard telling people to slow down, they were going too
fast but he did not know who the reports were from and he did
not know the names of the employees6; that he believed that on
March 17, 1999, Heiden told the temporary employee we don’t
want you on this line, go work somewhere else; that he did not
know if Nevins was telling Peggy Heiden and the other people
on that line what they should be doing; that the second bullet on

5 This testimony was given in response to a question I asked the wit-
ness. Originally when testifying about this bullet Lefief testified “this
statement came from her peers, her team members on her line that she
would slow down a line.” (Tr. 653.) It was then pointed out to the
witness that “[y]ou’re dealing with a situation that she’s communicat-
ing to other employees that they should slow down.”
6 Tr. 689 and 691. This testimony was given on February 8, 2000,
the day after Lefief originally testified, when asked about Heiden
communicating to other employees that they should slow down, “I
can’t go to a specific instance. I never heard her say to someone, “I
need you to slow down.” (Tr. 653.) On February 7, 2000, Lefief did
not allege that he had received reports from someone he could not
identify about employees he could not identify. This allegation first
surfaced after an overnight break in his testimony.
DIAMOND ELECTRIC MFG. CORP. 887
General Counsel’s Exhibit 14 (disrespectful conduct toward
supervision), refers only to the March 17, 1999 incident; that he
never asked Heiden if she told employees that she was working
to get a supervisor fired and he did not know which employees
made this allegation; that he witnessed Heiden reassigning
work in that he saw her on many occasions running a machine
and telling someone else to restock it; that there is nothing
wrong with Heiden telling someone else to restock and he did
not write her up for doing this; that he never spoke to Heiden
about leaving her work area and nothing was placed in her file
about this; that on many occasions he observed Heiden extend-
ing her breaks or taking breaks without authorization and he
was sure that he commented to Heiden but he did not have a
recollection of that so he was not really sure; and that the disci-
pline Heiden received was a message. On redirect, Lefief testi-
fied that Heiden told the people on the floor about the final
warning; and that he considered termination for both Heiden
and Nevins but he decided against it. Subsequently, Lefief
testified that he did not remember if he read the written report
regarding what the people outside the window witnessed on
March 17, 1999, between Nevins and Heiden; and that he asked
Nevins if she touched Heiden and Nevins said that she did not
touch Heiden on March 17, 1999.
Nevins testified that she did not have contact with the Com-
pany’s lawyers during the period while Peggy Heiden was sus-
pended. Subsequently, Nevins testified that Heiden told tempo-
raries to slow down and temporaries were given a hard time by
Heiden because they did not slow down and because they were
trying to hard to work; that she never spoke to Heiden telling
her that she should not be telling temporary employees that
they should be slowing down their work; that she never put
anything in writing about Heiden telling temporary employees
to slow down; and that she was never interviewed by Shelly
Coe about what occurred with Heiden in Bialy’s office on
March 17, 1999. On cross-examination, Nevins testified that
she was told by the temps that they were told to slow down and
not work so fast after the September 4, 1998 counseling ses-
sion; that they had several temps quit and not come back be-
cause of that reason; that she never asked Peggy Heiden for her
side of the story; that it does happen from time-to-time that a
new temporary employee is trying to do a good job and they go
too fast; that the temporary employees told her that Peggy Hei-
den told them that they could not build up parts in the tray, and
that as soon as the line stopped, they were to stop their func-
tion: that this is not correct; that she told the temporaries that if
a machine was down, they were to still keep building and the
temporaries told her that they had been told that they could not
make any more; that even though the temporaries were new
employees she accepted what they said and did not even ask
Peggy Heiden about it; that on those occasions when the tem-
poraries said that Peggy Heiden told them to slow down, they
were going too fast she, Nevins, did not know all of the circum-
stances; that she reported this to higher management; and that
even though the records may not reflect it, she kept manage-
ment informed. Nevins further testified that she personally told
Peggy Heiden before that the employees could keep building
the parts on the trays when a machine was down.
Bialy testified that on March 17, 1999, during a break from
an executive committee planning session meeting at about 9:30
a.m. he was told by Debi Stevens, the payroll coordinator, that
she had just witnessed an incident that had occurred in human
resources; that he spoke with Peggy Heiden during the break
telling her that he wanted to talk with her when he had some
time later; that during the next break, which occurred at about
1:30 p.m., he told Heiden that he would try to get back to her
before she left work at 3:30 p.m. but if he could not he would
telephone her at home that night; that he did not remember
having any discussions with Nevins on March 17, 1999; that
the planning session ended about 7:30 p.m. and he telephoned
Heiden from his car on the way home; that when he telephoned
Heiden he spoke with a deputy sheriff who was at her resi-
dence; that the deputy sheriff told him that he was “called to the
house because there was a complaint filed about a potential
assault at the plant that afternoon by Peggy Heiden’s supervisor
against Peggy” (Tr. 1141 and 1142); that the Deputy “indicated
that there was a complaint about an assault. He talked about
there was maybe some pushing that had taken place and I could
not confirm that I had any—that I had no knowledge of any of
that happening” (Tr. 1143 and 1144); that he did not talk with
Nevins the evening of March 17, 1999; that on the morning of
March 18, 1999, he told Lefief, who he spoke to at the meeting
the day before, of the latest development in the Nevins-Heiden
incident, namely that Heiden “had filed a complaint with the
Sheriff and alleged an assault by Sherry Nevins against Peggy”
(Tr. 1146) (While Heiden telephoned the sheriff’s department
regarding a complaint she had, she never filed a charge.); that
he and Lefief “began to talk about what our game plan was.
What our action plan was going to be” (Tr. 1146); that he and
LeFief told Ikenaga that there “could be a criminal investiga-
tion and that there could be some charges that were going to be
investigated by the police department and that we needed to
take this very seriously” (Tr. 1147); that he and LeFief spoke to
Heiden and Nevins and both of them were suspended with pay
pending an investigation; that during the March 18, 1999 meet-
ings Heiden told them that on March 17, 1999, Nevins was
unhappy over some decisions made on the floor relating to the
assignment of a temporary employee, and in their subsequent
meeting in human resources Nevins touched her on the shoul-
der twice “very lightly” (Tr. 1149); that Heiden told them that
she had called the police when Bialy did not call her because
she was scared, and she was sorry that she called the police, but
she felt that she needed to do that; that he did not remember
Heiden indicating that there was a withdrawn complaint or a
pending complaint, “I was operating under the assumption that
she had called the police and a complaint had been filed” (Tr.
1149); that Heiden did not “say anything that refuted that as-
sumption” (Tr. 1150) (Since Bialy did not tell Heiden what he
was assuming, and since Heiden did not tell him anything that
would have reasonably warranted his mistaken conclusion, it is
not clear how she would have appreciated that she should “be
refuting that [an unwarranted] assumption.”); that Lefief told
Heiden that she was suspended with pay pending an investiga-
tion; that after a short break he and Lefief interviewed Nevins;
that they told Nevins that a police complaint had been filed and
she was alleged to have assaulted Peggy Heiden; that he did not
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD888
recall telephoning Nevins the night before to tell her this but he
may have; and that Nevins told them, that she had gone out on
the floor and noticed that a temporary employee that she had
assigned to the assembly area had been moved. She was upset
by that. She indicated that she wanted him to be there because
he needed to complete his training and the line would not oper-
ate properly without the correct number of people, and she got
angry and she went over and—and moved him back to the line
and had words with Peggy on that issue.
She indicated that those words got more heated and
that it led to her getting very concerned about what she
considered to be behavior that was disrespectful, maybe an
insubordinate on Peggy’s part and asked Peggy if she
could—would join her up in the HR office.
Sherry indicted that she was angry. That she was frus-
trated. That the tone of her voice was loud and that she
did, in fact, invite or order, if you will, Peggy to go up to
the HR office to have a conversation with her about that. I
asked her how that conversation went. She did say that
Peggy asked that I be there. She said that she told Peggy
that I did not need to be there because they could solve the
problems between the two of them. I asked her if there
was any physical contact between the two of them. Sherry
denied that there was any contact. I asked her where she
was standing. She said she was standing near by door
with her hand actually on my door. I asked her if she was
blocking the door. She said she didn’t think so, but that
. . . she was over by the door and holding the door. And I
again asked her if there was any physical contact between
the two of them and she said no, there was no physical
contact. [Tr. 1151 and 1152.]
Bialy further testified that he interviewed Brodie, Ole, and Ste-
vens one-on-one; that he and Lefief decided that because of his
relationship with Brodie and Stevens was fairly close it would
be best to have an independent person verify the facts; that they
asked their attorney, Shelly Coe, to come in the next day and
interview Brodie, Ole, and Stevens; that it was decided that he
and Coe would interview Brodie, Ole, and Stevens the next
day; that he was present the next day for the three interviews;
that on Saturday, March 20, 1998, Tammy Clark spoke to him
and she signed a statement; that he also talked with Sue
Barnier, Laura Iott, and Ron Bauer; that “Tammy [Clark] indi-
cated to me that Sherry had said at least on two occasions in her
presence—I’m sorry, Peggy had said on at least two occasions
in her presence that she was out to get Peggy [As noted above,
the two individuals who were involved in the confrontation are
Peggy Heiden and Sherry Nevins.]. Out to fire Peggy. (Again
as noted above, the two individuals who were involved in this
confrontation are Peggy Heiden and Sherry Nevins.) Do what-
ever she could to make that happen. And that concerned me
because I thought that that could possibly be a motive behind
some of the actions that we were seeing at the time.” (Tr. 1162)
(This testimony was given after Clark, who testified that she
did not have any reason to stop and speak to Bialy in March
1999, belatedly testified about a second instance of Peggy Hei-
den stating that she wanted to get Nevins fired, and then testi-
fied that she could not remember if she told Nevins about this
earlier Heiden statement.); that with respect to the bullets on
General Counsel’s Exhibit 14, he had never seen Peggy Heiden
slowing down work; and that when he and Lefief subsequently
met with Peggy Heiden, LeFief went through the bullets on
General Counsel’s Exhibit fairly quickly. On cross-exam-
ination, Bialy testified that Brodie was the human resources
coordinator, Stevens was the payroll coordinator, and Terry Ole
is a supervisor; that Stevens is not a supervisor; that on March
17, Iott and Bauer would have been 50 to 75 feet from where
Peggy Heiden was working; that he did not request that the
employees who were working with Peggy Heiden on March 17
give statements; that he knew that Iott and Bauer did not sup-
port the Union; that Coe had been hired by the Respondent to
help the Company respond to the union organizing drive and
there was to be an election in April 1999; that he never asked
Peggy Clebos or Janet Hatcher if Peggy Heiden was involved
in an effort to try to get rid of her supervisor; that Heiden was
never given a chance to respond to this allegation before she
was given her final warning; that while he had Stevens review
her statement, General Counsel’s Exhibit 43, regarding what
allegedly occurred on March 17, 1999, between Nevins and
Peggy Heiden in his office, he “just didn’t” ask her to sign the
statement; that Stevens’ wrote on the typed statement that
Nevins was holding the door so that Peggy Heiden could not
get out; that the statement then indicates that at no time did
Stevens see Nevins touch Heiden; that the statement then indi-
cates that not long after the incident Peggy Heiden told Stevens
that Nevins pushed her; that Stevens indicated that she did not
see all of what went on in Bialy’s office between Nevins and
Heiden; that Brodie indicated that she did not see the whole
incident; that he was not sure whether Peggy Heiden on her
own told the temporary to go away; that he was told by Nevins
that Peggy Heiden told the temporary to move on, that Peggy
Heiden had reassigned the temporary; that it was his under-
standing that at some point in time Peggy Heiden reassigned
the temporary to another job; that Peggy Heiden reassigned the
temporary employee from the job on the assembly line to an-
other job; that he did not know how Peggy Heiden accom-
plished this; that he did not believe that Nevins told him that
she heard Peggy Heiden tell the temporary employee to go to
another job; that it was his understanding that when Peggy
Heiden was paging Nathan Iott the reassignment of the tempo-
rary employee had occurred already and there was going to be
yet another discussion about where the temporary employee
was going to be assigned; that Nathah Iott was a supervisor or a
team leader in the Potting area and he was helping in the as-
sembly group because Nevins was not at her desk in that area
and she was spending substantial periods of time in the Human
Resource office doing other things; that it was his understand-
ing that Peggy Heiden had already sent the temporary employee
someplace and she was paging Nathan Iott to tell him where
she had sent the temporary employee; that when Nevins went
back on the floor the temporary was supposed to be there and
he was not; that Nevins moved the temporary back to the line;
that when Peggy Heiden paged Nathan Iott she did not again
move the temporary employee but it was his understanding that
the prior move was pursuant to the instructions of Heiden; that
he did not know whether Peggy Heiden contacted Burnett or
DIAMOND ELECTRIC MFG. CORP. 889
Nathan Iott about the previous move; that he really did not
know if Peggy Heiden on March 17, 1999, on her own initia-
tive, without contacting supervision, reassigned an employee;
that if any reassignment of the temporary was done properly by
someone in supervision it is possible that he might view
Nevin’s conduct in a different light; that Terry Ole gave a
signed written statement and while she was asked if she had
witnessed the Nevins and Peggy Heiden incident, Ole did not
include what happened in her statement; that he did not know
why Ole was asked what happened but she never put it in her
statement; that with respect to the bullet on General Counsel’s
Exhibit 14 alleging that Peggy Heiden encouraged other em-
ployees to slow down their work, he never personally observed
her doing that, he never accused her of deliberately slowing
down work or causing others to slow down work, he did not
know when the incident was supposed to have taken place, that
such conduct would be a very serious offense, but he did not
know that an employee should be given an opportunity to re-
spond to such an allegation; that Nevins told him that Peggy
Heiden had told temporaries that they should slow down and
they should not work at the pace that they were working at; that
with respect to the bullet regarding refusing to perform tasks
assigned to her, that could be considered insubordination and
yet no discipline was issued to Peggy Heiden at the time of the
alleged infraction; that Peggy Heiden was not given notice of
this allegation and she was not given the opportunity to give her
side of the story; that the only time he was aware that Lefief
talked to Peggy Heiden about the allegation of insubordination
was at the final warning meeting, and at that time the decision
had already been made to administer the final warning; that the
sheriff’s deputy never told him that a formal complaint had
been filed; that the Company did not ascertain whether a police
report had been filed regarding the incident; and that he did not
talk to Nathan Iott about the March 17, 1999, Nevins and Peggy
Heiden incident but he believed that Lefief did. On redirect
Bialy testified that about March 30, 1999, after he telephoned
him, the involved deputy sheriff stopped at the plant and told
him that there were no charges filed; that this was new news to
him; and that the final warning to Peggy Heiden is a valid
warning and it would still be a valid warning whether or not
Peggy Heiden reassigned the temporary employee on March
17, 1999.
Also on March 24, 1999, Nevins met with Bialy and Lefief
and was given a written warning, Respondent’s Exhibit 11, for
letting the situation get out of control, for not having someone
present with her and for being too loud. Nevins also testified
that she did not have any role in preparing Respondent’s Ex-
hibit 14.
On March 26, 1999, Peggy Heiden was allowed to and did
examine her personnel file. She testified that she found no
support in her personnel file for the laundry list of allegations
against her in the above-described March 23, 1999 final warn-
ing.
The General Counsel introduced General Counsel’s Exhibits
12(a), (b), (c), (d), and (e), which, respectively, are a May 28,
1999 written warning to employee Chad Naugle concerning
mold maintenance and the damage he caused when he got care-
less (The warning refers to at least four molds in the last four
months that have been damaged or caused scrap parts that was
a direct result of Naugle working on them.), a “5/28/99” disci-
pline record form involving the forth Naugle incident, an
“11/30/99” discipline record form (oral warning) to employee
Nellie Shaw for failing to detect a defect which resulted in 34
pieces of scrap, the “INCIDENT REPORT” involving Shaw’s
November 30, 1999 incident, and a “12–3–99” discipline re-
cord form (oral warning) to Dave Lucie for failing to notice 24
parts that had broken tabs or the tabs were bent to the point
where the parts were not usable.
Analysis
Paragraph 8 of the complaint alleges that about July 30,
1998, Respondent, by its agent Shige Ikenaga, at its Dundee
facility indicated to employees that it would be futile to elect
the Charging Party as their representative by telling them that it
would not continue to operate the Dundee facility if they chose
to be represented by the Charging Party. Counsel for the Gen-
eral Counsel on brief contends that by telling employees that he
could not work with the Union, there would be no future for the
plant with the Union, and that he would close the doors, the
Respondent’s highest official was indicating to the employees
that selecting a bargaining representative would be futile and
the plant would close; and that this conduct violated Secton
8(a)(1) of the Act. NLRB v. Gissel Packing Co., 395 U.S. 575,
618 (1969); Douglas Foods Corp., 330 NLRB 821 (2000); ITT
Automotive, 324 NLRB 609, 622 (1997), enfd. in part 188 F.3d
375 (6th Cir. 1999). The Charging Party on brief argues that
Ikenaga did not credibly deny the testimony of the General
Counsel’s witnesses with respect to what he said on July 30,
1998. The Respondent on brief contends that only two of the
General Counsel’s witnesses testified regarding Ikenaga’s
statements on July 30, 1998, and they testified inconsistently
with each other; that while Hatcher testified that Ikenaga started
the meeting by saying that he heard rumors of Union coming
and he said that if the Union came, he would have to close the
doors, Peggy Heiden testified that Ikenaga said that he had
heard that there was a very strong union organizing going on in
the plant, he could not work with the Union, and there would be
no future for the plant with a union; that Heiden made no men-
tion of the plant closing threat described by Hatcher; and that
Ikenaga’s account was fully supported by the other company
witnesses who were present at the meeting and testified at the
trial herein, namely Nevins and Hill. With respect to Hatcher’s
allegation that Ikenaga said that he would close the doors, it is
not corroborated by anyone. And with respect to Peggy Hei-
den’s allegation that Ikenaga said that he could not work with
the Union, and there would be no future for the plant it too is
not corroborated by anyone. When Ikenaga testified at the trial
herein he used an interpreter. It was not shown that an inter-
preter was present when he spoke at the employee meeting on
July 30, 1998. It appears, however, that Ikenaga speaks and
understands English. And Nevins, for the reasons given below,
is not a credible witness. But Ikenaga’s denials were also cor-
roborated by Hill. No showing was made which would warrant
a finding that Ikenaga and Hill are not a credible witnesses. In
these circumstances, I find that the General Counsel has not
met his burden of demonstrating by a preponderance of the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD890
evidence that the alleged unlawful statements were made. It
appears that Hatcher and Heiden read into Ikenaga’s speech
something that was not explicitly stated.
Paragraph 9(a) of the complaint alleges that the Respondent,
by its agent Sherry Nevins, at its Dundee facility, about August
1, 1998, (1) coercively interrogated employees on two occa-
sions about their activities on behalf of and in support of the
Charging Party, and (2) threatened employees on three occa-
sions with loss of employment if they chose to be represented
by a labor organization. The General Counsel on brief con-
tends that the credible testimony of Peggy Heiden, who was on
the VOC, established that she was coercively interrogated with
respect to her support for the Union, she was “told in so many
words” (GC Br. 5) that the plant would close if the union drive
was successful, and the owners would not work with the Union;
that an employer cannot question an open union supporter when
it is done in the context of unlawful threats of reprisals or is
otherwise coercive, Naomi Knitting Plant, 328 NLRB 1279
(1999); and that Nevins’ persistent questioning of Matt Heiden,
who wore union hat and button, with the implicit threat of plant
closure (“What are you going to do if the plant closes?”) was a
coercive interrogation in violation of the Act, and the threat of
plant closure was a separate violation of the Act. The Charging
Party on brief argues that Nevins considered the interrogation
of employees as being part of her job. The Respondent, on
brief, contends that no one corroborates Peggy Heiden regard-
ing these allegations; that this is part of Peggy Heiden’s effort
to get rid of Nevins; that at one time Peggy Heiden and Nevins
were friends; and that while they were still speaking on a
friend-to-friend level, such conversations would not have been
coercive under the rationale of Rossmore House Hotel, 269
NLRB 1176 (1984), affd sub nom. Hotel Employees Local 11 v.
NLRB, 760 F.2d 1006 (9th Cir. 1985). Nevins was not a credi-
ble witness. As found below, she lied under oath with respect
to what occurred on March 17, 1999, in Bialy’s office with
Peggy Heiden. Nevins held the door and kept Peggy Heiden in
Bialy’s office against her will until she realized that there were
witnesses to what was going on and Peggy Heiden was getting
those witnesses involved in the incident. The March 17, 1999
incident also showed that Nevins either did not know or would
not accept just how far she could go in a situation. Also as
found below, Nevins engaged in unlawful interrogation on
other occasions. Peggy Heiden’s testimony is credited. It
might be argued that because Peggy Heiden’s testimony about
what Ikenaga allegedly said on July 30, 1998, was not relied
on, her testimony about the conduct which is the subject of
these allegations in the complaint cannot be relied on. How-
ever, as pointed out by Chief Judge Hand in NLRB v. Universal
Camera Corp., 179 F.2d 749 at 754 (2d Cir. 1950), that “[i]t is
no reason for refusing to accept everything that a witness says,
because you do not believe al of it; nothing is more common in
all kinds of judicial decisions than to believe some and not all.”
The same applies to Ikenaga’s testimony regarding what he said
to he employees on July 30, 1998. I do not believe Ikenaga’s
testimony about the Hatcher transfer. Nonetheless, I have cred-
ited his denials regarding his alleged unlawful statements to
employees on July 30, 1998. With the commencement of the
Union drive, the relationship between Peggy Heiden and
Nevins changed. And as far as Peggy Heiden being an active
union supporter, Nevins acted unlawfully in including threats
with her interrogation. That made the interrogation of Peggy
Heiden unlawful, and similarly by including a threat, namely
that the Japanese would not allow the Union, Nevins also made
her interrogation of Matthew Heiden unlawful. With respect to
the allegation in paragraph 9(a)(2) of the complaint, Nevins
acted unlawfully only once when she told Peggy Heiden “when
the plant closed down.” Her statement to Matthew Heiden, in
the presence of Peggy Heiden, namely “if the plant closes”
because “the Company could lose the Chrysler business,” was
not a prediction or a threat but merely the statement of a possi-
bility. To reiterate, the Respondent violated the Act on two
occasions as alleged in paragraph 9(a)(1) of the complaint, and
it violated the Act on only one occasion in the manner alleged
in paragraph 9(a)(2) of the complaint.
Paragraph 9(b) of the complaint alleges that about August 8,
1998, Nevins threatened employees with unspecified reprisals
if they chose to be represented by a labor organization. On
brief the General Counsel contends that Nevins’ statement,
namely that her feelings were hurt by the newsletter the em-
ployees who were the organizers for the Union published and if
the employees wanted a fight, “then you’ve got it,” threatened
employees with unspecified reprisals if they chose to be repre-
sented by a labor organization. Fieldcrest Cannon, Inc., 318
NLRB 470, 492, 494 (1955), enfd. in part, denied in part 97
F.3d 65 (4th Cir. 1996); Yerger Trucking, 307 NLRB 567, 570
(1992). The testimony of Peggy Heiden is credited. Nevins
denied making the statement. But as indicated above, Nevins
was not a credible witness and she either did not know or did
not care how far she could go with the employees. The state-
ment viz. if the employees wanted a fight then you’ve got it,
was made. The question now is was it an unlawful statement.
While this was a conversation with one employee and in a
manufacturing plant it could be expected that there would be a
certain amount of give and take during an organizing campaign,
what Nevins said must be viewed both in the full context of the
statement and in the context of her past conduct with this em-
ployee. Days before this Nevins threatened Peggy Heiden with
loss of employment “when the plant closes.” And Nevins, in
making her you have a fight statement, referred to the fact that
her feelings were hurt by the newsletter the employees who
were the organizers for the Union published. It was not shown
that the newsletter in question in any way disparaged Nevins
personally. Publishing and distributing the newsletter was not
shown to be anything other than lawful. So, in effect, Nevins
was telling an employee who she had already threatened with
plant closure just days earlier that the employees would have a
fight because the employees lawfully published a newsletter.
When considered in this context, Nevins statement was a threat
of an unspecified reprisal. The Respondent violated the Act as
alleged in this paragraph of the complaint.
Paragraph 9(c) of the complaint alleges that about August
10, 1998, Nevins (1) coercively interrogated employees about
their activities on behalf of and in support of the Charging
Party, (2) created the impression among its employees that their
activities on behalf of and in support of the Charging Party
were under surveillance, by telling employees it was watching
DIAMOND ELECTRIC MFG. CORP. 891
them, and (3) orally promulgated a new work rule prohibiting
employees from congregating and leaving their assigned de-
partments. On brief, the General Counsel contends that even
though Peggy Heiden was an open union supporter, Nevins did
not have the right to insist that Heiden discuss her feelings
about the Union and attempt to force her to discuss her sympa-
thies by threatening to write her up for insubordination if she
continued to refuse; that the interrogation was coercive and
violated Section 8(a)(1) of the Act; that Nevins comment to
Peggy Heiden that she was told to watch the organizer created
the impression that the organizers’ union activities would be
under surveillance and therefore Nevins violated Section
8(a)(1) of the Act; and that prohibiting the organizers from
leaving their department and congregating at the end of the
shift when production had been completed, when other em-
ployees were allowed to do so, also violated Section 8(a)(1) of
the Act. Peggy Heiden’s above-described testimony about
what occurred in the cafeteria and later that day when she went
to the testing department to speak with Coffey is credited.
Nevins was not a credible witness. And Seivert did not deny
Peggy Heiden’s testimony regarding what he witnessed in the
cafeteria that day. In addition to not being creditable, Nevins
assertion that she would not have said that she was supposed to
watch union organizers is not an unequivocal denial. For the
reasons specified by the General Counsel, the Respondent vio-
lated Section 8(a)(1) of the Act as alleged in paragraphs 9(c)(1),
(2), and (3).
Paragraph 9(d) of the complaint alleges that during late Au-
gust or early September 1998, Nevins created the impression
among employees that their activities on behalf of and in sup-
port of the Charging Party were under surveillance by escorting
employees while walking through its facility. No evidence was
introduced regarding this allegation and it will, therefore, be
dismissed.
Paragraph 9(e) of the complaint alleges that about September
4, 1998, Nevins (1) coercively interrogated employees about
their activities in behalf of and in support of the Charging
Party, (2) threatened employees with loss of employment
should a union be elected as the employees’ representative, (3)
orally promulgated an overly broad work rule that prohibited
employees from talking to one another about the Charging
Party during working hours, and (4) questioned employees’
loyalty to it because they engaged in activities on behalf of and
in support of the Charging Party. The General Counsel on brief
contends that Nevins again coercively questioned Peggy Hei-
den about her union activities when she asked Heiden on Sep-
tember 4, 1998, if she was trying to organize the temporaries;
that the questioning was not done in a casual manner in that it
occurred in the human resources offices with the manager of
that department present; that Nevins, by telling Peggy Heiden
that she could not talk about the Union during working hours,
promulgated an overly broad no-solicitation rule, Wellstream
Corp., 313 NLRB 698, 702–703 (1994), and Ichikoh Mfg., 312
NLRB 1022 (1993), enfd. 41 F.3d 1507 (6th Cir. 1994); and
that the Respondent in both instances, violated Section 8(a)(1)
of the Act. Peggy Heiden’s testimony as described above is
credited. Nevins was not a credible witness. And the Respon-
dent did not call Seivert to testify. For the reasons specified by
the General Counsel, the Respondent violated Section 8(a)(1)
of the Act as specified in paragraphs 9(e)(1) and (3). No evi-
dence was introduced with respect to paragraphs 9(e)(2) and
(4).
Paragraph 9(f) of the complaint alleges that about December
1998 the Respondent through Nevins (1) coercively interro-
gated an employee as to his/her union sympathies, on behalf of
the Charging Party, (2) created the impression among its em-
ployees that their activities on behalf of and in support of the
Charging Party were under surveillance by telling them that she
had heard through the grapevine of certain union bargaining
demands, and (3) impliedly threatened its employees with loss
of employment if they voted in the Charging Party as their col-
lective bargaining representative. The General Counsel on
brief contends that by telling Bomia that she “heard through the
grapevine” conveyed the impression that the Respondent was
engaged in surveillance of the employees’ union activities; that
Nevins’ statement that if the employees got $15 an hour, the
Company would have to raise its prices on ignition coils, and if
the Company did that Chrysler would go to a different supplier
was not based on any objective prognostication, and was
clearly an implied threat that in the event the employees union-
ized, the plant would lose its primary customer and would
close; and that the statements to Bomia violated Section 8(a)(1)
of the Act in both respects. NLRB v. Gissel Packing Co., supra;
Debber Electric, 313 NLRB 1095, 1097 (1994); and Dlubak
Corp., 307 NLRB1138, 1153 (1992), enfd. 5 F.3d 1489 (3d Cir.
1993). The Respondent on brief argues that Bomia’s testimony
on this subject does not state an 8(a)(1) violation; that Nevin’s
account of this conversation is far more complete and plausible;
and that Nevins’ statements were protected by Section 8(c) of
the Act and there is nothing improper about such a factual pre-
diction regarding a customer’s economic motives. DTR Indus-
tries, Inc. v. NLRB, 39 F.3d 106, 114 (6th Cir. 1994). Bomia’s
above-described testimony is credited. Nevins was not a credi-
ble witness. Nonetheless, contrary to the contention of the
General Counsel, I do not believe that Nevins conveyed the
impression that the Respondent was engaged in surveillance of
the employees’ union activities by saying that she “heard
through the grapevine.” During a union organizing drive in a
manufacturing plant of the size of the one involved here un-
doubtedly all kinds or rumors are circulated. Nevins’ phrasing
indicated no more than she heard something unofficially. I
believe that it is too much of a stretch to conclude that “heard
through the grapevine” could reasonable be understood to mean
that the Respondent engaged in surveillance of the employees’
union activities. Also, I believe that it is a stretch to conclude
that Nevins’ statement meant that the plant was going to close.
Nevins said that the Company would have to raise prices to pay
everybody $15 an hour, and if the Company raised prices on
ignition coils, then Chrysler would go to a different company.
It is a well-known fact of economic life that if a producer raises
the price of its product, the purchaser, if he can get the same or
a similar product elsewhere, reassess whether he wants to pay
the higher price or purchase the product from another producer.
Nevins is a low-level supervisor. What she was saying was
nothing more than a reasonable observation. Neither during
this conversation, nor during any other conversation with
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD892
Bomia, did Nevins explicitly or implicitly indicate that the
plant was going to close or that employees would lose em-
ployment. No evidence was introduced with respect to the
allegation in paragraph 9(f)(1). Consequently, it has not been
shown that the Respondent violated the Act as alleged in para-
graph 9(f) of the complaint.
Paragraph 9(g) of the complaint alleges that the Respondent
through Nevins about March 1999 (1) coercively interrogated
an employee as to his/her union sympathies, (2) created the
impression among its employees that their activities on behalf
of and in support of the Charging Party were under surveillance
by implying to them that she had heard they had been ap-
proached to vote for the Charging Party, and (3) impliedly
threatened its employees with loss of employment if they voted
in a labor organization. The General Counsel on brief contends
that Nevins’ questioning of Ryan Clark and two temporary
employees about whether anyone had bothered them about
voting for the Union constituted coercive interrogation in viola-
tion of Section 8(a)(1) of the Act; that this questioning also
implied that their union activities were under surveillance and
accordingly violated the Act; and that the statement that the
Respondent would not tolerate such conduct was a veiled threat
of reprisals in the event the employees opted for union repre-
sentation, and was another violation of the Act. The above-
described testimony of Clark is credited. Nevins was not a
credible witness and her testimony that she did not have the
above-described conversation with Clark is not credited. The
complaint allegation is that Nevins coercively interrogated an
employee “as to his/her union sympathies.” Nevins asked
Clark and the two temporary employees present “if anyone had
been bothering . . . [them] about voting for the union.” In other
words, Nevins was not asking about their union sympathies.
Nevins was asking about the union activities of the person or
persons who might have talked to them about voting for the
Union. Such an inquiry would not be covered under this alle-
gation, and the General Counsel did not amend the allegation.
The second allegation in this paragraph indicates that Nevins
implied to Clark and the other two temporary employees pre-
sent that “she had heard they had been approached to vote for
the Charging Party.” Nothing in Clark’s testimony supports
this assertion. Nevins said nothing which would imply to a
reasonable person that “she had heard they had been ap-
proached to vote for the Charging Party.” Nevins asked if they
had been approached or more specifically “bothered.” That
was it. There was nothing more. And her subsequent statement
that the Respondent would not tolerate anyone bothering them
to vote for the Union did not change this. Was Nevins, in say-
ing that the Respondent would not tolerate anyone bothering
them to vote for the Union, impliedly threatening the Respon-
dent’s employees with loss of employment if they voted in a
labor organization? As noted above, on brief the General
Counsel argues that it was a veiled threat of reprisal. But that is
not what the complaint alleges, and the General Counsel did not
move to amend the complaint. The Respondent did not violate
the Act as alleged in paragraph 9(g) of the complaint.
Paragraph 10 of the complaint alleges that about August
1998, Respondent, by its agent Mardi Reid, at its Dundee facil-
ity, created the impression among its employees that their ac-
tivities on behalf of and in support of the Charging Party were
under surveillance by telling them they were wandering in the
plant, talking to unauthorized persons and over staying their
breaks. The Respondent on brief contends that Carter, who had
worked in a UAW shop for 20 years before joining the Respon-
dent, was an open union supporter after the campaign was un-
derway; that Carter had friendly relationships with both Reid
and Folmar, his supervisor and manager, respectively; that on
cross-examination Carter was careful to couch his testimony
regarding any prior similar conversations in terms of “I don’t
remember those,” he was “pretty sure that’s the first time”; that
Carter acknowledged that Reid’s comments may well have
been grounded in fact; and that this was a friendly and comfort-
able conversation between a supervisor and a self-identified
union supporter and it did not violate Section 8(a)(1) of the Act.
Carter answered questions on cross-examination the way he did
because the Respondent’s attorney asked “do you have specific
recollection,” “do you remember,” “you don’t remember,” and
“[c]an you be sure.” And with respect to the Respondent’s
assertion that Carter conceded that Reid’s comments may well
have had some basis in fact, it is noted that Carter denied wan-
dering the floors, and while he testified that he did take a mo-
ment or two to talk to people, he did not acknowledge that they
were people that he would not normally be talking to. This
conversation occurred in late August 1998. Just weeks later,
Folmar asked Carter if he was a union organizer, told Carter
that he had heard that he was put in the plant to organize the
employees, asked Carter if he had been “salted,” and asked
Carter about a union negotiation procedure. Folmer did not
testify so Carter’s testimony about that conversation is not de-
nied. The Respondent viewed Carter as an organizer. His tes-
timony regarding his conversation with Reid is credited. Reid’s
testimony about this conversation is not credited. This was not
a friendly conversation. Reid was warning Carter. He was
viewed as an organizer and the conduct Reid focused on was
the conduct that someone who was organizing might engage in,
namely talking to other employees about the Union whenever
he had the chance. Reid was telling Carter that his activities,
which may be those of an organizer, were being watched. The
Respondent violated that Act as alleged in paragraph 10 of the
complaint.
Paragraph 11 of the complaint alleges that about September
1998, the Respondent, by its agent, Jerry Folmer, at its Dundee
facility, (a) coercively interrogated employees on two occasions
about their union activities on behalf of and in support of the
Charging Party, and (b) created the impression among its em-
ployees that their activities on behalf of and in support of the
Charging Party were under surveillance by telling them it had
heard from a supervisor that they were “salts.” The General
Counsel on brief contends that Folmer created the impression
of surveillance of union activities by telling Carter that he had
heard that Carter had been placed in the plant by the UAW as a
“salt”; that Folmer coercively interrogated Carter regarding
such activities; and that these were both violations of Section
8(a)(1) of the Act, Athens Disposal Co., 315 NLRB 87, 98
(1944). The Respondent argues that Carter’s conversation with
Folmer was entirely nonthreatening and noncoercive. As noted
above, Folmer did not testify and so Carter’s testimony is not
DIAMOND ELECTRIC MFG. CORP. 893
denied. This was not a friendly conversation between a mem-
ber of management and an employee who supported the Union.
Folmer accused Carter of being a union organizer and being
placed in the plant by the UAW as a “salt.” Folmer put Carter
on the defense, requiring him to deny this and to respond to a
question about union procedure. Folmer’s inquires were coer-
cive. They were made in the context of other unlawful conduct.
Also, Folmer created the impression that Carter’s activities on
behalf of and in support of the Union were under surveillance.
The Respondent violated the Act as alleged in paragraph 11 of
the complaint.
Paragraph 12 of the complaint alleges that about September
24, 1998, the Respondent, by its agents, Gary Seivert and Steve
Hill, at its Dundee facility engaged in surveillance of employ-
ees’ activities on behalf of and in support of the Charging
Party. The General Counsel on brief contends that voting is
confidential and engaging in surveillance of employees’ voting
activities violated Section 8(a)(1) of the Act, ITT Automotive,
324 NLRB 609 (1997). The Respondent on brief argues that
Ruez was mistaken as to the time or place and she was not cor-
roborated; and that even if Ruez were believed, the presence of
managers near the polling place under the circumstances she
described, may well be a proper objection but not surveillance
constituting an unfair labor practice. In the only case cited by
the General Counsel on this point, ITT Automotive, supra, the
administrative law judge found that the “continued presence” of
a management person at a location where the employees were
required to pass in order to enter the polling area, as well as
from where management observed the employees whole wait-
ing at the top of the stairs and on the balcony outside the door
to the polling place, did interfere with the employees’ freedom
of choice in the election, and, therefore, he sustained the un-
ion’s objection. Ruez testified that she only saw Hill and
Seivert on her way into the polling place and they were not
there when she left the polling place. In these circumstances, I
do not believe that it can even be concluded that management
had a continued presence in the area. The General Counsel has
not shown that the Respondent violated the Act as alleged in
paragraph 12 of the complaint.
Paragraph 13 of the complaint alleges that about September
10, 1998, the Respondent, by its agent, Don Lynch, at its Dun-
dee facility, harassed is employees by telling them that their co-
workers had raised concerns about their work performance,
then later telling them that it would not charge them with these
offenses because of lack of documentation. On brief, the Gen-
eral Counsel contends that Lynch’s statements to Hatcher that
she was “headed down the wrong path” and he was keeping her
“out of harms way” were thinly veiled references to her union
activity; that the Respondent was trying to isolate her in the
critical period before the election; that the evidence of anti-
union animus and disparate treatment, and the admissions by
Lynch that Respondent had no legitimate basis for transferring
Hatcher, proves this transfer was designed to discourage her
union activities; and that, therefore, the Respondent violated
Section 8(a)(1) of the Act. The Respondent on brief argues that
statements made to Hatcher by Nevins, Lynch, and Ikenaga
were entirely legitimate—although somewhat cryptic so as to
not antagonize the interpersonal situation with coworkers; that
Hatcher’s subsequent transfers back and forth between the de-
partments were likewise legitimate to balance staffing needs
and meet production requirements; that none of this involved an
adverse impact on Hatcher; and that there is no evidence con-
necting the treatment of Hatcher to her union activity.
Hatcher’s testimony regarding this matter is credited. Neither
Iott nor Bauer testified so we do not know firsthand what, if
any production problem existed. Lynch did not testify so we do
not have firsthand his justification for the statements he made.
Nevins testified but as noted above she was not a credible wit-
ness and I would not rely on her testimony unless it was cor-
roborated by a reliable witness or reliable documentary evi-
dence. Nevins was not corroborated regarding Hatcher’s pro-
duction. Ikenaga was not relying on personal observations and
his testimony regarding the reason for the transfer, namely that
Iott and Bauer complained that Hatcher “is slow or quality
problem and sometimes she go out, often she go out from the
working place,” begs to have Laura Iott and Bauer testify to
explain what they perceived the problem to be. And if what
Lynch told Hatcher is true, there are no documents which
would show that her production was wanting. On brief, the
Respondent concedes that Lynch’s statements were somewhat
cryptic. Yet the Respondent did not call Lynch as a witness. In
the circumstances extant here, I believe that the General Coun-
sel’s conclusions about the situation are correct. The Respon-
dent violated the Act as alleged in paragraph 13 of the com-
plaint.
Paragraph 14 of the complaint alleges that the Respondent,
by its agent, Tanya Brodie, at its Dundee facility (a) on Sep-
tember 28, 1998, and in mid- to late October 1998 coercively
interrogated an employee as to his/her support for and sympa-
thies on behalf of the Charging Party, and (b) about March
1999, coercively interrogated an employee as to his/her union
sympathies. The General Counsel on brief points out that nei-
ther Brodie nor Burnett were ever called as witnesses by the
Respondent to rebut these allegations; and that questioning job
applicants about their union sympathies is a violation of Section
8(a)(1). Ristorante Donatello, 314 NLRB 693, 694 (1994). The
Respondent on brief makes a number of arguments none of
which explains why the Respondent did not call Brodie as a
witness to deny this unlawful conduct, if indeed she did not
engage in it. In these circumstances, the testimony of General
Counsel’s witnesses, which is not refuted by Brodie, is cred-
ited. The Respondent violated the Act as alleged in paragraph
14(a) of the complaint. No evidence was introduced regarding
paragraph 14(b) of the complaint.
Paragraph 15 of the complaint alleges that since August 3,
1998, the Respondent has maintained an overly broad no-
solicitation rule at its Dundee facility, which provides:
We recognize that team members may have interests in events
and organizations outside the workplace. However, team
members may not solicit or distribute literature concerning
these activities during working time or in working areas.
The General Counsel on brief contends that absent special cir-
cumstances, not present her, the Board has long held that an
employer is not free to prohibit solicitation in working areas
during nonworktime, and accordingly the involved rule violated
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD894
Section 8(a)(1) of the Act. Stoddard-Quirk Mfg. Co., 138
NLRB 615, 621 (1962). The Respondent on brief argues that in
connection with the settlement of the first complaint, and with-
out admitting a violation, the Respondent agreed to rescind the
old rule in the Respondent’s November 1997 employee hand-
book, General Counsel’s Exhibit 9, and to substitute a new rule
which was effective February 1999, General Counsel’s Exhibit
11; that the old rule explained that working time did not include
lunch periods, or any other periods in which team members are
not on duty; that no evidence was presented that the old rule
was applied to anyone; that if it is the General Counsel’s posi-
tion that the old rule did not explain an employee’s right to
solicit (as opposed to distribute) during the employees non-
working time in a working area, the plant runs continuously 24
hours a day and so the General Counsel’s distinction is moot;
and that the General Counsel’s apparent theory regarding the
old rule is so attenuated and de minimis, even if the words were
deemed ambiguous, that it cannot be said to violate the Act.
The rule in question is unlawful in that it is overly broad. It
does not matter that the plant might run 24 hours a day. The
rule as promulgated prohibits solicitation between nonworking
time employees in actual working areas. Such a prohibition has
been found to be presumptively invalid even in health care
cases when the work areas involved are not immediate patient
care areas. Cooper Health System, 327 NLRB 1159, 1163
(1999), and Health Care & Retirement Corp., 310 NLRB 1002,
1005 (1993). As the Board indicated in Stoddard-Quiirk Mfg.
Co., supra at 621:
[W]e believe that to effectuate organizational rights through
the medium of oral solicitation the right of employees to so-
licit on plant premises must be afforded subject only to the re-
striction that it be on nonworking time.
The fact that the Respondent changed the rule in February
1999, well after the involved organizing drive, does not warrant
dismissing the allegation in paragraph 15 of the complaint. The
Respondent violated the Act as alleged in paragraph 15 of the
complaint.
Paragraph 16 of the complaint alleges that about August
1998, the Respondent, by its agent, Joe Bitz, at its Dundee fa-
cility, changed the breaktimes of employee Shannon Ruetz.
The General Counsel on brief contends that the Respondent
was concerned that the union supporters would attempt to or-
ganize the temporary employees; that Ruetz talked to cowork-
ers about the Union during lunch and breaks and wore union
insignia at work; that requiring union activist Ruetz to take her
breaks and lunch by herself shortly after she declared her sup-
port for the Union was an obvious effort to segregate her from
he co-workers during her breaks and lunch in order to minimize
her effectiveness in organizing support for the union among her
co-workers; and that the isolation of Ruetz, because of her un-
ion activities, violated Section 8(a)(1) of the Act, Fieldcrest
Cannon, Inc., 318 NLRB 470 (1995), enfd. in part, denied in
part 97 F.3d 65 (4th Cir. 1996); and Heartland of Lansing
Nursing Home, 307 NLRB 152, 163–164 (1992). The Charging
Party on brief point out that the machines had run during breaks
and lunch only “on occasions” prior to the July 30, 1998
“march on management”; that Hill testified that the employees
would have gone on some type of alternating break; and that in
testing only prounion Ruetz was required to take breaks alone.
The Respondent on brief argues that Ruetz admitted on cross-
examination that she was the most senior and experienced em-
ployee in the department, an experienced employee needs to be
in the area while machines are running, and all the other people
in the department were less skilled temporary agency workers;
and that Nevins testified that other departments did the same
thing that happened in Ruetz’ department, namely, an espe-
cially skilled and senior employee would stay while other em-
ployees went on their break. Contrary to the Respondent’s
assertions on brief, Ruetz testified that some of the temporary
employees did have the same skills she had, and Nevins testi-
fied that “usually . . . a trained operator . . . would stay helping
out with . . . somebody who maybe just started, or . . . I could
let the employees chose how they wanted to handle their breaks
as long as the machines were covered.” (Tr. 801.) Hill also
testified that when the machine was run continuously there
would be some type of alternating break so the machines could
be kept running but he did not know the specifics on how the
Ruetz situation was handled.
As set forth by the Board in Flour Daniel, Inc., 304 NLRB
970 (1991):
In Wright Line, 251 NLRB 1083, enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982), [ap-
proved in Transportation Management Corp., 462 U.S.
393 (1983)] the Board set forth its causation test for cases
alleging violations of the Act turning on employer motiva-
tion. First, the General Counsel must make a prima facie
showing sufficient to support the inference that protected
conduct was a “motivating factor” in the employer’s deci-
sion. Once accomplished, the burden then shifts to the
employer to demonstrate that the same action would have
taken place notwithstanding the protected conduct. It is
also well settled, however, that when a respondent’s stated
motives for its actions are found to be false, the circum-
stances may warrant an inference that the true motive is an
unlawful one that the respondent desires to conceal. The
motive may be inferred from the total circumstances
proved. Under certain circumstances the Board will infer
animus in the absence of direct evidence. That finding
may be inferred from the record as a whole. [Footnotes
omitted.]
In order to establish a prima facie violation of Section 8(a)(1)
and (3) of the Act, the General Counsel must establish union
activity, employer knowledge, antiunion animus and adverse
action taken against someone involved or suspected of in-
volvement with the union, which has the effect of encouraging
or discouraging union activity. Inferences of animus and dis-
criminatory motivation may be warranted under all of the cir-
cumstances of a case, even without direct evidence. Evidence
of false reasons given in defense may support such inferences.
The General Counsel has established that Ruetz engaged in
union activity, with the wearing of union insignia at work the
employer knew that she supported the Union, and the Respon-
dent took an adverse action against Ruetz. The conduct of the
Respondent found herein to be unlawful demonstrates signifi-
DIAMOND ELECTRIC MFG. CORP. 895
cant antiunion animus. Accordingly, the burden has shifted to
the Respondent to demonstrate that the same action would have
taken place notwithstanding the protected conduct. Again the
Respondent did not call an employee’s immediate supervisor to
testify. Bitz was the one who told Ruetz that she would be
taking breaks by herself and this approach was not changed for
3 or 4 weeks until Bitz was fired. Since some of Ruetz’ co-
workers had the same skills she did, the Respondent did not
explain why it was necessary for Ruetz to go for 3 or 4 weeks
without one of the other employees on even a single occasion
alternating with her. The Respondent violated Section 8(a)(1)
and (3) of the Act by changing the breaktime of Ruetz as al-
leged in paragraph 16 of the complaint.
Paragraph 17 of the complaint alleges that about September
8, 1998, the Respondent by its agent Sherry Nevins counseled
employee Peggy Heiden pursuant to an overly broad rule de-
scribed above in paragraph 9(e)(3) and memorialized this coun-
seling in writing. The General Counsel on brief contends that
the evidence of antiunion animus, much of which was specifi-
cally directed at Heiden, and the false reason given for the Sep-
tember 8, 1998 writeup to Heiden establishes that it was in
retaliation for her union activity; and that this warning clearly
violated Section 8(a)(1) and (3) of the Act, Mediplex of Weth-
ersfield, 320 NLRB 510, 514 (1995). Heiden’s testimony re-
garding what occurred on September 4 and 8, 1998, is credited.
Nevins was not a credible witness. The testimony of Nevins is
not credited. Once again the Respondent could have called a
witness, Seivert, the former human resources manager, and it
chose not to call him. He was present during the conversation
between Nevins and Heiden on September 4, 1998, in the hu-
man resource office. On the one hand, Heiden unequivocally
testified that, in the presence of Seivert, Nevins asked her if she
was trying to organize the temporary employees, and Nevins
told her that she was not supposed to talk about the Union dur-
ing working hours. On the other hand, Nevins equivocally
testified that she did not recall any discussion during the meet-
ing about Heiden trying to organize the temps or talking to the
temps or other employees about the Union, or that Heiden
could not talk with the temps about the Union. Again, Seivert
did not testify. Heiden’s testimony is credited. Under Wright
Line, supra, the General Counsel has demonstrated that Heiden
engaged in union activity, the Respondent knew that Heiden
engaged in union activity, there is significant antiunion animus
on the part of the Respondent, and an adverse action was taken
against Heiden. The Respondent has not met its burden of
coming forward and demonstrating that the same action would
have taken place notwithstanding the protected conduct. The
Respondent violated Section 8(a)(1) and (3) of the Act as al-
leged in paragraph 17 of the complaint.
Paragraph 18 of the complaint alleges that about September
10, 1998, the Respondent, by its agent, Don Lynch, transferred
employee Janice Hatcher to a new department. The General
Counsel on brief contends that the evidence of antiunion ani-
mus and disparate treatment, and the admission by Lynch to
Hatcher that the Respondent had no legitimate basis for trans-
ferring her, proves this transfer was designed to discourage her
union activities; and that, accordingly, the Respondent violated
Section 8(a)(1) and (3) of the Act, Cannondale Corp., 310
NLRB 845, 850–851 (1993). On brief, the Respondent argues
that “[i]n early September 1998, because of their perceptions of
Hatcher’s inefficiency, Bauer and [Laura] Iott complained to
Respondent’s management, and Nevins got Plant Manager Don
Lynch involved in the situation.” (Tr. 807–810; R. Br. 29), that
[b]ecause production employees work in teams, move around,
and experience numerous external causes for production inef-
ficiencies, Respondent has no statistical report or similar
means of establishing an individual employee’s personal
speed or productivity in either the Assembly area or the Test-
ing area. [Tr. 1046–1047, 1052.] [R. Br. 29.]
So allegedly we have Bauer and Laura Iott, who do not support
the Union, making an accusation supposedly about production
(Ikenaga testified “or quality”), the Respondent concedes on
brief that there is no way to document this, Bauer and Laura
Iott do not testify, Nevins is not a credible witness, Lynch does
not testify, and Ikenaga testifies that his understanding comes
from Lynch and his understanding is that Hatcher “is slow or
quality problem and sometimes she go out, often she go out
from the working place.” Additionally, notwithstanding the
fact that the Respondent now on brief describes Bauer’s and
Laura Iott’s alleged complaints as being “their perceptions of
Hatcher’s inefficiency,” Hatcher was never given the chance to
defend herself if there were complaints about her production.
Indeed Hatcher was not even given a reason for her transfer.
Under Wright Line, supra, the General Counsel has demon-
strated that Hatcher engaged in union activity, the Respondent
knew that Hatcher engaged in union activity, there is significant
antiunion animus on the part of the Respondent, and an adverse
action (involuntary transfer) was taken against Hatcher. The
Respondent has not met its burden of coming forward and
demonstrating that the same action would have taken place
notwithstanding the protected conduct. The Respondent vio-
lated Section 8(a)(1) and (3) of the Act as alleged in paragraph
18 of the complaint.
Paragraph 19 of the complaint alleges that about November
1998, and continuing to date, the Respondent by its agents, had
engaged in general harassment of its employees Peggy Heiden
and Janice Hatcher. The allegation in this paragraph will be
treated under paragraph 21 below.
Paragraph 20 of the complaint alleges that about December
1998, the Respondent by its agents, Sherry Nevins and Steve
Burnett, refused to assign overtime work to employees Peggy
Heiden and Janice Hatcher. On Saturday, December 12, 1998,
none of regular full-time employees was scheduled for over-
time. Some temporary employees did some 100 percent in-
spection work on December 12, 1998. But this work was
scheduled by the quality department without any knowledge or
participation by Nevins or the management of the assembly
department. In these circumstances, the allegation in this para-
graph of the complaint will be dismissed.
Paragraph 21 of the complaint alleges that about November
1998, and continuing to date, the Respondent by its agent,
Sherry Nevins, has harassed its employees Peggy Heiden and
Janice Hatcher, by its discriminatory enforcement of its rules
with respect to dress codes and safety glasses; assignment of
work duties; monitoring of work, and more rigorous work and
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD896
conduct standards. The General Counsel on brief contends that
the harassment of Heiden and Hatcher which began in August
and September 1998, continued following the election; that the
harassment in the form of disparate application of safety glasses
policy and disparate assignment of onerous cleanup tasks, when
examined in the context of the other blatant discrimination
against these two union supporters, was clearly designed to
punish them because of their continued support for the Union;
and that in January 1999. (Since this occurred after November
1998 it appears that it is offered to show Nevins continuing
intent.) Nevins told Heiden that the harassment would never
stop. The Respondent on brief argues that none of the points
raised by Heiden and Hatcher under the general harassment
rubric involves discipline or adverse job action, and the gener-
alized allegations in paragraphs 19 and 21 should therefore be
dismissed. Lefief testified that both Heiden and Hatcher com-
plained to him about being selected for especially onerous
cleaning duties. When asked by the Respondent’s counsel if he
investigated the complaints Lefief testified, “[y]es . . . prior to
. . . [his] coming to this Company . . . [there were problems
because some] privileged people . . . [were not required] to do
cleaning or . . . be responsible for their areas. And I made it my
responsibility to insure that everyone did their share of work in
the facility.” (Tr. 605.) Lefief also testified that Heiden com-
plained to him about being treated differently regarding the
wearing of hairnets and being picked on for being away from
her work area; and that Hatcher and Heiden were not treated
differently by their supervisor. As noted above, Hatcher spoke
to Herrmann about what she perceived to be harassment regard-
ing the hair net policy and she was given a written warning. As
noted below, Hatcher’s testimony about that incident is credited
in view of the fact that Nevins is not a credible witness and
Herrmann did not testify at the trial herein. Herrmann’s memo-
rialization of the incident, General Counsel’s Exhibit 8, does
not change this. And both Heiden and Hatcher spoke to Nevins
about what they perceived to be harassment. Hatcher testified
that she quit the employees’ the VOC at the end of December
1998 because she was tired of the company harassment. And
subsequently when Heiden asked Nevins if she was ever going
to stop the harassment Nevins told her that it would never stop.
Heiden’s testimony on this last point is credited. Nevins was
not a credible witness. Contrary to his assertion, Lefief did not
conduct any investigation of the harassment of Hatcher and
Heiden. As described below, his testimony about Heiden’s
final warning demonstrated that he is not a credible witness.
And as found above, Nevins admitted to Heiden, that the har-
assment was not going to stop. The Respondent was punishing
Hatcher and Heiden for their union activity. The Respondent
succeeded in getting Hatcher to give up her open union activity.
Under Wright Line, supra, the General Counsel has demon-
strated that Hatcher and Heiden engaged in union activity, the
Respondent knew that they engaged in union activity, there is
significant antiunion animus on the part of the Respondent, and
adverse actions were taken against Hatcher and Heiden. The
Respondent has not met its burden of coming forward and
demonstrating that the same actions would have taken place
notwithstanding the protected conduct. The Respondent vio-
lated Section 8(a)(1) and (3) of the Act as alleged in paragraphs
19 and 21 of the complaint.
Paragraph 22 of the complaint alleges that about November
5, 1998, the Respondent, by its agent, J. W. Herrmann, issued a
written reprimand and final warning to employee Janice
Hatcher. The General Counsel on brief contends that there is
no credible evidence that Hatcher had a public outburst or re-
fused to follow the direction of her supervisor; that this was
another attempt to punish a union a union supporter on pretex-
tual grounds; that other employees, including the antiunion
employees in Assembly, frequently failed to wear a hairnet at
all and there was no evidence of any other employees being
reprimanded for not wearing hairnets; and that the real reason
for this discipline was to harass Hatcher for her support for the
Union, and accordingly, its issuance violated Section 8(a)(1)
and (3) of the Act. Teksid Aluminum Foundry, 311 NLRB 711,
719–720 (1993). The Respondent on brief argues that it is an
argumentative exaggeration to call the warning a “final warn-
ing”; that Hatcher had previously received a written warning
for insubordinate and disrespectful behavior directed toward
members of management as well as her peers; that Hatcher
apologized to Herrmann saying, “I didn’t mean to be sarcastic,
I didn’t mean for it to be a public outburst”; that in contradic-
tion to her testimony about her apology, Hatcher testified that
she had not been sarcastic and had not made a public outburst;
and that in light of Hatcher’s record of misbehaving in this
fashion, her admitted resistance to the hairnet policy, her
apologetic concession to Herrmann, and the lack of any evi-
dence causally connection it to Hatcher’s union activity, the
warning was appropriate, legitimate and nondiscriminatory.
The November 9, 1998 written warning to Hatcher, as here
pertinent, raises at least two questions. First, did Hatcher refuse
to follow a reasonable direction of her supervisor? Second, did
Hatcher engage in a public outburst? Technically, Hatcher did
not refuse to follow a reasonable direction of her supervisor.
Hatcher questioned the directive of her supervisor, pointing out
that other employees did not have all of their hair up in a net or
cap. Nevins did not report Hatcher for refusing to follow a
reasonable directive. Rather Nevins, when Hatcher asked her if
she had to do it, why didn’t everyone else have to do it, told
Hatcher that if she had a problem with that she could go see
human resources. Hatcher went to human resources where she
told Herrmann that some of the employees wore some of their
hair outside the net or hat. Herrmann told her that she had to
follow a reasonable order of her supervisor. At this point
Hatcher did not refuse to follow a reasonable order of her su-
pervisor. Did Hatcher then engage in a public outburst?
Nevins said she did. But Nevins is not a credible witness.
Herrmann did not testify so we do not know what he considered
to be a public outburst. One is left with Hatcher’s testimony,
the Respondent’s argument that Hatcher apologized for her
conduct, the prior written warning, and the written warning for
this incident. Contrary to the Respondent’s argument on brief,
Hatcher did not make an apologetic concession to Herrmann on
November 5, 1998. What she said to Herrmann was that she
was sorry that he felt that way, that she did not mean for it to be
sarcastic and she did not mean for it to be a public outburst. At
the trial herein Hatcher testified that in her view she did not
DIAMOND ELECTRIC MFG. CORP. 897
have a public outburst and she had not been sarcastic. This is
not a contradiction. What happened was that Hatcher did not
believe that it was a public outburst and she was not being sar-
castic. As demonstrated by the prior warning incident, she did
take her prior complaint to a “higher source,” Ikenaga. So she
was merely placing Herrmann on notice that she intended to
appeal his ruling. What Hatcher was telling Herrmann was that
she was sorry that he could not or would not understand what
she had said and he choose to treat it as sarcasm. In other
words, Hatcher was not sorry for what she said. Rather she was
telling Herrmann that she was sorry that he choose to treat her
statement as sarcasm when obviously she did not mean to be
sarcastic. Here, unlike the prior situation, Hatcher did not al-
legedly refuse outright to do something. Here she questioned
the directive and took Nevins up on her offer to have the situa-
tion reviewed by human resources. Was there a public out-
burst? Hatcher testifies no. Nevins testifies yes. Herrmann
does not testify. Whether there was a public outburst is a sub-
jective evaluation of the situation. But the Respondent did not
provide the witness who made this subjective evaluation.
Without being able to inquire as to the basis for this subjective
evaluation, Herrmann’s written conclusions are only enitiled to
the weight one would give to written conclusions where one of
the parties does not provide the means to ascertain the accuracy
of the written conclusions. In view of the fact that Herrmann
chose to treat Hatcher’s conduct in the written warning as a
refusal to follow a reasonable direction of her supervisor when
I do not believe that this was a reasonable conclusion, I must
question whether his conclusion that Hatcher had a public out-
burst was a reasonable conclusion. As noted numerous times
above, Nevins was not a credible witness. So we are left with
the testimony of Hatcher. Her testimony regarding what hap-
pened on November 5, 1998, is credited. Under Wright Line,
supra, the General Counsel has demonstrated that Hatcher en-
gaged in union activity, the Respondent knew that she engaged
in union activity, there is significant antiunion animus on the
part of the Respondent, and an adverse actions was taken
against Hatcher. The Respondent has not met its burden of
coming forward and demonstrating that the same action would
have taken place notwithstanding the protected conduct. As for
the Respondent’s contention that it is an argumentative exag-
geration to call the November 9, 1998 written warning a “final
warning,” it is noted that the warning indicates “[r]epetition of
these acts, or any other acts which are inappropriate in the
workplace are considered to be grounds for the issuance of
corrective discipline, up to and including discharge.” The lan-
guage, in the circumstances extant here, is ambiguous. Ambi-
guity is held against the drafter. Here, I do not believe that the
description is an argumentative exaggeration. The Respondent
violated Section 8(a)(1) and (3) of the Act as alleged in para-
graph 22 of the complaint.
Paragraph 23 of the complaint alleges that about March 17,
1999, the Respondent, by its agent, Paul Lefief, suspended and
issued a written final warning to employee Peggy Heiden. The
General Counsel on brief contends that as the second Board
election approached, Respondent sought to discredit Heiden,
who was a leader among union organizers, by suspending her
and issuing her a final warning on March 23, 1999; that Nivens
shoved Heiden twice in Bialy’s office on March 17, 1999, and
one of the shoves occurred when Heiden attempted to leave the
office; that Nivens stopped blocking the door out of Bialy’s
office on March 17, 1999, only after Heiden yelled to the peo-
ple outside the office window to get Bialy; that Bialy conceded
that he did not interview the employees on Heiden’s line on
March 17, 1999, to see if she had actually reassigned the tem-
porary; that the scope of the investigation was directed at Hei-
den’s entire career and was a clear attempt to dig up harmful
information against Heiden to besmirch her nearly spotless
work record; that Respondent did not call supervisors Brodie or
Ole or payroll coordinator Stevens, all of who were by the win-
dow to Bialy’s office when the involved incident occurred, to
testify at the trial herein regarding what they may have seen or
heard; that Ole’s statement to the Respondent omits what she
told them regarding the incident; that Stevens modified her
typed statement by adding “Sherry was holding the door so that
Peggy could not get out,” that later in Stevens’ typed statement
it is indicated that Stevens did not see Nevins place her hands
on Heiden, which is contrary to what Heiden testified that Ste-
vens told Heiden shortly after the incident occurred; that it can
reasonably be inferred that Stevens did not sign the statement
because it falsely stated that she had not observed the assault;
that Heiden credibly denied ever having engaged in the mis-
conduct attributed to her in the March 23, 1999 warning; that
Heiden was never told the specifics with respect to these seri-
ous allegations and she was never given the opportunity to
respond to them; that the allegations in the March 23, 1999
warning are pretextual, and this was demonstrated by the vague
and generalized testimony Respondent offered in support of the
alleged misconduct enumerated in the writeup; that there is
overwhelming evidence that the motivation for issuing this
final written warning to Heiden was to punish her and to send a
message to other employees that those who supported the Un-
ion would be very harshly treated and their future employment
would be in jeopardy; and that the Respondent failed to rebut
this prima facie case of violation and did not establish that Hei-
den would have received this final warning and suspension
notwithstanding her support for the Union.
The Respondent on brief argues that on March 17, 1999,
“Heiden advised Bialy by telephone that she was making a
criminal complaint against Nevins, which was implicitly con-
firmed in Bialy’s conversation with Deputy Sheriff Opperman
[Tr. 385–390, 478–491, 848–857, 1136–1144].” (R. Br. 51);
that Heiden purposefully and deceptively interjected issues of
criminality, necessitating a more complex, careful and time-
consuming reaction from Respondent; that it merits repeating
that we are dealing here with only a warning and not a firing or
even the loss of a day’s pay; that despite her unequivocal denial
that she had told others she wanted to get rid of Nevins, Heiden
did not rebut coworker Tammy Clark’s recounting of two
statements by Heiden to this very effect; that it is unnecessary
to parse the evidence of who touched whom, who can corrobo-
rate whose account, and the like; that the Respondent’s han-
dling of this situation was, to be sure, somewhat impaired by
personal agendas, differing perspectives, and the perceived
criminal complaint, but Respondent brought the matter to a
conclusion, and the problem has not resurfaced; that to suggest,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD898
as the General Counsel does, that the warning to Heiden would
chill union activity is truly an overstatement, “as the warning
merely tells her not to do what she denies she has ever done or
would ever do” (R. Br. 58); that the issue is not whether Re-
spondent could have handled the situation more promptly,
fairly, or completely but rather the issue is whether the General
Counsel has established a violation of the Act; and that while it
was an unfortunate episode, the record evidence as a whole
does not establish a violation of the Act.
The Respondent violated Section 8(a)(1) and (3) of the Act
as alleged in paragraph 23 of the complaint. Contrary to the
Respondent’s contention on brief, Heiden did not advise Bialy
by telephone on March 17, 1999, that she “was making a crimi-
nal complaint against Nevins,” and she did not “deceptively
inject issues of criminality.” And the Respondent’s reaction
was not careful. The Respondent did not interview the other
employees on Heiden’s line to determine whether there was
even a reason for Nevins to take Heiden to the human resources
office. The Respondent did not interview Heiden to ask her
about the matters it raised in its final warning. Indeed, the Re-
spondent did not even give Heiden notice and the opportunity
to defend herself. Under Wright Line, supra, the General Coun-
sel has demonstrated that Heiden engaged in union activity, the
Respondent knew that she engaged in union activity, there is
significant antiunion animus on the part of the Respondent, and
an adverse action was taken against Heiden. Heiden’s testi-
mony regarding what happened is credited. Heiden testified
that Steve Burnett, who was production manager and, therefore,
over Nevins, told her that Nevins was not her supervisor. In-
deed Nevins concedes that during their discussion Heiden told
her that she was not her supervisor. Bennett did not testify so
he did not deny telling Heiden that Nevins was not her supervi-
sor. Lefief testified that he was aware that Heiden told Nevins
that she was not her boss. Amazingly Lefief then testified that
he did not know that Steve Burnett, who was the production
manager, told Heiden that Nevins was not her supervisor any-
more, and he did not believe that Nevins was ever removed
from active duty out on the floor. In a “careful” investigation
wouldn’t these matters be resolved? Why didn’t the person
who conducted the investigation for the Respondent interview
the other employees on Heiden’s line, along with Heiden and
Nevins? Nevins was not a credible witness. On direct she
attempted to convey the impression that even after she spoke
with Heiden twice (once in person on the line and once over the
telephone) about keeping the temporary on the line, Heiden
requested Nathan Iott to take the temporary back out of the
area. The Respondent did not call Nathan Iott to testify.
Nevins also attempted to convey the impression that she did not
keep Heiden in Bialy’s office against her will. The credible
evidence of record indicates that Nevins did intentionally keep
Heiden from leaving Bialy’s office up until the time that Hei-
den started getting witnesses involved in what was happening.
Only then did Nevins let Heiden leave the office. The credible
evidence of record indicates that Nevins shoved Heiden twice
in Bialy’s office. Nevins denies this. She was not a credible
witness. As Bialy testified, he and Lefief worked up a “game
plan.” In working up this “game plan” or “action plan,” and
defending it while they testified at the trial herein, both will-
ingly gave up their credibility. As set forth above, Bialy just
could not get it correct regarding what Clark allegedly told him
with respect to who was going to get whom fired. And Clark
could not remember telling Bialy what he says she told him.
Both Lefief and Bialy testified that Heiden told the temporary
to go somewhere else or reassigned the temporary employee
herself. There is no credible evidence that this is what oc-
curred. And while Bialy testified that what Clark told him
could “possibly” be a motive behind what occurred, Clark did
not remember telling him in March 1999 about what Heiden
allegedly said. The fact that it may be “possibly” relevant to
Bialy does not make it relevant to this proceeding. Moreover,
Clark testified that she did not recall giving a signed statement
to Bialy in March 1999 albeit she concedes that the signature
on the statement is hers. Additionally only after direct, cross,
and redirect did Clark testify about a second incident where
Heiden allegedly said that she wanted to get rid of Nevins. As
noted above, Clark could not remember whether she ever told
Nevins about this second incident. Nevins did not testify about
it. Bialy did, but this was after Clark testified and, as indicated
above, Bialy just could not get it right. Also, as noted above
Clark does not recall telling Bialy even about one incident let
alone two. Even if it were relevant, Clark’s testimony regard-
ing what Heiden allegedly said about Nevins is not credited.
Clark was not a credible witness. Bialy did not refute Heiden’s
testimony that Bialy told the deputy sheriff that what occurred
on March 17, 1999, occurred because of union activity. What
occurred after occurred because of the union activity of Heiden.
Lefief testified that he wanted to send a message. He did.
There was no proper business justification for what the Re-
spondent did to Heiden regarding this matter. The Respondent
has not met its burden of coming forward and demonstrating
that the same action would have taken place notwithstanding
the protected conduct. The Respondent violated the Act as
alleged in paragraph 23 of the complaint.
Paragraph 24 of the complaint alleges that about March 18,
1999, the Respondent by its agent Gene Bialy, discharged its
employee Robert Bomia. The General Counsel on brief con-
tends that Bomia wore a union button, he told his supervisor,
Kilburn that he was for the Union, he attended union meetings,
and he advocated that other employees support the Union dur-
ing his lunch period; that Bomia was treated more severely than
Purkey, who was certified on the rail coil line, worked with
Bomia on the line the night of Bomia’s last shift, and was given
an oral warning; that in the oral warning to Purkey, Kilburn
indicated that they were unable to determine at what point the
solder machine had failed during the shift; that Kilburn changed
his testimony from they inspected all the parts to they inspected
only one or two per pallet; that Kilburn changed his testimony
about how long the solder was curling; that the oral warning to
Purkey was prepared at 7:35 a.m. on March 18, 1999, and by
10 minutes later Kilburn was able to determine that it was
Bomia’s fault and he was terminated; that the oral write up to
Purkey was not changed even though it was not given to Purkey
until he reported for his next shift; that while Jeffers’ personnel
file contained an oral writeup for producing 688 pieces of scrap
on rail coil assembly line because he failed to insure that all
terminals were soldered, Bomia was fired because although
DIAMOND ELECTRIC MFG. CORP. 899
around 300 defective parts allegedly got by him and none had
to be scrapped, Bomia was a union supporter; that other exam-
ples of disparate treatment include (1) Naugle, who although
experienced, had repeated problems with the quality of his
work and was given oral warnings, (2) Nellie Shaw who was
issued an oral warning for failing to properly inspect parts,
which resulted in 34 pieces of scrap being produced, and (3)
David Lucie who received an oral warning for failure to prop-
erly inspect parts that also resulted in scrap being produced;
that the overwhelming weight of the evidence indicates that
Respondent had a progressive discipline policy, and that its
practice was when employees had work quality problems the
first step was to issue them an oral warning, but this policy was
not followed with Bomia; that the Respondent is required to
certify, as here pertinent, its assembly employees as a part of
the quality control program and to retain copies of these docu-
ments; that it is not believable that when a union supporter was
fired during a highly contested union organizing drive that this
important document would be discarded; that Bomia credibly
testified that he was never certified on the second position on
the rail coil assembly line; that the never-ending probation
which was not documented in Bomia’s personnel file, along
with the safety glasses and leaving his work area assertions
were simply make-weight, pretextual reasons offered to justify
his discharge; that Bomia was not properly trained for the in-
volved job and he was fired after a 30-minute investigation; and
that there is no evidence that any other employee was termi-
nated for failing to properly inspect parts.
The Respondent on brief argues that the only motive for
Bomia’s discharge is failure to catch the improper solders; that
even if the General Counsel establishes a prima facie case, the
record evidence amply substantiates the legitimate non-
discriminatory reason for Bomia’s discharge; that there is no
evidence that Bomia engaged in union activity other than wear-
ing a union button; that there was a serious integrity issue with
Bomia regarding his time keeping while on overtime, generat-
ing windfall premium pay for nonworked time, which resulted
in an open-ended extension of his probationary period; that
Bomia continued with his noncompliance with the safety
glasses rule after members of management repeatedly talked to
him about it; that Bomia admitted that he made a false state-
ment in a sworn affidavit about the job interview process; that
while Bomia claims that he was not trained (certified) at the
involved position, recognizing a solder problem is a rudimen-
tary task common to all production lines; that there is evidence
of record that Bomia was fully trained at the involved position;
that there is no prior situation comparable to Bomia’s blatant
disregard of the rudimentary responsibilities of his job; and that
“Bomia conceded that he simply was not watching the termi-
nals and the solder machine for a period of two to three hours”
(R. Br. 50) (emphasis in original and no transcript citation is
provided).
Under Wright Line, supra, the General Counsel has demon-
strated that Bomia engaged in union activity, the Respondent
knew that he engaged in union activity, there is significant anti-
union animus on the part of the Respondent, and an adverse
action was taken against Bomia. Contrary to the Respondent’s
assertion, the record contains evidence that Bomia did more
than wear a union button. Bomia spoke out in support of the
union with his supervisor. He wore union T-shirts and he
spoke with employees during lunch about supporting the Un-
ion. Additionally, Lefief testfied that he wanted to send a mes-
sage with the final warning that he gave to Peggy Heiden just
days later. According to Bialy, Lefief told him on March 18,
1999, that if Bomia could not provide a justification, he should
be terminated. Lefief was the one who decided to terminate
Bomia. Again Lefief wanted to send a message with the up-
coming second election.
All involved knew that there were problems in the past with
the solder on the rail coil line. Lefief himself testified about the
fact that alarms were installed to indicate when the solder was
not feeding. No one testified about an alarm going off. Kil-
burn testified that the machine has an alarm for the temperature
of the solder. Kilburn also testified that the area where the
solder was backed up was visible from station two on the rail
coil line and that observing the soldering operation would be a
part of the duties of the operator at the second station. But then
Kilburn conceded that there was nothing in the work instruction
sheet at the machine which instructs the operator at station two
on the rail coil line that they have to check the solder cup to see
if excess solder is dripping down. It would appear that the
training one receives, therefore, is very important. Some of the
Respondent’s witnesses took the position that once an operator
is trained on the workmanship standard for solder that would
apply for all of the lines in assembly. If that is the case,
wouldn’t the same standard have applied with Jeffers in No-
vember 1998 when 688 pieces had to be scrapped because he
failed to make sure that all terminals were soldered on this
same line? Then it was attributed to a failure of design in proc-
ess. Now apparently it is something else. And if the workman-
ship standard for solder on the ignition assembly line is the
same as on the rail coil assembly line, why was it necessary, as
Lefief testified, to retrain the employees on the second position
on the rail coil assembly line to be more diligent on the inspec-
tion of terminals through the process? In late 1998, according
to Lefief there were many defective coils because of soldering
problems. Again it would appear that the training one receives
on the second position on the rail coil assembly line is very
important. What was Bomia’s training on the second position
of the rail coil assembly line? Bomia testified that he was not
certified on the rail coil assembly line and he was not trained on
any particular aspect of the second position of this line. Indeed
he testified that the first time he worked the second position on
this line was on the shift at the end of which he was fired. It
should have been very easy to show that Bomia was not telling
the truth, if that was the case. All the Respondent had to do
was to produce the written certification with Bomia’s initials on
it. The Respondent produced Bomia’s certification for the
other lines. But it could not produce the certification in ques-
tion. Nevins testified that if an employee completes training
and is certified, she turns that certification over to human re-
sources, and if the employee leaves the Respondent, she did not
believe that it would be the prerogative of a supervisor to dis-
card the certification. Nevins also testified that she has never
discarded a certification because an employee left the Respon-
dent. But this is exactly what Kilburn, who was just recently
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD900
given a supervisory position, claims he did. Had he ever done
it before? Well yes but those instances involved short-term
temporary employees who had just started the checklist and
quit. In other words, Kilburn was unable to cite even one spe-
cific instance (other than his claim regarding Bomia) where an
employee received their certification and he subsequently threw
it out when they left the Respondent. So Kilburn had never
done it before. Did this new supervisor seek guidance or get
permission to discard a completed company document from
someone in management or in human resources. Kilburn testi-
fied that he did not. He did not because he did not have a com-
pleted company document to discard in the first place. Kilburn
was not a credible witness. Bomia was not certified. Kilburn’s
testimony regarding what training Bomia received on the rail
coil line is not credible. At one point, Kilburn testified that he
witnesses Bomia working at station 2 on the rail coil line and
he was satisfied based on his personal observation of Bomia
that he was proficient with respect to inspection and testing.
This is in accord with Bialy’s testimony that it was his observa-
tion that the training of Bomia on station 2 on the rail coil as-
sembly line had been completed by Kilburn. This is also in
accord with Lefief’s testimony that when someone said that
Bomia had not been trained on the station 2 job on the rail coil
assembly line, Kilburn said that he had trained Bomia, Bomia
had gone through the training and became a certified operator.
Does this mean that when this issue came up it should have
been clear to all involved that the certification was meaningful?
If this happened before the time Kilburn claims he threw out
the certification, would a reasonable person in these circum-
stances throw out that which he cites the existence of to prove
his statement that Bomia was trained? If this happened after
the time Kilburn threw out the certification, did Kilburn say
“Oh! But I threw out the certification without asking if I could
do this and without telling anyone in management at the time
that I was doing this?” Lefief did not testify that Kilburn made
this admission. Additionally, if Kilburn trained Bomia and he
was satisfied through personal observation that Bomia was
proficient, why did he, as he claims, ask Jeffers, when Bomia
was working on the second station of the rail coil line, if Bomia
was ready to be certified? If Kilburn asked Jeffers because he,
Kilburn, did not personally train Bomia’s or observe his train-
ing on the first station, then why didn’t the Respondent call
Jeffers to testify? Lefief was not a credible witness. Kilburn
did not make the statements attributed to him by Lefief. Bomia
was not certified on rail coil assembly line and Kilburn did not
tell management that Bomia was certified. If it was an issue on
St. Patrick’s day, 1999 and Bomia was certified management
would have retained the certification. But there was no certifi-
cation to retain. Kilburn was not a credible witness.
Regarding the Respondent’s assertion that “Bomia conceded
that he simply was not watching the terminals and the solder
machine for a period of two to three hours,” Bomia conceded
that he was not watching the area where the solder curled up
because where the solder comes out of the spool up into the
machine is more toward the bottom on the back side of the
machine. Care must be taken in considering this argument of
the Respondent. The Respondent’s attorney asked Bomia when
the problem was pointed out by Laura Iott on March 18, 1999,
if he went and looked “at the place where the solder comes out
of the machine and then goes to the joints between the terminal
and the wire on the coil.” (Tr. 191.) Bomia testified that he did
and there was at least an hour or two of solder curled up but
there was not enough for 3 hours. Bomia conceded that during
the second half of the shift while he was at the second station
he never watched the area where the solder curled up. He was
not told or trained to watch this area. And the instructions on
the machine do not direct him to watch this area. Again, Kil-
burn is not a credible witness. But contrary to the impression
conveyed by the Respondent on brief, Bomia never conceded
that he did not watch (or inspect) the terminals which were
soldered on the rail coil units. Indeed, Bomia testified credibly
that he did inspect the solders but as it turns out he did not fully
appreciate what he should have been looking for. Undoubtedly,
neither did Jeffers earlier. Since interrogation about his feel-
ings regarding a union was part of Bomia’s interview process
(verbal), his indication in his affidavit that the interrogation
about his feelings regarding a union occurred during the written
portion of the interview process is understandable. In my opin-
ion this was nothing more than a mistake. There is credible
evidence of record that this type of question was asked of at
least one other applicant during the interview process. Lefief’s
testimony that some of the units did not have any solder at all is
not credited. Lefief was not a credible witness. No credible
witness made this assertion. And Lefief never fully explained
why he was willing to give Naugle a break, taking into consid-
eration the fact that Naugle was in training, when he would not
give Bomia, who was in training, a break. Perhaps Bomia was
not viewed as a “loyal” employee and Naugle, after he no
longer supported the Union, was viewed as a loyal employee.
Bomia testified that during the second half of the shift while he
worked at the second station he inspected 170 of the 340 units
manufactured during the entire shift. Kilburn, who was not a
credible witness, eventually testified that a representative sam-
pling indicated that there were solder problems with 300 units.
The employee who worked the second station during the first
half of the involved shift and who was certified on that ma-
chine, received an oral warning. There was no proper business
justification for what the Respondent did to Bomia regarding
this matter. The Respondent had not terminated Bomia up to
this point. What occurred with the rail coil assembly machine
on March 18, 1999, would not justify changing the position that
the Respondent had taken about Bomia previously. The Re-
spondent has not met its burden of coming forward and demon-
strating that the same action would have taken place notwith-
standing the protected conduct and notwithstanding its desire to
send a message to the employees before the upcoming second
Board election. The Respondent violated the Act as alleged in
paragraphs 24 of the complaint by discharging Robert Bomia
because employees engaged in activities on behalf of and in
support of the Charging Party and to discourage employees
from engaging in this and other concerted activities.
The General Counsel on brief contends that the Regional Di-
rector properly set aside the settlement agreement in that within
a few weeks of the Regional Director’s approval of the settle-
ment agreement on February 1, 1999, the Respondent violated
its express terms; that in the settlement agreement, the Respon-
DIAMOND ELECTRIC MFG. CORP. 901
dent agreed not to (a) take adverse action against, counsel or
otherwise discriminate against employees because of their ac-
tivities on behalf of or in support of the Union or because of
their protected concerted activities, (b) coercively interrogate
employees about their activities on behalf of or in support of
the Union or other protected concerted activities, (c) threaten
employees with loss of employment or unspecified reprisals
because of their activities on behalf of or in support of the Un-
ion or other protected concerted activities, and (d) engage in
surveillance of our employees’ activities on behalf of or in
support of the Union, or create the impression of surveillance;
that when Nevins interrogated employee Ryan Clark, made
implied threats of reprisals for engaging in union activities in
late February or early March 1999, and created the impression
that employees’ union activities were under surveillance, the
Respondent breached the settlement agreement; and that the
Respondent also violated the agreement by suspending Peggy
Heiden on March 19, 1999, issuing her a final warning on
March 23 because of her union activities, and by discharging
Robert Bomia on March 18, 1999, because of his union activi-
ties.
The Respondent on brief argues that the settlement of the
original proceeding was documented through a standard NLRB
settlement agreement signed by the Union, Respondent, and the
Regional Director; that a stipulation to set aside election and
agreement to conduct second election was signed only by the
Union and the Respondent, and in it these parties waived any
rights to which they were entitled under the Act or the Board’s
Rules and Regulations to any hearing, to a Regional Director’s
report or to a Board decision in “this” matter (The Respondent
can only be referring to Case 7–RC–21338.); that even though
the General Counsel now contends that August 14, 1998, was
the trigger date for a bargaining obligation, it is undisputed that
there was no request, demand or other signal that the Union
claimed bargaining rights based on a card majority; that while
the Respondent recognizes the General Counsel’s theoretical
ability to vacate an informal settlement agreement in an unfair
labor practice case that has been dishonored by a party, R. T.
Jones Lumber Co., 303 NLRB 841, 843 (1991), this case is
materially different because of the separate bilateral Stipulation
in the representation case; and that the legal standard for vacat-
ing a settlement agreement in an unfair labor practice case has
not been satisfied.
A Regional Director has the authority to reinstate a charge
following noncompliance with a non-Board settlement agree-
ment, notwithstanding Section 10(b) of the Act, provided the
original charge was timely filed. Norris Concrete Materials,
282 NLRB 289, 291 (1986), and Jonko, Inc., 316 NLRB 413,
416 (1995). Here, the Regional Director approved the settle-
ment agreement in the unfair labor practice case. The fact that
he was not a party to the private stipulation for a rerun election
does not preclude him setting aside the dishonored agreement
in the unfair labor practice case. Section 3(d) of the Act pro-
vides, in pertinent part, that the General Counsel of the Board
“shall have final authority, on behalf of the Board, in respect of
the investigation of charges and issuance of complaint and in
respect of the investigation of charges and issuance of com-
plaints . . . and in respect of the prosecution of such complaints
before the Board.” The Respondent negated the terms of the
settlement agreement approved by the Regional Director. And
the Respondent did it in a cold, calculated, and contemptuous
fashion. The Respondent did not intend to abide by the terms
of the approved agreement. Among other approaches, it used
Nevins to undermine the approved agreement. Management
knew what Nevins was doing. And even when Nevins went
way over the line with Peggy Heiden in Bialy’s office, the Re-
spondent used the opportunity to further undermine the ap-
proved agreement and to undermine support for the Union 6
weeks before the scheduled second Board election. The Re-
gional Director acted well within his discretion and in the pub-
lic interest in deciding to vacate the approved settlement
agreement and issue the second amended consolidated com-
plaint.
Paragraph 26 of the complaint alleges that the acts and con-
duct described above in paragraphs 8–25 are so serious and
substantial in character that the possibility of erasing the effects
of these unfair labor practices and of conducting a fair election
by the use of traditional remedies is slight and the employees’
sentiments regarding representative, having been expressed
through authorization cards would, on balance, be protected
better by issuance of a bargaining order in an appropriate unit
described above, than by traditional remedies alone. The Gen-
eral Counsel seeks all other relief as may be just and proper to
remedy the unfair labor practices herein alleged. The General
Counsel on brief contends that as of August 14, 1998, the Un-
ion had obtained valid signatures on its authorization petition
from 38 of the 71 employees in the proposed bargaining unit as
of August 14, 1998; that the Respondent caused the Union to
lose its majority support with threats of reprisals, plant closure,
and loss of employment, with coercive interrogation, and with
discipline of union supporters; that while the Respondent
agreed to settle certain unfair labor practices in Case 7–CA–
41236, and agreed to a second election, before the ink was dry
on the settlement, the Respondent continued with its unlawful
campaign by interrogating employees, creating the impression
of surveillance, and making veiled threats of reprisal; that the
unfair labor practices reached a crescendo 6 weeks before the
scheduled rerun election with the discharge of open union sup-
porter Bomia and with the suspension and final warning of lead
union activist Peggy Heiden; that Lefief admitted that he was
trying to send a message to the employees with Peggy Heiden’s
discipline and her final warning was widely disseminated
among employees in the plant; that since the Respondent con-
tinued to commit “hallmark” unfair labor practices following
the election on September 24, 1998, and following its entering
into the settlement agreement and the agreement for a rerun
election, there is a strong likelihood that the Respondent will
continue to engage in such unfair labor practices in the future;
and that in such circumstances, the courts and the Board have
found that there is little likelihood of conducting a fair election
and a bargaining order is an appropriate remedy. NLRB v. Gis-
sel Packing Co., 395 U.S. 575 (1969); M. J. Metal Products,
328 NLRB 1184 (1999); Garvey Marine, Inc., 328 NLRB 991
(1999); Traction Wholesale Center Co., 328 NLRB 1058
(1999); Coil-ACC, Inc., 262 NLRB 76 (1982), enfd. 712 F.2d
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD902
1074 (6th Cir. 1983); Douglas Foods Corp., 330 NLRB 821
(2000).
The Charging Party on brief argues that the Court in Gissel,
supra at 612, stated that “a bargaining order is designed as
much to remedy past election damage as it is to defer future
misconduct”; that in Gissel category II cases the Board consid-
ers “hallmark” violations such as threats to close a plant, the
unlawful discharge of union supporters, and threats of termina-
tion; that the Board also considers the extent of the dissemina-
tion of knowledge of the unfair labor practices in the light of
the size of the involved unit; that additionally consideration is
given to timing of the unfair labor practices, evidence that the
unfair labor practices have caused employees to avoid union
activities, and the likelihood that the employer will again vio-
late the Act, Joy Recovery Technology Corp., 320 NLRB 356,
368 (1995), enfd. 134 F.3d 1307 (7th Cir. 1998); and General
Fabrications Corp., 328 NLRB 1114 fn. 17 (1999); that a cres-
cendo of antiunion activity was reached 6 weeks before the
scheduled rerun election when Nevins assaulted Peggy Heiden
on March 17, 1999, Bomia was fired on March 18, 1999, and
Heiden was suspended and later given a “sham” final warning
as the result of an “investigation” conducted by the Company’s
antiunion consultant; that as a result of the Company’s anti-
union activity, Hatcher ceased her membership on the VOC,
and whereas at the beginning of the campaign about 30 em-
ployees wore UAW insignia in the plant, at the time of the
hearing herein only 2 or 3 employees continued to wear union
insignia; and that
[t]his Employer has amply demonstrated that it had no inten-
tion of permitting its workers to freely choose, or not choose,
union representation. This Employer has confirmed repeat-
edly that it has no regard for the Act or its workers’ rights un-
der the Act. Gissel relief is appropriate in few cases. It is a
difficult remedy to acquire. But on this record, Gissel relief is
supported and required to enforce the rights of Diamond Elec-
tric workers. [CP Br. 57.]
The Respondent on brief cites Henry Bierce Co. v. NLRB, 23
F.3d 1101, 1110 (6th Cir. 1994), for the proposition that “[a]
bargaining order . . . is an extraordinary remedy that we ‘scruti-
nize very closely’ when imposed by the Board without a new
election.” It is pointed out that the Sixth Circuit Court of Ap-
peals, in NLRB v. Taylor Machine Products, Inc., 136 F.3d 507,
519 concluded that “[i]n the end, the Board must determine that
a bargaining order is the ‘only satisfactory remedy.’” The Re-
spondent contends that as preconditions for a bargaining order,
the General Counsel must prove that “the Union in fact has
obtained authorization cards from a majority of employees in
an appropriate bargaining unit . . . and has requested bargain-
ing.” DTR Industries, Inc. v. NLRB, 39 F.3d 106, 112 (6th Cir.
1994), and Gourmet Foods, Inc., 270 NLRB 578 (1984); that
the Union has never requested bargaining of the Respondent
and the July 30, 1998 flyer the employees gave to Ikenaga does
not constitute a demand for bargaining; that General Counsel
authenticated less than half of the 38 signatures with testimony
of either the signer or a witness; that more that one half of the
signatures would have to be authenticated with exemplars and
the General Counsel “will presumably ask the ALJ to authenti-
cate the signatures on the UAW petition forms on that basis”
(R. Br. 61); that as pointed out by the court in BE-LO Stores v.
NLRB, 126 F.3d 268, 2792 80 (4th Cir. 1997), in rejecting a
Gissel bargaining order, even a minor use of these unorthodox
authentication methods “contribute[s] to our concern that the
Union’s majority status was one of agency construct rather than
grass roots support”; that even if all doubts and issues were
resolved in the General Counsel’s favor, any majority status
within the unit was marginal and short-lived; that a majority of
the supervisors named in the complaint are no longer working
for the Respondent; that paid leave for Peggy Heiden can
hardly be perceived as “iron fisted,” it was not shown that the
warning to Peggy Heiden had any demonstrable impact on the
unit as a whole, and Heiden and not the Respondent’s manage-
ment sent the message to the other employees; that the General
Counsel has not demonstrated that alleged unfair labor prac-
tices dissolved the Union’s majority of 38 signers in that in the
first election the Union received 27 “yes” votes, five of the
signers ended their employment with the Respondent and a
sixth signer, Kilburn, was promoted out of the unit into super-
vision on September 8, 1998; that what occurred with Peggy
Heiden and Bomia in March 1999 could not have caused a loss
of support in August-September 1998; and that until May 1999
the Union had not raised the thought of Gissel bargaining order
relief and the only developments in 1999 are the discharge of
Bomia and the warning to Peggy Heiden, two discrete events
affecting only two employees in what had become a 118-person
unit, would not have such an impact as to render a free and fair
election impossible.
Contrary to the Respondent’s assertion on brief, Hatcher
asked Ikenaga to recognize the Union on July 30, 1998, during
the meeting he held for employees in the lunchroom. Also
contrary to the Respondent’s assertion on brief, the General
Counsel authenticated more than (not less than) one-half of the
38 signatures with testimony of either the person who signed or
a witness. More specifically, the General Counsel requests that
14 signatures be authenticated with exemplars. The Respon-
dent’s assertion on brief that the General Counsel “will pre-
sumably ask the ALJ to authenticate the signatures . . . on that
basis” is disingenuous at best. The Respondent’s counsel stipu-
lated that the exemplars for “handwriting examples from the
name[d] employees that were taken form the Company’s per-
sonnel files.” (Tr. 1074.) From a common sense standpoint it
should be noted that the Respondent could have called its own
handwriting expert if it believed that any of the relevant signa-
tures was other than what it purports to be. The Respondent did
not call a handwriting expert so one can reasonably conclude
that it was determined by the Respondent (perhaps after show-
ing the signatures to a handwriting expert) that the signatures
were authentic and no purpose would be served by calling its
own expert, other than to deprive the Respondent of an merit-
less argument it could later use. After comparing the exemplars
(admittedly authentic specimens) with the involved signatures
on the Union’s authorization petition introduced herein, it is my
opinion that the signatures of the following employees on the
Union’s authorization petition are authentic: David Courter,
Kevin Crego, Tina Domansky, Jill Edson, Charles Fetterman,
Bryan Kilburn, Chad Naugle, Janelle Ost, Yaseni Pilbean,
DIAMOND ELECTRIC MFG. CORP. 903
Douglas Russ, Brian Schwartz, Barbara Shier, Lois Shroyer,
and Todd Stoner. Traction Wholesale Center Co., 328 NLRB
1058 (1999). Those signatures, in addition to the 24 signatures
authenticated by credible testimony, gave the Union a majority
of 38 out of 71 employees going into the first election.
In Gissel, supra, the Supreme Court identified two types of
employer misconduct that may warrant the imposition of a
bargaining order. The second type, the so-called “category II”
cases, involve less than outrageous pervasive unfair labor prac-
tices as long as the practices have a tendency to undermine
majority strength and impede the election process. In fashion-
ing a remedy, the Supreme Court at 614 and 615 in Gissel,
supra, indicated that he Board could
properly take into consideration the extensiveness of an em-
ployer’s unfair labor practices in terms of their past effect on
election conditions and the likelihood of their recurrence in
the future. If the Board finds that the possibility of erasing the
effects of past practices and of ensuring a fair election (or a
fair rerun) by the use of traditional remedies, though present,
is slight, and that employee sentiment once expressed through
cards would, on balance, be better protected by a bargaining
order, then such an order should issue.
The unfair labor practices committed in this case include the
so-called “hallmark” violations such as discharge, suspension,
threats of job loss and plant closure, and the futility of a union
victory. Obviously, this would have a coercive effect on both
the employees involved and the employees who became aware
of these transgressions.
The Respondent’s argument that a majority of the supervi-
sors named in the complaint are no longer with the Respondent
must be viewed in the light of the fact that the supervisor who
(a) spearheaded the Respondent’s antiunion effort, (b) engaged
in numerous unfair labor practices, (c) tried to coerce a member
of the VOC to discuss the Union or face a charge of insubordi-
nation, (d) kept a female employee in an office against the em-
ployee’s will, and (e) assaulted a female employee, is not one
of the supervisors who is no longer with the Respondent.
The thing about the Respondent’s approach to employee re-
lations that should cause concern is that instead of reaching a
reasonable resolution to the Nevins-Peggy Heiden incident in
Bialy’s office, the Respondent, apparently with the advice of its
lawyer/consultant, gave its tacit approval to Nevins’ egregious
misconduct and further victimized the union supporting victim,
Peggy Heiden. And the so-called “investigation” of the
Nevins/Peggy Heiden incident was done over a period of time
by the Respondent with the help of a lawyer/consultant who
had to fully appreciate the ramifications on the upcoming Board
election. In other words, the April 1999 rerun election was the
second bite of the apple, and the Respondent did not care that it
was undermining the ability of its employees to have a fair
election. The Respondent unlawfully fired one employee and it
unlawfully victimized another employee. Indeed the Respon-
dent wanted to send a message to other employees. The assault
by a supervisor of a female employee was witnessed. That
incident and the aftermath will be remembered by employees
for years to come. Instead of defusing, the Respondent inten-
tionally stoked the situation with a purpose in mind. Would it
be reasonable to conclude from the Respondent’s past conduct
that it would care about sabotaging a third bite of the apple?
With an employer like the Respondent, there is no way to en-
sure a fair election. The only satisfactory approach is a bar-
gaining order.
With respect to employees’ Section 7 rights, the Supreme
Court in Gissel, supra at 612, 613, has already considered this
as follows:
In view of the Board’s power, they [the employer] conclude,
the bargaining order is an unnecessarily harsh remedy that
needlessly prejudices employees’ [Section] 7 rights solely for
the purpose of punishing or restraining an employer. Such an
argument ignores that a bargaining order is designed as much
to remedy past election damage 32 as it is to deter future mis-
conduct. If an employer has succeeded in undermining a un-
ion’s strength and destroying the laboratory conditions neces-
sary for a fair election, he may see no need to violate a cease-
and-desist order by further unlawful activity. The damage
will have been done, and perhaps the only fair way to effectu-
ate employee rights is to re-establish the conditions as they
existed before the employer’s unlawful campaign.33 There is,
after all, nothing permanent in a bargaining order, and if, after
the effects of the employer’s acts have worn off, the employ-
ees clearly desire to disavow the union, they can do so by fil-
ing a representation petition. For, as we pointed out long ago,
in finding that a bargaining order involved no “injustice to
employees who may wish to substitute for the particular union
some other . . . arrangement,” a bargaining relationship “once
rightfully established must be permitted to exist and function
for a reasonable period in which it can be given a fair chance
to succeed,” after which the “Board may, . . . upon a proper
showing, take stops in recognition of changed situations
which might make appropriate changed bargaining relation-
ships.”
__________
32 The employers argue that the Fourth Circuit correctly ob-
served that, “in the great majority of cases, a cease and desist or-
der with the posting of appropriate notices will eliminate any un-
due influences upon employees voting in the security of anonym-
ity.” NLRB v. Logan Packing Co., 386 F.2d at 570. It is for the
Board and not the courts, however, to make that determination,
based on its expert estimate as to the effects on the election proc-
ess of unfair labor practices of varying intensity. In fashioning its
remedies under the broad provisions of . . . Section 10(e) of the
Act (29 U.S.C. . . . [Sec.] 160(c)), the Board draws on a fund of
knowledge and expertise all its own, and its choice of remedy
must therefore e given special respect by reviewing courts. See
Fiberboard Paper Products Corp. v. NLRB, 379 U.S. 203 (1964).
“[I]t is usually better to minimize the opportunity for reviewing
courts to substitute their discretion for that of the agency.” Con-
solo v. FMC, 383 U.S. 607, 621 (1966).
33 It has been pointed out that employee rights are affected
whether or not a bargaining order is entered, for those who desire
representation may not be protected by an inadequate rerun elec-
tion, and those who oppose collective bargaining may be preju-
diced by a bargaining order if in fact the union would have lost an
election absent employer coercion. Any effect will be minimal at
best, however, for there “is every reason for the union to negotiate
a contract that will satisfy the majority, for the union will surely
realize that it must win the support of the employees in the face of
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD904
a hostile employer, in order to survive the threat of a decertifica-
tion election after a year has passed.” Bok, the Regulation of
Campaign Tactics in Representation Elections under the National
Labor Relations Act, 78 Harv. L. Rev. 38, 135 (1964).
Regarding turnover, as noted above, the supervisor who had
the greatest and far reaching unlawful impact remains. And
with respect to employee turnover, not only did the Respondent
not right a witnessed severe wrong by a supervisor to a union
activist but, with premeditation, it further victimized the union
activist victim. This was widely disseminated among employ-
ees and it will be discussed among employees for years to
come.
The Respondent has demonstrated twice now that it will not
hesitate to destroy the laboratory conditions necessary for a fair
election.
Perhaps someone might argue that notwithstanding the Re-
spondent’s past conduct, it should be given additional bites of
the apple. I believe that the Respondent has amply demon-
strated its intentions. In my opinion, a Gissel bargaining order
is an appropriate and necessary remedy in this case.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 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. By engaging in the following conduct Respondent com-
mitted unfair labor practices contrary to the provisions of Sec-
tion 8(a)(1) of the Act:
(a) By its agent, Sherry Nevins, at its Dundee facility, about
August 1, 1998, (1) coercively interrogated employees on two
occasions about their activities on behalf of and in support of
the Charging Party, and (2) threatened an employee on one
occasion with loss of employment if the employees chose to be
represented by a labor organization.
(b) About August 8, 1998, Nevins threatened employees
with unspecified reprisals if they chose to be represented by a
labor organization.
(c) About August 10, 1998, Nevins (1) coercively interro-
gated employees about their activities on behalf of and in sup-
port of the Charging Party, (2) created the impression among its
employees that their activities on behalf of and in support of the
Charging Party were under surveillance, by telling employees it
was watching them, and (3) orally promulgated a new work
rule prohibiting employees from congregating and leaving their
assigned departments.
(d) About September 4, 1998, Nevins (1) coercively interro-
gated employees about their activities on behalf of and in sup-
port of the Charging Party, and (2) orally promulgated an
overly broad work rule that prohibited employees from talking
to one another about the Charging Party during working hours.
(e) About August 1998, Respondent, by its agent, Mardi
Reid, at its Dundee facility, created the impression among its
employees that their activities on behalf of and in support of the
Charging Party were under surveillance by telling them they
were wandering in the plant, talking to unauthorized persons
and over staying their breaks.
(f) About September 1998, the Respondent, by its agent,
Jerry Folmer, at its Dundee facility, (a) coercively interrogated
employees on two occasions about their union activities on
behalf of and in support of the Charging Party, and (b) created
the impression among its employees that their activities on
behalf of and in support of the Charging Party were under sur-
veillance by telling them it had heard from a supervisor that
they were “salts.”
(g) About September 10, 1998, the Respondent, by its agent,
Don Lynch, at its Dundee facility, harassed its employees by
telling them that their coworkers had raised concerns about
their work performance, then later telling them that it would not
charge them with these offenses because of a lack of documen-
tation.
(h) By its agent, Tanya Brodie, at its Dundee facility on Sep-
tember 28, 1998, and in mid to late October 1998 coercively
interrogated an employee as to his/her support for and sympa-
thies on behalf of the Charging Party.
(i) Since August 3, 1998, the Respondent has maintained an
overly broad no-solicitation rule at its Dundee facility, which
provides:
We recognize that team members may have interests in events
and organizations outside the workplace. However, team
members may not solicit or distribute literature concerning
those activities during working time or in working areas.
4. By engaging in the following conduct Respondent com-
mitted unfair labor practices contrary to the provisions of Sec-
tion 8(a)(1) and (3) of the Act:
(a) About August 1998, the Respondent, by its agent, Joe
Bitz, at its Dundee facility, changed the breaktimes of em-
ployee Shannon Ruetz.
(b) About September 8, 1998, the Respondent by its agent,
Sherry Nevins counseled employee Peggy Heiden pursuant to
an overly broad rule that prohibited employees from talking to
one another about the Charging Party during working hours,
and memorialized this counseling in writing.
(c) About September 10, 1998, the Respondent, by its agent,
Don Lynch, transferred employee Janice Hatcher to a new de-
partment.
(d) About November 1998, and continuing to date, the Re-
spondent by its agents, had engaged in general harassment of its
employees Peggy Heiden and Janice Hatcher.
(e) About November 1998, and continuing to date, the Re-
spondent by its agent, Sherry Nevins, has harassed its employ-
ees Peggy Heiden and Janice Hatcher, by its discriminatory
enforcement of its rules with respect to dress codes and safety
glasses; assignment of work duties; monitoring of work, and
more rigorous work and conduct standards.
(f) About November 5, 1998, the Respondent, by its agent
J. W. Herrmann, issued a written reprimand and final warning
to employee Janice Hatcher.
(g) About March 17, 1999, the Respondent, by its agent,
Paul Lefief, suspended and issued a written final warning to
employee Peggy Heiden.
(h) About March 18, 1999, the Respondent by its agent,
Gene Bialy, discharged its employee Robert Bomia.
DIAMOND ELECTRIC MFG. CORP. 905
(i) By taking the actions described above in paragraphs 4(a)
through (h) because employees engaged in activities on behalf
of and in support of the Charging Party and to discourage em-
ployees from engaging in this and other concerted activities.
5. In view of the fact that it is not possible to have a fair elec-
tion, it is appropriate and necessary to order the Respondent to
bargain with the Union as of August 14, 1998, when the Union
attained a majority and had requested the Respondent to recog-
nize it
6. Respondent has not violated the Act in any other manner.
THE REMEDY
Having found that the Respondent has engaged in a number
of unfair labor practices, I shall recommend that the Respon-
dent be ordered to cease and desist from committing these un-
fair labor practices and take certain affirmative actions de-
signed to effectuate the policies of the Act.
The Respondent having discriminatorily discharged Robert
Bomia, it must offer him reinstatement and make him whole for
any loss of earnings and other benefits, computed on a quarterly
basis from date of discharge to date of proper offer of rein-
statement, less any net interim earnings, as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987).
The Respondent will be required to expunge from its records
the September 8, 1998 writeup to Peggy Heiden, the November
9, 1998 written reprimand to Janice Hatcher, the March 23,
1999 final warning to Peggy Heiden, and any reference to the
unlawful discharge of Robert Bomia.
I shall be recommend that Respondent recognize and bargain
with the Union, on request, and embody any understanding
reached into a signed agreement.
In view of the degree and pervasiveness of the unfair labor
practices, a broad cease-and-desist order shall be recommended
precluding Respondent from “in any manner” interfering with,
coercing, or restraining employees in the exercise of their rights
guaranteed by Section 7 of the Act.
[Recommended Order omitted from publication.]