DynCorp

National Labor Relations Board - Board Decisions

Dec 16, 2004

343 N.L.R.B. 1197 (N.L.R.B. 2004)

DYNCORP
343 NLRB No. 124
1197
DynCorp and Grant Turner and American Postal
Workers Union, Local 164, AFL–CIO and Carl
D. Moore and Robert Honnerlaw. Cases 9–CA–
37324, 9–CA–37635, 9–CA–38049, 9–CA–37486,
9–CA–37744, 9–CA–38053, and 9–RC–17352
December 16, 2004
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND WALSH
On July 31, 2001, Administrative Law Judge Jerry M.
Hermele issued the attached decision.1 The Respondent,
the Charging Party Union, and the General Counsel filed
exceptions and supporting briefs, the Respondent filed a
brief answering the General Counsel’s and the Union’s
exceptions, and the Union filed a brief answering the
Respondent’s exceptions.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,2 and conclusions
only to the extent consistent with this Decision, Order,
and Direction of Second Election.
The judge addressed multiple unfair labor practice al-
legations in this case; he found merit in some and dis-
missed others.3 In addition, he overruled the objections
the Union had filed to the Board election conducted in
Case 9–RC–17352. Although the judge concluded that
the Respondent had committed several unfair labor prac-
tices during the critical period before the election, he
found these violations an insufficient basis for directing a
second election. Further, among the unfair labor practice
claims he dismissed were an allegation that the Respon-
dent’s plant manager unlawfully promised the employees

1 At fn. 1 of his decision, the judge observed that upon publication,
“changes may have been made by the Board’s Executive Secretary to
the original decision of the Presiding Judge.” It is the Board’s estab-
lished practice to correct any typographical or other formal errors be-
fore publication of a decision in the bound volumes of NLRB decisions.
2 The Respondent, the Union, and the General Counsel have ex-
cepted to some of the judge’s credibility findings. The Board’s estab-
lished policy is not to overrule an administrative law judge’s credibility
resolutions unless the clear preponderance of all the relevant evidence
convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have care-
fully examined the record and find no basis for reversing the findings.
3 No exceptions were filed to the judge’s dismissals of allegations
concerning (1) the restriction of movement in the plant; (2) the interro-
gation of employee Stacy Fields; (3) an interrogation by Supervisor
Chris Fair; (4) a threat to reduce wages and benefits; (5) offers to trans-
fer employees to a more desirable shift; (6) a speech made within the
24 hours prior to the election; (7) the discipline of employee Grant
Turner; and (8) the suspension and discharge of employee Carl Moore.
benefits just before the election, and an allegation that
one of its supervisors unlawfully threatened that the Re-
spondent would terminate a fringe benefit if the Union
were voted in.
We adopt the judge’s decision except that, for reasons
described below, we find that the Respondent did make
an unlawful promise and threat, and we direct a second
election.4
Background
The Respondent has a government contract for the re-
pair of United States Postal Service equipment at a facil-
ity near Cincinnati. Duncan Dawkins is the plant man-
ager of the facility, Dale Lawrence is the manager of the
second shift, and Wade Moore is one of the Respon-
dent’s supervisors. Union activity among the Respon-
dent’s employees began in October 1999. The Union
filed an election petition on January 24, 2000,5 and the
election was held on March 8. Of 226 eligible voters,
114 voted against the Union and 94 voted for it, with no
challenged ballots.
1. The unlawful promise of benefits allegation
On March 6, 2 days before the election, Plant Manager
Dawkins gave a final campaign speech to the assembled
employees, exhorting them to vote against the Union. In
one passage of the speech, read from a prepared text,
Dawkins stated:
Also ask yourself if you think that I now know
the issues. You have done a great job of identifying
areas that need to be changed. Example: Overtime,
workflow issues, seniority issues, supervisory prob-
lems, policy issues.
I am forbidden by law to tell you today that I am
going to make changes. But I can assure you that I
recognize that there are changes that need to be
made. It would be foolish for me not to address these
issues. In fact it would be quite probable that signifi-
cant changes would be made long before a contract
is ratified.
And don’t forget if a union is voted in you won’t
even have an opportunity to get rid of them for one,
two, three or four years AFTER ratification BEST
CASE. Would you really want to gamble your cur-
rent wage guarentees [sic] so that you can pay an or-
ganization for the right to work here?

4 In light of our finding of additional violations and our direction of a
new election, we find it unnecessary to pass on the judge’s discussion,
in the “Remedy” section of his decision, or on the dissent’s discussion,
of the Respondent’s discriminatory no-posting rule and unlawful inter-
rogations as alleged grounds for setting aside the first election.
5 All dates hereafter are in 2000.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1198
The judge dismissed the complaint allegation that this
passage unlawfully implied a promise that the Respon-
dent would favorably resolve the workplace issues
Dawkins had identified if the employees would vote
against the Union. The judge concluded that these issues,
as stated, lacked specificity, and that the General Counsel
had failed to prove that any of these matters were actu-
ally problems at the plant.
An employer’s promise of benefits during a preelec-
tion campaign violates Section 8(a)(1). See, e.g., Bakers-
field Memorial Hospital, 315 NLRB 596, 600 (1994).
Such promises made in the course of urging employees
to reject unionization are unlawful because they link im-
proved conditions to defeat of the union. See Reliance
Electric Co., 191 NLRB 44, 46 (1971), enfd. 457 F.2d
503 (6th Cir. 1973). The use of “cautious language or
even a refusal to commit . . . to specific corrective action,
does not cancel the employees’ anticipation of improved
conditions if the employees oppose or vote against the
unions.” Id. See also Superior Emerald Park Landfill,
LLC, 340 NLRB 449, 460 (2003). (“[T]he fact that an
employer couches the promises of benefits in language
that does not guarantee anything specific does not re-
move the taint of illegality.”) Likewise, it is not neces-
sary, in order to find a promise of benefits to be unlaw-
ful, that employee grievances or complaints be identified
precisely.6
In dismissing this allegation, the judge required the
General Counsel to prove that the employees had “prob-
lems” with the conditions of employment in the areas
Dawkins referred to in his speech. This was error. It is
well established that an employer’s promise or grant of
benefits during an organizing campaign is presumed to

6 See, e.g., A. O. Smith Automotive Products Co., 315 NLRB 994,
1007 (1994) (employer unlawfully promised benefits when, among
other things, it stated that some problems had come to its attention
during the union campaign, including the problem of overtime schedul-
ing, and that it would try to do something, but couldn’t do anything at
that time); Columbus Mills, 303 NLRB 223, 230 (1991) (employer
unlawfully promised benefits when it stated that if employees turned
against the union, they would get the things they wanted and the bene-
fits they were seeking); M. K. Morse Co., 302 NLRB 924, 930–931
(1991) (unlawful promise of benefits found where the respondent stated
that if the company president were given another chance, he would
solve the problems of workers’ wages and incentives and would better
their working conditions, and that he would be a fool not to address the
problems in the shop).
The cases the judge relied on are not to the contrary. In Bakersfield
Memorial Hospital, supra at 600–601, the judge, adopted by the Board,
stated that the employer’s communication to employees of a specific
benefit to be enhanced was an “indicia”—not a requirement—of an
unlawful promise of benefit. In Pennsy Supply, 295 NLRB 324, 325
(1989), the Board simply stated in passing that the respondent’s unlaw-
ful promises concerning a health plan and a pension plan “were not
general and vague.”
influence employees to relinquish their support for the
union, and a violation is made out unless the employer
establishes a legitimate reason for the timing of its an-
nouncement. See, e.g., Niblock Excavating, Inc., 337
NLRB 53, 53–54 (2001), enfd. 59 Fed.Appx. 882 (7th
Cir. 2003). There is no requirement that the promise or
grant of benefits involve matters with which the employ-
ees had “problems.” In any event, the Respondent prom-
ised improvements in conditions of employment with
which Dawkins acknowledged the employees had con-
cerns and wanted changes, including “overtime, work-
flow issues, seniority issues, supervisory problems, pol-
icy issues.” Dawkins then implied that he would make
changes in those areas when he stated: “I can assure you
that I recognize that there are changes that need to be
made. It would be foolish for me not to address these
issues.” Finally, he linked this promise to defeat of the
Union when he said: “In fact it would be quite probable
that significant changes would be made long before a
contract is ratified.” The Respondent offered no evidence
of any legitimate reason for making this promise 2 days
before the election. The coercive impact of the Respon-
dent’s promise is most certainly strengthened by the fact
that the Respondent promised changes in those areas the
employees had identified. Without a doubt, the employ-
ees would be particularly appreciative of improvements
in those areas. However, the General Counsel was not
required to prove that the employees perceived these as
problem areas at the plant.
Finally, Dawkins’ claim that he was “forbidden by
law” from making changes does not immunize his state-
ment if—as happened here—he implied a promise of
changes anyway. See, e.g., Heartland of Lansing Nursing
Home, 307 NLRB 152, 156 (1992); Pennsy Supply, su-
pra, 295 NLRB at 325; Raley’s, Inc., 236 NLRB 971,
972 (1978), enfd. mem. 608 F.2d 1374 (9th Cir. 1979),
cert. denied 449 U.S. 871 (1980). Because Dawkins
identified several workplace issues that employees were
concerned about, stated that it was “quite probable that
significant changes would be made,” and made it clear
that these changes would occur much more readily if the
employees voted against the Union, a reasonable em-
ployee would understand the unlawful message. Accord-
ingly, we find that the Respondent violated Section
8(a)(1).
2. The ESOP threat allegation
The judge found that on February 15 Supervisor
Moore stated that if the Union were elected the employ-
ees would immediately lose the Respondent’s 30-cent-
an-hour contribution to the Employee Stock Ownership
Plan (ESOP). He based his finding on the transcript of an
audiotape recording and employee Grant Turner’s testi-
DYNCORP 1199
mony. However, the judge dismissed the allegation that
Moore’s statement was an unlawful threat, reasoning that
it was not proven that employees other than Turner were
present and that it appeared from the tape transcript that
Turner had misled Moore into making an erroneous
statement about the Respondent’s lawful campaign posi-
tion concerning the ESOP. On review of the record, the
tape transcript in particular, we disagree with the judge
on both points.
The Respondent’s official—and lawful—campaign
position was that the ESOP, like other terms and condi-
tions of employment, would be subject to negotiation if
the employees elected the Union. But Moore offered an
explanation of the Respondent’s position to a group of
employees that was significantly different—and unlaw-
ful.
Employee Turner testified that he recorded one of the
Respondent’s campaign meetings that Moore conducted
for employees. It is reasonable to infer that more em-
ployees than Turner were present at the meeting. Indeed,
at the end of the transcript, Moore said, “[W]e’re gonna
go around the room, I want to hear from everybody I
want to get everybody’s input not just one person.”
Further, the transcript itself establishes—even apart
from Turner’s testimony—that Moore said that if the
Union won the election, “30 cents [the Respondent’s
hourly contribution to the ESOP] you’ll automatically
lose because you would not be allowed to participate in
the Employee Stock Purchase Plan.” There is no evi-
dence that Moore was misled or otherwise prompted by
Turner into making this statement; the transcript instead
indicates that he volunteered it. Further, Moore subse-
quently repeated twice that employees “would automati-
cally lose” the ESOP contribution.
An employer’s preelection statement to employees
that, should they choose union representation, they will
automatically lose a fringe benefit, such as a profit-
sharing program or an ESOP, violates Section 8(a)(1),
Federated Logistics & Operations, 340 NLRB 255, 268
(2003) (employer violated Sec. 8(a)(1) by threatening
that, if the union were selected, employees could lose
their 401(k) plan), and interferes with a fair election,
Hertz Corp., 316 NLRB 672 fn. 2 695 (1995) (employer
interfered with election by creating impression that em-
ployees would lose their 401(k) plan immediately on
choosing union representation). In light of the record, we
find that the judge’s dismissal of the relevant complaint
allegation was erroneous, and that Moore made an
unlawful threat concerning the Respondent’s ESOP con-
tribution to an undetermined number of employees.7
3. Other unfair labor practices
Our dissenting colleague would find that the Respon-
dent did not engage in an unlawful interrogation when
Dale Lawrence, the second-shift manager, offered em-
ployee John Groves an antiunion button. The Chairman’s
position is at odds with well-established Board precedent
that:
When supervisors approach individual employees and
solicit them to wear antiunion or proemployer para-
phernalia, the employees are forced to make an observ-
able choice that demonstrates their support for or rejec-
tion of the union.
Barton Nelson, Inc., 318 NLRB 712 (1995) (footnote cita-
tions omitted); see also, e.g., Circuit City Stores, 324 NLRB
147 (1997), and cases cited there.
As more fully detailed by the judge, about a week be-
fore the election, Lawrence, a mid-level supervisor, ap-
proached Groves, whose union sympathies were un-
known, and offered him a “Vote No” button. Groves
took the button in full view of Lawrence, thus, making an
“observable choice.” This is precisely the kind of coer-
cive circumstance that the Board law condemns. Law-
rence’s comment that he did not think Groves would take
the button merely confirmed the Respondent’s observa-
tion of Groves’ coerced choice. Moreover, this was one
of several similar incidents during the organizing cam-
paign where the Respondent unlawfully sought to ascer-
tain the union sympathies of employees by reference to
both prounion and antiunion buttons.
Unlike our dissenting colleague, we do not minimize
this incident as being merely “of a casual, playful na-
ture.” McDonald’s, 214 NLRB 879, 882–883 (1974),
where a supervisor pinned a “Vote No” button on an em-
ployee’s shirt and left without observing the employee’s
reaction, is distinguishable; that employee was not forced
to choose whether to accept the button presented by his
supervisor.
We also disagree with the dissent with respect to the
Respondent’s unlawful threat to create more onerous
working conditions for employee Phillip Henderson. As
the judge explained in detail, during the critical period
Lawrence unlawfully interrogated Henderson about his
union support. On finding out the extent of his union
activities, Lawrence expressed his disappointment to
Henderson. The very next day, Lawrence, through Su-

7 Even if Moore made this threat only to Turner, a violation would
still be established because Turner was a statutory employee. Thus, the
judge erred on this ground as well.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1200
pervisor Wade Moore, rejected Henderson’s request for
assistance on the work floor, even though similar re-
quests had routinely been previously granted to Hender-
son. Despite Lawrence’s decision, Moore subsequently
granted Henderson’s assistance request. The judge found
that the timing of the initial denial of assistance revealed
a relationship with Lawrence’s unlawful interrogation the
day before, and the denial was, therefore, an unlawful
threat. We agree.
4. The election
There are clear grounds here for setting aside the elec-
tion, contrary to the judge. They include the unfair labor
practices found by the judge, as well as those the judge
should have found.
The judge found that the Respondent committed sev-
eral unfair labor practices during the critical period be-
fore the election. Shift Manager Lawrence unlawfully
interrogated employee Phillip Henderson and then, with
Supervisor Moore, unlawfully threatened him with more
onerous working conditions. Lawrence also unlawfully
interrogated employee Harold Godbey and, in a separate
incident, unlawfully interrogated employee John Groves.
About a week before the election, Supervisor Tim Wolfe
unlawfully interrogated employee Linda Reynolds and,
according to Reynolds’ credited testimony, “quite a few”
other employees witnessed this unfair labor practice.8
These unfair labor practices are coextensive with the
Union’s second objection to the election.
In addition, we have found that Moore unlawfully
threatened employees with the loss of their ESOP bene-
fit. This unfair labor practice is coextensive with the Un-
ion’s fourth objection.
Finally, we also have found that Plant Manager
Dawkins unlawfully promised employees benefits if they
would vote against the Union. This incident is unrelated
to any of the Union’s objections. However, it was uncov-
ered during the Region’s investigation of the Respon-
dent’s alleged unfair labor practices, and it occurred
within the critical period. Accordingly, it may be consid-
ered as conduct interfering with the election. See, e.g.,
White Plains Lincoln Mercury, 288 NLRB 1133, 1136–
1139 (1988).
The Respondent’s unlawful actions may well have af-
fected the outcome of the election. Dawkins’ promise of
benefits was made 2 days before the election, and to
most, if not all, of the employees eligible to vote. There-
fore, this objectionable conduct alone is sufficient to set
aside the election. See, e.g., Yale Industries, 324 NLRB
848, 849 (1997); Toys-R-Us, Inc., 300 NLRB 188, 190

8 The judge failed to observe that other employees were present at
the time.
(1990). However, the Respondent also committed six
other unfair labor practices during the critical period, all
of them contributing to a pattern of interference with
employee Section 7 rights and coercion of employees
while their choice concerning the Union was pending.
Taking account of all of these incidents of misconduct,
we will set aside the results of the March 8 election, and
remand the representation case to the Regional Director
for the conduct of a new election.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, DynCorp, West Chester, Ohio, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Prohibiting employees from posting union litera-
ture on its bulletin boards or threatening employees for
posting such literature.
(b) Interrogating or soliciting employees about their
union activities, membership, or sympathies.
(c) Threatening employees with more onerous working
conditions because of their union support.
(d) Threatening employees with the loss of their em-
ployee stock option (ESOP) benefits if they choose union
representation.
(e) Promising to make improvements in employment
conditions if employees vote against union representa-
tion.
(f) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Remove the “For DynCorp business use only” sign
from the Company’s bulletin boards and rescind the rule
prohibiting the posting of union literature on company
bulletin boards.
(b) Within 14 days after service by the Region, post at
its West Chester, Ohio facility copies of the attached
notice marked “Appendix.”9 Copies of the notice, on
forms provided by the Regional Director for Region 9,
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

9 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.”
DYNCORP 1201
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since December, 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.
IT IS FURTHER ORDERED that the election held on
March 8, 2000, in Case 9–RC–17352 be set aside, and
that this case be severed and remanded to the Regional
Director to conduct a new election when he deems it ap-
propriate.
[Direction of Second Election omitted from publica-
tion.]
CHAIRMAN BATTISTA, dissenting in part.
Contrary to my colleagues, I would dismiss the allega-
tion that the Respondent unlawfully interrogated em-
ployee John Groves. I would also adopt the judge’s dis-
missal of allegations relating to the alleged promise of
benefits and the alleged threat to discontinue the Re-
spondent’s Employee Stock Ownership Plan (ESOP)
contribution if the Union prevailed in the election. How-
ever, as to the last point, I would do so for reasons differ-
ent from those stated by the judge. I do not agree that
Supervisor Dale Lawrence made an unlawful threat as to
Phillip Henderson. I agree with my colleagues with re-
gard to the remaining violations, but would find them
insufficient to warrant a second election. I, therefore,
would direct the Regional Director to issue the appropri-
ate certification.
1. Contrary to the judge and my colleagues, I disagree
that, by offering employee Groves a “Vote No” button,
Supervisor Lawrence forced Groves to “make a declara-
tion of his support, regardless of the truthfulness
thereof.”
The Board has held that an employer’s distribution of
antiunion material is not unlawful, absent some form of
coercion or pressure on the employee to receive it.
McDonald’s, 214 NLRB 879 (1974). Here, there is no
evidence that Groves was pressured into taking an anti-
union button, wearing the button, or declaring his support
for or against the Union. Nor do I agree that Lawrence’s
statement to Groves, after the latter accepted the button,
that “I didn’t think that you were going to take it,” rea-
sonably would tend to coerce Groves. Indeed, such a
statement would support the view that Groves was free to
refuse the button. Viewed in its totality, I find that the
exchange was of a casual, playful nature, rather than co-
ercive. Accordingly, I would adopt the judge’s findings
and dismiss this allegation and concomitant election ob-
jection. McDonalds, supra at 883–884.
I do not agree with my colleagues that the statement in
Barton Nelson, Inc., 318 NLRB 712 (1995), represents a
per se rule. The Board, in response to judicial criticism,
has rejected a per se approach to issues involving alleged
interrogation.1 The Board looks to all of the surrounding
circumstances. In addition, the per se rule proffered by
my colleagues would mean that an employer could not
individually distribute any materials opposing a union
campaign. There would obviously be some tension be-
tween such a rule and Section 8(c). For these reasons, I
believe that the question is whether the distribution here,
reasonably perceived, was coercive in the circumstances.
For the reasons indicated above, I conclude that the evi-
dence does not establish such coercion.2
2. I further disagree with my colleagues that Plant
Manager Duncan Dawkins unlawfully promised employ-
ees benefits if they voted against the Union. During a
speech prior to the election, Dawkins stated that the
campaign had made him aware of employees’ concerns.
He also stated that he was forbidden by law to make
promises. The majority asserts that a reasonable em-
ployee would interpret Dawkins’ speech as a promise to
change conditions in their favor if they voted against the
Union. My colleagues also argue that Dawkins’ state-
ment (that he is forbidden by law to make promises) did
not neutralize the assertedly coercive nature of that
promise.
I do not agree that employees reasonably would have
interpreted Dawkins’ speech as promising benefits if
they voted against the Union. Rather, I find that
Dawkins’ statements assured employees that Dawkins
would address their concerns without regard to whether
the Union won or lost the election.
Dawkins clearly stated that law forbade him from
promising changes but that he would be “foolish not to
address those issues.” In addition, there is nothing in
Dawkins’ speech that conditions improvements in the
employees’ working conditions on voting against the
Union.
My colleagues seize upon the Dawkins’ statement that
it would be quite probable that significant changes would

1 Rossmore House, 269 NLRB 1126 (1984).
2 My colleagues say that “Lawrence’s comment that he did not think
Groves would take the button merely confirmed the Respondent’s
observation of Groves’ coerced choice.” However, that statement puts
the proverbial rabbit in the hat. The issue is whether there was coer-
cion.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1202
be made long before a contract is ratified. It is a classic
nonsequitur to infer from that statement the notion that
changes would not be made if there were no contract to
be ratified, i.e., if there were no union. Indeed, Dawkins
stated that he recognized the need for changes. There is
nothing to suggest that his recognition of the need was
dependent upon the election results. To the contrary,
both logic and language suggest that the need existed
independent of the election results.
Based on all of the above, I would adopt the judge’s
dismissal of this allegation.
3. The majority next finds, contrary to the judge, that
the Respondent unlawfully threatened to suspend its
ESOP contribution if the Union won the election. My
colleagues find that Wade Moore’s statement (that em-
ployees would lose the Respondent’s 30-cent-per-hour
contribution toward the ESOP if the Union won the elec-
tion) is an unlawful threat of reprisal if the Union pre-
vailed. Based on the record testimony, I disagree. Al-
though I reject the judge’s speculation that prounion em-
ployee Grant Turner “cunningly led Wade [Moore] off
message,” I agree with the judge’s finding that Moore’s
comments were “rambling and somewhat incoherent.”
Given the muddled nature of Moore’s comments, it is
necessary to examine the entire context in which they
were made, rather than focus on an isolated comment.
Taken as a whole, Moore’s statements reasonably convey
the lawful message to employees that, if they vote for the
Union, all benefits will become subject to future negotia-
tion with the Union. Given this context, a reasonable
employee likely would view Moore’s statements—not as
a threat of loss of benefits if the Union won the elec-
tion—but, rather, an explanation that the ESOP contribu-
tion would be subject to negotiation with the Union. On
this basis, I would adopt the judge’s dismissal of this
allegation.
4. I do not adopt the judge’s further findings that the
Respondent violated Section 8(a)(1) when Supervisor
Moore told employee Phillip Henderson that Moore had
been instructed by another supervisor, Lawrence, not to
provide any further assistance to Henderson until Hen-
derson met his production quotas.
My colleagues suggest that the denial of assistance
was motivated by protected activity. However, the de-
nial of assistance is not the alleged violation. The al-
leged violation is the statement made to Henderson by
Moore. In my view, the statement was not unlawful.
Moore did not refer to Henderson’s union activities and
no such linkage reasonably can be inferred from the con-
tent of Moore’s remarks. Rather, the remark was ex-
pressly linked to Henderson’s production problems.
My colleagues rely on the timing of the incident, i.e.,
directly after Lawrence learned of Henderson’s union
activity. However, that would prove, at most, that Law-
rence’s denial of assistance was unlawful. As noted, that
is not even alleged as unlawful. Further, given the con-
tent of Moore’s comments, Henderson’s ongoing produc-
tion problems, and the fact that Moore ultimately re-
versed his decision to provide Henderson with assistance,
I would find no unlawful threat. I would, therefore, re-
verse the judge’s findings on this issue.
5. Finally, while I agree that the Respondent violated
the Act by its promulgation of a discriminatory no-
posting rule and by interrogating employees Henderson,
Harold Godbey, and Linda Reynolds, I do not find that
these violations are sufficient to warrant setting aside the
election and ordering a second election. The Board has
stated that 8(a)(1) conduct that occurs during the critical
period will also warrant a new election, except where the
conduct is so minimal or isolated that “it is virtually im-
possible to conclude that the misconduct could have af-
fected the election results.” Clark Equipment Co., 278
NLRB 498, 505 (1986).
Although I question the narrowness of the exception, I
accept it here, for no party seeks to broaden it. I find that
the instant violations would not constitute objectionable
conduct even under the “virtually impossible” standard.
With regard to the interrogations, the Board has previ-
ously found that isolated instances of interrogations or
threats, which were not disseminated to the other unit
employees, could not reasonably affect the results of an
election. Bon Appetit Management Co., 334 NLRB 1042
(2001). In the instant case, the interrogations affected
only three employees (Henderson, Godbey, and Rey-
nolds). There is no evidence that news of these interroga-
tions was disseminated to other unit employees. The Un-
ion lost by 21 votes.
In a similar vein, I would not find that the Respon-
dent’s “no posting” rule was objectionable. The Board
has found that unlawful rules may not be objectionable
where they have not been enforced or have not prevented
employees from discussing the terms and conditions of
their employment with a union or other employees.
Safeway, Inc., 338 NLRB 525 (2002). Here, the Re-
spondent’s rule was directed to all nonbusiness posting,
not just union-related postings. Further, there is no evi-
dence that the prohibition on posting on the bulletin
board actually prevented employees from receiving in-
formation from the Union or from each other about union
events. Furthermore, there is no showing that the Re-
spondent disciplined any employee in connection with
this rule. It is speculative to say that any employee was
deterred from posting. No employee so testified. In any
DYNCORP 1203
event, there were many other means of communication.
Finally, the rule was promulgated months before the
election, outside the critical period. For these reasons, I
would not find the rule to be objectionable.
Accordingly, I would direct the Regional Director to
issue the appropriate certification.
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 prohibit employees from posting union
literature on our bulletin boards or threaten employees
for posting such literature.
WE WILL NOT interrogate or solicit employees about
their union activities, membership, or sympathies.
WE WILL NOT threaten employees with more onerous
working conditions because of their union support.
WE WILL NOT threaten employees with the loss of their
employee stock option (ESOP) benefits if they choose
union representation.
WE WILL NOT promise to make improvements in em-
ployment conditions if employees vote against union
representation.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WILL remove the “For DynCorp business use only”
sign from our bulletin boards and WE WILL rescind the
rule prohibiting the posting of union literature on our
bulletin boards.
DYNCORP
Patricia Rossner Fry, Esq., for the General Counsel.
Alice J. Neeley and Michael W. Hawkins, Esqs. (Dinsmore &
Shohl LLP), of Cincinnati, Ohio, for the Respondent.
Peter J. Leff, Esq. (O’Donnell, Schwartz & Anderson, P.C.), of
Washington, D.C., for the Union.
DECISION1
STATEMENT OF THE CASE
JERRY M. HERMELE, Administrative Law Judge. On March
8, 2000, the employees of the Respondent (DynCorp) voted 114
to 94 against being represented by the American Postal Work-
ers Union, Local 164, AFL–CIO (the Union). Thereafter, in
complaints issued on May 1, June 6, and August 14, 2000, and
January 4, 2001, the General Counsel alleges that the Respon-
dent committed numerous violations of Section 8(a)(1), (3), and
(4) of the National Labor Relations Act (the Act), before and
after the election. As for the election itself, the Union filed
objections thereto, which were consolidated into the instant
complaints. In various answers filed in 2000 and 2001, the
Respondent has consistently denied any wrongdoing.
So a trial was held on March 12–15, 2001, in Cincinnati,
Ohio, during which the General Counsel presented 19 wit-
nesses, the Union presented one witness and the Respondent
presented 13 witnesses. Briefs were then filed by the General
Counsel on April 17, the Respondent on April 19, and the Un-
ion on April 20.
FINDINGS OF FACT
DynCorp, based in Reston, Virginia, is a diversified govern-
ment contractor with six sites in the nation devoted to the
United States Postal Service (USPS). At these sites, one of
which is in West Chester, Ohio, just north of Cincinnati, USPS
equipment such as mailbags, containers, and transport equip-
ment is inspected and repaired. DynCorp began building the
West Chester facility in October 1998 and employees were
hired beginning in April 1999, with production starting in May
1999. Annually, the Company performs services at the West
Chester facility exceeding $50,000 for its sole customer, the
USPS (GC Exhs. 1(uu), (ww); Tr. 18–20, 42–43, 50). At the
plant’s peak operation in early 2000, there were three shifts
operating 7 days a week with 300 or so employees. By early
2001, however, operations decreased to two shifts, 5 days a
week, with about 200 employees (Tr. 33–35, 47–48).
Duncan Dawkins has been the West Chester plant manager
since the opening thereof (Tr. 18). At the outset, employees
were given a handbook setting forth the Company’s employ-
ment policies, including the following:
DISCIPLINARY WARNINGS
Whenever an employee’s breach of work rules, mis-
conduct, poor performance or other unacceptable conduct
comes to the attention of DYNCORP, the employee may
receive a disciplinary warning. Such a warning is in-
tended to make the employee aware of the seriousness of
the problem and the need for immediate corrective action.
All warnings will be delivered privately in both oral
and written form. The employee will be asked to sign the
written warning and will be given a copy if requested. In
addition, a copy of the written warning will be placed in
the employee’s personnel file.

1 Upon any publication of this decision by the National Labor Rela-
tions Board (the Board), changes may have been made by the Board’s
Executive Secretary to the original decision of the presiding judge.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1204
DYNCORP reserves the right to take other disciplinary
action deemed appropriate under the circumstances, in-
cluding demotion, suspension or termination of employ-
ment in lieu of a warning.
If an employee believes a warning is not justified, the
employee is entitled and encouraged to freely discuss the
situation with his or her supervisor. If the matter cannot
be resolved through such discussion, or if the employee
believes that such a discussion would be unproductive, the
employee may make a written report to the Plant Manager
or Human Resources Representative and request that the
Plant Manager or Human Resources Representative re-
view the warning and investigate all relevant circum-
stances.
The DYNCORP Cincinnati division’s disciplinary
policy is as follows:
(1) Oral Warning (written for documentation pur-
poses)
(2) Written Warning
(3) Final Written Warning with 3-day suspension
(4) Termination
(GC Exh. 2.) Employees hired after the plant’s opening, how-
ever, did not receive this handbook (Tr. 21–23). But DynCorp
also had written “Standards and Conditions of Employment,”
which provided “a list of conditions under which disciplinary
action toward, or discharge of, an employee may occur.” One
of those conditions was “fraud or dishonesty,” set forth as fol-
lows:
Misusing or abusing Company policy such as: excused ab-
sences, leaves of absence; falsifying time sheets; failing to
give complete information for personnel and/or security re-
cords; making false statements, either oral or written, about
the Company, other employees, supervisors, yourself, or work
situations.
(GC Exh. 4.) Employees Grant Turner and Robert Honnerlaw
received this information in 1999 (R. Exhs. 2, 22). The Com-
pany also issued, in December 1999, a memorandum regarding
disciplinary actions. Therein, three reasons were listed to war-
rant an employee’s discharge: continued unsatisfactory per-
formance, policy violation or gross misconduct. Also, exam-
ples of policy violations included “timecharging, harassment,
insubordination, theft, etc.” (GC Exh. 3.)
In October 1999, two employees in the container repair de-
partment, Grant Turner and Danny Hollon, began an effort to
organize the plant’s employees for the Union (Tr. 275–276,
325). To this end, in December 1999 Turner handed out, and
posted on one of the plant bulletin boards, located in the cafete-
ria, a “notice” seeking “a list of interested parties” for the Un-
ion. Turner signed the notice (GC Exh. 5; Tr. 203, 326). Em-
ployees had previously used the Company’s bulletin boards to
post personal messages such as items for sale and thank you
cards (GC Exh. 11; Tr. 202, 328–329). Though Dawkins main-
tained that supervisors told employees not to post items, no
employee was ever disciplined for posting anything on a bulle-
tin board. Dawkins learned of the union notice and asked
Turner if he posted it. Dawkins then told him that the bulletin
boards were for company use only and that he would be disci-
plined if he posted something like this again. And shortly after
this conversation, management put a sign on the bulletin boards
stating “For Dyncorp Business Use Only.” (Tr. 38–40, 202,
327–328, 331, 416–417.)
In early January 2000, employees began passing out proun-
ion buttons and distributing literature. (GC Exhs. 14–15; Tr.
290, 333–334.) On January 24, the Regional Director for Re-
gion 9 sent Dawkins a letter notifying him that a petition, seek-
ing an election pursuant to Section 9(c) of the Act, had been
filed that same day. (GC Exh. 1(k); R. Exh. 8.) On February 3,
the election was scheduled for March 8. (GC Exh. 1(k).)
Shortly thereafter, Dawkins contacted company headquarters in
Virginia, who sent someone to West Chester to train the super-
visors about the dos and don’ts regarding their interaction with
employees during a union election campaign (Tr. 797).
The nucleus of the prounion movement was the second-shift
employees in the container repair department (Tr. 41–42, 334–
335). These employees were separated by a wall from the
warehouse department employees. A walkway existed, with a
railing, on the south side of the wall visible to the warehouse
department. The processing employees, however, were located
on the same, or north, side of the wall as the container repair
employees. (R. Exh. 15.) Supervisor Wade Moore often told
employees to walk on the south side enroute to the cafeteria so
as not to impede production or cause safety problems in the
processing area, including before the union effort began (Tr.
556, 564–565, 613–614). In this regard, Supervisor Dale Law-
rence so instructed Moore in January 2000 when he noticed
employees on their way to the cafeteria impeding production by
talking to employees who were working (Tr. 677, 694–695).
Moreover, in a November 24, 1999 memorandum to all em-
ployees, Dawkins stated that “[a]ll . . . employees should enter
the West end of the building and proceed through the building
in the aisleway on the South side of the demising wall” on their
way into or out of the plant from the parking lot (R. Exh. 14;
Tr. 829). According to Turner, the day after the union buttons
appeared at work, container repair supervisor Wade Moore told
Turner to walk along the south side of the wall not visible to the
processing employees, on his way to the cafeteria. So, Turner
received a written “Memo for the Record.” (GC Exh. 18; Tr.
336, 569, 599.) This was the first time Moore issued such a
discipline, or needed to (Tr. 618–620). Employees Danny Hol-
lon, Williamson agreed that management changed the route to
the cafeteria after the union effort began. According to Wil-
liamson, this was done to prevent the prounion container repair
employees from talking to processing employees on the way to
the cafeteria (Tr. 206, 232–235, 276–277). Moreover, William-
son testified that after January 2000 the container repair em-
ployees were further isolated by having their breaktimes
changed, which used to coincide with the processing employees
(Tr. 233–234). But Supervisor Lawrence maintained that the
different departments always broke at different times (Tr. 697).
Further, Tracey Coulter, who became a supervisor in June
2000, testified that container repair and processing employees
had different breaktimes since at least October 1999 when she
started work (Tr. 461, 470, 494–497).
The election was scheduled for Wednesday, March 8, 2000.
(R. Exh. 25.) In the weeks before the vote, both the Union and
DYNCORP 1205
the Company passed out campaign literature (GC Exh. 9; Tr.
43). Company literature stated that:
The union cannot guarantee employees anything. All that a
union can do is sit down and negotiate with an employer.
Under federal law, DynCorp is not obligated to agree to any-
thing the union proposes. Although we would bargain in
good faith, your current wages, benefits and hours would be
negotiated along with everything else. You could wind up
with more, less, or the same with a union than you already
have.
(R. Exh. 24). According to Dawkins and Lawrence, they con-
sistently told employees this same message throughout the
campaign (Tr. 692–693, 864–865). Indeed, antiunion employee
Teresa Jacques agreed that management said this (Tr. 661–
664). And prounion employee Stacy Fields testified that Law-
rence and Moore said that if the Union was elected employees’
pay could drop and benefits, including the employee stock
ownership plan (ESOP), could be lost but that pay and benefits
could also go up or remain the same. In other words, every-
thing would be subject to negotiation. (Tr. l71, 185, 187.)
However, employee Chad Williamson remembered manage-
ment saying that jobs could be lost if the Union won (Tr. 232).
Employee Danny Hollon also testified that Dawkins, Moore
and Lawrence said, “[E]verything that we had right now would
be out the door, that everything would have to be negotiated
and [t]here was no guarantee that we would get anything back
that we had already.” (Tr. 283–286.) According to employee
Carl Moore, Dawkins said that the ESOP might be lost and that
pay could go down to minimum wage. (Tr. 432.) Further,
employee Johnna Stone testified that management assured em-
ployees that the USPS contract was good for another 2 years,
though it was added that other unions had put other companies
out of business. But she added that management said that em-
ployees would not lose benefits or salary. (Tr. 629–631.) Ac-
cording to employee Samantha Bishop, “a corporate guy” said
that if the Union came in, “we would lose our benefits,” and
“they could lose the contract through the post office” (Tr. 200–
203). Finally, according to employee Grant Turner, Supervisor
Wade Moore said on February 15 that employees would lose
the 30 cents an hour each had paid into the ESOP (GC Exh. 12;
Tr. 338–341).
In February and early March, the West Chester plant was
ablaze with prounion and “vote no” buttons worn by employees
(Tr. 96, 664). Some employees, though, wore no buttons, in-
cluding Linda Reynolds who declined Supervisor Tim Wolfe’s
offer to take a “vote no” button because she considered her
position private (Tr. 103–104). According to employee Stacy
Fields, who did wear a prounion button, Wolfe also asked, “dif-
ferent people,” how they would vote in the election and passed
out buttons to employees (Tr. 171–172). On one occasion,
Supervisor Dale Lawrence told Fields, “[Y]ou’re missing your
ornaments today.” According to Fields, Lawrence “just teased
me” (Tr. 171–172, 684–685). Also, Lawrence approached
employee John Groves with a “vote no” button in his hand one
day. Groves took the button, whereupon Lawrence said, “I
didn’t think you were gonna take it.” Groves then wore the
button that day, and that day only, so as not to offend Lawrence
(Tr. 95, 112–115, 691). Lawrence also asked employee Harold
Godbey one day during the campaign where Godbey’s “orna-
ments was.” Lawrence then explained that he meant union
buttons (Tr. 97). Also, employee Phillip Henderson was asked
by Lawrence, who was not his direct supervisor, where his
“metal [sic] of honors” were, and Lawrence later clarified that
to mean union buttons. Lawrence further asked Henderson if
he was on the union organizing committee and attended union
meetings. Henderson said yes. Then, Lawrence told Hender-
son he was disappointed in his union activity (Tr. 290–292).
One day later, Henderson asked Supervisor Wade Moore for
some help on the job, as he had on previous occasions. Moore
denied Henderson’s request for the first time, however, stating
that Henderson must meet his production quota first before
receiving assistance, and that Henderson would be disciplined
if he failed to meet his quota. But Moore relented the next day
and gave Henderson the requested help (Tr. 293–297, 584–
587). According to Lawrence, Wade first alerted him to prob-
lems with Henderson’s production, a few weeks before, where-
upon Lawrence instructed that Henderson’s future request for
help be denied (Tr. 686–688). Finally, Lawrence drove em-
ployee Todd Rossman to the hospital in early 2000. Rossman
had worn no buttons and Lawrence did not know his stance on
the Union. While passing the Backporch Restaurant and Bar,
Lawrence asked if that was where the union meeting was held
or remarked, “Oh, there’s the Back Porch Tavern. That’s
where they’re having union meetings.” Lawrence had previ-
ously seen a prounion flyer at the plant mentioning that as the
site of union meetings (Tr. 126–129, 679–682, 736–737).
The West Chester plant started operation in mid-1999 with
two shifts. Twelve employees who so desired were transferred
to first shift in June, July, September, and November 1999, plus
one employee in January 2000. (R. Exhs. 16–17; Tr. 833.)
Because of increased work, DynCorp created a third, overnight
shift at the West Chester plant on February 14, 2000. Third
shift offered fewer hours and no benefits. To fill those posi-
tions, volunteers from the first and second shifts were solicited.
Thus, some first-shift vacancies were created, which were gen-
erally considered more desirable assignments (R. Exh. 18; Tr.
79, 347, 838–839). Five employees were transferred to first
shift on February 28 (Tr. 81). Management then asked second-
shift employees Samantha Bishop, Grant Turner, and Carl
Moore, among others, just before the election if they wanted to
move to first shift (Tr. 208–212, 345–347, 432–433). And
three other employees were transferred to first shift on March
13, 1 week after the election, followed by eight more on March
27 (Tr. 81).
From February to early March, management held numerous
meetings with assembled employees regarding the upcoming
March 8 election. The last such meeting was held on either
Monday, March 6, or Tuesday, March 7, during which Dawkins
spoke from a prepared written text about “the upcoming union
election . . . on March 8.” Dawkins told the employees:
Also ask yourself if you think that I now know the is-
sues. You have done a great job of identifying areas that
need to be changed. Example: Overtime, workflow issues,
seniority issues, supervisory problems, policy issues.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1206
I am forbidden by law to tell you today that I am going
to make changes. But I can assure that I recognize that
there are changes that need to be made. It would be fool-
ish for me not to address these issues. In fact it would be
quite probable that significant changes would be made
long before a contract is ratified.
(GC Exh. 6.) Dawkins testified that he spoke on March 6 to the
assembled employees (Tr. 43, 46). Dawkins told the plant su-
pervisors that there could be no such speeches less than 24
hours before the election (Tr. 771). Supervisor Tracey Coulter
testified that the date of the final antiunion meeting was March
6 (Tr. 463), as did Second-Shift Supervisor Wade Moore,
whose responsibility it was to gather his staff for the meeting
(Tr. 556–560). Employee Johanna Stone also remembered
Dawkins’ final speech as being on March 6, and she was aware
of a rule prohibiting any such speeches less than 24 hours be-
fore the election (Tr. 623–624). Employees Kathleen Pope and
Teresa Jacques likewise placed Dawkin’s final speech on
March 6 (Tr. 652–654, 661–663). However, according to
openly prounion employees Donna Sams, Jennifer Vaught-
Riley, Danny Hollon, Grant Turner, and Carl Moore, Dawkins’
speech was on March 7. Indeed, Sams, Hollon, and Moore all
knew of the 24-hour rule. In fact, Sams was looking forward to
working on March 7 without having to listen to any more anti-
union speeches. Also, according to Turner, Dawkins said that
“tomorrow is a big day” during the speech (Tr. 159–161, 166–
168, 281–282, 344–345, 430–431). DynCorp time records
reveal that first-shift employees spent 16.63 total hours in meet-
ings on March 6 and that second-shift employees spent 29.67
hours in meetings that day. Grant Turner spent 0.51 hours at-
tending a meeting on March 6, from 2:59 to 3:20 p.m. As for
March 7, first-shift employees spent 11.83 total hours in meet-
ings, second-shift employees totaled 7.65 hours, and third shift
totaled 6.43 hours (GC Exh. 20; R. Exhs. 11–13). According to
Dawkins, the March 6 totals are way above the normal meeting
time associated with employees attending brief, routine meet-
ings, which are usually held before the start of a shift (Tr. 818–
823). Election Day was March 8 and the Union lost the vote,
94 to 114 (GC Exh. 1(k)).
Just after the election, on March 15, employee Grant Turner,
the leading union adherent, received a written discipline from
Supervisor Wade Moore for being out of his assigned work
area, in the container repair section, without safety glasses.
Turner was also cited for stopping productivity in this section
by talking to other employees (R. Exh. 4). Wade had warned
Turner orally in February for not wearing his safety glasses in
the container repair area (Tr. 345–350, 573–575, 599, 602).
The Company’s written policy required employees to wear
safety glasses at all times on the workroom floor (R. Exh. 5).
And four or five employees have been disciplined for violating
this policy, including two employees in November 2000 (GC
Exh. 28; Tr. 903). Another employee was disciplined for not
wearing safety boots in May 1999 (GC Exh. 28). Turner con-
ceded his failure to wear safety glasses but explained that he
was looking for eyeglass cleaner at the time (Tr. 350–352).
According to Moore, Turner refused to sign for receipt of the
discipline and then ripped up his copy. (Tr. 582.) Turner,
however, claimed that Moore ripped it up when Turner com-
plained that the election was over and lingering bitterness
should end. But Turner added that Moore reinstated the written
discipline, under orders from Lawrence, because Turner had
filed charges against DynCorp on January 18, 2000, with the
National Labor Relations Board alleging various violations of
Section 8(a)(1) of the Act during the early stages of the union
organizing campaign. (GC Exh. 1(a); Tr. 353–355.) Indeed,
Turner testified that he told Lawrence in January 2000 that he
had just filed charges against Lawrence and the Company. (Tr.
959.) Lawrence conceded that he decided to keep Turner’s
written discipline on file (Tr. 699–700). But he denied know-
ing about Turner’s January 2000 charges until after the March
8, 2000 election. (Tr. 710–713, 715–716.) And while Dawkins
maintained that he did not tell the supervisors that a charge had
been filed, he conceded that he told supervisors that he needed
to investigate certain allegations. (Tr. 843.)
On June 16, 2000, openly prounion employee Carl Moore
was working on number one mailbags when his supervisor,
Rhonda Bleska, told him to switch to orange plastic bags. It
was often easier for a supervisor to switch an employee to an-
other product than to search for additional, original product for
that employee to continue working on. (Tr. 746–747, 761.)
According to Moore, the number one bags were easier to do, he
still had more of them to process, and he had never worked on
orange plastic bags before. (Tr. 438–439, 446.) Because Moore
had no secondary product that day, and was running low on his
primary product, Supervisor Daniel Hobson also asked Moore
to switch to the orange plastic three times and Moore refused
three times, saying he would stay at his current post or go
home. (Tr. 746–748, 785.) Moore thought he was being
treated differently because employee Stacey Fields was asked
to switch jobs also that day and, when she balked, management
let her remain. (Tr. 441–443.) As for Fields, she asked Hobson
if she could finish up one skid of work and Hobson agreed,
whereupon Fields moved to the next job. (R. Exh. 7; 174–175,
786.) According to Fields, Moore still had some number one
bags to finish and said he did not want to move to a low volume
product. (Tr. 176–178.) With Moore still refusing to move,
Hobson went to Supervisor Lawrence, who suspended Moore
after talking with Dawkins. (Tr. 701–702, 785, 844.) Supervi-
sors Coulter and Lawrence acknowledged that employees pre-
fer to work on products they like best but added that employees
are moved to unfamiliar products only when they run out of
work. (Tr. 532, 725–727.) According to Dawkins, Moore’s
refusal to switch was unprecedented (Tr. 847, 911). So, he
suspended Moore pending approval of his termination by Dyn-
Corp headquarters. (R. Exh. 19; Tr. 445, 450, 844–845.)
Moore then filed a charge with the National Labor Relations
Board on June 19, and was set to testify in the scheduled June
28 trial in this case, which was then postponed on June 23 be-
cause of Moore’s additional charge. (GC Exhs. 1(q), (t), and
(v); Tr. 447.) Moore’s termination became final on June 22.
(GC Exh. 13.)
On October 17 and 19, 2000, Grant Turner received two let-
ters of reprimand for excessive absenteeism before October 9.
But Dawkins rescinded the disciplines on October 23 upon
DYNCORP 1207
reviewing Turner’s attendance records and determining that the
disciplines were issued in error (R. Exh. 23; Tr. 378–383).
Employee’s time and efficiency at the West Chester plant are
tracked via an electronic “on-site information system,” which is
activated by an employee swiping his identification badge into
a machine, and entering the proper labor code for the type of
job he will be doing. The system then records that type of job
along with where the employee is doing the job and how much
of it he is doing (Tr. 61–62, 134–135, 766). Also, employees
had to enter a separate work code for nonwork events such as
attending meetings (Tr. 465). Meeting time did not count
against employees’ efficiency (Tr. 560). Thus, after laboring in
to a preshift meeting, which was usually held for a few minutes,
employees would then labor in to their primary product for the
day (Tr. 193). But employees were not supposed to labor in to
“downtime” because all employees had a primary and secon-
dary product to work on at all times (Tr. 136, 477–478, 723).
All employees were instructed verbally on how to account for
their time via the electronic system (Tr. 539).
All employees were required to meet production quotas, i.e.,
daily and weekly 100-percent efficiency (Tr. 137–138, 255,
301–302). Employees were also encouraged to exceed the 100-
percent level and, to this end, the Company started the “120
Club.” If an employee reached 120- or 140-percent efficiency,
he received a restaurant gift certificate (Tr. 119–120). Man-
agement would put employees’ efficiencies on the bulletin
board (Tr. 305, 359). To keep track of efficiencies, employees
would fill out a placard with their identification number thereon
to claim credit for the percentage of work they performed on a
skid of product, and placed the placard on the skid (Tr. 139,
259). Some employees would have lower efficiencies because
they were low on product (Tr. 306). So, they would, on their
own, but with a supervisor’s okay, find more product or ask
other employees to give up some of their product (Tr. 255–256,
512).
According to several employees, certain supervisors told
them to “buddy up” or help out their coemployees for the good
of the Company (Tr. 137, 164–166, 181, 399). Specifically,
Supervisor Tim Wolfe told employees Linda Reynolds and
Helen Guffey to help other employees if they had already met
their quotas for the day. So, for a few minutes at the end of her
shift, on a few occasions a week, Reynolds helped other em-
ployees and did not take credit for this limited work (Tr. 105–
106, 674). But Guffey never did so (Tr. 666–667). Wolfe
likewise told employee Everlina Ragland to help another em-
ployee meet his quota, but not to labor in to a new work code to
take credit for the work (Tr. 193–194). Wolfe also so in-
structed employee Mitzi Gunn (Tr. 300–303). Wolfe also told
employee Donna Sams to “be a team player” and she did so by
sharing her finished product if it was the same product as the
other employee was working on (Tr. 155–158). Similarly,
since May 1999 employee Debra Patterson sometimes received
help for about 30 minutes at the end of her shift and she
claimed the credit (Tr. 150–151). But employee Jennifer
Vaught-Riley sometimes claimed credit for the extra work she
performed and sometimes did not (Tr. 166). Further, employee
John Groves would simply bring product to another employee
towards the end of a shift, as opposed to working on the prod-
uct. (Tr. 118, 122.) And some supervisors would merely in-
struct employees who had finished their daily quota to do some
type of busy work such as “pull[ing] up pallets” (Tr. 141), to
“unload the belt” (Tr. 195), or “unload the line” (Tr. 246), with-
out switching labor codes. (Tr. 398–399.) Also, employees
working on product out of the same bin would usually claim
credit for 50 percent each, because that approximate split was
accurate over the long term. In this regard, supervisors would
not verify the claimed percentages. (Tr. 521–523, 641, 644–
645, 657, 665–666, 675, 703.) Supervisor Coulter conceded
that it was proper for employees to share product out of the
same bin or to give away work to another employee trained on
that product for a few minutes at the end of a shift. But she
denied knowing of any employee taking credit for work they
did not do in order to boost their efficiency. (Tr. 486–488.)
Finally, as a matter of practice, employees on Friday mornings
would claim credit for an entire skid which was partially fin-
ished by second-shift employees on Thursday evening, who
would not return until Sunday. Then, on Sunday, second-shift
employees would take full credit for partially finished skids left
on Friday afternoon. This practice of “stealing” was discontin-
ued by management in 1999. (Tr. 148–149, 413–415, 718.)
In the fall of 2000, employee Debra Patterson talked with
then-fellow employee Tracey Coulter about the possibility of
Robert Honnerlaw earning a 120-percent efficiency. Coulter
said Honnerlaw needed one more skid to meet this quota. So,
Patterson said she was already at 140 percent and would help
Honnerlaw, whereupon Coulter said “great.” Patterson then
finished up the skid for Honnerlaw and gave him the credit (Tr.
143–146). Coulter later informed Honnerlaw that he had
reached 120 percent, whereupon Patterson came over and said
“Surprise, I did a skid for you.” According to employee Mitzi
Gunn, Coulter heard this. But Coulter and Honnerlaw only
heard Patterson say “surprise.” Coulter said, “[I]t’s nice to
have friends.” (Tr. 308–309, 403–404, 491.) And Coulter
denied knowing that Honnerlaw received credit for product he
did not inspect. Rather, she maintained that she only suggested
that Patterson do a little less so that Honnerlaw would have
more product to reach the 120-percent level. (Tr. 489–490.)
From October 9 to November 1, 2000, Grant Turner’s over-
all work efficiency was 76 percent, ranging from 43 to 94 per-
cent. So, he received a written discipline on November 1 to
improve by November 8 or face further discipline including
termination. According to Turner, this low productivity was
caused by his difficulty in obtaining product to work on. But
Supervisor Coulter disagreed with Turner’s contention. Turner
then called Coulter a liar. (R. Exh. 6; GC Exh. 17; Tr. 362, 369,
480, 516–520, 769–770.) The next day, Turner prepared and
had distributed a newsletter alleging unfair labor practices by
management, detailing the progress of the trial in this case
which was postponed several times, and urging employees to
elect the Union. (GC Exh. 10; Tr. 453–455.) Dawkins denied
seeing the letter. (Tr. 885.) Employees Mitzi Gunn and Rob
Honnerlaw talked about helping Turner improve his efficiency,
and Honnerlaw told Turner. Turner asked Honnerlaw if this
was permitted and Honnerlaw said yes. Thereafter, Gunn,
Honnerlaw and Delores Johnson did some work and gave
Turner 25-percent credit on the affixed placards (GC Exh. 7;
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1208
Tr. 260–262, 310–312, 367, 406–409). Despite prodding from
Honnerlaw to help Turner, employee Kathleen Pope warned
Turner not to accept this work product (Tr. 649). With this
assistance, Turner’s efficiency jumped to 150 percent on No-
vember 2 and 113 percent on November 3. These numbers
caught Coulter’s eye because other records revealed that Turner
was performing work on new product he was untrained on. So
she talked about it with Dawkins (GC Exhs. 16–17; Tr. 475–
477, 545–546, 849).
On Friday, November 3, Dawkins first met with Mitzi Gunn,
whose name appeared along with Turner’s on one placard.
Gunn told Dawkins that she gave away some of her finished
product to Turner, in accordance with established practice con-
doned by the supervisors (Tr. 313–314). Johnson also con-
fessed to Dawkins (Tr. 266), as did Honnerlaw (Tr. 410). But
when Dawkins asked Turner whether other employees were
giving him finished product, Turner lied, claiming that he sim-
ply made an error in recording his work product. Turner ex-
plained that he wanted to protect his fellow employees (Tr.
371–373). Dawkins then called in his supervisors (Tr. 850).
He asked them all if they knew about the practice of sharing
work, without naming any names, and all of them—including
Coulter, Lawrence, and Stephen Mokrovich—responded no
(Tr. 484–485, 706–707, 767–768, 851–852). Dawkins ex-
plained that this was the first widespread, serious misconduct at
the plant (Tr. 77–78, 915–916). Indeed, this misconduct un-
dermined the Company’s production incentive policies (Tr.
852), and prevented the Company from determining the true
employee who worked on a product, which was required in-
formation if the product required reinspection (Tr. 530), or to
trace which employee screwed up (Tr. 72–73). Accordingly, he
fired Turner “some time later on” after questioning him, and
then fired Johnson, Gunn, and Honnerlaw on Tuesday, Novem-
ber 7. (Tr. 268, 316, 373–374, 418.) Thereafter, remaining
employees were told to stop sharing product. (Tr. 108–109.)
Turner repeated the false explanation he gave to Dawkins in his
affidavit to the National Labor Relations Board and to the Ohio
Bureau of Unemployment Services. Turner explained that “I
just panicked and I was on medication and I wasn’t truthful.”
(R. Exh. 1; Tr. 385–389.). Before November 2000, the Com-
pany had fired other employees for fraud. (Tr. 65.) In Novem-
ber 1999, employee Tyronne Gunn was fired for leaving early
and falsifying his time sheet. (GC Exh. 23.) In March 2000,
William Hautman was fired for falsifying production data into
the Company’s electronic system. (GC Exh. 26.) But in late
1999, Chad Williamson was only suspended for 3 days for
claiming credit for work he did not actually do, but blaming
someone else. (Tr. 227–230.) According to Lawrence and
Dawkins, however, it was not proven then that Williamson was
at fault or falsified any documents. (Tr. 588–590, 859–861.)
Lastly, in July 1999 Stan Williams scanned seven placards into
the electronic system but did not attach them to any stacks. The
placards were instead found on the floor. William only re-
ceived a written discipline. (GC Exh. 25.)
III. ANALYSIS
The General Counsel’s unfair labor practice allegations fall
into two broad categories: The 8(a)(1) violations perpetrated
during the spring 2000 campaign, and 8(a)(3) and (4) violations
occurring after the March 2000 election. The 8(a)(1) allega-
tions are as follows: (i) restricting employee access to the
Company’s bulletin boards; (ii) creating an impression of sur-
veillance; (iii) restricting employee movement in the plant; (iv)
interrogating employees regarding their union sympathies by
three supervisors and the threat of more onerous working con-
ditions against one of these employees; (v) promising and
threatening loss of benefits; and (vi) giving a campaign speech
within 24 hours of the election. The postelection 8(a)(3) allega-
tions concern the discipline of one employee and subsequent
discharges of five employees because of their union activity;
two of which discharges the General Counsel alleges also vio-
lated Section 8(a)(4) because these employees had previously
filed charges with the Board. The Union’s three following
objections to the election results parallel the complaint allega-
tions: (i) handing out of “Vote No” buttons by management; (ii)
promising better work hours to certain employees; and (iii)
threatening loss of benefits if a union was voted in (ESOP, pay
cuts).
A. The 8(a)(1) Violations
1. Prohibition against use of bulletin boards for
union material
In December 1999, employee Grant Turner posted a letter on
the Respondent’s bulletin board seeking “interested parties” for
the Union. Plant Manager Duncan Dawkins promptly removed
the literature because the material violated the Respondent’s
unwritten rule against nonwork and personal postings.
Dawkins also questioned Turner about the letter and warned
him not to post similar notices on the board, stating that the
bulletin board was for company use only. The General Counsel
contends the Respondent violated Section 8(a)(1) by disparately
banning union material from the Company’s bulletin boards.
The presiding judge agrees.
Generally, an employee or union does not have a right to use
an employer’s bulletin boards for union activity. However,
once the employer makes the bulletin boards available for non-
work-related use, whether expressly or by practice, it may not
discriminate against union material. See Honeywell, Inc., 262
NLRB 1402 (1982); Challenge Cook Bros. of Ohio, Inc., 153
NLRB 92 (1965), enfd. 374 F.2d 147 (6th Cir. 1967). What is
more, an employer may not avail itself of a longstanding policy
against posting, in order to preclude union-related material, if
the employer has failed to enforce or object to postings in the
past. See Vincent’s Steak House, 216 NLRB 647 (1975). In-
deed, if an employer does have a no-posting rule it is obligated
to enforce the rule and ensure there is sufficient staff to police
the bulletin boards. See Fairfax Hospital, 310 NLRB 299, 304
(1993) (citing Ramada Inn of Fremont, 221 NLRB 331 (1976)).
Here, before the union campaign began, the evidence clearly
reveals that the Respondent allowed employees to post personal
notices on the cafeteria bulletin board for weeks at a time such
as for-sale signs, announcements, and thank-you cards, not-
withstanding a supposed longstanding no-posting policy.
Moreover, management never disciplined any employee for
violating this policy since the plant opened in May 1999. That
suddenly changed, however, just after the initiation of the union
DYNCORP 1209
campaign in late 1999, when Dawkins, who should have known
better, placed a “For DynCorp Use Only” sign above the bulle-
tin board, removed all personal notices along with the union
material, and warned Turner not to do it again. Therefore, the
Respondent will be ordered to rescind the discriminatory no-
posting rule.
2. Unlawful impression of surveillance
In early 2000, Second-Shift Supervisor Dale Lawrence al-
legedly created an unlawful impression of surveillance when he
asked, or at least commented to, employee Todd Rossman
about the Union’s meetings at the Back Porch Restaurant. Ac-
cording to Lawrence, he said, “Oh, there’s the Back Porch Tav-
ern. That’s where they’re having Union meetings” when the
two passed the restaurant upon returning to the plant from a
hospital Lawrence had just driven Rossman to. Rossman testi-
fied that Lawrence gestured toward the restaurant and asked if
that was the location of the union meetings. The Respondent
asserts the question about the location of the union meeting was
innocuous, and did not reasonably create an impression of sur-
veillance because the union meetings were publicized at the
plant. The presiding judge finds merit in the Respondent’s
defense.
At the outset, it is concluded that Lawrence’s far more de-
tailed description of his remark to Rossman is accepted over
Rossman’s vague recollection thereof. Thus, Lawrence did not
actually interrogate Rossman about this matter. While an em-
ployer creates an unlawful impression of surveillance when an
employee would reasonably assume their union activities had
been placed under surveillance, see Flexsteel Industries, 311
NLRB 257 (1993), Lawrence’s remark about the union meet-
ings did not violate the Act. Indeed, Lawrence did not suggest
that he knew which employees attended the meetings, the sub-
stance of any discussion at the meetings, or even that Rossman
attended the meetings. See Clark Equipment Co., 278 NLRB
498, 503 (1986). Further, the Union publicized its meetings at
the Respondent’s plant and Lawrence credibly testified that he
saw a flyer at the plant stating that the Union held its meetings
at the Back Porch Restaurant. Thus, Lawrence’s remark would
not reasonably create upon Rossman the impression that Law-
rence was spying on the Union because the location of the un-
ion meetings was publicized. Compare Ichikoh Mfg., 312
NLRB 1022, 1023 (1993) (supervisor’s statement about covert
union meetings would reasonably lead employees to assume
that their union activities had been placed under surveillance).
Accordingly, paragraph 5(a)(i) of the General Counsel’s com-
plaint will be dismissed.
3. Restriction of movement in the plant
A “demising wall” divides the Respondent’s plant. The
north side of the wall houses the processing department at one
end and the container repair department at the other. The ware-
house is located on the south side of the wall. A walkway runs
along the south side of the wall to the lunchroom which em-
ployees are required to use when making their way to and from
the lunchroom while on break. The General Counsel alleges
that in early 2000 the Respondent forced employees in the
heavily prounion container repair department to use the south
side walkway in order to isolate them from employees in the
processing department. In defense, the Respondent asserts that
the rule, in effect since the beginning of operations in early
1999, only attempted to maximize safety and efficiency in the
plant.
Clearly, the isolation of employees in response to union ac-
tivity is unlawful. See Standard Products Co., 281 NLRB 141,
142 (1986), enfd. in part 824 F.2d 291 (4th Cir. 1987). But the
Respondent’s policy at the West Chester plant, requiring em-
ployees to walk on the warehouse, or south, side of the demis-
ing wall, was a longstanding rule. First, on November 24,
1999, before the beginning of open union activity at the plant,
the Respondent sent a memo to all employees stating that they
should use the walkway when arriving at and leaving the plant.
Although the General Counsel correctly notes that this memo
did not specifically refer to breaks, it seems logical that the rule
also applied during work hours because the walkway leads
directly to the lunchroom from the warehouse. Moreover, the
Respondent’s explanation regarding the use of the walkway to
minimize disruption of the processing department’s work
makes sense because that department lies in the path of con-
tainer repair employees walking to the lunchroom. Second,
Supervisor Wade Moore credibly testified that since the plant’s
opening in May 1999 he often told employees to use the walk-
way when walking from the container repair department to the
lunchroom, so as not to impede production in the processing
department and to ensure the safety of the employees.
As for the testimony of employees Danny Hollen, Samantha
Bishop, Chad Williamson, and Grant Turner that management
changed the route to the breakroom only after the union effort
began, the presiding judge finds their recollection faulty. First,
Turner is not a credible witness. He admittedly lied to the Re-
spondent about sharing product with other employees, and he
also lied to the Board and the state unemployment office con-
cerning the same issue. Second, Williamson also testified that
management further isolated employees by staggering break-
times after the onset of union activity; testimony clearly refuted
by the credible testimony of three supervisors—Lawrence,
Coulter, and Moore. Thus, Williamson’s deficient memory on
this related matter casts doubt on his ability to recall whether
the route was changed after the campaign began. Third, Hol-
len’s and Bishop’s somewhat vague version was probably col-
ored by their likely knowledge that Turner was disciplined for
walking on the north side of the wall shortly after the union
campaign began. Thus, the preponderance of the evidence is
that the walkway rule was promulgated in 1999, before the
union effort began.
In sum, the presiding judge finds that neither the purpose nor
the effect of the walkway rule unreasonably restricted employ-
ees’ ability to engage in union organizing activities. Also, in
view of Moore’s uncontradicted testimony that he often ver-
bally warned employees to use the south side walkway, it can-
not be concluded that the Respondent disparately enforced the
rule, by issuing a very general reprimand to Turner (GC Exh.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1210
18), after the start of the union campaign.2 Thus, paragraph
5(e) of the complaint will be dismissed.
4. Interrogations
The General Counsel next alleges that during the election
campaign Supervisors Dale Lawrence, Tim Wolfe, and Chris
Fair interrogated employees concerning their union views.
Specifically, employee Stacy Fields, an outspoken proponent of
the Union, wore prounion buttons regularly. While at her
workstation, Lawrence stated, “[Y]ou are missing your orna-
ments today.” Lawrence’s statement was neither coercive nor
interrogative because Lawrence knew Fields’ position, and
Fields uninhibitedly displayed her support for the Union. And
significantly, Fields testified the comment was in jest. Thus,
this statement did not violate the Act. See Teksid Aluminum
Foundry, 311 NLRB 711, 715–716 (1993). But Lawrence
unlawfully interrogated openly prounion employee Phillip
Henderson during the union campaign. On a day he had not
donned his union button, Lawrence inquired where his “metal
of honors was?” Lawrence then continued, asking if Henderson
was on the organizing committee or attended union meetings.
Henderson answered in the affirmative. Before the interroga-
tion, Lawrence gave no assurances that there would be no repri-
sals for answering truthfully. The conversation then ended with
an implied threat: Lawrence stated he was disappointed with
Henderson’s union activity. Clearly, Lawrence’ statements
violated Section 8(a)(1) because, taking into account the totality
of the circumstances, they reasonably tended to restrain and
interfere with Henderson’s exercise of his Section 7 rights. See
Rossmore House, 269 NLRB 1176 (1984). Moreover, after the
conversation Lawrence instructed Wade Moore, Henderson’s
immediate supervisor, not to give help to Henderson until his
production levels increased. Prior to that time Henderson al-
ways received assistance when he asked. Regardless of
whether this particular decision was based on a legitimate busi-
ness reason, the timing of management’s new policy toward
Henderson strongly suggests that it was directly correlated to
Henderson’s union activity and Lawrence’s preceding unlawful
interrogation. Indeed, Lawrence conceded that he knew about
Henderson’s drop in production for a few weeks and yet did
nothing about it until the union interrogation. Nor is Lawrence’
misconduct vitiated by Moore’s decision not to enforce Law-
rence’ edict. Therefore, management’s threat of more onerous
working conditions for Henderson likewise violated Section
8(a)(1). Next, Lawrence also unlawfully interrogated employee
Harold Godbey, who, unlike Fields and Henderson, was not an
active union supporter, asking him where his “ornaments”
were. This type of interrogation by an employer of an em-
ployee whose union sentiments are not on open display is
clearly an impermissible intrusion into the employee’s union
sentiments. Finally, Lawrence approached employee John
Groves, while he was at his workstation, with a “vote no” but-
ton in his hand. While it is unclear as to whether Lawrence
innocently approached Groves with the button or intentionally
walked over so that that Groves would take it, Groves did take

2 This discipline is not specifically alleged as a violation of the Act
in the General Counsel’s complaint.
one of the two buttons Lawrence held in his palm. Lawrence
then said, “I didn’t think you were gonna take it.” Groves
credibly testified he only took the button so he would not upset
Lawrence, and wore the button only for that 1 day. Under all
the circumstances, especially Lawrence’s numerous other ille-
gal interrogations regarding buttons, the presiding judge re-
solves this issue in the General Counsel’s favor. Rossmore
House, supra. The plain fact is that Lawrence forced Groves to
make a declaration of his support, regardless of the truthfulness
thereof. See Chris & Pitts of Hollywood, Inc., 196 NLRB 866
fn. 2 (1972). Thus, Lawrence’s misconduct again violated
Section 8(a)(1), requiring a remedial notice posting by the Re-
spondent, and the Union’s Objection 2 will be sustained.
Turning to Manager Tim Wolfe, he approached employee
Linda Reynolds while at her workstation and asked her if she
wanted a “vote no” button. Reynolds had not worn campaign
buttons at work or otherwise disclosed her position on the Un-
ion. She declined Wolfe’s offer, explaining her vote was pri-
vate. Contrary to the Respondent’s assertion, such an exchange
constitutes an unlawful interrogation under the Rossmore
analysis. It is well settled that when an employer requests an
employee to wear an antiunion button, or makes available such
buttons in a coercive fashion, such an act is tantamount to the
interrogation of that employee because it requires him to make
an open declaration of his support for or opposition to the Un-
ion. So, this incident constituted another 8(a)(1) violation and
likewise warrants sustaining union Objection 2. See Kurz-
Kasch, Inc., 239 NLRB 1044 (1978). Compare Black Dot, Inc.,
239 NLRB 929 (1978) (an employer may make antiunion but-
tons available in the cafeteria where there is no distribution by
supervisors, and supervisors do not discuss the wearing of but-
tons with employees). Lastly, the General Counsel has failed to
adduce any evidence regarding the allegation that Supervisor
Chris Fair interrogated employees. Therefore, paragraph 5(h)
of the complaint will be dismissed.
5. Benefits: promises and threats of loss
Management’s written communications to the employees
stated that a union could mean more, less, or the same wages
and benefits. But the General Counsel and the Union allege
that the Respondent orally threatened the employees with re-
duced wages and benefits during the election campaign. Spe-
cifically, it is alleged that Dawkins and Supervisor Wade
Moore threatened employees with reduced wages and loss of
the Company’s 30-cent-per-hour contribution toward the ESOP
if the Union won the election. According to Turner, Moore
stated on February 15 that the 30-cent-per-hour contribution
would be lost; a statement confirmed by a transcript of a tape
recording of this conversation made by Turner. Also, despite
the incompleteness of this transcript, Moore never testified that
he added anything to the contrary during this conversation.
Nevertheless, the presiding judge concludes that Wade’s state-
ment did not violate the Act. Significantly, it has not been
proven that anyone other than Turner and Moore attended this
“meeting.” Indeed, these two men are the only participants
identified in the transcript of the conversation, and Turner’s
trial testimony fails to establish the presence of anyone else at
this February 15 encounter (Tr. 338–340). Moreover, a com-
DYNCORP 1211
plete reading of the conversation’s transcript reveals that
Turner, with his tape recorder running, cunningly led Wade off
message from management’s official line that all matters would
be subject to negotiation. Also, Moore’s answers to Turner’s
repeated questions are nothing more than rambling, somewhat
incoherent explanations about the Respondent’s plans for the
ESOP. In sum, this “best evidence” that the General Counsel
proffers about the Company’s oral statements to employees
during the election campaign about wages and benefits fails to
prove this allegation.
As for other unrecorded, oral statements made by manage-
ment, it is likewise concluded that neither the General Counsel
nor the Union have satisfied their burdens on this issue. At the
outset, the presiding judge finds employees Chad Williamson,
Danny Hollon, Carl Moore, and Samatha Bishop all to be
credible witnesses. However, Williamson could not identify
which supervisor said that jobs could be lost if the Union won.
As for the testimony of Hollon, Moore and Bishop regarding
statements by Dawkins, Moore, and/or Lawrence that benefits
would be lost or might be lost, it is far more likely that, in the
face of all the evidence on this issue, these employees testified
as to incomplete remarks they either heard or thought they
heard from management, Indeed, Dawkins and Lawrence
credibly testified that they consistently repeated the Company’s
written policy to employees when asked about what would
happen to wages and benefits. Also, neutral employee Johnna
Stone did not hear any threats about loss of salary or benefits,
and prounion employee Stacy Fields and antiunion employee
Teresa Jacques both remembered the oral presentations match-
ing the written policy. Thus, it is concluded that the preponder-
ance of the evidence establishes that the Respondent did not
illegally threaten to reduce wages and benefits. Accordingly,
the Union’s Objection 4 will be overruled and paragraph 5(c) of
the complaint will be dismissed.
Turning to the alleged illegal promises of benefits made by
management during the campaign, the General Counsel and the
Union point to offers to second-shift employees, including
Grant Turner, Carl Moore, and Samantha Bishop, shortly be-
fore the election, to switch to the more desirable first shift.
While the timing of such a promise certainly raises an inference
that the Respondent attempted to bribe employees, thus, de-
stroying the laboratory conditions of the March 8 election, the
plain fact is that the first shift transfer plan was well established
for months leading up to the election. Specifically, approxi-
mately 12 employees were transferred in 1999 alone. Then on
February 14, 2000, for legitimate business reasons unrelated to
the pending union election, the Company created a third work-
ing shift, thus, creating additional vacancies in the first shift in
the midst of the election campaign. Thus, five employees were
so transferred on February 28; an event the General Counsel
did not allege as an unfair labor practice and the Union did not
lodge an objection to. And because the employees were al-
ready well aware of the possibilities regarding first-shift trans-
fers, the repetition of this announcement before March 8 did not
violate the Act. See Emery Worldwide, 309 NLRB 185, 186
(1992). Thus, the Union’s objection on this matter will be
overruled and the General Counsel’s allegation at paragraph
5(f) will be dismissed.
The second alleged preelection promise concerns Duncan
Dawkins’ final speech to the employees just before election
day, March 8. Therein, the General Counsel alleges that
Dawkins impliedly promised to remedy specific employee
complaints by reading the following from a written text:
Also ask yourself if you think that I now know the is-
sues. You have done a great job of identifying areas that
need to be changed. Example: Overtime, workflow issues,
seniority issues, supervisory problems, policy issues.
I am forbidden by law to tell you today that I am going
to make changes. But I can assure that I recognize that
there are changes that need to be made. It would be fool-
ish for me not to address these issues. In fact it would be
quite probable that significant changes would be made
long before a contract is ratified.
It is true that an employer’s sudden willingness to address
promptly the complaints of employees during a union campaign
is unlawful and inherently interferes with an employee’s free
choice in the election. See Gray Line of the Black Hills, 321
NLRB 778, 791 (1996) (citing Medo Photo Supply Corp. v.
NLRB, 321 U.S. 678, 686 (1944)). However, Dawkins’ speech
did not imply a promise to remedy grievances because the
grievances Dawkins enumerated were extremely vague: over-
time, work flow issues, seniority issues, supervisory problems,
policy issues. See Bakersfield Memorial Hospital, 315 NLRB
596, 601 (1994); compare, Pennsy Supply, 295 NLRB 324, 325
(1989) (supervisor’s statements about health and retirement
plans were specific). In this regard, the General Counsel has
failed to adduce any evidence regarding the existence of any of
these problems at the West Chester plant, much less that any of
these problems were debated during the election campaign.
Thus, the General Counsel’s allegation at paragraph 5(b)(ii) of
the complaint will also be dismissed.
6. Allegation of speech made within the 24 hours
prior to the election
An employer and union are prohibited from making election
speeches to massed employees on company time within 24
hours of the scheduled time for conducting the election. Peer-
less Plywood Co., 107 NLRB 427, 429 (1953). The Peerless
rule, however, does not prohibit an employer from distributing
campaign literature, talking individually with employees, or
answering unsolicited questions from the employees, as long as
the words or actions of the employer are not coercive. See
Andel Jewelry, Corp., 326 NLRB 507 (1998); Associated Milk
Producers, 237 NLRB 879 (1978).
The General Counsel alleges that Duncan Dawkins made a
speech to second-shift workers on March 7, 2000, at 3 p.m.,
within 24 hours of the start of the election. But the preponder-
ance of the record evidence shows otherwise. First, three su-
pervisors, including Wade Moore and three employees, two of
whose union sympathies are unknown, credibly testified that
Dawkins delivered the speech on March 6. Indeed, it was
Moore’s job to gather second-shift workers for such a meeting.
And one of those employees, Johnna Stone, whose union sym-
pathy is unknown, was aware of the 24-hour rule, thus, giving
added significance to her fixing of the March 6 date. Second,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1212
the Respondent kept detailed records of the amount of time
employees spent in meetings each day. On March 6, second
shift employees aggregately spent nearly 30 hours in meetings,
whereas on March 7, the day before the election, those same
employees spent only 7-1/2 hours in meetings, which Dawkins
explained was their average time spent in regular preshift meet-
ings. Third, as for Turner’s claim that Dawkins said, “[T]omor-
row is a big day,” that statement is not contained in Dawkins’
prepared text. And, as explained supra, Turner has not distin-
guished himself as a credible witness in this case. While four
other credible prounion witnesses fixed the speech as being
delivered on March 7, in all likelihood these are references to
informal, permissible meetings Dawkins may have conducted
within the 24-hour period. Therefore, paragraph 5(b)(iii) of the
complaint will be dismissed.
B. The 8(a)(3) Violations
1. Written discipline issued to Turner
Since the opening of the Company’s West Chester plant in
1999, the Respondent has required all employees to wear safety
glasses in the container repair area of the plant. After the elec-
tion, on March 15, 2000, employee Grant Turner received a
personal improvement plan (PIP), the Respondent’s version of
a written reprimand, for being out of his work area and for fail-
ure to wear safety glasses in container repair area. On the day
before, Supervisor Wade Moore warned Turner not to come
into the container repair division without safety glasses, and to
refrain from talking to other employees on the job. According
to the General Counsel, the Respondent disciplined Turner
because of his role in the union effort, thus, violating Section
8(a)(3). The Respondent, however, argues that the discipline
was issued because of Turner’s failure to follow standard pro-
cedure. To prove its allegation, the General Counsel must
show by a preponderance of the evidence that the employee’s
protected Section 7 activity was a motivating factor in the Re-
spondent’s decision to discipline him. If so proven, the burden
then shifts to the Respondent to show, also by a preponderance
of the evidence, that its action was based on lawful reason(s),
and would have occurred absent the protected activity. Wright
Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982); approved in Transpor-
tation Management Corp., 462 U.S. 393 (1983).
The presiding judge concludes that the General Counsel has
met his initial burden. Specifically, the Respondent demon-
strated union animus as evidenced by its 8(a)(1) violations con-
cerning the banning of union literature from the company bulle-
tin board, interrogations regarding antiunion and union buttons,
and threat of more onerous working conditions to one em-
ployee. However, it is also concluded that the Respondent has
adequately rebutted the General Counsel’s showing. The Com-
pany’s policy was crystal clear: wear safety glasses in the con-
tainer repair department. Turner failed to abide by the rule, and
consequently received a verbal warning. The very next day,
Turner again failed to wear his glasses, thus justifying a written
discipline to ensure the safety of all employees. Moreover, the
fact that Turner received the March 15, 2000 discipline just
days after the unsuccessful union campaign does not undermine
the justification of the discipline inasmuch as the Respondent
had a clear, existing rule in place and had enforced another
safety equipment rule against another employee previously.
Finally, regarding the 8(a)(4) allegation, the presiding judge
discredits Turner’s testimony that Moore tore up the PIP after
Turner explained his personal situation and said that it was time
for vindictiveness and bitterness to end, and that Supervisor
Lawrence later reinstated the PIP. Rather, Moore’s explanation
that Turner ripped up his own copy of the reprimand is the
more logical version of events. Indeed, when the PIP was
ripped up by Turner, Lawrence already had a copy on file and
there was never a cancellation of the discipline. Thus, the PIP
was not subsequently reinstated by Dale Lawrence, as alleged
by General Counsel, because of Turner’s filing of a charge with
the Board. Therefore, the General Counsel’s 8(a)(3) and (4)
allegations in paragraphs 6(a) and (g) of the complaint will be
dismissed.
2. Suspension and discharge of Carl Moore
Employee Carl Moore worked on canvas mailbags on June
16, 2000. A supervisor, Rhonda Bleska, asked him to switch
products and work on orange plastic bags. Moore was profi-
cient on the canvass bags, but had never worked with the or-
ange bags. He refused to switch product. Bleska asked Super-
visor Daniel Hobson for assistance. Hobson asked Moore three
times to switch to the orange bags. Moore refused. Hobson
then told Supervisor Dale Lawrence about the problem. After
the next break, Lawrence called Moore and Hobson into his
office where he asked Moore if he would switch products.
Moore again refused. Lawrence then suspended Moore pend-
ing approval of his termination by company headquarters.
Moore then filed a charge with the Board on June 19, and his
termination became final on June 22.
The General Counsel alleges that the Respondent violated
Section 8(a)(3) and (4) when it suspended and subsequently
discharged Carl Moore because of his union adherence, and for
filing the June 19 charge. But the Respondent counters that the
disciplinary actions were based solely on Moore’s insubordina-
tion. In the presiding judge’s view, the Respondent is correct.
Significantly, three supervisors asked Moore a total of five
times to switch product, and each time he refused. The record
evidence reveals that no employee had ever flatly refused to
perform an assigned task. See Williamson Piggly Wiggly, 280
NLRB 1160, 1171 (1986), enfd. granted 827 F.2d 1098 (6th
Cir. 1987). In addition, the timing of this event was far re-
moved from the March 2000 union campaign, lessening the
likelihood that union animus was the motivating factor. Also,
there was no disparate treatment of Moore that day. On the
contrary, openly prounion employee Stacy Fields was also
asked to switch products, and she ultimately agreed. Finally,
there is insufficient evidence to conclude that Moore’s June 19
charge with the Board had anything to do with his termination.
Rather, the die had already been cast for his termination on
June 16. Therefore, paragraph 6(c) of the complaint will be
dismissed.
3. Discharges of Turner, Honnerlaw Johnson, and Gunn
The Respondent required each employee to produce at a 100-
percent level. On November 1, 2000, 8 months after the elec-
DYNCORP 1213
tion, the Respondent reprimanded Turner because his produc-
tions levels were on average only 76 percent, well below the
standard set by the Company. He received a PIP advising him
to increase his production or face disciplinary measures, includ-
ing possible termination. On November 2, 2000, upon a routine
check, Turner’s supervisor, Tracy Coulter, noticed his produc-
tion level had jumped to 150 percent and he was working on a
product on which he was not trained. After investigating the
peculiar increase in productivity, management discovered on
Friday, November 3, 2000, that Turner had accepted finished
product from employees Robert Honnerlaw, Mitzi Gunn, and
Delores Johnson in order to increase his own production level.
Duncan Dawkins then questioned all four employees, and all
but Turner admitted they engaged in the practice. Shortly
thereafter, the Respondent discharged Turner for fraud. Like-
wise the Respondent fired the other three employees on Tues-
day, November 7. According to the General Counsel and the
Union, the Respondent continued its antiunion retaliation by
discharging union leader Grant Turner and firing the three other
employees. In defense of its action, the Respondent argues that
these employees manipulated their work performance to the
detriment of the Company, and were justifiably discharged.
Again, as documented supra, it is concluded that the General
Counsel met his initial Wright Line burden. Indeed, Turner was
the most outspoken of all union supporters; during the cam-
paign he distributed leaflets, signed union postings, and was
generally visible as the union campaigner. In addition, the day
before his discharge he distributed union material condemning
management and calling for a new election. Nonetheless, the
Presiding Judge concludes that the Respondent has once again
rebutted the General Counsel’s showing. First, the Respondent
discharged the four employees for legitimate business reasons.
Here, the Company had a strong interest in knowing which
employees were producing and those which were not. In fact,
there was a system in place to reward successful employees or,
in the case of Turner, to discipline him because his production
levels were too low. And when faced with the possibility of
discipline, Turner did not attempt to increase his productivity,
but instead embarked on a course of action to defraud the Re-
spondent deliberately despite being warned by one other em-
ployee not to accept completed product from others. Further,
the Respondent’s policy made sense from a quality control
standpoint because it allowed the Company to trace which em-
ployee worked on which product if the product needed rein-
spection. Second, there is no evidence that the Respondent
seized on the product sharing incident as a pretext to get rid of
Turner and the three others. Initially, it is significant that in
October 2000 Turner erroneously received written disciplines
for absenteeism, which the Respondent rescinded upon learning
of its mistake. Regarding the November 2000 incident, the
preponderance of the evidence shows that the product sharing
was not a regular or endorsed practice at the Respondent’s fa-
cility. Dawkins credibly testified he was not aware of the prac-
tice. Nor should such knowledge be imputed to Dawkins be-
cause two supervisors condoned product sharing. In this re-
gard, the preponderance of the evidence fails to show that Su-
pervisor Tracey Coulter acknowledged and encouraged the
practice of sharing product. Rather, based on Coulter’s and
employee Robert Honnerlaw’s testimony that employee Patter-
son merely said, “surprise,” it is concluded that Coulter did not
know that Patterson actually did work for Honnerlaw. As for
rogue Supervisor Tim Wolfe, there is plenty of evidence that he
encouraged the practice. But he was gone by sometime after
the election and there is no evidence that other supervisors
continued Wolfe’s policy. Simply put, Dawkins, who made the
decision to terminate the four employees, credibly testified he
did not know about the sharing practice and there is insufficient
basis for imputing such knowledge to him. Compare JMC
Transport, Inc. v. NLRB, 776 F.2d 612, 619 (6th Cir. 1985)
(supervisor’s direct culpability in employee’s discharge is im-
puted to executive who fires employee); Springfield Air Center,
311 NLRB 1151 (1993) (knowledge of employee’s protected,
concerted activity imputed to management official who made
decision to discharge employee). Third, Turner knew such a
practice to be fraudulent, based on employee Kathleen Pope’s
warning to him beforehand and his failure to check this out
with management. And there is Turner’s ultimate lie when
confronted by management on November 3. As for Johnson,
Honnerlaw and Gunn, who were less culpable and more truth-
ful with Dawkins, the Respondent still had the right to termi-
nate them for fraud.
Finally, there is insufficient evidence that Turner’s distribu-
tion of a union memo on November 2, 2000, was the catalyst
for the discharges. Notably, Dawkins credibly testified he did
not see the memo before November 7, and there is no substan-
tial evidence to the contrary. Accordingly, it is concluded that
the Respondent justifiably discharged employees Turner, Gunn,
Honnerlaw, and Johnson. Therefore, paragraphs 6(d) and (e) of
the complaint will be dismissed.
THE REMEDY
As discussed supra, a remedial notice posting will be re-
quired in view of the Respondent’s violations of Section
8(a)(1). As for the unproven 8(a)(3) allegations regarding five
employees, no remedial action is required. Thus, the only re-
maining issue is whether a second election is warranted. In the
instant case, the Respondent committed two 8(a)(1) violations
by discriminating against union material posted on a company
bulletin board and by interrogating employees. Typically, the
remedy for such violations of the Act, during the critical period,
i.e., after the filing of an election petition, is a new election,
because such conduct interferes with the exercise of free choice
therein. See Dal-Tex Optical Co., 137 NLRB 1782, 1786
(1962). However, it is well settled that only conduct occurring
during the critical period warrants a second election. See Ideal
Electric & Mfg. Co., 134 NLRB 1275, (1961). The Board only
departs from this rule when the clearly proscribed activity is
likely to have a significant impact on the election. Royal Pack-
aging Corp., 284 NLRB 317 (1987) (emphasis added).
Here, the Respondent implemented the discriminatory no-
posting rule on December 20, 1999, over 1 month before the
filing of the petition. Although the ban on union bulletin board
postings naturally continued thereafter, this type of misconduct
pales in comparison to prepetition misconduct that has been
deemed to have significantly impacted the outcome of an elec-
tion. Compare Bon Marche, 308 NLRB 184 (1992) (bulletin
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1214
board violation, and other violations during critical period,
warrant a new election); Toys-R-Us, Inc., 300 NLRB 188, 190
(1990) (promise to raise wages for withdrawal of union support
was “sufficiently serious and widespread”); L & J Equipment
Co., 278 NLRB 485, 488 (1986) (setting fire to a truck created
an atmosphere of fear and coercion interfering with the election
choice). Rather, the discriminatory no-posting rule is analo-
gous to less serious prepetition violations where a new election
was not ordered. See Kokomo Tube Co., 280 NLRB 357, 358
(1986) (a 25-cent-wage increase announced before the filing of
a petition was insufficient to warrant a new election), overruled
on other grounds by 332 NLRB 40 fn. 8 (2000). Next, the Re-
gional Director, in his report on the Union’s objections and
order consolidating those objections with the General Counsel’s
complaint, citing White Plains Lincoln Mercury, 288 NLRB
1133 (1988), asserts that objectionable conduct uncovered by
the General Counsel may be grounds for setting aside an elec-
tion notwithstanding the fact such conduct was not specifically
objected to by the Union. However, that case concerns only
misconduct falling within the critical period. Even so, aside
from the telling fact that the Union did not object to the bulletin
board misconduct, presumably because it believed the violation
did not affect the outcome of the election, the Regional Director
similarly failed to list the bulletin board violation, in his order
regarding the objections, as a significant basis for invoking the
White Plains doctrine. By contrast, the Regional Director listed
the interrogation and threat issues, alleged by the General
Counsel as unfair labor practices, as possible additional
grounds for setting aside the election. See Bandag, Inc., 225
NLRB 72 (1976), enf. granted in pertinent part 583 F.2d 765
(5th Cir. 1978). Accordingly, based on the foregoing reasons,
the presiding judge finds that the bulletin board violation is an
insufficient basis upon which to set aside the election.
That leaves us with one 8(a)(1) violation committed by the
Respondent during the critical period which parallels one of the
Union’s objections—the interrogations by two mid-level super-
visors of four employees about their union sympathies via un-
ion and vote no buttons, and a followup threat of more onerous
working conditions against one of those employees by the same
supervisor. And the ultimate question is whether this miscon-
duct warrants setting aside the results of the March 8, 2000
election. The Board will depart from the policy of ordering a
new election when, analyzing “the number of violations, their
severity, the extent of dissemination, the size of the unit, and
other relevant factors,” the violation are concluded to be de
minimis. See Super Thrift Markets, 233 NLRB 409 (1977).
The violations here affected only 4 employees out of over 200
voting, with a margin of 20 votes between the Union and the
Respondent. Also, there is no evidence of dissemination of
these interrogations and the sole threat. Under these circum-
stances, it is concluded that the impact of the violations on the
election outcome was de minimis and does not present proper
grounds for setting aside the election. See, e.g., Clark Equip-
ment Co., 278 NLRB 498, 505 (1986) (set aside not warranted
where employer commits several violations involving 8 em-
ployees in a 800-man unit during an open and active cam-
paign), overruled in part on other grounds in Nickles Bakery of
Indiana, 296 NLRB 927 (1989).
CONCLUSIONS OF LAW
1. The Respondent, DynCorp, is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. The Union, American Postal Workers Union, Local 164,
AFL–CIO, is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. The Respondent violated Section 8(a)(1) of the Act in
December 1999 by prohibiting the posting of union literature
on the Respondent’s bulletin board and threatening an em-
ployee with discipline, as alleged in paragraphs 5(b)(i) and 7 of
the General Counsel’s complaint.
4. The Respondent violated Section 8(a)(1) of the Act in
early 2000 by interrogating and soliciting employees concern-
ing union buttons, as alleged in paragraphs 5(a)(ii), (iv), (d),
and 7 of the General Counsel’s complaint.
5. The Respondent violated Section 8(a)(1) of the Act in
early 2000 by threatening an employee with more onerous
working conditions, as alleged in paragraphs 5(a)(iii) and 7 of
the General Counsel’s complaint.
6. The General Counsel has failed to prove his allegations in
paragraphs 5(a)(i), (b)(ii), (iii), (c), (e), (f), (g), (h), 6(a)–(g), 8,
and 9 of the complaint.
7. The unfair labor practices of the Respondent, described in
paragraphs 3, 4, and 5, above, affect commerce within the
meaning of Section 2(6) and (7) of the Act.
8. The Union’s Objection 2 is sustained.
9. The Union’s Objections 3 and 4 are overruled.
[Recommended Order omitted from publication.]