Ebenezer Rail Car Services

National Labor Relations Board - Board Decisions

Jan 31, 2001

333 N.L.R.B. 167 (N.L.R.B. 2001)

EBENEZER RAIL CAR SERVICES 167
Ebenezer Rail Car Services, Inc. and International
UAW. Case 3–CA–21809
January 31, 2001
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
LIEBMAN AND HURTGEN
On November 22, 1999, Administrative Law Judge
Bruce D. Rosenstein issued the attached decision. The
Respondent filed exceptions and a supporting brief, and
the General Counsel filed an answering brief to the Re-
spondent’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,1 and conclusions2 as
modified, to modify his remedy, and to adopt the rec-
ommended Order as modified.
The judge found, and we agree, that the Respondent
violated Section 8(a)(5) and (1) by laying off 10 employ-
ees without adequate notice to the Union and without
affording the Union an opportunity to bargain over the
layoff decision and the effects of that decision. Although
the judge analyzed the 8(a)(5) violation under Lapeer
Foundry & Machine, 289 NLRB 952 (1988), and its
progeny,3 his recommended remedy is couched in terms
of a traditional make-whole remedy for the laid-off em-
ployees. We shall modify that remedy,4 to make it con-
sistent with that ordered in Lapeer.5

1 The Respondent has excepted to some of the judge's credibility
findings. The Board's established policy is not to overrule an adminis-
trative law judge's credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Stan-
dard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d
Cir. 1951). We have carefully examined the record and find no basis
for reversing the findings.
2 We agree with the judge that the Respondent violated Sec. 8(a)(1)
when Manager Jeffrey Grainer told an employee, immediately after the
announcement of the union election victory, that “[y]ou’re going to
regret this all year.” Maxwell Plum, 256 NLRB 211 (1981). See also
Azalea Gardens Nursing Center, 292 NLRB 683, 686 (1989) (state-
ment that employees “would ‘regret this day’ clearly conveyed to them
they could expect unspecified reprisal actions . . . for their having sup-
ported the Union”). Contrary to our dissenting colleague, we find that
this statement is neither vague nor ambiguous. Further, we note that, in
determining whether a statement by an employer violates Sec. 8(a)(1),
or is protected by Sec. 8(c), the Board considers the totality of the rele-
vant circumstances. See Mediplex of Danbury, 314 NLRB 470 (1994).
Here, given the context and timing of Grainer’s statement, and in light
of the Respondent’s other unlawful statements, we agree with the judge
that this statement violates Sec. 8(a)(1).
3 In agreeing with the judge’s finding that the Respondent’s decision
to lay off employees was a mandatory subject of bargaining, we rely
additionally on Executive Cleaning, 315 NLRB 227 fn. 5 (1994), and
Holmes & Narver, 309 NLRB 146 (1992).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Ebene-
zer Rail Car Services, Inc., West Seneca, New York, its
officers, agents, successors, and assigns, shall take the
action set forth in the Order.
1. Substitute the following for paragraphs 2(a) and (b).
“(a) On request, bargain with the Union concerning the
decision to lay off employees on March 5, 1999, and the
effects of that decision.
“(b) Reinstate and make whole those employees laid
off on March 5, 1999, for any loss of pay or other em-
ployment benefits suffered as a result of its unlawful
conduct in the manner set forth in the amended remedy
portion of this decision.”
2. Substitute the attached notice for that of the admin-
istrative law judge.

MEMBER HURTGEN, dissenting in part.
I agree with my colleagues, except in one respect.
After the results of the election were announced on
February 26, 1999,1 employee Jim Piazza shook hands
with Manager Jeffrey Grainer. Piazza stated, “It could be
worse.” According to Piazza, Grainer replied, “You are
going to regret this all year.” The General Counsel al-
leged, and my colleagues agree, that Grainer’s statement
was threatening and coercive and violated Section 8(a)(1)
of the Act. I disagree.
The statement, “you are going to regret this all year”
cannot be viewed in isolation. It must be viewed in the
context of other statements made by Grainer to all em-
ployees, including Piazza. Those statements include
Grainer’s comments about his past experiences with un-
ions and his opinion, based thereon, that unions were not
good for employees. Thus, the quoted statement and the
4 It is well settled that Sec. 10(c) confers on the Board “broad discre-
tionary” authority to fashion remedial awards. Fibreboard Corp. v.
NLRB, 379 U.S. 203, 216 (1964); also see N.C. Coastal Motor Lines,
219 NLRB 1009 (1975), enfd. 542 F.2d 637 (4th Cir. 1976) (no re-
quirement that complaint allege a remedy). This authority extends to
cases where, as here, neither the General Counsel nor the Union spe-
cifically excepted to the form of the judge’s remedy. Westpac Electric,
321 NLRB 1322 (1996).
5 Under Lapeer, the traditional and appropriate Board remedy for an
unlawful unilateral layoff based on legitimate economic concerns in-
cludes ordering the employer to bargain over the layoff decision and
the effects of that decision, reinstating the laid-off employees, and
requiring the payment to the laid-off employees of full backpay, plus
interest, for the duration of the layoff. Lapeer, supra, 289 NLRB at
955–956.
1 The Union won the election.
333 NLRB No. 18
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 168
related comments were protected by Section 8(c), which
privileges “expressions of opinions which, however false
or unsubstantiated, d[o] not rise to the level of interfer-
ence, restraint, or coercion prohibited by Section 8(a)(1)
of the Act.”2 In any event, the quoted statement was
ambiguous and far too vague to constitute a threat.3
The instant case is readily distinguishable from Max-
well’s Plum, 256 NLRB 211, 214, 216 (1981), cited by
the judge. In that case, Hilda Caldas, the laundry super-
visor, told employee Holmes that she would regret join-
ing the union. In that case, unlike here, Caldas immedi-
ately prefaced her “regret” remark by creating an unlaw-
ful impression that employees’ union activities were un-
der surveillance. Then, Caldas underscored her “regret”
remark by indicating that Roy Fox, the back-of-the-house
manager, would talk further to the employees about their
joining the union. When he did speak to employees later
that day, they were notified about the unlawful shutdown
of the laundry operations and their unlawful discharges.
Therefore, in Maxwell’s Plum, unlike the instant case,
the context for Supervisor Caldas’ “regret” remark re-
moved any doubt or ambiguity as to the threatening na-
ture of her statement. Similarly, Azalea Gardens, 292
NLRB 683 (1989), is distinguishable because it involved
the unlawful impression of surveillance and occurred
simultaneously with two unlawful threats by the same
manager.
Based on the above, I would dismiss the subject
allegation.4

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 the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice

2 See Camvac International, 288 NLRB 816, 820 (1988), quoting
from North Kingstown Nursing Care Center, 244 NLRB 54, 65 (1979).
3 The Standard Products Co., 281 NLRB 141, 148 (1986), enfd. in
relevant part 824 F.2d 291 (4th Cir. 1987) (“[The] statement standing
alone
. . . is somewhat vague, subject to interpretation by the listener . . .
[S]tanding alone it does not rise to the level of a threat that would vio-
late Section 8(a)(1).”
4 See, e.g., Restaurant Horikawa, 260 NLRB 197, 207 (1982).
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT threaten our employees by stating that
if the employees selected the Union as their collective-
bargaining representative we would treat the employees
as badly as we treat our vendors, threaten our employees
that if they select the Union as their collective-bargaining
representative we could not control any employee lay-
offs, threaten our employees that if they select the Union
as their collective-bargaining representative we would
not have to keep our commitment not to lay off employ-
ees, or threaten our employees that during collective-
bargaining negotiations with the Union we would refuse
future work for fear of strikes and threaten our employ-
ees that, all year, they would regret having selected the
Union as their collective-bargaining representative.
WE WILL NOT, without first giving notice and af-
fording International UAW the opportunity to bargain in
good faith over our decision and its effects, lay off our
employees in the following unit:
All full-time and regular part-time production and
maintenance employees employed by the Respondent
at its 1005 Indian Church Road, West Seneca, New
York location; excluding all business office clerical
employees, sales employees, managerial employees,
guards, all other employees, all professional employees
and supervisors as defined in the Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain with the Union con-
cerning the decision to lay off employees on March 5,
1999, and the effects of that decision.
WE WILL reinstate and make whole those employees
whom we unilaterally laid off on March 5, 1999, for any
loss of pay or other employment benefits suffered as a
result of our unlawful conduct in the manner set forth in
the amended remedy of the Board’s decision
EBENEZER RAIL CAR SERVICES, INC.

Beth Mattimore, Esq., for the General Counsel.
Joseph L. Braccio, Esq., of Buffalo, New York, for the Re-
spondent-Employer.
DECISION
STATEMENT OF THE CASE
BRUCE D. ROSENSTEIN, Administrative Law Judge. This
case was tried before me on July 19, 20, and 21, 1999,1 in Buf-
falo, New York, pursuant to a complaint and notice of hearing
1 All dates are in 1999 unless otherwise indicated.
EBENEZER RAIL CAR SERVICES 169
(the complaint) issued by the Acting Regional Director for
Region 3 of the National Labor Relations Board (the Board) on
April 30. In addition, the Regional Director for Region 3, is-
sued an amendment to the complaint on June 30. The com-
plaint, based on an original and a first and second amended
charge filed by International UAW (the Charging Party or the
Union), alleges that Ebenezer Rail Car Services, Inc. (the Re-
spondent or Employer), has engaged in certain violations of
Section 8(a)(1), (3), and (5) of the National Labor Relations
Act (the Act). The Respondent filed a timely answer to the
complaint denying that it had committed any violations of the
Act.
Issues
The complaint alleges that the Respondent discriminatorily
laid off 12 employees,2 and also refused to bargain with the
Union over the conduct and the effects of the layoff. In addi-
tion, the complaint alleges five independent violations of Sec-
tion 8(a)(1) of the Act by making threatening statements.
On the entire record,3 including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Respondent, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a corporation engaged in the repair of
railroad cars, with an office and place of business in West Se-
neca, New York, where it annually purchased and received at
its facility, goods and materials valued in excess of $50,000
directly from points outside the State of New York. The Re-
spondent admits and I find that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act and that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Employer commenced its business operation approxi-
mately 19 years ago with current president, Jeffrey Schmarje,
starting the business from the ground up. Respondent’s sole
and primary function is to sell its labor to refurbish railroad
freight cars owned and operated by major railroad and private
companies. Due to the arduous nature of the work, the Em-
ployer has historically had a high turnover rate of employees.
For example, in 1997, 106 employees were hired with the aver-
age number employed at any one time being between 55 and 70
(R. Exh. 2). Likewise, the employment complement for 1998
and the first 6 months of 1999, show similar figures (R. Exhs. 3
and 4).
The Union commenced an organizational campaign in late
1998, and a number of employees became actively involved. In

2 At the commencement of the hearing, the General Counsel
amended the complaint to remove the name of Daniel Schneider as an
alleged discriminatee in pars. 7 and 9.
3 The Respondent’s unopposed motion to correct the transcript,
dated September 21, is granted and received in evidence as R. Exh. 18.
early January 1999, Schmarje held a meeting with all employ-
ees to apprise them that they were behind on a large program
order,4 and it was necessary to pick up the work. One of the
employees at the meeting inquired whether there was any addi-
tional program work scheduled after the current program was
completed. Schmarje said, “[W]e don’t have anything sched-
uled and we are probably going to have to lay off.” No men-
tion of the number of employees impacted or a target date was
discussed. On January 15, Schmarje held a meeting with all
employees to disabuse them of a rumor running rampant at the
facility that a layoff was imminent that could reach senior em-
ployees who receive 3 weeks’ vacation. On January 20, the
Union sent a certified letter to Schmarje requesting recognition.
On January 22, Chief Executive Officer Robert Rude held a
meeting with all employees. Schmarje was not present at the
meeting, and the employees vented their numerous frustrations
to Rude. In order to address some of their concerns, Schmarje
held a meeting with all employees on January 28, wherein he
apologized for past problems and promised to address future
employee concerns.
On February 4, another meeting was held with all employ-
ees. Schmarje addressed the topic of what a union meant to
their relationship and expressed his opinion that either party
could win, lose, or draw if they went into negotiations.
Schmarje stressed that he has worked side-by-side with the
majority of the employees and he did not know how things
would go with the interjection of a third party. Additional em-
ployee meetings to address Respondent’s position about the
Union took place on February 11, 18, and 24. The election
campaign culminated on February 26, when the Union won a
representation election conducted by the Board. On March 5,
the Employer laid off 11 employees primarily based on senior-
ity. On March15, the Union was certified as the exclusive col-
lective-bargaining representative of the employees in the unit.
B. The 8(a)(1) Violations
1. Allegations concerning Jeffery Schmarje
The General Counsel alleges in paragraph 6(a) of the com-
plaint that about February 1, Schmarje threatened its employees
by stating that if the employees selected the Union as their col-
lective-bargaining representative, Respondent would treat the
employees as badly as it treats its vendors.
The general test applied to determine whether employer
statements violate Section 8(a)(1) of the Act is “whether the
employer engaged in conduct which reasonably tends to inter-
fere with, restrain, or coerce employees in the free exercise of
rights under the Act.” NLRB v. Almet, Inc., 987 F.2d 445 (7th
Cir. 1983); Reeves Bros., 320 NLRB 1082 (1996).
Before addressing the specific allegations involving
Schmarje, it became apparent to me after hearing the testimony
that he has a paternal feeling for his business. Indeed, Schmarje
told one of his employees that the Union made him feel like
getting a divorce or losing a child through death. Schmarje
testified that he felt betrayed when the Union came on the scene
since he built the Company from the ground up and has given
4 Program orders are a large volume of freight cars that have a high
amount of repetitive work.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 170
much to its development and success. He did not want a third
party to intervene and act as a wedge between the Company
and his employees.
Employee’s Robert Schosek, Joseph Rivera, and Jim Piazza
all testified that during one of the February 1999 campaign
meetings, Schmarje apprised the first-shift employees that he is
a tough negotiator and he treats his vendors like ”shit.”
Schmarje further told the employees that if the Union came in,
he intends to treat them like a business and treat them like his
vendors.
Schmarje admitted that during the February 11 employee
meeting, he apprised his employees that he is a tough negotiator
and treats his vendors badly. He might have used the word
“shit” but does not specifically recall. However, Schmarje’s
notes of the February 11 meeting, confirm that the topic of
vendors was discussed with the employees (R. Exh. 11).
Based on the above, I credit the testimony of the three em-
ployees that when Schmarje discussed the topic of vendors, he
told the employees that he was a tough negotiator and treated
his vendors like “shit.” He further stated that if the Union came
into the facility, he intended to treat them just like his vendors.
Under these circumstances, I find that such a statement made
to employees tends to coerce them in the exercise of their Sec-
tion 7 rights and that it violates Section 8(a)(1) of the Act. See
Polymer Prints, 281 NLRB 431, 433 (1986).
In regard to paragraphs 6(b) and (c) of the complaint, the
General Counsel alleges that Schmarje informed employees at
the February 1999 meetings, that Respondent would not lay off
employees even if business was slow but told them that if they
selected the Union, he could not control or keep his promise not
to lay off employees.
Employees Daniel Brunelli, Robert Schosek, Carl Conrow,
and Jim Piazza all testified that during one or two of the em-
ployee meetings held in February 1999, Schmarje told them
that he made a commitment to the men to keep them working
even if work was slow. Schmarje further stated that if the Un-
ion came in, he did not know if he could keep such a commit-
ment and there possibly could be layoffs. Piazza also testified
that Schmarje always said that he did not hire to lay off.
Schmarje testified that he couched all of his discussions re-
garding layoffs in terms of negotiations. In this regard, he as-
serts that he told the employees that he could not predict what
would happen in negotiations about layoffs. He did not deny,
however, specifically making the statements attributed to him
by the three employees.
Under these circumstances, I tend to credit the testimony of
the four employees. It has a ring of truth to it, and did not ap-
pear to be contrived. Indeed, the employees’ pretrial affidavits
given to the Board shortly after Schmarje conducted the Febru-
ary 1999 employee meetings, contained the statements. More-
over, as discussed above, I conclude that Schmarje felt threat-
ened and betrayed by the presence of the Union, and saw all his
hard work in building the Company disappearing before his
eyes. Accordingly, and particularly noting that Schmarje did
not specifically deny that he made the statements, I conclude
that he did tell employees that he could not control or keep his
commitment not to lay off employees if the Union came into
the facility. Therefore, I find that such statements tend to inter-
fere with and coerce employees in the exercise of their guaran-
teed rights, and conclude that Respondent violated Section
8(a)(1) of the Act when Schmarje made the statements alleged
in paragraphs 6(b) and (c) of the complaint.
With respect to paragraph 6(d) of the complaint, the General
Counsel alleges that Schmarje told employees that during col-
lective-bargaining negotiations with the Union, the Respondent
would refuse future work for fear of strikes.
Employees Daniel Brunelli and Jim Piazza testified that dur-
ing one of the February 1999 employee meetings, Schmarje
told the employees that if the Union came in, he would refuse
work from customers because he was afraid to tie up their
equipment if there was a strike.
Schmarje admitted that he might have expressed his concern
to the employees if customers’ freight cars were on the property
in case of a strike.
I am of the opinion that Schmarje did make the statement al-
leged in the complaint. Such a statement is consistent with the
way Schmarje expressed his feelings about the Union both to
employees during the meetings and in his testimony. Likewise,
the employee’s testimony was forthright and not evasive even
under extensive cross-examination by Respondent’s counsel.
Under these circumstances, I find that Schmarje made the
statement that Respondent would refuse future work for fear of
strikes. Accordingly, I conclude that Respondent violated Sec-
tion 8(a)(1) of the Act.
2. Allegations concerning Jeffery Grainer
The General Counsel alleges in paragraph 6(e) of the com-
plaint that about February 26, Respondent, by Jeffrey Grainer,
threatened employees by stating that, all year, they would regret
having selected the Union as their collective-bargaining repre-
sentative.
Employee Jim Piazza testified that after the results of the
election were announced on February 26, he was in the midst of
shaking hands with Grainer and said, “it could be worse.”
Grainer said, “you are going to regret this all year.”
Grainer admitted that while he was shaking hands with Pi-
azza, he told him that, “you’re going to regret having a Union
in.” Grainer attempted to explain that in making the statement
to Piazza, he meant that in his opinion unions don’t do anything
for employees and during the course of the organizational cam-
paign, he expressed his opinion to employees that union’s were
not good.
I find that such a statement, uttered immediately after the un-
ion’s victory, was threatening and coercive. Accordingly and
particularly noting that Grainer admitted making the statement,
I find that it violates Section 8(a)(1) of the Act. See Maxwell’s
Plum, 256 NLRB 211, 214, 216 (1981).
C. The 8(a)(1) and (3) Violations
The General Counsel alleges in paragraph 7 of the complaint
that about March 5, Respondent laid off 11 employees because
they assisted the Union.5
In Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the Board

5 The evidence disclosed that employee Heath Stuart was laid off on
February 23, rather then March 5.
EBENEZER RAIL CAR SERVICES 171
announced the following causation test in all cases alleging
violations of Section 8(a)(3) or violations of Section 8(a)(1)
turning on employer motivation. First, the General Counsel
must make a prima facie showing sufficient to support the in-
ference that protected conduct was a “motivating factor” in the
employer decision. On such a showing, the burden shifts to the
employer to demonstrate that the same action would have taken
place even in the absence of the protected conduct. The United
States Supreme Court approved and adopted the Board’s
Wright Line test in NLRB v. Transportation Management
Corp., 462 U.S. 393, 399–403 (1983). In Manno Electric, 321
NLRB 278 fn. 12 (1996), the Board restated the test as follows.
The General Counsel has the burden to persuade that antiunion
sentiment was a substantial or motivating factor in the chal-
lenged employer decision. The burden of persuasion then shifts
to the employer to prove its affirmative defense that it would
have taken the same action even if the employee had not en-
gaged in protected activity.
In regard to Heath Stuart, the General Counsel presented
evidence that he was a union supporter because he had a
bumper sticker on his car and on the day before he was laid off,
he wore a union baseball cap to work. Additionally, the Gen-
eral Counsel argues that on January 21, in the presence of
Foreman Tim Cartwright and Stuart, Foreman Thomas Jaku-
bowski, while uttering a racial slur about Vietnamese employ-
ees, also stated that he was ready if the Union came into the
facility.
Respondent argues that Stuart was laid off because of lack of
work and the fact that he did not satisfactorily complete his
probationary period. In this regard, Stuart was hired on No-
vember 3, 1998, and his first 30-day probationary period ended
on December 3, 1998. Respondent extended his probationary
status for another 60 days and when it was evident that Stuart
was not working out, he was laid off on February 23. At no
time during his employment did Stuart ever receive full-time
benefits since he was still in his probationary period.
Although Stuart testified that supervisors observed him
wearing his union baseball cap on February 22, he admitted that
no one said anything to him about the cap. I conclude that
while he wore the union baseball cap on February 22, before
and after work and at lunch, there is no evidence that any
Foreman observed or acknowledged the cap during any of these
periods. Likewise, even if Jakubowski made the statement that
he is ready for the Union, there is no evidence in the record that
Jakubowski directed the comment at Stuart or that he was
aware that Stuart supported the Union. Moreover, at the time
the alleged statement was made on January 21, Stuart did not
possess the UAW cap since he first received it at the union
meeting on February 21.
Under these circumstances, and particularly noting that
Schmarje apprised employees in early January 1999, that lay-
offs could be a possibility, I conclude that Respondent’s rea-
sons for the layoff withstand scrutiny. Thus, I find that Stuart
would have been laid off on February 23, even in the absence
of his union activities.
With respect to the remaining 10 employees that were laid-
off on March 5, the General Counsel asserts that this was the
first significant layoff at Respondent and there was plenty of
work available for the employees to complete.6 In this regard, a
number of employees testified that the railroad tracks were full
of cars to be repaired, employees were regularly working 10-
hour days with scheduled Saturday overtime, and several
Foreman apprised employees that as fast as the freight cars
could be repaired there would be additional cars provided to
work on. Additionally, the General Counsel argues that on
March 26, Foreman Grainer told employee Blair McPherson
that the layoffs will be the end of the second shift and they
would not have happened except with what’s going on.7
Respondent contends that the layoffs on March 5 took place
for legitimate business reasons. In this regard, the Respondent
notes that in early January 1999, Schmarje apprised the em-
ployees that they were behind in their work, that no other large
work programs were scheduled and there might have to be a
layoff. Additionally, Respondent asserts that in early February
1999, Schmarje went to Michigan to bid on repairing a large
number of freight cars that represented a four or five million
dollar job. On February 24, Respondent learned that it was not
the successful bidder for this work.8 Around this same time,
the Respondent received its most recent income statement for
the period ending February 28. That statement shows that for
the last 4 months it had lost $362,013 (R. Exh. 14). Indeed, the
Respondent found it necessary to extend its Bank line of credit
from a maximum of $800,000 to $14 million in order to stay in
business and meet expenditures during this period.
Schmarje met with the employees on March 1, and informed
them that the company financial statements were bad and they
did not receive the large program order that he had bid on. He
further apprised the employees that the business was in bad
shape and he would do whatever it would take to get the Com-
pany back to financial stability. Schmarje, after reviewing cost
projections and other financial statements, independently made
the decision to lay off between 10 and 14 employees on March
1. Schmarje consulted with his attorney, and they jointly de-
cided to lay off 10 employees by seniority on close of business
March 5.
I conclude that the General Counsel has made a strong show-
ing that the Respondent was motivated by antiunion considera-
tions in laying off 10 employees on March 5. In this regard, I
previously found that prior to the layoff, Schmarje made a
number of threatening statements to employees that show his
feelings about the Union. Additionally, immediately after the
representation election on February 26, Foreman Grainer told
an employee that you are going to regret this all year, and the
layoff took place only 5 workdays after the election.
The burden shifts to the Respondent to establish that the
same action would have taken place even in the absence of the
employees’ protected conduct.

6 Although there were other slow periods that took place in prior
years wherein Respondent permitted employees to work in makeshift
jobs and did not layoff significant employees, it had never lost as much
money in those years as in the present situation.
7 McPherson admitted that the word “union” was never used.
8 R. Exh. 17 shows that between January 8 and April 20, the Em-
ployer was actively seeking to obtain additional work. Only one small
painting job was derived from these efforts.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 172
I conclude that the Respondent would have effectuated the
layoff on March 5, even if the employees had not engaged in
protected conduct. In this regard, the income statements of the
Respondent conclusively establish that it was hemorrhaging
money, for a number of months prior to the layoff, without any
relief in sight. Respondent took all reasonable efforts in order
to obtain additional work but was rebuffed by its customers. It
even convinced its lender to increase its line of credit an addi-
tional $600,000. I find that when Schmarje received the Febru-
ary 28 income statement, that reported continued bleeding of
company resources, it was the breaking point that led him to
follow through on his prior statement to employees that a layoff
might have to occur. Indeed, that statement was made in early
January 1999, before the filing of the January 20 demand for
union recognition.
Under these circumstances, I find that Schmarje made the
decision to lay off employees on March 1. Although he did not
specifically tell employees of this decision at the March 1 meet-
ing, he did apprise them that he would do whatever it would
take to get the Company back to financial stability. Thus, I find
that Schmarje made the decision to lay off employees for le-
gitimate business reasons unrelated to union activities.
Accordingly, I recommend that the Section 8(a)(1) and (3)
allegations in paragraph 7 of the complaint be dismissed.
D. The 8(a)(1) and (5) Violations
The General Counsel alleges in paragraph 9 of the complaint
that about March 5, Respondent laid off 11 employees without
prior notice to the Union and without affording the Union an
opportunity to bargain with respect to this conduct and the ef-
fects of this conduct.
The evidence discloses that on March 1, Attorney Braccio
left a telephone message for Union Organizer John Garvey that
he needed to speak to him about a matter concerning the Re-
spondent. Both Garvey and Braccio played “telephone tag”
and were unable to confer until the afternoon of March 4, when
Braccio informed Garvey that Respondent intended to lay off
between 10 and 14 employees. Garvey informed Braccio that
the layoffs should be negotiated and asked Braccio to talk to
Assistant Union Regional Director Tom O’Donnell about the
specifics of the layoff. Braccio then engaged O’Donnell in
conversation about the layoffs. Braccio informed O’Donnell
that the layoffs would be effective close of business on March
5, and would occur according to straight seniority with minor
exceptions. O’Donnell told Braccio that we have to negotiate
before the employees are laid off. Braccio told O’Donnell that
he could meet towards the end of April 1999. O’Donnell then
asked whether the layoff could be postponed and Braccio in-
formed O’Donnell that it could not because Respondent was
bleeding red ink. Braccio further informed O’Donnell that the
layoff was based on economic necessity and Respondent would
not give up on such a defense. O’Donnell then requested that
negotiations over the layoff take place on March 5, but Braccio
told him that his schedule did not permit it. O’Donnell further
requested that negotiations take place on Monday but Braccio
could not accommodate such a request due to a personal obliga-
tion. Braccio ended the conversation by informing O’Donnell
that he would call him next week to schedule dates for negotia-
tions over the layoff.
The complaint alleges, and Respondent admits, that on Feb-
ruary 26, a representation election was conducted among em-
ployees in the unit and on March 15, the Union was certified as
the exclusive collective-bargaining representative of the unit.
Thus, the layoff of employees on March 5 took place between
the election and the certification of the Union. The Board has
held in Consolidated Printers, 305 NLRB 1061, 1067 (1992),
that no unilateral changes may be made by an employer during
the period of time between the results of the election and even-
tual certification. Here, there is no question that a change in
conditions of employment took place on March 5, when the
layoff of 10 employees occurred.
In the particular circumstances of this case, it must be deter-
mined whether the notice given the Union on the afternoon of
March 4 was adequate enough to enable the Union to request
and enter into negotiations over the conduct of the layoff and its
effects.
The Board has consistently held that an employer’s decision
to lay off employees for economic reasons is a mandatory sub-
ject of bargaining and that an employer must provide notice to
and bargain with the Union concerning the decision to lay off
bargaining unit employees and the effects of that decision.
Plastonics, Inc., 312 NLRB 1045, 1048 (1993), Adair Standish
Corp. 292 NLRB 890 (1989), enfd. in relevant part 912 F.2d
854 (6th Cir. 1990), and Lapeer Foundry & Machine, 289
NLRB 952 (1988). Here, the layoffs of the 10 employees were
motivated by economic reasons, that is, the “bleeding of red
ink,” and not by any change in the scope and direction of the
business. Compare Bridon Cordage, Inc. 329 NLRB 258
(1999).
The Board has held that the establishment of “compelling
economic circumstances” may excuse a company’s failure to
bargain over a layoff decision, but that such an exception shall
only apply in “extraordinary situations.” Lapeer Foundry,
supra. The only “extraordinary situation” that can be said to
exist in this case is the cumulative loss of $362,013 as of Feb-
ruary 28, a sum that was reached after successive loses since
November 1998.
Given the fact that the loss of money continued since No-
vember 1998, I do not believe that Respondent has demon-
strated that its situation should fall within the exception excus-
ing the Employer’s failure to bargain with the Union over the
decision to layoff its employees. There is simply no showing
of urgency or that immediate harm would result that would
preclude taking time to bargain with the Union. Here,
Schmarje informed his employees in early January 1999, that a
layoff might be necessary and reached the decision for the
March 5 layoff on March 1. Indeed, Schmarje informed his
employees on March 1 that things were bad and that he would
do whatever it would take to get the Company back up in fi-
nancial shape. He did not, however, inform them or the Union
on that date that he was planning on laying off 10 employees on
March 5. Rather, it was not until the afternoon of March 4, that
Braccio first told the Union that a layoff would take place on
March 5. I conclude that Respondent could have informed the
Union on March 1, that it intended to layoff employees on
EBENEZER RAIL CAR SERVICES 173
March 5, which would have provided ample opportunity to
complete negotiations before that time. Here, there was no
legitimate explanation by Respondent why bargaining could not
have taken place during this 5-day period and it must be held
accountable for its inaction.
The record establishes that on receiving the initial notifica-
tion by telephone about the layoffs on March 4, the Union im-
mediately requested to negotiate about the decision to lay off
employees and the effects of the layoffs in the same conversa-
tion, offering to meet on March 5 and 8. Additionally, the Un-
ion requested that the layoffs be postponed. All of these re-
quests were met with unequivocal refusals by Respondent to
bargain at that time. This leads me to conclude that the Re-
spondent never had any intention to bargain about the layoff
decision or its effect on employees before March 5. Thus, I
find that Respondent violated Section 8(a)(1) and (5) of the Act
by this conduct.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondent engaged in unfair labor practices within the
meaning of Section 8(a)(1) of the Act by stating to employees
that if they selected the Union as their collective-bargaining
representative it would treat the employees as badly as it treats
its vendors, threatening employees that if they selected the
Union as their collective-bargaining representative it could not
control any employee layoffs and would not keep its commit-
ment not to lay off employees, threatening employees that it
would refuse future work for fear of strikes and threatening
employees that all year, they would regret having selected the
Union as their collecting-bargaining representative.
4. Respondent has not engaged in unfair labor practices
within the meaning of Section 8(a)(1) and (3) of the Act when
it laid off 10 employees on March 5, 1999.
5. Respondent, by laying off 10 employees on March 5,
1999, without giving adequate notice, and without affording the
Union an opportunity to bargain in good faith over the layoff
decision and its effects, has engaged in conduct violative of
Section 8(a)(1) and (5) of the Act.
6. The unfair labor practices found to have been committed
by Respondent affect commerce within the meaning of Section
2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
It is recommended that Respondent be ordered to make
whole, with interest, those unit employees who were laid off on
March 5, 1999, for any loss of pay or other employment benefit
suffered as a result of this unlawful unilateral action. Backpay
should be computed in the manner set forth in F. W. Woolworth
Co., 90 NLRB 289 (1950), plus interest as computed in New
Horizons for the Retarded, 283 NLRB 1173 (1987).
ORDER
The Respondent, Ebenezer Rail Car Services, Inc., West Se-
neca, New York, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Threatening employees that if they selected the Union as
their collective-bargaining representative, it would treat the
employees as badly as it treats its vendors.
(b) Threatening employees that if they selected the Union as
their collective-bargaining representative, it could not control
any employee layoffs.
(c) Threatening employees that if they selected the Union as
their collective-bargaining representative, it would not keep its
commitment not to layoff employees.
(d) Threatening employees that during collective-bargaining
negotiations with the Union, it would refuse future work for
fear of strikes.
(e) Threatening employees that all year, they would regret
having selected the Union as their collective-bargaining repre-
sentative.
(f) Laying off its unit employees without first giving ade-
quate notice of its intention to do so to the Union and affording
the Union an opportunity to bargain in good faith over the deci-
sion and its effects.
(g) In any like or related manner interfering with, restraining,
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 effec-
tuate the policies of the Act.9
(a) Give notice to the Union before it implements any future
economic layoff and give the Union the opportunity to bargain
over that decision and its effects.
(b) Make whole, with interest, those unit employees who
were laid off on March 5, 1999, for any loss of pay or other
employment benefits suffered as a result of this unilateral ac-
tion.
(c) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records, including an
electronic copy of the records if stored in electronic form, nec-
essary to analyze the amount of backpay due under the terms of
this order.
(d) Within 14 days after service by the Region, post at its fa-
cility in West Seneca, New York, copies of the attached notice
marked “Appendix.”10 Copies of the notice, on forms provided

9 The General Counsel’s request in its posthearing brief for an Order
requiring Respondent to bargain in good faith with the Union for the
period required by Mar-Jac Poultry Co., 136 NLRB 785 (1962), is
rejected. In this regard, the subject case does not allege or involve
negotiations concerning an initial term agreement. Accordingly, the
remedy provided adequately addresses the 8(a)(1) and (5) violation of
the Act found herein.
10 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-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 174
by the Regional Director for Region 3, after being signed by the
Respondent's authorized representative, shall be posted by the
Respondent immediately on receipt and maintained for 60 con-
secutive days in conspicuous places including all places where
notices to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the notices are
not altered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the Re-

ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
spondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since February 1, 1999.
(e) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.