EXELON GENERATION CO., LLC

National Labor Relations Board - Board Decisions

Jul 31, 2006

347 N.L.R.B. 815 (N.L.R.B. 2006)

EXELON GENERATION CO.
347 NLRB No. 77
815
Exelon Generation Company, LLC. and International
Brotherhood of Electrical Workers, Local Union
No. 614, AFL–CIO. Cases 4–CA–33787, 4–CA–
33937, and 4–RC–20940
July 31, 2006
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY MEMBERS SCHAUMBER, KIRSANOW, AND WALSH
On March 10, 2006, Administrative Law Judge Wal-
lace H. Nations issued the attached decision. The Re-
spondent filed exceptions and a supporting brief. The
General Counsel and the Charging Party/Union both
filed answering briefs.
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 conclusions and
to adopt the recommended Order as modified and set
forth in full below, and finds that the election must be set
aside and a new election held.
On May 5, 2005, an election was conducted pursuant
to a Decision and Direction of Election. The tally of bal-
lots shows 325 for and 328 against the Petitioner, with no
challenged ballots. The Union filed timely objections to
the election and unfair labor practice charges alleging
that the Respondent engaged in unfair labor practices
during the organizing campaign and immediately after
the election.
For the reasons stated in the judge’s decision, we
adopt the judge’s findings that the Respondent violated
Section 8(a)(1) of the Act by threatening employee union
supporter Robert Schlegel with job loss and by threaten-
ing employee union supporter Cynthia Curtin with loss
of prior approval to take leave without pay to attend
Board hearings pursuant to subpoena.2 We further adopt
the judge’s conclusion that the Respondent violated Sec-
tion 8(a)(3), (4), and (1) by requiring employee union
supporters Curtin, Schlegel, and Jerome Dailey to use
vacation time rather than unpaid leave to attend Board

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 preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 Member Schaumber finds it unnecessary to pass on the latter threat
finding as the result would be cumulative.
hearings pursuant to subpoena because they supported
the Union.3
The judge sustained the Union’s Objections 1, 2, 3, 5,
6, and 9 and recommended that the election be set aside
and a new election be held.4 We sustain the Union’s Ob-
jection 1, finding that the Respondent threatened em-
ployees with changes in their work hours and shifts and
with loss of flexible work hours if the employees voted
for union representation.5 We therefore find it unneces-
sary to pass on the remaining objections.
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, Exelon Generation Company, LLC., Limer-
ick, Pennsylvania, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Threatening employees with loss of their jobs be-
cause they supported the Union.

3 Members Schaumber and Kirsanow rely solely on an analysis un-
der Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982), to find, in agreement with the
judge, that the Respondent’s requirement that union-subpoenaed em-
ployees take vacation leave or floating holidays to attend Board hear-
ings was unlawful as it departed from past practice and was motivated
by antiunion animus. Members Schaumber and Kirsanow do not pass
on the judge’s additional reliance on Western Clinical Laboratory, Inc.,
225 NLRB 725, 726 (1976), enfd. in pertinent part 571 F.2d 457 (9th
Cir. 1978), in finding the violation.
Contrary to his colleagues, and in agreement with the judge, Mem-
ber Walsh would rely on Western Clinical Laboratory, supra, in finding
this violation.
4 The Respondent has excepted to the judge’s statement in his con-
clusions of law that he relied at least in part on the unfair labor prac-
tices to find objectionable conduct and to recommend setting aside the
election result. The Union disclaimed any reliance on the unfair labor
practice charges as a basis for overturning the election, as it acknowl-
edged in its brief to the Board. Further, it is clear from the body of the
judge’s decision that he set aside the election based solely on the con-
duct alleged to be objectionable. We therefore correct the judge’s lan-
guage in his conclusions of law to eliminate any reference to the unfair
labor practices as a basis for setting aside the election.
In addition, we have revised the recommended remedy to require
that the Respondent make whole employees Dailey and Curtin by pro-
viding them unpaid leave in an amount equal to the vacation leave they
were required to use, rather than by restoring the vacation leave as the
judge ordered. The revised remedy accurately reflects what is needed to
restore the status quo.
5 Members Schaumber and Kirsanow agree that Limerick Shift Su-
perintendent Peter Orphanos and Plant Manager Bryan Hanson en-
gaged in objectionable conduct at meetings they held with employees
in April, but find it unnecessary to pass on the remaining conduct al-
leged as objectionable under Objection 1.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD816
(b) Threatening an employee with loss of prior ap-
proval to take leave without pay to attend Board hearings
pursuant to subpoena because the employee supported
the Union.
(c) Requiring its employees to use vacation time to at-
tend Board hearings pursuant to subpoena because they
supported the Union.
(d) 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) Make whole its employees Cynthia Curtin and
Jerome Dailey for any losses they may have suffered by
the Respondent’s discrimination against them, including
providing them unpaid leave in an amount equal to the
vacation time they were required to use to attend Board
hearings pursuant to subpoena in 2004 and 2005.
(b) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of unpaid leave
due under the terms of this Order.
(c) Within 14 days after service by the Region, post at
its Peach Bottom Atomic Power Station, Limerick Gen-
erating Station, and Outage Services Group facilities in
Delta, Limerick, and Kennett Square, Pennsylvania, re-
spectively, copies of the attached notice marked “Ap-
pendix.”6 Copies of the notice, on forms provided by the
Regional Director for Region 4, after being signed by the
Respondent’s authorized representative, shall be posted
by the Respondent and maintained for 60 consecutive
days in conspicuous places including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the
Respondent shall duplicate and mail, at its own expense,
a copy of the notice to all current employees and former
employees employed by the Respondent at any time
since December 9, 2004.

6 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.”
(d) 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.
[Direction of Second Election omitted from publica-
tion.]
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT threaten employees with loss of their
jobs because they supported the Union.
WE WILL NOT threaten an employee with loss of prior
approval to take leave without pay to attend Board hear-
ings pursuant to subpoena because the employee sup-
ported the Union.
WE WILL NOT require our employees to use vacation
time to attend Board hearings pursuant to subpoena be-
cause they supported the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
rights guaranteed them by Section 7 of the Act.
WE WILL make whole our employees Cynthia Curtin
and Jerome Dailey for any losses they may have suffered
by our discrimination against them, including providing
them unpaid leave in an amount equal to the vacation
time they were required to use to attend Board hearings
pursuant to subpoena in 2004 and 2005.
EXELON GENERATION CO., LLC.
EXELON GENERATION CO. 817
Noelle M. Reese, Esq., for the General Counsel.
Karl A. Fritton, Esq. and Jonathon R. Nadler, Esq., of Phila-
delphia, Pennsylvania, for the Respondent.
Nora H. Leyland, Esq. and Jonathan D. Newman, Esq., of
Washington, D.C., for the Charging Party.
DECISION
STATEMENT OF THE CASE
WALLACE H. NATIONS, Administrative Law Judge. This case
was tried in Philadelphia, Pennsylvania, on November 1–4,
2005. The charge in Case 4–CA–33787 was filed by Interna-
tional Brotherhood of Electrical Workers, Local 614, AFL–CIO
(the Union) on March 24, 2005,1 and an amended charge was
filed on August 2, 2005. The charge in Case 4–CA–33937 was
filed by the Union on June 9, 2005, and an amended charge
was filed on July 29, 2005. The Regional Director for Region 4
issued an order consolidating cases, consolidated complaint,
and notice of hearing (the complaint) on August 18, 2005. As
will be set out in detail later, the complaint alleges that Exelon
Generation, LLC. (Respondent or Exelon) has engaged in con-
duct in violation of Section 8(a)(1), (3), and (4) of the National
Labor Relations Act (the Act). At the outset of the hearing
General Counsel was allowed to amend the complaint. The
Respondent has filed an answer to the complaint wherein it
admits, inter alia, service of charges, jurisdiction, the Union’s
status as a labor organization, and the supervisory and agency
status of Plant Manger Bryan Hanson, Supervisor John Moore,
Manager Mark Crim, and Supervisor Robert Shorts. On No-
vember 23, 2004, the Union filed a petition to represent Re-
spondent’s facilities and pursuant to that petition, an election
was held On May 5, 2005. The Union lost the election and
thereafter filed objections to the election. On August 18, 2005,
Region 4 issued its notice of hearing on objections to election,
directing that a hearing be held on certain of the Union’s objec-
tions. The Region also consolidated the hearing on objections
with the two unfair labor practices involved herein.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, the Union, and Respondent, I make the
following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, engages in the generation of
electricity at various locations throughout the United States,
including the three facilities directly involved in this case. In-
volved are two atomic power generating facilities located in
Limerick, Pennsylvania, and in Delta, Pennsylvania (the Limer-
ick Generating Station and the Peach Bottom Atomic Power
Station). Also involved is Respondent’s Outage Services Group
in Kennett Square, Pennsylvania. Respondent 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.

1 All dates are 2005, unless otherwise indicated.
II. ALLEGED UNFAIR LABOR PRACTICES AND OBJECTIONS
A. Background
Exelon Generation Company is a unit of the Exelon Corpo-
ration, which was formed as a result of the merger of PECO
Energy Company and UniCom Corporation (known as ComEd)
in 2000. Exelon operates power plants across the U.S., includ-
ing the two generation facilities which are involved in these
cases. The facilities are known as the Limerick and Peach Bot-
tom facilities and are located in Limerick and Delta, Pennsyl-
vania, respectively. These two facilities are the only two non-
union facilities in the Exelon group of generation facilities. The
Union also sought to represent Respondent’s employees at its
Outage Services Group in Kennett Square, Pennsylvania. The
IBEW represents hourly employees at all of the other facilities
within Exelon Generation, as well as a number of facilities in
other divisions of Exelon Corporation. For many years, IBEW
Local 15 has served as the collective-bargaining representative
of all production and maintenance employees at the former
ComEd (including at seven nuclear power generating stations
in Illinois), and has been party to a collective-bargaining agree-
ment with ComEd, and now Exelon. Production and mainte-
nance employees at the Respondent’s other nuclear power
plants, Three Mile Island and Oyster Creek, are represented by
IBEW locals 777 and 1289, respectively. During the Union’s
campaign at Limerick and Peach Bottom, Local 614 and Ex-
elon completed negotiations on a first-time contract at Respon-
dent’s fossil-fueled generation plants in Pennsylvania (the Fos-
sil contract), and the content of that contract became a point of
substantial attention during the campaign.
The Petitioner in this case, IBEW Local 614, represents em-
ployees at other divisions of Exelon Corporation, including
PECO Energy Transmission and Distribution and Call Center
employees, and Exelon Generation production and maintenance
employees at Exelon Mid-Atlantic Power, which is the Fossil
division in the Philadelphia area. As noted earlier, the Union
filed a petition on November 23, 2004, to represent Respon-
dent’s employees at the Limerick and Peach Bottom facilities
and the preelection period spanned an approximate 5-month
period. A hearing to determine the unit composition was held at
the Regional offices beginning in mid-December 2004 and
ending January 18, 2005. During the period of time between
the filing of the petition and immediately following the elec-
tion, Respondent is alleged to have committed certain unfair
labor practices and to have engaged in other conduct which
would constitute grounds for invalidating the election and hold-
ing a re-run election. The election was held on May 5, 2005,
during which 653 valid votes were cast, with the Union losing
the election by a 3-vote margin.
B. Alleged Unfair Labor Practices
Specifically, the complaint alleges that Respondent violated
Section 8(a)(1) of the Act by on or about May 6, 2005, threat-
ening an employee with loss of the employee’s job because the
employee was supporting the Union. It further alleges that on
or about January 3, 2005, Respondent, by Bryant Hanson,
threatened an employee with loss of Respondent’s approval to
take leave without pay to attend Board hearings on January 3
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD818
and 4, 2005, because the employee supported and assisted the
Union.
The complaint further alleges that Respondent violated Sec-
tion 8(a)(1), (3), and (4) of the Act, by:
1. On or about December 9, 2004, requiring is employee
Jerome Dailey, against his wishes, to use vacation time while
attending a Board hearing in Case 4–RC–20940 pursuant to a
subpoena on December 10, 2004, January 3, 4, 12, and 18,
2005; and if he attended the hearing, on January 19, 2005.
2. On or about January 9, 2005, requiring its employee Cyn-
thia Curtin, against her wishes, to use vacation time while at-
tending a Board hearing in the same case pursuant to a sub-
poena on January 3 and 4, 2005.
3. On or about January 17, 2005, requiring its employee
Robert Mark Schlegel, against his wishes, to use vacation time
attending this hearing pursuant to a subpoena, on January 18,
2005.
C. Facts and Conclusions Related to the Unfair
Labor Practices
1. Overview of the representation hearings
The parties met as scheduled for the first day of the represen-
tation hearing on December 8, 2004. In preparation for the
hearing, the Union sent out about 10 to 12 subpoenas to Re-
spondent’s employees. Having been subpoenaed by the Union
to attend the hearing, radiation protection technicians2 Robert
Schlegel and Jerome Dailey sat behind International representa-
tive of the IBEW, Brian Brennan, and Union Attorney Nora
Leyland, on the Union’s side of the hearing room on December
8, 2004. On behalf of the Employer, Limerick Plant Manager
Bryan Hanson and Peach Bottom Plant Manager Joe Grimes
were present.
On December 8, 2004, no record testimony was presented
because the parties negotiated all day which job classifications
should be included and excluded from the bargaining unit.
Having never worked for Exelon and generally unfamiliar with
the day-to-day activities of the Limerick and Peach Bottom
plants, Brennan relied on subpoenaed employees, such as
Dailey, Schlegel, and Cynthia Curtin, to learn about job duties
and responsibilities of the disputed job positions. Dailey and
Schlegel knew about other job classifications because their jobs
take them regularly to virtually every part of the plant.
Although the Union was prepared each day to present record
evidence and testimony, the parties ultimately had off the re-
cord discussions on December 10 and a couple of other days in
December 2004 to attempt to resolve a number of disputed
positions. On December 10, Dailey and other subpoenaed wit-
nesses discussed with the Union the eligibility and community-
of-interest issues related to clerks, secretaries, reactor operators,
lead maintenance technicians, and lead instrumentation techni-
cians. On December 17, 2004, the parties reached a stipulation
agreeing to include roughly 22 job classifications and exclude
other job classifications.

2 The parties agree that the radiation protection technicians and the
health physics technicians are the same position. In this decision, only
the name radiation protection technicians will by used.
At the hearing, Respondent contended that both the lead
maintenance technicians and reactor operators were supervisors
within the meaning of the Act. Respondent presented its evi-
dence first and had its witnesses testify concerning reactor op-
erators on January 3, 4, and 6, 2005, and concerning lead tech-
nicians on January 11 and 12, 2005. Respondent concluded its
case on January 12. On January 18, the Union presented its
case and called Schlegel, Curtin, and four other witnesses to
testify. Although the Union never called Dailey to testify,
Dailey was prepared to testify and was present to testify if
needed. As I will discuss further at the end of the section of this
decision, because of the complexity of Respondent’s operation,
I believe and find it was necessary for the Union to have at
least some knowledgeable plant employees present at each day
of the representation hearing to adequately present its position
in response to Respondent’s contentions and evidence.
On March 31, 2005, the Regional Director issued a Decision
and Direction of Election finding that the reactor operators
were not supervisors, but that the lead maintenance technicians
were supervisors. The unit found appropriate was as follows:
All full-time Designers, HP Technicians, I&C Technicians,
Chemistry Technicians, Equipment Operators, Reactor Op-
erators, Maintenance Technicians, Utility Technicians, Mate-
rial Coordinators, Quality Verification Technicians, NDE
Technicians, plant clericals at Limerick Nuclear Generating
Station (Chemistry: Administrative Clerk; Operations: Ad-
ministrative Clerks; Radiation Protection: Administrative
Clerk; Maintenance: Technical Clerk, Administrative Coordi-
nator; Maintenance Planning: Administrative Coordinator;
I&C: Administrative Coordinator; Business Operations: Ad-
ministrative Clerks), and plant clericals at Peach Bottom
Atomic Generating Station (Chemistry: Administrative Coor-
dinator; Operations: Technical Clerk; Administrative Coordi-
nator; Radiation Protection: Technical Clerk; Maintenance:
Administrative Coordinator; Maintenance Planning: Adminis-
trative Coordinator; I&C: Administrative Coordinator; Busi-
ness Operations: Technical Clerks), employed by the Em-
ployer at Peach Bottom Atomic Generating Station, Limerick
Nuclear Generating Station and Outage Services (East), ex-
cluding all other employees, Lead Technicians, all other Ad-
ministrative Clerks, Administrative Coordinators, Senior
Administrative Coordinators and Executive Coordinators,
Planners, all employees in exempt pay classifications, and all
employees in the Security, Training, Regulatory Assurance,
Nuclear Oversight and Human Resources Departments, office
clerical employees, guards and supervisors as defined by the
Act.
As noted above, the election was held on May 5, 2005.
2. Facts related to Respondent’s requirement that
employee Cynthia Curtin use vacation leave against her
wishes to attend the hearings pursuant to her subpoena
Cynthia Curtin is employed as a reactor operator at Respon-
dent’s Limerick facility. She has worked for Exelon or its
predecessor at Limerick for 23 years, and has been in her cur-
rent job since 1993. She reports directly to her shift supervisor
(Gene Pierce), who in turn reports to a shift manager (Mark
EXELON GENERATION CO. 819
Crim). The shift managers report to a shift superintendent (Pete
Orphanos) who reports to the operations director (Chris
Mudrick). The operations director reports to the plant manager
(Bryan Hanson) who reports to the site vice president (Ron
DeGregorio). In parentheses above are the names of the indi-
viduals who held the positions in Curtin’s chain of command
during material times in these proceedings.
Curtin testified that on December 28, 2004, she received a
subpoena from the Union to appear at the representation hear-
ing before the Region on January 3, 2005. On December 29,
she took the subpoena to her shift manager, Mark Crim, and
asked to take off the following Monday and Tuesday, days on
which she was scheduled to work. She wanted to take the days
off as time off without pay. Crim told her that he needed to talk
to Orphanos and would get back to her. Her night shift ended
and she left the facility. Crim called shortly thereafter and told
her she could take the time off as vacation. Curtain objected to
using vacation time as she wanted to save it for time she could
spend with her family. She reiterated her desire to take time off
without pay. Crim said he needed to talk to Orphanos and
would call her back. According to Curtin, Crim called back and
told her that Orphanos said they could work something out. She
was at that point in time authorized to attend the hearing pursu-
ant to subpoena taking time off without pay.
On January 3, 2005, she reported to the Board’s Philadelphia
office pursuant to the subpoena. She recognized Exelon em-
ployee Jerome Dailey and sat with him on the Union’s side of
the hearing room. Curtin was not called to testify on January 3.
She had planned to testify about her job to help determine
whether it would be in the proposed bargaining unit. Curtin
took notes at the hearing and provided union counsel with in-
formation about her job relating to whether her duties were
technical or supervisory in nature.
According to Curtin, near the end of the hearing day, Limer-
ick Plant Manager Hanson asked her if that day were a sched-
uled day off for her. She answered, “No.” Hanson then asked if
she took vacation for the day. She replied, “no,” adding that
Crim and Orphanos had given her permission to attend the
hearing taking time off without pay. According to Curtin, Han-
son then said, “Well, I’ll fix that.” Curtin asked what he meant,
and Hanson repeated, “I mean, I’ll fix that.” She said he made
this comment in an angry tone of voice. The Union’s attorney,
Nora Leyland, was standing close by and asked Hanson if he
were threatening Curtin, adding that he could not do that. Ley-
land then went to the employer’s attorneys to report what had
happened. Both employee Jerome Dailey and union representa-
tive testified about the event and completely corroborated Cur-
tin’s testimony in this regard.
Hanson testified about the January 3, 2005 hearing day. He
recalled Curtin wanting to have a conversation with him and he
elected not to have such a conversation. This took place in the
hall outside the hearing room. He felt that as he would be a
witness on the issue of whether her job would be in the unit, it
was not right to speak with her. Notwithstanding this concern,
later on the same day, he asked her if she had been scheduled to
work that day. She said she had, but upon receiving her sub-
poena, she had arranged with her supervisor to have another
employee cover her shift. He testified that he said to her, “I’ll
fix that.” Hanson recalls Brennan and the Union’s attorney
turning and asking him what he meant. He testified that he was
surprised to learn that she had been subpoenaed and he had not
been told of that fact in advance by supervision under him. He
added that he meant that he will fix the fact that he was not
notified that one of his employees had been subpoenaed to
testify that day and that her shift had to be worked by another
employee.
I totally credit Curtin’s version of the events of January 3
over that given by Hanson. Her version is corroborated by
Brennan’s and Dailey’s testimony, whereas only Hanson sup-
ported his version even though other of Respondent’s represen-
tatives were present for the confrontation and could have testi-
fied. Moreover, Curtin’s previously approved time off without
pay was rescinded and she was required to take vacation time
for the days she attended the hearing. The adverse action is
fully consistent with her version of the events and totally in-
consistent with Hanson’s version. I find that Hanson’s actions
were motivated by union animus and for no other reason. As
will be discussed later, no legitimate reason was ever proven
for requiring union-subpoenaed witnesses to use vacation time
rather than unpaid leave. Further, in another conversation with
Curtin in April, Hanson again demonstrated animus by threat-
ening Curtin with adverse action if the Union were to win the
election. This conversation is detailed at a later point in this
decision. I find that Hanson clearly threatened to take away
Curtin’s prior management approval of using unpaid leave for
the day, and such a threat of an adverse employment action
because of protected activities constitutes a violation of Section
8(a)(1) of the Act. See Poly-America, Inc., 328 NLRB 667, 669
(1999).
The following day, Tuesday, January 4, 2005, Curtin again
attended the representation hearing. She again sat with the un-
ion representatives. Another reactor operator, Roger Devlin, sat
with the Employer’s representatives. Neither Curtin nor Devlin
were called to testify that day. On Wednesday, Curtin again
showed up at the hearing only to be told by Brennan that it had
been cancelled for that day.
Her next scheduled work day was January 9, and when she
reported to work that day she was told by Crim that he would
talk to her later and she would not be happy about what he had
to say. In the afternoon of January 9, she again spoke with
Crim. He advised her he was bringing another supervisor in as
a witness and told her she could bring someone. She took an-
other reactor operator, Doug Nixon, as her witness. A meeting
was held where she was told that as she did not testify at the
representation hearing, she would be required to take vacation
for the days she was there, but was also scheduled to work.
Crim added that she could not take time off without pay unless
all her vacation time had been used.3 Crim also warned against
giving company information to anyone and that future infrac-
tions of this policy would be punished.
Curtin testified that she was upset because she had had per-
mission prior to going to the hearing to treat it as time off with-
out pay. She told Crim that what he was doing was unfair and

3 Curtain testified that this was the first time she had heard of such a
policy.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD820
asked that he reconsider. Crim said that as she was upset, she
should go home. She did as she was told and left work about 2
hours before her shift was scheduled to end. She was paid for
the entire shift.
On the following day, January 10, Curtin was home. Crim
called her and revised his statement to her about using vacation
time, offering her the option to take a floating holiday. She
replied that she wanted neither of his options, but rather wanted
to take time off without pay. Crim advised that this was not an
option and she chose to take vacation. For January 3 and 4,
Curtin was charged with 24 hours of vacation time.
On January 18, Curtin again attended the representation
hearing and on this day did testify about her job duties. January
18 was not a scheduled work day for Curtin.
Curtin gave her understanding of Respondent’s leave policy.
For a vacation, the employees filed vacation request forms. If
the time off was for a very short period, the employee would
simply ask their supervisor, who would talk to the shift man-
ager and take into consideration the work load before approv-
ing or disapproving the request. The amount of vacation em-
ployees get is based on years with the Company. Curtin cur-
rently gets 200 hours a year, and can carry over 40-unused
hours. They receive four 8-hour floating holidays, which can-
not be carried over. She testified that employees used to get 40
hours’ sick leave, but now receive 56. She believed that they
could carry over 40 hours of sick leave.
She has taken unpaid time off to attend a company picnic in
2001 or 2002. Before this event employees schedule to work on
the day of the picnic were told they could ask for time off to
attend, taking either vacation of unpaid time off if the request
were approved. She asked for time off without pay and was
granted permission. She was not told on this occasion that she
had to exhaust her vacation before unpaid time off could be
used.
3. Facts related to employee Robert Schlegel being
required to use vacation leave against his wishes if he
attended the hearing pursuant to his subpoena
Schlegel is a radiation protection technician at the Limerick
facility. His job involves radiation protection. He has held this
position since 1987. Schlegel’s immediate supervisor is Radia-
tion Protection Supervisor John Moore. Moore reported to the
Radiation Protection Manager Willie Harris who in turn re-
ported to Plant Manager Bryan Hanson.
Schlegel became interested in Local 614 representing the
Limerick employees in the spring of 2003. He spoke at the time
with Brian Brennan and signed an authorization card. He then
became an employee union organizer. In this role he got em-
ployees to sign authorization cards, answered their questions
about the Union and distributed union literature. He testified
that he was required to wear a security badge on a lanyard
around his neck. He added a “Union: Yes” button to the lan-
yard and wore it while working. He also wore a union cap and
T-shirt to work. Fellow employee Jerome Dailey also wore
union insignia to work.
In late November or early December 2004, Schlegel received
a subpoena from the Union to appear at the representation hear-
ing on December 8. Prior to that date, Schlegel spoke with HP
Supervisor Bob Shorts. Shorts approached him in the HP break
room and told him that if he planned on attending the hearing,
he would have to use a floating holiday4 or vacation time.
Schlegel attended the hearing on December 8, but did not have
a problem as it was not a scheduled work day. He did not at-
tend any of the following sessions which conflicted with his
work schedule because he did not want to use his vacation or
floating holidays. He saves those days to be able to have time
to take his children to doctor visits and physical therapy needed
by one of them. Schlegel testified that he would have attended
more sessions if he could have taken time off without pay. He
testified that he did attend some of the December session de-
voted to negotiating a stipulation, advising the Union about
various jobs to help determine whether they should be in the
unit. He also attended one of the January sessions and listened
to the testimony.
Schlegel had a second conversation with Shorts before
Christmas 2004, again in the HP break room. Shorts ap-
proached him and told Schlegel that if he planned on attending
the hearings in January, he would need a new subpoena and
reiterated that he would have to use a floating holiday or vaca-
tion.
Schlegel did testify in the hearing on January 18. He had
worked the night shift of January 17–18 and left work at 5:30
a.m. Prior to this he had spoken with the Union’s attorney about
getting permission to take off this shift without pay so that he
could safely attend the hearing on January 18. On January 13,
Attorney Leyland requested Respondent to grant Schlegel paid
time off for the night shift prior to him testifying on January 18,
but Respondent denied the request. It would allow him to take
the night shift off if he used vacation or floating holiday leave.
Schlegel also spoke with HP Supervisor Dan Hines about the
matter. Hines told him he could take a 6-hour floating holiday or
6 hours of vacation. Schlegel testified that he then asked Hines if
he could have time off without pay or if he could get the deal that
he heard the company’s employee witnesses were getting, that is,
being given the night off with pay the night before their testi-
mony and then time and a half for the time they spent at the hear-
ing. He also asked if could take off the night of January 17–18
without pay. Hines said he would get back to him with an an-
swer. Hines got back with him a few minutes later and told him
that he had to use vacation [time] or a floating holiday. Not want-
ing to use his vacation time, Schlegel worked a 12-hour night
shift and reported to the hearing the next morning. Schlegel testi-
fied that Respondent paid him for the time he testified on January
18, about 15 minutes.
Schlegel testified that from 1993 until November 2001, he
and his wife participated in a Pennsylvania child foster care
program that required, inter alia, that he make a court appear-
ance pursuant to subpoena every 6 months. On some of these
occasions he did not testify. He would take his subpoenas to his
supervisor who always approved him taking paid time off to
attend the court. To the best of Schlegel’s knowledge, this was
coded as jury duty for pay purposes. If the court appearance

4 A floating holiday is defined as a “paid day off that can be taken by
employees with prior supervisor approval.” Employees currently re-
ceive 32 hours of floating holiday leave per year.
EXELON GENERATION CO. 821
was for a day following a night work shift, he was given that
night off with pay.
4. Facts relating to employee Jerome Dailey being
required, against his wishes, to use vacation time to
attend the hearing pursuant to subpoena
Dailey is an RP tech at Limerick whose job is to measure ra-
diation and contamination levels in the plant. He has worked in
this job for 18-1/2 years. He works a day shift, Monday through
Friday, from 7a.m. to 3:30 p.m. Dailey chose this schedule to
coordinate with his wife’s work schedule to best provide child
care coverage. He testified that the first-line supervisors in his
department are Bob Shorts, Dan Hines, John Moore, and Joe
Bruno. The RP manager is Willie Harris, and the plant manager
was Bryan Hanson.
He testified that to take time off an employee fills out a time
off request specifying the dates the employee wants off and the
type of leave sought, vacation, floating holiday or a sick leave
day. A sick leave day could be used for illness or pressing per-
sonal business. The employee would call in to his supervisor
and explain the circumstances and leave would be granted. In
2004 employees received seven such days and in 2005 they
received five. In 2004, 7 sick leave days could be carried over,
and in 2005, 5 could be carried over. Employees get vacation
time based on longevity. Dailey receives 22 vacation days.
Dailey has taken a sick leave day for personal business at least
once since Exelon acquired the Limerick facility. This occurred
in 2004. Under policies in effect in 2004, employees were ex-
pected to give 24 hours advance notice for time off. Permission
to take time off could be granted if warranted, but 24 hours
notice was expected normally.
Dailey received a subpoena to appear in the representation
case. He asked Respondent for permission to take a sick leave
day to be off on December 8, 2004.5 He made this request in
writing and it was approved. He did not mention the subpoena
nor did he state in the request he was attending the hearing.
Dailey attended the meeting and sat behind the Union’s at-
torney and Union Representative Brian Brennan. For the Re-
spondent, Dailey recognized Limerick Plant Manager Bryan
Hanson and Peach Bottom Plant Manager Joe Grimes. On this
day, Dailey assisted the Union by going through Respondent’s
organizational charts and giving his opinion on whether the
jobs shown thereon belonged in the proposed unit.
The next scheduled day of hearing in the representation case
was December 10, 2004. On December 9, Dailey requested
time off to attend this session. He made this request of RP su-
pervisor Bob Shorts. Shorts denied the request based on his
manpower needs. Dailey then told Shorts he was under sub-
poena and would have to show up at the hearing. He gave
Shorts a copy of the subpoena. Shorts still was not convinced
that Dailey had to attend the hearing, but said that he would
check with human resources and get back to Dailey by lunch.
When they next talked that day, Shorts told him the subpoena
Dailey had shown him was only good for December 8 and that

5 In the spring of 2004, Respondent announced to employees that
beginning January 1, 2005, they would no longer be permitted to use
sick leave for any reason other than one related to illness.
Dailey would need a new one for December 10. Dailey re-
trieved his subpoena and read where it states the day to appear
and then requires attendance on any adjourned or rescheduled
day. He again showed Shorts the subpoena and those words.
Shorts again said he would check with human resources. When
they next met about 2 hours later, Shorts told him that he could
attend the hearing, but would have to take vacation because
“leave time all of a sudden doesn’t exist anymore.” Dailey took
this to mean that he could no longer take sick days as leave
time. At the time, Dailey had 22 hours of sick time available to
him.
Dailey told Shorts that he would take vacation time, but that
he only had 3-1/2 half hours of vacation time left. Shorts told
him to take that and then take the rest of the day as time off
without pay. Dailey attended the hearing on December 10 and
was charged by Respondent for 3-1/2 hours vacation and 4-1/2
hours time off without pay. At the hearing, the parties negoti-
ated over a stipulation and no testimony was offered. Dailey
again assisted the Union as he had on the first day of the hear-
ing. In his job Dailey interfaces with employees from many
departments and has knowledge of their duties.
Dailey testified that the Union excused him from the sub-
poena for the rest of December and he next was advised by the
Union to attend the hearing on January 3. He requested time off
about a week in advance of this date. Dailey testified that he
filed a written request for 2 days off to be charged against his
vacation. He testified that he asked for vacation to avoid a
“hassle” and because he had been told by management that was
the only option. He attended the January 3 hearing and was
charged for 8 hours of vacation time.
He remembers Cindy Curtin attending this hearing day. The
Respondent presented testimony and Dailey took notes and
answered any questions put to him by the union representa-
tives. He overheard a conversation between Bryan Hanson and
Cindy Curtin and corroborated Curtin’s testimony.
Dailey next attended the hearing on January 4, 2005. Em-
ployees attending this hearing pursuant to subpoena were
Dailey, Curtin, and Roger Devlin. Devlin appeared on behalf of
the Respondent and sat with management at the hearing. Devlin
did not testify on January 4. At this hearing, Dailey assisted the
Union as he had on previous days. Dailey was charged with 8
hours of vacation time for this day. Devlin, appearing for Re-
spondent, was paid for the day even though he did not testify.
Devlin’s pay was not charged against his vacation or sick leave
time. Dailey testified that the Respondent excused him from the
subpoena for the hearing dates of January 5 and 6, because he
was needed at the plant.
Dailey next attended the hearing on January 12. About a
week prior to this date, Dailey made a written request to take
off January 12, 18, and 19 as time off without pay. He had been
advised by the union representatives that an agreement had
been made with Respondent on the matter and it was agreed
that employees subpoenaed would be allowed to attend taking
time off without pay. Pursuant to this advice, he requested 3
days off as time off without pay. He gave this request to RP
Supervisor Dan Hines. Hines came to him later in the day and
said that human resources had directed that Dailey must take
vacation time first and use it up before he would be allowed to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD822
take time off without pay. Dailey said he would do that. He had
22 days of vacation available at that time.
Dailey attended the hearing on January 12 expecting to tes-
tify that day. However, the Union offered no testimony as Re-
spondent used the day. Dailey again assisted the Union as he
had on previous days and spent the entire day at the hearing.
Dailey next attended the hearing on January 18, again ex-
pecting to testify. The Union put on witnesses but did not call
Dailey. He assisted the Union as he had on previous days.
Dailey was charged with 8 hours vacation for January 12 and
18.
5. Summary of lost pay by subpoenaed union witnesses
and respondent’s treatment of its subpoenaed
employee witnesses
Dailey was charged a total of 35-1/2 hours of vacation leave
for attending the hearings on December 10, 2004, January 3, 4,
12, and 18. Curtin was charged 24 hours of vacation leave for
attending the hearing on January 3 and 4. Schlegel was not
charged any vacation leave because he did not want to lose
vacation time needed for special family needs, and conse-
quently, he did not attend any days of the hearing which con-
flicted with his work schedule. He would have attended more
hearing days if granted unpaid time off to attend the hearing.
Reactor operator Roger Devlin attended the hearings on
January 4 and 6 and sat with Respondent’s representatives.
Respondent called Devlin as a witness on January 6, but he did
not testify on January 4. Respondent paid Devin his wages on
January 4 and 6, and he was not charged any leave to attend the
hearings.
6. Respondent’s leave policies
a. Respondent’s leave for legal proceedings policies
According to Respondent’s formal leave policy, Respondent
will grant employees a paid leave of absence when they are
subpoenaed to testify in a legal proceeding. Respondent’s jury
duty/court service policy states:
Leave of absence is granted for jury duty. . . . A similar ab-
sence is granted for an employee’s subpoenaed testimony in
court if called as a witness . . . . Regular full time employees
will receive pay based on a regular workday unless required
to appear in court as a result of employment outside the Com-
pany. . . . A paid absence will not be granted if the employee
is a plaintiff or a defendant in any case. . . . The employee’s
time will be recorded as “J” for the absence. Such absences
are in addition to other paid time off and will not be charged
against an employee for purposes of imposing disciplinary ac-
tion.
Respondent’s leave policies provide that when subpoenaed
employees attend legal proceeding they are not charged vaca-
tion, holiday, or sick leave, and the leave of absence is recorded
as “J” time. Plant Manager Grimes testified that if the legal
matter settled before the witness actually testified, Respondent
would still provide the subpoenaed employee a paid leave of
absence.
As noted earlier, Schlegel received leave with pay when he
had been subpoenaed roughly 24 times between 1993 and 2001
to attend foster care court hearings. Although Schlegel did not
testify in all these hearings, no supervisor ever asked him
whether he actually testified at these hearings, and he still re-
ceived paid leave. Schlegel recalled on six or seven occasions
being allowed to take paid leave for entire night shifts when he
was scheduled to report to a hearing the following day, and he
was not charged any vacation, holiday, or sick time.
b. Respondent’s unpaid leave policies
According to Respondent’s leave-of-absence policy, “eligi-
ble employees will be provided with approved unpaid time off
under certain circumstances.” The stated purpose of the leave-
of-absence policy is: “To allow eligible employees whose ser-
vices can be spared to take paid and unpaid time away from
work for justifiable reasons.” Under Respondent’s written leave
policy, “The Company will substitute accrued, available vaca-
tion and floating holidays for unpaid personal leave of ab-
sences. Non-represented full time employees may elect to re-
serve up to 10 days of vacation and 4 floating holidays for use
upon their return from leave of absence.”
With respect to unpaid leave, Plant Manager Grimes testified
that employees are typically not allowed to take unpaid leave if
the employees have not used all their accrued vacation and
floating holiday leave. However, he further testified that there
are exceptions to every leave policy.6 Indeed, Respondent
payroll records demonstrate that in practice Respondent granted
unpaid leave of absence on numerous occasions without requir-
ing employees to first exhaust their vacation or floating holi-
days. Respondent’s subpoenaed chart of employees taking
unpaid leave shows that Respondent granted its employees
unpaid leave on roughly 857 occasions during the period of
January 1, 2003, through October 25, 2005. Respondent did not
provide any reasons or the circumstances explaining why it
gave all these employees unpaid leave. Respondent did not
provide any documentary evidence or anecdotal evidence that
any of these employees were first required to exhaust their
vacation or floating holiday leave. Respondent only provided a
small sampling of the payroll records for the employees listed
in General Council’s Exhibit 40 (which lists hundred of em-
ployees taking leave without pay), and these payroll records
disclose that Respondent allowed its employees to take unpaid
leave on at least 23 occasions without having to first use their
vacation or floating holiday leave. Payroll records demonstrate
that Curtin was permitted to take 12 hours of leave without pay
in July 2003, without having to exhaust her paid leave bank.
Respondent likewise granted technician John Green 24 hours of
unpaid leave when he had not taken any vacation, floating holi-
day, or sick leave in that calendar year.
c. Respondent’s leave for pressing personal
business policies
Respondent’s leave policy, entitled “Use of Absent Time,”
with an effective date of March 1, 2001, provides that “Absent
time is available to an employee when he or she is unable to

6 Employees are allowed to take “J” days, discussed earlier, without
taking vacation or floating holidays.
EXELON GENERATION CO. 823
come to work due to illness or pressing personal business.”7
Grimes testified that this policy is still effective. He also specifi-
cally testified that sick leave can be used for pressing business
reasons, leaving the decision on whether to grant it to the discre-
tion of the involved supervisor. Peach Bottom Site Radiation
Protection Manager Robert Norris has worked in some of Re-
spondent’s unionized facilities and at Limerick and Peach Bot-
tom. Comparing the differences between the unionized facilities
and the two nonunion facilities in question, he pointed out, inter
alia, that employees at the nonunion facilities could use sick time
for pressing personal business.8 Norris gave as an example of
pressing personal business tending to a broken hot water heater.
There is other anecdotal evidence supporting a finding that Re-
spondent’s employees may use sick leave for pressing personal
business. Dailey testified that Respondent had granted him sick
leave for pressing personal business, and further, Respondent had
granted him sick leave for personal business on December 8,
2004. Although Respondent did modify its written sick leave
policy to become effective January 1, 2005, by decreasing the
amount of sick leave available and changing the plain language
of the policy, Grimes and Norris testified nonetheless that em-
ployees may use sick leave for pressing personal business rea-
sons in 2005. In fact Norris was making this point in speeches to
employees during the campaign in the spring of 2005.
d. Respondent’s leave policy for representation hearings
Brennan testified, without contradiction, that Respondent
had a practice since 2002 to allow employees to use unpaid
leave to attend representation hearings. The Union had had
other representation hearings with Respondent concerning or-
ganizing drives at other facilities. With respect to these other
hearings, Brennan recalled that Respondent paid wages for
employees on days they testified, but if they did not actually
testify then employees would be permitted to take unpaid leave.
When employees appeared for the hearing and used unpaid
leave, the Union reimbursed them for lost wages. Respondent’s
leave policy applied to locations in Pennsylvania, Maryland,
Texas, and Massachusetts. Brennan did not become aware that
employees could no longer use unpaid leave to attend hearing
until Hanson threatened Curtin with losing unpaid leave to
attend the hearing.
Hanson offered some testimony on this point, testimony that
was often internally contradictory as was much of his other
testimony. Hanson was involved in the decision of how to treat
employees subpoenaed by the Union to attend the representa-
tion hearing. He first testified that the policy was to be to re-
quire such employees to take vacation days for the days they
were not going to testify and to take unpaid leave for days they

7 Most witnesses referred to leave for illness or pressing personal
business as “sick leave or sick time,” but certain policy manuals that
are still valid referred to this leave as absent time. Because it is the
most commonly used way of discussing this category of leave in the
record, it will be referred to as sick leave.
8 This testimony of Grimes and Norris is contrary to Plant Manager
Hanson’s testimony where he stated that Respondent does not grant
sick leave for pressing personal business. Hanson’s testimony in this
regard in contrary to Respondent’s written policy, the testimony of
Grimes and Norton. I do not credit Hanson in this regard.
did testify. Upon prompting twice by his attorney, Hanson fi-
nally testified that such employees would be paid for the days
they actually testified. From what I can make of his testimony
the primary reason for requiring subpoenaed employees to take
vacation time was the difficulty supervisors were having cover-
ing the employees shifts because they were only being given
short notice of the employees’ need to attend the hearing. Han-
son was asked how requiring employees to take vacation for
their appearance rather that leave without pay made any differ-
ence in the supervisors’ ability to fill in for their absences. Han-
son had no answer.
With respect to this particular representation hearing, Han-
son admitted that he met with Grimes and human resources in
response to employees being subpoenaed, and decided all em-
ployees had to use vacation leave to attend the hearings and
decided that supervisors no longer had discretion to grant un-
paid leave or other leave to attend the hearings. At no time did
Hanson testify that Respondent was merely following its writ-
ten leave policies in prohibiting its employees from taking un-
paid leave without first exhausting other leave to attend the
hearing, and Grimes never directly testified concerning the
reason Respondent prohibited the subpoenaed employees from
taking unpaid leave to attend.
7. Conclusions with respect to whether Respondent
violated the act by requiring union subpoenaed witnesses
to use vacation leave to attend the representation hearings
There are several conclusions that are supported by the cred-
ited facts in this case. First, the Respondent’s requirement that
union subpoenaed employees take vacation leave or floating
holiday leave to attend the representation hearing was a clear
departure from past practice. In earlier representation hearings
involving Exelon and the Union, employees had been allowed
to take unpaid leave on days when they attended the hearing
pursuant to subpoena and did not testify. Second, I find that no
legitimate reason for this departure from past practice has been
advanced in this record. Hanson put forth two reasons. One was
that Respondent decided to require the use of vacation time and
floating holidays because the Respondent was not being given
enough advance warning by employees of the need to take off.
This reason did not make sense when I first heard it and it
makes no sense now. There is no rational nexus between the
form of time off an employee takes to respond to a subpoena
and the difficulty in filling that employee’s position in his or
her absence. Another reason advanced was that Respondent
wanted employees treated consistently at both plants when they
took off time to comply with their subpoena. Consistency could
have been accomplished as easily by just letting the employee
take time off without pay as had been the past practice. If the
evidence in this record establishes anything, it certainly shows
that inconsistency in applying the various leave policies is the
norm rather than consistency.
The record, through the testimony Curtin, Dailey, Schlegel,
and Brennan, establishes that the subpoenaed employees’
knowledge of plant operations and job duties was valuable and
necessary to the Union’s ability to participate in a meaningful
way in the representation hearing. This is true even when the
employees did not actually offer testimony. The employees
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD824
possessed knowledge that could not have been possessed by
Brennan or the Union’s attorney. Thus, the employees’ pres-
ence was necessary. In addition, the subpoenas required their
attendance from day to day until released.
Further, the evidence supports and I find that Respondent re-
quired the union subpoenaed employees to use vacation time
because of its animus toward their union activity. Beginning
first with Hanson’s confrontation with Curtin at the January 3
hearing, and continuing with his threatening conversation with
her in April, and continuing even after the election with Re-
spondent’s threats to Schlegel on May 6, Respondent has dem-
onstrated hostility and animus toward union activities on the
part of its employees.9 I believe and find that animus toward
the Union support and activities of the union subpoenaed em-
ployees motivated the requirement that they use vacation time
instead of time without pay to comply with the subpoenas.
I find that Respondent violated Section 8(a)(1), (3), and (4)
of the Act by requiring Curtin, Schlegel, and Dailey to use their
vacation time to attend representation hearing pursuant to sub-
poenas. In NLRB v. Scrivener, 405 U.S. 117, 124–125 (1972),
the U.S. Supreme Court stated: “[o]nce an employee has been
subpoenaed he should be protected from retaliatory action re-
gardless of whether he has filed a charge or has actually testi-
fied.” By requiring these three subpoenaed employees to use
their vacation time to attend the hearing, the Respondent penal-
ized these employees for aiding and assisting the Union at the
hearing.
Under circumstances similar to those in this case, the Board
has found that an employer violated Section 8(a)(1), (3), and
(4) of the Act by requiring a subpoenaed employee to use his
vacation time instead of leave without pay to attend a Board
hearing for the days the employee did not actually testify.
Western Clinical Laboratory, Inc., 225 NLRB 725, 726 (1976).
Since that Decision, the Board has made similar holdings in
subsequent cases. Fitel/Lucent Technologies, Inc., 326 NLRB
46, 54–55 (1998); U.S. Precision Lens, Inc., 288 NLRB 505,
506 (1988). The Board has not limited its Western Clinical
holding to witnesses subpoenaed by the General Counsel in
unfair labor case since the U.S. Precision case involved a rep-
resentation hearing. Id at 506.
In these three cited case, the Board found violations without
any showing of discriminatory treatment. However, as noted
above, there is substantial evidence of discriminatory motiva-
tion present in the instant case. The General Counsel has made
a prima facie case that the involved employees union activities
were a motivating factor in its decision to require them to use
vacation time to comply with their subpoenas. All three were
known union supporters and their appearance at the representa-
tion to support and assist the Union was protected activity. As
noted above Respondent displayed animus toward Curtin and
Schlegel for their union support in other ways. The facts I have
found earlier demonstrate many other examples of disparate
treatment. Schlegel, for example was allowed to use paid time
off to attend foster care hearings pursuant to subpoena before
his union activities began, using so-called “J”days without

9 The April incident with Hanson and Curtin and the May 6 incident
with Schlegel are discussed in the next sections of this decision.
having to prove to Respondent that he actually testified in such
hearings. When he requested the same treatment for complying
with his subpoena in the representation case, it was denied.
Curtin had already been approved by management to take leave
without pay to attend the January 3 hearing. As discussed
above, it was only when Hanson saw her there in support of
and assisting the Union, that this prior approval was withdrawn
and she was force to use vacation time. Dailey had been al-
lowed to take off December 8, 2004, as sick leave for pressing
business reasons. It was only after Respondent discovered that
he used the day to attend the representation hearing pursuant to
subpoena that he was required to use vacation time. It should
be noted that Respondents official Norris testified that employ-
ees could use paid sick leave to attend to a broken water heater,
citing pressing personal business reasons as justification. The
documentary evidence shows large numbers of employees be-
ing granted time off without pay without having exhausted their
sick leave and floating holiday banks. As far as I can tell from
the evidence the employees involved in this case are the only
ones to have been required to exhaust their vacation and float-
ing holiday banks before being granted time off without pay.10
Moreover, Respondent paid its subpoenaed employee witness
in the representation case even on days when the witness did
not testify.11 Respondent has not offered any legitimate reason
why it treated the three involved employees differently than
other employees and I find that its actions in this regard were
motivated by antiunion animus and thus were unlawful. See
Wright Line, 251 NLRB 2083 (1980); Montgomery Ward &
Co., 316 NLRB 1248 (1995). It has definitely not shown that it
would have required the three employees to use their vacation
time in the absence of their protected activity. The witness
called by Respondent to the same hearing was paid for the day
he attended and did not testify. Respondent offered no evidence
to prove that other employees subpoenaed to other legal pro-
ceedings were required to use vacation time to respond to their
subpoenas.
8. Did Supervisor Moore threaten employee
Schlegel with job loss on May 6?
Employee Robert Schlegel was a longtime active and visible
union supporter. He wore union insignia and clothing items for
well over a year prior to the actual organizing campaign. For
the period June to December 2003, Schlegel was absent from
work because of back surgery. As a result of the surgery, the
State of Pennsylvania issued him a handicap parking sticker for
his car which will not expire until 2008. Respondent also issued
him a handicapped parking permit which allowed him to park
in the handicapped section of the Limerick parking lot. In De-
cember 2003, his doctors cleared him to return to work with
limitations. Before actually beginning work he reported to Re-
spondent’s Limerick site nurse, Shirley Patrilick. His restric-
tions were removed in April 2004 and Respondent’s nurse ap-
proved him for full duty. His duties remained the same from
April 2004 through May 2005.

10 See Dynabil Industries, 330 NLRB 360, 368 (1999); Abbey’s
Transportation Services, 284 NLRB 698, 700 (1987).
11 See General Electric Co., 230 NLRB 683, 685–686 (1977); Elec-
tronic Research Co. , 187 NLRB 733 (1971).
EXELON GENERATION CO. 825
He retained his handicap parking permit because walking up
inclines is still difficult for him. The handicap parking lot does
not require walking up or down an incline as is the case with
the regular parking lot. He said this walking difficulty does not
affect his job performance as he does not have to walk up in-
clines in the performance of his duties. He testified that all of
his supervisors including John Moore had been aware that he
parked in the handicap lot and were aware in May 2005 that he
was still parking there. Nothing was said about this until imme-
diately after the election.
Schlegel served as the Union’s observer for the night voting
period at the election held at Limerick on May 5. On May 6,
Schlegel and his supervisor, John Moore, were meeting to go
over Schlegel’s quarterly performance review, which was a
satisfactory one.12 After this review had taken place, Moore
told him that it had come to his attention that Schlegel had a
handicap parking permit and thus was not fit to be on normal
shift work.13 According to Schlegel, Moore added that if
Schlegel could not work a normal shift, he would need to find a
new job. Schlegel responded that the State of Pennsylvania had
determined he was eligible for the permit, that the Company’s
own nurse had certified him for full duty, and that State laws
would not permit anyone to go through his medical files except
himself, the company nurse, and anyone else to whom he gave
permission. Schlegel then told Moore he considered the con-
versation to be harassment and retaliation for his organizing
efforts. The meeting then ended. Fearing he was about to lose
his job, Schlegel contacted Bryan Brennan and Attorney Ley-
land. Nothing came of the incident. Schlegel was neither dis-
charged nor disciplined in another fashion.
John Moore was employed by Exelon as a radiation protec-
tion supervisor at Limerick at all times material to this decision.
As of May 2005, he reported to Willie Harris. Moore directly
supervised three health physics technicians, Bob Schlegel,
Dennis Clark, and Kurt Red. With respect to the May 6 meeting
with Schlegel where the subject of Schlegel’s handicap parking
pass was raised, Moore testified that Willie Harris had in-
formed him that an equipment operator had raised a question of
Schlegel’s ability to perform his job if he were handicapped
enough to justify a handicap parking permit. Moore testified
that he and Harris had a discussion about the question and de-
cided it should be investigated as all concerns raised by em-
ployees get investigated at Exelon.14 Moore testified that he
and Harris did not have a problem with Schlegel having a
handicap parking permit, they just wanted to make sure
Schlegel was able to perform the job duties of his position.
When pressed on this point, Moore testified that he was con-
cerned whether Schlegel could use Scuba gear, with was con-
ceivably something he might be called upon to use. He was
also concerned whether in his role as a member of the fire bri-

12 Schlegel’s performance evaluation for 2005 though August sup-
ports Schlegel’s assertion that he is capable of doing his job adequately.
13 Schlegel was unaware that any employees may have complained
about him having a handicap parking permit. Schlegel had complained
to management by other employees using the handicap spaces without
having a permit.
14 Moore was aware at the time of this discussion and for 2 or 3
years prior to it that Schlegel had a handicap parking permit.
gade, Schlegel could put on the fire fighting equipment, and in
his role as a first responder to an emergency, whether Schlegel
could drag a person away from danger. Moore testified that he
had not had an occasion to observe Schlegel do any of these out
of the ordinary tasks recently.
Moore testified that in the meeting with Schlegel, he went
over Schlegel’s quarterly performance review for 10 to 15 min-
utes and then told Schlegel that an equipment operator had
raised the question of Schlegel’s ability to perform his job con-
sidering the fact that he had a handicap parking permit. Accord-
ing to Moore, Schlegel replied that the question of his handicap
status was between him and the state of Pennsylvania and he
was not going to discuss the issue with Moore. Moore testified
that he responded that his only concern was whether Schlegel
was able to perform all the duties his job called for. According
to Moore, Schlegel responded, “Yes, I can.” Moore said the
conversation ended. Moore testified that he reported to Harris
that Schlegel could perform his job. Subsequent to Schlegel’s
return to work without physical restrictions, Moore had ob-
served him don Scuba gear, and although not directly observed
by Moore, he knew that Schlegel had engaged in fire drills
where he was required to wear full firefighting gear.
Moore denied telling Schlegel that he could not perform the
functions of his job, or telling him that he would need to look
for another job. He denied telling Schlegel that if he could not
perform his job, he would have to look for other work.
Willie Harris testified that the matter of Schlegel having a
handicap parking pass was brought to his attention about days
prior to the election. He said the information came to him in a
voice mail from the operations manager, who was passing
along information from an equipment operator who had ob-
served Schlegel parking in the handicap lot. Harris testified that
he was familiar with Schlegel’s back surgery and return to
work, but was not aware he had a handicap permit. Harris testi-
fied that he had a concern that something had happened since
Schlegel’s return to cause him to have a handicap permit. Thus,
he asked Moore to inquire of Schlegel if he were fit to perform
his job.
I credit Schlegel’s testimony with respect to this incident. It
appears to me that Respondent was just looking for a way to
harass Schlegel. He had been back on full duty for a year, had
gone through several fire drills that tested his ability to use the
equipment which might be difficult to use if his back were still
injured. Moore had personally seen him don scuba gear, which
was the other concern Moore expressed. Moore himself had
given Schlegel several satisfactory performance evaluations.
Moore had also known for some time that Schlegel had a
handicap parking permit. Even if I accept that a complaint was
actually made about Schlegel by another employee, and the
timing of the alleged complaint raises doubt about that, Re-
spondent’s response was irrational. Given Moore’s knowledge
of Schlegel’s capabilities, a normal response to Harris’ inquiry
would have been to say that, “[y]es, he has a handicap parking
permit, but has been doing his job satisfactorily for over a year
since returning to full duty.” That Moore would go through the
charade of asking Schlegel a question about the matter when
Moore already fully knew the answer indicates to me that he
and Harris simply wanted to harass Schlegel. I would also note
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD826
that Harris did not inquire of Moore whether he knew of the
parking permit and whether Moore thought Schlegel was fit to
do the tasks he might be called upon to perform.
A further indicia of Respondent’s motivation can be found in
an incident occurring later on May 6. Schlegel had worn his
union button and hat to work on that day. According to
Schlegel’s uncontested testimony, during the afternoon after
the outcome of the election was known, RP Supervisor Bob
Shorts told him he had until the end of the day to take off the
union insignia or he would face discipline. Shorts added that
the election was over and the Union had lost.
Based on Schlegel’s credited testimony, I find that Respon-
dent threatened Schlegel with loss of his job because of
Schlegel’s activity on behalf of and sympathy for the Union.
By doing so, Respondent interfered with, restrained, and co-
erced Schlegel in the exercise of his Section 7 rights in viola-
tion of Section 8(a)(1) of the Act. See Equipment Trucking Co.,
336 NLRB 277 (2001); Merit Contracting, Inc., 333 NLRB
562 (2001); Overnight Transportation Co., 332 NLRB 1331
(2000).
D. Facts and Conclusions with Respect to
the Objections
The Objections in Case 4–CA–20940 allege that Respon-
dent, during the critical preelection period:
1. Threatened employees with changes in their work
hours, shifts and loss of flexible work hours if the employ-
ees voted for union representation.15
2. Threatened employees that the selection of the Un-
ion would be futile and implied that Respondent would not
bargain in good faith.16
3. Engaged in captive audience communications
within 24 hours of the election, and during the election,
engaged in unlawful surveillance and electioneering.17
4. Threatened employees with layoffs if the Union
won the election.18
In the Regional Director’s notice of hearing, these four ob-
jections were listed together with certain factual allegations
related to each. In some cases the Union provided evidence
related to the factual allegations, in others it provided no evi-
dence. Additionally, the Union offered evidence of occurrences
clearly directly related to the objections, but for which there is
no factual allegation set out in the Regional Director’s notice of
hearing. I have considered and made findings with respect to
each such allegation as they were fully litigated at hearing. All
objections and factual allegations relating to them that I do not
explicitly sustain are overruled.

15 Objection 1.
16 Objections 2 and 3.
17 Objections 5 and 6.
18 Objection 9.
1. Objection 1 alleges that Exelon unlawfully affected
the outcome of the election and interfered with, restrained,
or coerced employees by threatening employees with
changes in their work shifts and loss of flexible work hours
a. Threats to change overtime and loss of flextime
(1) Orphanos’ alleged threat
At a meeting in April between about 12 Limerick employees
including Cynthia Curtin and a management consultant named
Manny Gonzales, Limerick’s shift ops superintendent, Peter
Orphanos, told the employees that if the Union was elected,
everyone would have to work the same amount of overtime. He
also told them that management flexibility would be lost and
supervisors would no longer be able to let an employee leave
work early or come in late. At the time of the meeting overtime
was voluntary with employees with the lowest amount of over-
time being the first offered it and if they did not want to work
it, the next lowest employee would be offered the overtime.
Curtin testified that she did not work overtime except in outage
situations or when there was no one else available. She testified
that she worked the least amount of overtime among the em-
ployees in her job category. Curtin’s testimony about this meet-
ing is not contradicted.
I find Orphano’s threats to be objectionable conduct. There
was no hedging whatsoever in his statements to these employ-
ees. The adverse changes in overtime and flexibility he an-
nounced would occur if the Union were elected were not
phrased as potential results of unionization, but were phrased as
a certainty. Even if his announcement were only a prediction,
such a prediction was not accompanied by an articulation of
objective evidence supporting the prediction as is required.
(2) Hanson’s alleged threat
Employee Jerome Dailey had a conversation with then-
Limerick Plant Manager Bryan Hanson in mid-April, 2005.
Hanson asked why Dailey had used flextime the day before.
Dailey responded that his wife had worked a night shift the
preceding evening and he had had to take his child to school,
forcing him to come in late. According to Dailey, Hanson
seemed agitated and said that he hoped Dailey did not lose the
ability to use flextime. This conversation ended. Later that
same day, Dailey approached Hanson and expressed his disap-
pointment with Hanson bringing up what Dailey believed to be
personal business related to his daughter. According to Dailey,
Hanson said it was personal to him because he believed that he
could represent the employees better than [a union] can.
Dailey then told Hanson that Respondent’s union employees
at other facilities had flextime and showed him an actual work
schedule containing flextime in an Exelon contract. Hanson
replied that he hoped that the employees did not lose the rotat-
ing shift schedule because then Dailey might not be able to take
his daughter to school. He added that he hoped Dailey got the
second shift so he could continue to do this.
With respect to the one-on-one conversation with Jerome
Dailey, Hanson testified that he related an anecdote of an Ex-
elon employee at one of its unionized facilities. The employee
wanted to get an undergraduate degree and needed flextime to
accommodate his college schedule. Exelon granted it, but Local
EXELON GENERATION CO. 827
15 filed a grievance and the Company was required to return
him to his old schedule. This forced the employee to use vaca-
tion time to make the classes. This was related after Dailey
noted that he had had to use flextime to get his daughter to
school. Hanson then testified that a few days later, Dailey came
to him with a side-bar agreement between Exelon and Local 15,
wherein supervisors are encouraged under certain family cir-
cumstances to afford some flexibility to employees to meet
family and schooling needs. He then told Dailey the side
agreement did exist but was no longer used as supervisors
faced grievances when they did use it. Hanson denied saying
anything to Dailey about hoping he got second shift if the union
came in. Hanson added that he took the campaign personally
because he felt he was doing a good job representing the em-
ployees.
Dailey testified that 2 days later Hanson met with 15 or 16
eligible voters in mid-April 2005 at the Limerick facility. Other
than Hanson, about seven or eight management employees
were also in attendance. The meeting lasted about 45 minutes.19
According to Dailey, Hanson told the employees that they
would lose a lot of things they presently had, like flextime and
rotating schedules. Dailey testified that Hanson referenced the
work schedule Dailey had given him 2 days earlier. Hanson
told the employees that flextime was in the schedule but the
plant practice was not to use it. Under cross-examination,
Dailey agreed that Hanson made his comments in the context
of an issue like flextime could be negotiated, could be lost, or
even if saved during negotiations, might still not be applied.
At this meeting, in response to hearing from employees that
flextime had been eroded over time, Hanson related that a study
of company records showed that many employees were work-
ing schedules of their own making. He concluded flextime was
still viable at Limerick and Peach Bottom.
I credit Dailey’s version of these conversations over that of-
fered by Hanson. As noted in the earlier part of this decision
relating to unfair labor practices, I found Hanson to be an eva-
sive and unbelievable witness hostile to the Union and the indi-
viduals involved in this proceeding. He appeared to take their
support for the Union personally and responded. I find that
Hanson’s statements to Dailey about the potential loss of flex-
time and a shift change for Dailey were implied threats of ad-
verse changes in working conditions. Respondent did not intro-
duce any witness to support Hanson anecdote, the contract with
the local involved in the anecdote or a witness to explain it. I
believe and find that Hanson’s statements to Dailey individu-
ally and in the employee meeting in question were intended to
coerce and frighten the employees and were taken in this man-
ner by Dailey and the employees attending the meeting.
(3) Did Plant Manager Hanson threaten employee Cynthia
Curtin with more overtime if the Union won the election?
Curtin works a swing shift, working days and nights on an
alternating schedule. The shifts are 12 hours in duration. She
testified that she might work 2 12-hour days, then have 3 days
off, then work three night shifts in a row. Her department has

19 Prior to this meeting, Dailey had attended other company meet-
ings where the subject of contract negotiations had been discussed.
five shifts of people whose schedules alternate weekly over a 5-
week period. Curtin has been working a shift of this nature for
20 years. Before that, she worked 8-hour shifts.
After the incident at the hearing on January 3, Hanson and
Curtin did not speak to one another until April 20. Curtin was
working and was relieved and told to go to a meeting with
Hanson. She took another operator with her as a witness, but
Hanson told him to leave, that the meeting was not a discipli-
nary meeting. Curtin then told Hanson that if he wanted to talk
about things she did not want to talk about, she would leave.
According to Curtin, Hanson then told her that she thinks he
(Hanson) is the anti-Christ. She denied this assertion saying
that she did not use that language. He then told her he was dis-
appointed in her and the outcome of the representation hearing.
Curtin said she was not disappointed. Hanson then stated that
the two had been avoiding each other but that he could not
avoid her in her work area. He then said, “Cindy, I am really
worried about your family.” She at first did not respond and he
repeated the statement. She asked why and he said that she was
not going to be able to spend a lot of time with her children if
the Union came in because she would be working a lot of over-
time. She disagreed and said that she thought overtime would
be shared equally and that employees would not be forced to
work overtime. He indicated his disagreement with her and the
meeting ended.
Hanson testified about this meeting. He testified that on the
day in question he was in her work area on a routine tour. He
testified that following the incident on December 8, 2004, Cur-
tin was not comfortable talking to him and he was not comfort-
able talking with her. He felt it important to overcome this
barrier as it was important for them to freely communicate for
her to adequately and safely perform her job. For this reason he
asked her to get relief and come to the shift manager’s office.
She came with another employee who Hanson sent away noting
that he merely wanted to have a conversation with Curtin and it
was not a meeting that could result in discipline. According to
Hanson, he and Curtin talked about the fact it was important
they feel comfortable with one another so she feels free to bring
to his attention any job related issue that might impact on her
job performance. According to Hanson, she indicated she felt
they could do that. He then told her of some of his experiences
supervising unionized employees at the Dresden facility. He
pointed out that Curtin is in the unusual situation where both
she and her husband work at Limerick. She works a rotating
shift. He husband is an engineer who is called upon to trouble-
shoot problems at the plant. There have been occasions when
she is working and he is off, and is called in. On those occa-
sions, she has been sent home to cover for her children. Curtin
is also an employee who does not work substantial overtime,
usually working overtime only in outage situations. He pointed
out that under the Local 15 contract overtime can be mandatory
and the supervisors spend little time finding a volunteer to
work overtime regardless of the family situation. He noted she
enjoyed a lot of benefits at Limerick which does not have
forced overtime. She acknowledged that she does not like
working overtime and had not looked into what that aspect of
the job might be under a union. He testified that he pointed
these things out to her as the Limerick employees and many
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD828
supervisors had never worked in a union environment and
might not know how things differed. Hanson was asked
whether he ever directly told Curtin that she would work more
overtime if the Union came in. Instead of a denying that he had
so informed Curtin, he launch into an explanation of what he
could and could not do in the circumstances of the campaign.
He testified that he told her that she should look into the differ-
ences in how things were done at Limerick and Peach Bottom
compared with Exelon’s unionized facilities.
As with most of Hanson’s testimony, I do not believe he is
telling the truth. His answers about this incident were vague
and evasive. On the other hand, Curtin’s testimony was clear
and logical. Her testimony is also consistent with Hanson’s
demonstrated hostility toward Curtin because of her support for
the Union. This incident was not alleged as a violation in the
complaint nor was it part of the amendment to the complaint
allowed on the first day of hearing. The Union on brief asserts
that this evidence should be used to find a violation of Section
8(a)(1) of the Act and independently as conduct objectionable
to the election. I believe and find that if the General Counsel
had wanted a violation found, she should have included the
allegations in her amendment to the complaint. Having not
done so, I will not find an unfair labor practice. Having said
that, had it been part of the complaint, I would have found it
violated Section 8(a)(1) of the Act because it predicted adverse
employment conditions if the Union won the election and was
not based on objective factors. The conversation was clearly
coercive given Curtin’s family situation and predicted worse
and less flexible working conditions in the event the Union was
elected. I do find the incident as evidence of Respondent’s
animus toward the Union and its supporters. I also find that it
was conduct objectionable to the election and supports finding
sustaining Objection 1.
b. Alleged threats to change work schedules and shifts
(1) Alleged threat by Willie Harris
Robert Schlegel is a RADPRO tech. There are 22 such posi-
tions at Limerick. Ten of these techs work a rotating shift on a
5-week cycle. Schlegel described this schedule. It starts with 4
days of day work from 5:30 a.m. to 5:30 p.m.; then 8 days off,
then 4 nights of night work from 5:30 p.m. to 5:30 a.m.; then 3
days off, then 3 days of day work; then 1 day off, then 3 nights
of night work; then 3 days off and then a week of utility work,
Monday through Friday from 7 a.m. to 3:30 p.m. The other 12-
work a shift Monday through Friday, 7 a.m. to 3:30 p.m. The
choice as to which of the two types of shifts an employee wants
to work has been left to the employees. Schlegel chose the
rotating shift because it best suits his special needs because of
the care he must give to one of his daughters who is disabled.
Schlegel testified that the RP Manager, Willie Harris, met
with about 10 radiation protection employees and 20 profes-
sional employees in the RP breakroom on December 2, 2004.
The 10 RP employees were eligible to vote and the professional
employees were not eligible. Harris regularly meets these em-
ployees for a variety of work-related reasons. At the December
2 meeting, Harris told the employees that if the union got in,
Respondent might go to a 24-hour maintenance schedule, with
three 8-hour shifts. There would be a day shift from 7 a.m. to
3:30 p.m., an afternoon shift from 3 to 11 p.m., and a night shift
from 11 p.m. to 7 a.m. If this happened, 40 percent of the techs
would be on the day shift, 30 percent on an afternoon shift, and
30 percent on the night shift.
Supervisor Harris denied making shift work a topic he raised
in the December 2004 employee meeting. He did respond when
employees raised the topic. He denied telling employees that if
the union were selected, Exelon would implement 8-hour shifts
and eliminate the 12-hour rotating shifts currently used by
about half of the employees working under him.
He testified that he told employees that if the Union won,
“there are certain outcomes that are going to occur.” “And
those are going to be, you know, negotiated.” He then added
that that are certain parts of the company currently under union
contracts, and they have work schedules that are different than
those at Limerick, and that could be a potential outcome. He
testified that on this subject he said:
On the topic, I said, you know, around the contract is that, you
know, when you get into the union or the union was to win,
you know, there’s certain outcomes that are going to occur,
you know. And those are all going to be, you know, negoti-
ated. It’s a give and take process. And the only thing I did say
is that, you know, we have other factions or parts of the cor-
poration that are, you know, currently under contract and they
have shift work schedules that are different than ours, and that
could be a potential outcome.
Schlegel testified that information for employees is often left
in the breakroom on a windowsill near the entrance to the
room. Shortly before the election in May 2005, Schlegel found
ten copies of a handwritten document on the windowsill. He
testified that he is familiar with Harris’ handwriting and the
document was written by Harris. It appears to place the
RADPRO techs in three work shifts by name. Schlegel appears
on the night shift. The document would comport with what
Harris had told the employees on December 2, 2004. In addi-
tion to doing away with the rotating shift and placing the 10
techs who work that shift on one of the three new shifts, the
document shifts some of the techs then working the regular day
shift to other shifts.
Harris admitted preparing the handwritten proposed new
shifts. He created the document in April. He testified that it was
prepared as a contingency plan, presumably to be used if the
Union were voted in. According to Harris it was for distribution
only to his supervisors to generate feedback from them if the
department had to implement a shift work schedule similar to
the one he proposed. The document was given to the supervi-
sors in a conference room next to his office during a meeting of
supervisors. Prior to this hearing, Harris was unaware that the
document may have been found by employees in the break
room. The document, which he testified was prepared as a con-
tingency plan if the Union were to win the election. He also
agreed that if the Union won, a new contract would probably
take about 8 months to negotiate.
I credit Schlegel’s testimony over that of Harris as I found
Harris to be evasive and his testimony in some respects in-
credible. His rambling denial of threatening a schedule change
appeared to me to be false. Moreover, what better way to back
EXELON GENERATION CO. 829
up his threat of schedule and shift changes if the union were
elected than to put out a shift and schedule change plan much
closer to the election. This is especially true when the plan he
did prepare makes drastic personal changes in the schedule of
the individuals in the department. His explanation that the plan
was a contingency plan does not ring true. Even if the Union
were to have won the election, there would be no need for such
a plan until negotiations and perhaps not even then depending
on the parties’ positions. On the other hand, the plan he pre-
pared which readily got in to the hands of the employees af-
fected by it would have a chilling and coercive affect on their
decision as to how to vote in the election.
(2) Alleged threat by Hanson
Dailey testified that in the mid-April meeting noted above,
Hanson told the employees that the rotating schedule would
change to a permanent straight shift schedule. Hanson added
that 40 percent of the employees would work an 8-hour shift,
and 30 percent each would work on second and third shifts.
The shifts would cover all 7 days in a week. Dailey was not
working weekends at the time.20 Dailey testified that at other
meetings he had been told by management that the matter of
changing to straight shifts was not negotiable, even though
Dailey himself believed it to be negotiable.
Hanson testified that at some point in April, he and Site Vice
President Ron DiGregorio met with the radiation protection
employees to go over issues and answer questions. Hanson
recalled questions about the Local 15 contract and other Exelon
contracts. They were asked whether Exelon would go to shift
work and Hanson testified that they answered that they could
not predict what would happen in the future. He then shared
with the employees that at the Company’s unionized plants 40
percent of employees work a day shift and 30 per cent each of
the remaining employees work an evening shift and night shift.
He testified that again he could not predict what might happen.
He testified that at Peach Bottom and Limerick, Exelon pays a
premium of about 1million dollars a year at each site in over-
time costs that would be saved by a change to straight shift
work schedules.
I credit Dailey’s version of this meeting over that offered by
Hanson. As was his standard behavior on the stand, he admits
much of the factual material offered by employee witnesses
while denying that he made threats or admitting what he said
but saying it was only a possible outcome. I did not believe him
when I heard him testify and I do not believe him now.
Dailey’s version of what Hanson said is supported by Harris’s
actions and by the similar statements made by management at
the Peach Bottom facility.
iii. Alleged threat by Joe Grimes and Bob Braun
Charlotte Vest is employed by Respondent at its Peach Bot-
tom facility as a utility technician. She was eligible to vote in
the election. Vest, as do all utility technicians at Peach Bottom,

20 During the campaign, Dailey had read contracts between the
IBEW and Exelon at its unionized plants and was familiar with hours
of work and scheduling under those contracts. Some of them called for
straight 8-hour shifts, 24 hours a day, 7 days a week as described by
Hanson in the meeting.
works Monday through Friday, 7 a.m. to 3:30 p.m. She served
on the employee organizing committee with about 15 other
employees. The committee held about 15 meetings. In these
meeting she was told about the contracts Exelon had with its
unionized facilities.
Vest attended a meeting about a week before the election
chaired by Plant Manager Grimes and his superior, Peach Bot-
tom Vice President Bob Braun. There were about 30 employees
in attendance, the large majority of whom were eligible to vote.
The employees were told that Exelon has two different staffing
matrixes, one for union plants and another for nonunion plants.
They added that if Limerick and Peach Bottom become union-
ized, there was no reason why they would not go to the union
staffing matrix. Under this matrix, there would be three daily 8-
hour shifts covering 24 hours. Employees would not be as-
signed permanently to a specific shift, but would rotate through
all three. For Vest this would constitute a change as she is cur-
rently assigned to just one shift. It was Vest’s perception from
what she was told in this meeting that the subject of staffing
matrix would not be negotiable.
Grimes testified about the 10 or 12 meetings conducted by
him and Bob Braun with employees in the week preceding the
election. Grimes called these meetings “town hall meetings.”
Grimes testified that at the meetings, the two company officials
gave employees the opportunity to obtain information about the
Fossil contract and other contracts the company had with the
IBEW at other locations. They were given time with the Com-
pany’s negotiator to learn what is involved in negotiations and
about all the things that are negotiable. Employees were also
encouraged to ask questions. Grimes denied telling employees
that the Company would not negotiate with the Union. With the
issue of shift work, it is of interest to some of Respondent’s
employees and not to others. For some shift work is what they
have now and for others it would constitute a change. He testi-
fied that employees asked why in other Exelon locations, shift
work was utilized and not at Peach Bottom. He encouraged the
employees to call other locations where shift work was the
norm and ask about it. He denied threatening employees with
shift work if the Union were to be voted in; instead, he testified
he told employees that would be negotiated.
I credit Vest’s testimony over that of Grimes. At Limerick
the clear message to employees was that if the Union were
elected, work schedules and shifts would change. I find that
through Grimes and Braun, the same message was conveyed to
employees at Peach Bottom. Grimes clearly tied the continua-
tion of flexible scheduling to staying nonunion. He testified
that in response to why the unionized Exelon facilities had shift
work and Peach Bottom does not, he answered: “We talked
about that that was, you know, it was basically that our (Peach
Bottom) employees have provided us the opportunity to utilize
them to work the shifts we needed, when we needed them. And
so long as we had the ability to do that, we would absolutely try
to do that.” The only difference between Peach Bottom and
Exelon’s other facilities is that the other ones are unionized,
and thus the “opportunity” that Exelon has at Peach Bottom is
the absence of a union.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD830
c. Conclusions with respect to Objection 1
Based on the credited evidence, I find that Exelon made it
clear to the affected employees that one result of selecting the
Union would be a change from rotating schedules to fixed shift
schedules, an adverse change for many of these employees. I
further find that the impression was left with employees that
this change was going to occur and was not negotiable. There
was no rational nor objective facts offered to explain why the
schedule change would occur except that that was the way
things were done in its unionized facilities. The employees
were not shown contracts at other facilities to demonstrate that
shift work was the norm. If the Peach Bottom employees se-
lected the Union, clearly the subject of shifts and schedules
would be negotiable and there is no reason why a new contract
would have to mirror what was done at other unionized facili-
ties. By predicting that a shift and schedule change would be a
given in the event the Union were selected I find that Exelon
made unlawful and objectionable threats.
Similarly, Exelon has threatened employees with the loss of
flextime and with the ability to accept or reject overtime. These
threats were not based on objective facts to convey an em-
ployer’ belief as to demonstratively probable consequences
beyond his control. I find the threats made to be unlawful and I
sustain Objection l.
The standard for determining whether an employer’s predic-
tion is an impermissible threat was set forth by the Supreme
Court in NLRB v. Gissel Packing Co., 395 U.S. 575, 618
(1969). The Board must focus on, “what did the speaker intend
and the listener understand.” Id. at 619. Any evaluation of the
speaker’s comments, therefore, “must take into account the
economic dependence of the employees on their employers,
and the necessary tendency of the former, because of that rela-
tionship, to pick up intended implications of the latter that
might be more readily dismissed to the disinterested ear.” Id. at
617.
In developing what is now a well-settled principle, The Court
in Gissel held:
Thus, an employer is free to communicate to his employees
any of his general views about unionism or any of his specific
views about a particular union, so long as the “communica-
tions do not contain a ‘threat of reprisal or force or promise of
benefit.’ He may even make a prediction as to the precise ef-
fects he believes unionization will have on his company. In
such a case, however, the prediction must be carefully
phrased on the basis of objective fact to convey an employer’s
belief as to demonstrably probable consequences beyond his
control or to convey a management decision already arrived
at to close the plant in case of unionization. If there is any im-
plication that an employer may or may not take action solely
on his own initiative for reasons unrelated to economic neces-
sities and known only to him, the statement is no longer a rea-
sonable prediction based on available facts but a threat of re-
taliation based on misrepresentation and coercion, and as such
is without the protection of the First Amendment.”
Id. at 618.
Accordingly, to be lawful, an employer’s prediction must be
based on objective, demonstrably probable consequence that
are beyond the employer’s control. That was not the case here.
2. Objections 2 and 3 allege that Exelon unlawfully affected the
outcome of the election and interfered with, restrained, and
coerced employees by implying that the selection of the Union
would be futile and that the Company would not bargain in
good faith
a. Exelon would insist on an agreement like the
Fossil agreement
Cynthia Curtin testified that in late April, she and about a
dozen other eligible voters attended a mandatory meeting
called by the Employer at the Limerick facility. At this meet-
ing, a consultant hired by Respondent spoke about the Fossil
contract between Exelon and Local 614. She remembered the
consultant’s name as Manny Gonzales. Gonzales told the em-
ployees that he and the other consultants hired by Respondent
were an independent group that was going to tell the employees
the truth and the facts about how unions and contracts work.
According to Curtin, Gonzales said that when you negotiate a
contract that everything starts at zero and it is a give and take
thing. Curtin testified that though the message he gave was that
things could improve, stay the same or get worse, the emphasis
was on losing rather than gaining. She also testified that he told
the employees that you start with nothing and to get a contract
you have to bargain everything back; it is not like to starting
where you are, you start with nothing. Then he showed the
employees the recently negotiated Fossil contract and told them
that the Fossil contract was as good as it gets, and that the Lim-
erick employees would not get a better contract than the Fossil
contract. An employee asked Gonzales if they could see a con-
tract at one of Exelon’s unionized nuclear plants. Gonzales told
them there was no reason to show them one because Local 614
would be their union so the contract would be the same one as
the Fossil contract. Some copies of the Fossil contract were
passed among the employees at the meeting. Gonzales did not
testify.
Jerome Dailey attended a meeting conducted by Manny
Gonzales and remembers Gonzales telling the employees that
the Fossil contract was the one they would get, adding that if
the employees wanted Local 15’s contract,21 they should have
joined Local 15. Dailey attended a later meeting conducted by
Gonzales’ fellow consultant Oliver Bell and was told the same
thing. Neither Gonzales nor Bell testified.
I credit the uncontradicted testimony of Curtin and Dailey
about the meeting with consultants Gonzales and Bell and thus
find that they told eligible voters that they would either get the
Fossil contract or one that was not better.
Exelon Utility Technician Charlotte Vest testified that an
Exelon representative named Mark Gridley held a few meet-
ings with employees at Peach Bottom. Gridley told them that
he was Exelon’s negotiator in the negotiations with Local 614
for the first contract at the Fossil generating plants. In one
mandatory meeting about a month before the election with

21 IBEW Local 15 represents Exelon employees at facilities in Illi-
nois.
EXELON GENERATION CO. 831
about 50 eligible employees in attendance, the contract that had
been reached was discussed. Gridley said that bargaining is
give and take, but that in his opinion, the employees at Peach
Bottom would not get anything better than the recently negoti-
ated Fossil contract. Frank Carter is president of Local 614.
Gridley said that Carter would not be interested in getting the
nuclear group a better contract than the one he got for the Fos-
sil plants because the Fossil employees would then be mad at
him.
Based on Vest’s meetings with her fellow organizers and un-
ion representatives, she believed that bargaining involves give
and take and there is no guarantee that employees will get what
they start with, but there is no guarantee that they will not get
more. This is what she told fellow employees during the pre-
election period if they asked her.
Peach Bottom Maintenance Technician James Hoch attended
a mandatory meeting in April 2005 where Mark Gridley ad-
dressed employees on the subject of the Fossil contract. Hoch
testified that there were 80 to 100 eligible voters at the meeting.
Gridley held up what Hoch presumed was the Fossil contract
and told the audience that they would probably not get a con-
tract any better than the one Local 614 had just negotiated.
Mark Gridley is the labor relations liaison for Exelon. He has
held this position since June of 2004. His job includes handling
all labor relations between Exelon and Local 614. He partici-
pated in the negotiations leading to the Fossil contract. His
participation began in June 2004 and the negotiations had be-
gun in March 2004.
During the union campaign at Limerick and Peach Bottom,
Gridley spoke to employees twice at both facilities. At the first
Limerick meeting about 75 to 100 employees attended. On his
second trip to Limerick he held two meetings with different
employee groups, each with about 30 to 40 employees attend-
ing. The first Peach Bottom meeting had about 60 to 70 em-
ployees in attendance. On his second visit there he held meet-
ings within departments. The same topics were discussed at
each meeting. He discussed the negotiating process and the
Fossil contract.
With respect to the negotiating process, he told the employ-
ees that each side comes into bargaining with initial proposals
that are far apart and you whittle down to an area where some-
thing could be ratified. He did not recall saying the employees
start bargaining at zero. He testified that he said you have a
clean table to start from. When he talked to the employees
about the Fossil contract, he had in hand a 5 page summary of
the contract. He did not pass this out to employees. He did not
discuss benefits because the benefits in the Fossil contract were
the same as those in place at Limerick and Peach Bottom. He
did talk about a general wage increase, an annual incentive
plan, management rights, schedules and overtime. He received
employee questions about overtime and sick time. He denied
telling the employees that the Fossil contract was the one they
would get if they selected the Union. He testified that in re-
sponse to a question, he answered that the Limerick and Peach
Bottom employees would have a different contract because
they were nuclear plants. On the other hand, he testified that he
might have told the employees in these meetings that the Fossil
contract would be a template for their contract or words to that
effect. He also admitted asking rhetorically did the employees
at Limerick and Peach Bottom think that Local 614 would ne-
gotiate a contract for them that would enrich them more than
the Fossil plant employees.
He was asked if the employees would get a contract like Lo-
cal 15 had with Exelon at its Illinois nuclear facilities. Gridley
testified that he laughed and answered that the Local 15 con-
tract had been built over 30 or 40 years, and that the Limerick
and Peach Bottom contract would be a first time contract. Grid-
ley testified that there were many questions about flexible work
assignments and schedules, call outs and contractor language.
Gridley denied telling the employees that Exelon would not
negotiate with Local 614.
With respect to the Gridley meetings with employees, I can
find no substantive difference between his testimony and the
employees’ testimony.
Daniel Kern works as a RP Tech at Peach Bottom. The RP
Manager at Peach Bottom is Bob Norris and he conducted
regular meetings with RP employees on work related topics.
Late in the campaign period before the election, Norris dis-
cussed the Fossil contract with employees in one of these meet-
ings. Ten to 12 of the employees present were eligible to vote.
In this meeting, contrary to his usual practice of sitting with the
employees, Norris stood and told them that he had the Fossil
contract fresh off the press. He told them that the Fossil con-
tract would be a template for the Peach Bottom employees if
they voted for the Union.
In the spring of 2005, depending on the Respondent’s staff-
ing needs, an employee could ask the day before and be given
permission to use a floating holiday without any questions.
Norris told the employees that if the Union were selected, man-
agement can and will make employees give five days notice
before using a floating holiday. At the time of the meeting,
employees were not required to produce a note from a doctor if
they were out sick for 2 days. Norris told the employees that
Respondent can and will require a doctor’s excuse for two or
more days absence due to illness if the Union is selected. At the
time of the meeting, RP Techs routinely performed overtime
and this work was not typically performed by RP Supervisors.
Holding the new contract, Norris then said that if the Union
were selected, Respondent can and will have supervisors per-
form tech overtime work if it saves money.
Though Norris never said it, Kern assumed the contract that
Norris was holding gave management the right to do the things
Norris said. It was Kern’s impression that Norris was telling the
employees that these things would happen if the Union came
in. Kern was aware that everything in a potential contract had
to be negotiated, but was led to believe by Norris and did be-
lieve that the things mentioned in the meeting by Norris would
be the same in any contract at Peach Bottom. Kern said no one
asked question in response to Norris’s request for questions.
Kern testified that Norris speaks in a very threatening manner
and he felt threatened and intimidated.
Robert Norris is the site radiation protection manager at
Peach Bottom, the position that Willie Harris fills at Limerick.
Prior to coming to Limerick he had worked in management at
what became Exelon’s Dresden nuclear facility where employ-
ees are represented by Local 15. He is very familiar with work-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD832
ing in a unionized setting. At Peach Bottom during the cam-
paign by Local 614, he was part of a management team that
met with employees to provide as much information as possi-
ble. When he spoke with employees during that time about the
negotiations at the Fossil facilities, his message was let’s wait
and see what happens in those negotiations, because common
sense would lead one to believe that contract would be a tem-
plate for negotiations at Limerick and Peach bottom if the Un-
ion were voted in.
Norris also told employees about his experiences working
with the Local 15 contract. He testified that the relationship
between Local 15 and management is confrontational. He told
them of the loss of flexibility and that the difference in relation-
ship between management and employees at Peach Bottom is
like night and day compared with his experience at Dresden.
He gave employees examples of the inflexibility at Dresden.
He pointed out that at Dresden, employees out sick two or three
days must bring in a doctor’s excuse to be paid, that employees
could not take sick days for personal pressing business; a situa-
tion not existing at Peach Bottom. He pointed out an agreement
reached with Local 15 to send employees to other facilities to
work during an outage and at the last moment Local 15 reneged
and the involved employees could not support the outage. He
told Peach Bottom employees that union employees at Dresden
were upset with union leadership and felt they had no voice in
the union. He referred the Peach Bottom employees to a Dres-
den union steward to verify what he had been telling them.
Norris testified that he was present for a meeting where
Mark Gridley informed Peach Bottom employees about the
Fossil contract. The meeting was voluntary and none of Nor-
ris’s employees who were eligible voters attended. He was
disappointed that none attended, so he had the Fossil contract
copied and distributed to his employees. He then had a meeting
with his employees to discuss the contract. He told them that it
was reasonable to assume a contract negotiated on their behalf
would look like the Fossil contract. He indicated it would be a
template for Peach Bottom negotiations and not the Local 15
contract. He denied telling employees they would never get
anything better that the Fossil contract and denied saying they
would get something worse. Norris and his supervisors pre-
pared a one page document noting 21 areas where they felt the
Fossil contract provided less flexibility than presently existed
in the nonunion Peach Bottom operation. This was provided to
his employees at the meeting. Among areas highlighted were
sick leave and shift work. Norris noted that the way shifts are
operated in his department cause more overtime than would be
incurred if Peach Bottom went to only 8-hour shifts. At some
point he told his employees that the Local 15 pension plan was
not on the table.
He testified that he never spoke with employees about his
supervisors performing bargaining unit work to avoid paying
overtime to unit employees. Under the nonunion situation at
Peach Bottom, supervisors perform unit work only in emer-
gency circumstance. Under the Fossil contract management is
given the right to perform unit work so long as it does not result
in the layoff of a unit employee.
I find no substantive credibility gaps between Norris’s testi-
mony and that of the employee witnesses.
b. Employees would “start with nothing” and “bargain from
zero” at the bargaining table
As noted above, Curtin testified without contradiction about
a meeting conducted by Exelon’s consultant Manny Gonzales.
During this meeting, Gonzales told the employees that bargain-
ing would “start from zero and that everything’s up for negotia-
tions. Yeah, it’s possible that things can get better but . . . It’s
more probable that they would get worse.” Gonzales explained
that simply because the Union comes in the Company could
take “stuff” away and the Union’s got to negotiate it back.
“You have nothing to start with and you have to bargain to get
it all back.”
c. Other statements of futility
Norris admitted that he told employees that the Local 15
pension was not on the table. Similarly, employee James Hoch
testified without contradiction that Gridley told 80 to 100 eligi-
ble employees at a mandatory meeting in April 2005 that they
would never get the same retirement benefits that Local 15 got.
Employee Vest testified about a mandatory “town hall meet-
ing” attended by at least 30 other eligible voters conducted by
Grimes and Braun. Vest testified that one of the two executives
stated during the meeting that Exelon has two different staffing
matrixes—one for union plants and one for nonunion plants—
and that if the employees elected the Union, there was no rea-
son why the plant would not go on the other staffing matrix.
Vest testified that Grimes suggested that the Company would
not budge on this issue and that the change would be a given.
d. Conclusions with respect to Objections 2 and 3
With respect to the Objections so long as they relate to in-
forming employees that they will only get a contract like or
worse than the Fossil contract, I find that Respondent’s con-
sultants Gonzales and Bell crossed the line into objectionable
conduct. The clear implication of their statements to employees
was that it would be futile to select the Union as they would
only get what was in the Fossil contract or worse. Gonzales
reinforced this message of futility by stating that bargaining
would start at zero that it is probable that terms and conditions
of employment would be worse after bargaining, and that if the
employees voted in the Union, the company could take benefits
away and the Union would have to negotiate to get them
back.22 These statements were also being made at a time when
employees were being told that there would be staffing and
shift changes, and that those changes would occur. Norris even
told the employees that they would get less favorable treatment
in regards to flexibility and sick time. Taken together, the state-
ment could easily be construed by a voter as reasons why it
would be futile to support the Union. Gonzales and Bell cer-
tainly refuted any statements by management to employees that
collective bargaining was a give and take proposition and that
anything was possible. As far as I can tell from this record,
Respondent did not effectively repudiate the statements of the

22 Though I do not find their statements to employees in this regard
are anywhere nearly as egregious as those made by the consultants,
Norris’ and Gridley’s statements lent support to the flat assertions made
by the consultants and reinforced their message.
EXELON GENERATION CO. 833
consultants and I find that their objectionable conduct could
well have affected the outcome of the extremely close election.
3. Objection 5 alleges that Exelon unlawfully affected the out-
come of the election and interfered with, restrained, and
coerced employees by engaging in captive audience
communications within 24 hours of the election
On the day of the election, Peach Bottom employee James
Hoch was in the Respondent’s cafeteria about 11 a.m. There
were 30 to 40 other people in the cafeteria at the same time. He
testified that there are two television monitors in the cafeteria,
one tuned to the Weather Channel and the other to what is
called the Exelon Employee Network. On election day, both
monitors were tuned to the Exelon Network. He looked at one
and saw on the screen a ballot with a yes and no block. As he
watched an X on the screen moved into the “NO” block to the
audio accompaniment of cheering and clapping hands. Hoch
was in the cafeteria for about 10 to 15 minutes and the same
scene was being repeated as he left. In between there were em-
ployee related videos having nothing to do with the election.
He saw the same video on a monitor in the area where employ-
ees pick up their badges.
Union Representative Brian Brennan was present at the
Peach Bottom facility on the day of the election, arriving at 5
am. During the day, he visited the facility’s cafeteria in the
company of another union representative. While there he heard
applause and looked up at a TV monitor. He saw on the screen
a sample ballot and then an X floating into the vote no box
accompanied by applause. He and the other representative pho-
tographed what they saw.
April Schilpp is a site communicator for Exelon at Peach
Bottom. She has held this position since March 2005. She is
responsible for internal and external communications with em-
ployees and the public. Among her other duties, she is respon-
sible for communications over the Exelon closed circuit TV
network at Peach Bottom. On this network, she runs a daily
slide show that passes on to employees information involving
employment related issues as well as some human interest
items involving employees. Schilpp testified that she updates
the presentation daily during the week and it changes around 9
am each work day. According to Schlipp, the vote no slide ran
on May 4 with a clapping sound accompanying the screen im-
age. She testified that on that day, she cut out the sound and
demonstrated on a computer how this could be done. She said
the decision to cut off the sound was her idea. She also testified
she may have been mistaken about the date she removed the
sound. This particular slide was prepared elsewhere and sent to
her by email from Limerick on May 3. She testified that this
slide was shown at Peach Bottom on the Exelon network from
about 9 a.m. May 4 to 9 a.m. May 5. Schlipp was instructed by
the Company’s campaign consultants to run the slide.
Peach Bottom employee James Logue also saw and heard
the vote no presentation on TV monitors upon arriving for
work early on the morning of May 5. He also testified other
employees were arriving at the same time and were able to see
the presentation as well.
I credit the testimony of Brennan, Logue, and Hoch that the
slide presentation was being shown with sound over the Exelon
network TV monitors at Peach Bottom on May 5. Hoch re-
members hearing and seeing the presentation about 11 a.m. that
morning. Schlipp testified that she started the vote no presenta-
tion at 9 a.m. on May 4 and that it ran continuously until she
removed the presentation about 9 a.m. on May 5. There were
inconsistencies in the testimony of Schlipp, mainly related to
when, if ever, she removed sound from the presentation. Hear-
ing her testimony, I believed that she was having difficulty
remembering what she actually did with respect to the vote no
presentation. Hoch was a sequestered witness and seemed very
sure in his testimony. I credit his testimony that the presenta-
tion was still running at 11 am on May 5. Even if he were
wrong, the presentation ran at least until 9 am, hours after the
election began.
In Peerless Plywood, 107 NLRB, 427 (1953), the Board es-
tablished the captive audience rule, prohibiting “employees and
unions alike . . . from making election speeches on company
time to massed assemblies of employees within twenty four
hours before the scheduled time for conducting an election.”
The vote no message ran on the Exelon network from about 9
a.m. on May 4 until about 11 a.m. on May 5, within the time
proscription of Peerless. The sound portion was loud enough to
be heard above the noise of the facility’s cafeteria. It could be
seen and heard entering and leaving the facility. The presenta-
tion clearly presented the Respondent’s campaign message,
“vote no.” The presentation was not one prepared by Schlipp,
but was given to her by management and she was told to run it.
It contained sound when she got it so it was clearly manage-
ment’s intent that employees both see and hear it. I have found
that sound was still accompanying the video message for sev-
eral hours into the election day. I sustain Objection 5.
4. Objection 6 alleges that Exelon unlawfully affected the out-
come of the election and interfered with, restrained, and co-
erced employees by engaging in electioneering close to the
polling place at issue
James Logue is employed as an equipment operator at Peach
Bottom. He testified that Peach Bottom has tight security and
that almost all of the facility is in a protected area. To enter this
area employees retrieve their badges which have radiation dose
meters attached. They then go to an area facing a bullet proof
glass enclosed guard house. They then stand in front of radia-
tion exposure meters until the machines give a green light.
Then they put their belongings through an X-ray machine and
pass through a metal detector, much like those found in airport
screening points. All of this is occurring in front of the guard
house which is approximately 20 feet by 20 feet. From there
the employee turns and walks parallel to the front of the guard
house and passes though a turnstile which id’s the employee’s
hand. Then they enter the protected area. Voting in the election
was held in a portion of a warehouse building that is used as a
gym. It is in the protected area about 150 feet from the guard
house.
On most mornings there is a guard in the guard house visible
to those entering to work. The guard is usually sitting at a desk
doing paperwork and not observing those entering the facility.
When an employee first enters the nonsecure area of the facil-
ity, there is a television monitor mounted about 8 feet up a
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD834
wall. It is located in a spot usually used for exiting, though you
can see it upon entering. On the day of the election Logue ar-
rived at 6 a.m. and retrieved his badge. He heard what he called
unusual music coming from the monitor and looked up. On the
screen he observed a ballot with a box and the words ‘vote no.’
He testified that 6 a.m. is a popular time to come to work and
about six or seven other employees were there waiting for
their turn at the exposure meters. As Logue waited for his turn
to go though the meter, he noticed Plant Manager Joe Grimes
sitting on a raised bar chair in the guard house observing em-
ployees entering the facility. Logue said he could not help but
make eye contact. With Grimes in the guard house was Shelly
Craig, Exelon’s supervisor of the guard force. He went through
security and went first to his break room to get his days as-
signment. He then went to vote. He then exited the facility as
his work that day was outside the protected area. As he left,
about 7:15 a.m., Grimes was still observing those entering.
Logue had never seen Grimes nor any other plant manager in
the guard house before in all 21 years he has worked at Peach
Bottom.
Union Representative Brennan testified that he also saw
Grimes in the guard room upon his arrival at Peach Bottom on
election day at approximately 5:30 a.m. At the time he saw
Grimes there were several eligible voters in the same security
area.
On the day of the election, Grimes reported to work at 4:30
a.m. Grimes testified that he was in the guard room at various
times on May 5. He testified that his reason for being there was
to ensure that visitors that day, including Board officials, would
be able to get to the polling place without problem. From the
guard house, he was not able to see the polling place as it was
in the interior of another building. He testified that he was in
the guard house for more than an hour, but less than the entire
morning. Company records reflect that he was there between 5
a.m. and 7:30 a.m.23 He did not speak to employees that day
other than supervisory employees and security guards. The
visitors connected with the election were one Board employee
and two Union representatives, only one of which entered the
protected area. Grimes was also in the guard house on that day
between 5 p.m. and 6:30 p.m.
Grimes testified that he was in the guard house on election
day to facilitate the entry of visitors. The two visitors were both
inside the protected area by 6 a.m. He stayed there until 7:30
a.m. Thus even if I accept his reason for going to the guard
house early on May 5, that reason was gone by 6 a.m. Having
articulated no other reason for being there, I find that his pur-
pose was to observe employees and voters coming into the
facility. Everyone who entered the facility between 5 a.m. and
7:30 a.m. that day had to pass by Grimes. It would be impossi-
ble to enter without the employee seeing him from a few feet,
albeit behind glass, and for Grimes not to see the employee.
Because Grimes did not observe employees entering the facility

23 The same records indicate that Grimes had been in the guard
house on May 5 for a total of 3 hours and 50 minutes. In the 11 months
preceding the hearing, he entered the guard house 15 times. Of those 15
times, there were only 4 times his stay was for more than 10 minutes
and only one was for more that a half hour.
with any regularity, and Logue testified he had never seen him
do this in 23 years, it had to make an impression on the em-
ployees. I believe and find that Grimes’ actions in this regard
was to convey to employees on election day that they were
being watched. All the time he was in the guard house, the
“vote no” presentation was being played on the Exelon TV
monitors. I find his continued presence in the guard hours and
continued observance of the employees entering to vote and
work was improper conduct not justified by any plausible ex-
planation. I find it unlawful and sustain Objection 6.
5. Objection 9 alleges that Exelon threatened employees with
job loss and layoffs if the Union won the election
Of the 22 Radiation Protection Technicians at Limerick, 2
work as planners, planning work schedules and work packages.
Dailey testified that for the 18 years he has worked in this de-
partment, these two positions have been filled by hourly RP techs
on a long-term, rotational basis. In other departments, planning
positions may be filled by exempt, salaried employees.
Dailey testified that in a December 2, 2004 shift meeting, RP
Manager Harris told the employees that two planner positions
in the department would have to become salaried positions if
the Union were selected. Harris said that if that event occurred,
the RP techs would have the opportunity to apply for the two
positions. If none of the techs were qualified to fill the posi-
tions or if none were selected, the two techs presently filling
the positions would come back into the tech pool and the two
least senior techs would be laid off if they could not find an-
other job with Respondent.
Dailey agreed with a representation by Respondent’s counsel
that in the representation hearing held subsequent to the De-
cember 2 meeting, the parties reached a stipulation that Exelon
“had plans underway to make the planner position a permanent
exempt salaried position through which people no longer rotate,
and that “an hourly employee who functioned as a planner [and
who] wanted to become a permanent planner . . . could apply
for the job and compete for it like everybody else.” Dailey then
qualified his answer, testifying that there had been no discus-
sion during the hearing regarding the possibility that RP Tech-
nicians would no longer be employed as planners and would
instead return to the RP pool. The stipulation referred to deals
only with the voting rights of the two planners and says nothing
about a plan by the company to change its practice regarding
the planner positions in the RP department.
I find that Harris unsubstantiated threat constitutes objec-
tionable preelection conduct. No objective facts were offered to
support the threatened change and the change was certainly
within the control of the employer. See Electric Hose & Rubber
Co., 262 NLRB 186, 194, 195 (1964); President Riverboat
Casinos of Missouri, 329 NLRB 77 (1999).
CONCLUSIONS OF LAW
1. Respondent Exelon Generation Co., LLC is an employer
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.
EXELON GENERATION CO. 835
3. Respondent violated Section 8(a)(1) of the Act by threat-
ening employees with loss of their jobs because they supported
the Union.
4. Respondent violated Section 8(a)(1) of the Act by threat-
ening an employee with loss of prior approval to attend Board
hearings pursuant to subpoena taking leave without pay be-
cause the employee supported the Union.
5. Respondent violated Section 8(a)(1), (3), and (4) of the
Act by requiring its employees Cynthia Curtin, Jerome Dailey,
and Robert Schlegel to use vacation time to attend Board hear-
ings pursuant to subpoena because they supported the Union.
6. By the unfair labor practices found above and by the other
conduct described in Section D24 of this decision relating to
Objections 1, 2, 3, 5, 6, and 9, Respondent has engaged in ob-
jectionable conduct likely affecting the outcome of the election
held May 5, 2005, and requiring that the results of the election
be set aside and a rerun election directed.
7. The following unit is a unit appropriate for collective bar-
gaining within the meaning of Section 9(c) of the Act:
All full-time Designers, HP Technicians, I&C Technicians,
Chemistry Technicians, Equipment Operators, Reactor Op-
erators, Maintenance Technicians, Utility Technicians, Mate-
rial Coordinators, Quality Verification Technicians, NDE
Technicians, plant clericals at Limerick Nuclear Generating
Station (Chemistry: Administrative Clerk; Operations: Ad-
ministrative Clerks; Radiation Protection: Administrative
Clerk; Maintenance: Technical Clerk, Administrative Coordi-
nator; Maintenance Planning: Administrative Coordinator;
I&C: Administrative Coordinator; Business Operations: Ad-
ministrative Clerks), and plant clericals at Peach Bottom
Atomic Generating Station (Chemistry: Administrative Coor-
dinator; Operations: Technical Clerk; Administrative Coor-
dinator; Radiation Protection: Technical Clerk; Maintenance:

24 Sec. D begins at p. 17 [Change to appropriate page no. when case
is completed.]and is captioned, “Facts and Conclusions with respect to
Objections.”
Administrative Coordinator; Maintenance Planning: Adminis-
trative Coordinator; I&C: Administrative Coordinator; Busi-
ness Operations: Technical Clerks), employed by the Em-
ployer at Peach Bottom Atomic Generating Station, Limerick
Nuclear Generating Station and Outage Services (East), ex-
cluding all other employees, Lead Technicians, all other Ad-
ministrative Clerks, Administrative Coordinators, Senior
Administrative Coordinators and Executive Coordinators,
Planners, all employees in exempt pay classifications, and all
employees in the Security, Training, Regulatory Assurance,
Nuclear Oversight and Human Resources Departments, office
clerical employees, guards and supervisors as defined by the
Act.
8. The unfair labor practices affect commerce within the
meaning of Section 2(6) and (7) of the Act.
9. The unfair labor practices and Objections found to have been
committed are the only ones shown to have been committed.
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.
Respondent is further ordered to make whole its employees
Cynthia Curtin and Jerome Dailey for any losses they may have
suffered by Respondent’s unlawful discrimination against
them, including restoring to them the vacation time charged
against them to attend Board hearings in 2004 and 2005. Re-
spondent is further ordered to post an appropriate notice, in-
cluding a Lufkin notice.25 It is further ordered that a rerun elec-
tion be directed.
[Recommended Order omitted from publication.]

25 See Lufkin Rule Co., 147 NLRB 341 (1964), and Sec. 11452.3 of
the Board’s Casehandling Manual (Part Two).