Frazier Industrial Co.

National Labor Relations Board - Board Decisions

Jun 14, 1999

328 N.L.R.B. 717 (N.L.R.B. 1999)

FRAZIER INDUSTRIAL CO. 717
Frazier Industrial Company and International
Association of Sheet Metal Workers Association,
Local 60. Case 27–CA–14667
June 14, 1999
DECISION AND ORDER
BY MEMBERS FOX, LIEBMAN, AND BRAME
On December 3, 1997, Administrative Law Judge
William L. Schmidt issued the attached decision. The
Respondent filed exceptions and a supporting brief, and
the General Counsel filed an answering brief. The
Respondent filed a reply brief to the General Counsel’s
answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order.
Contrary to our dissenting colleague, we agree with the
judge that the Respondent violated Section 8(a)(3) and
(1) of the Act by discharging employee John Ramirez,
and violated Section 8(a)(1) when its Supervisor Dennis
Haga inquired of employee Mike Jennings whether
Ramirez was bothering him.
Briefly, the facts are as follows. John Ramirez began
working for the Respondent on March 7, 1996,2 and
commenced his organizing activities at the plant toward
the end of April by soliciting employees to sign
authorization cards and by urging employees to attend
union organizing meetings. Ramirez estimated that he
spoke with about half of the plant’s work force, and that
he probably spoke with someone about unionization
every day, or every other day, before being discharged on
June 18. In May, an employee remarked to a group of
employees seated with him in the plant lunchroom,
during a break, that the employees ought to start a union.
Supervisor Moosman overheard the remark, became
flustered by it, and angrily told the employees that if he
heard of anyone “going union . . . they’ll be down the
road.”3 Supervisor Hrabik received two complaints from
employees in late May and early June about Ramirez’
union activities. Supervisors Hrabik and Moosman met
with Plant Manager Haga in early June, and Haga
instructed the supervisors to warn their employees “that
they could do whatever they wanted to on their own
time, but on company time they need not to talk [sic]
about the union or bother . . . anybody about it.”
Following this meeting, Moosman went to all of the
welders’ work stations and explained that there had been
complaints about some employees “harassing” others to
join a union. Moosman warned each welder, including
Ramirez, that what they did on their own time was their
business but that they could not “harass” employees
about the Union during “company time.” In addition,
Moosman delivered the same instruction to a group of
employees, also including Ramirez, in the lunchroom
during a break. During the lunchroom meeting,
Moosman also told the employees that he “wanted to
know about it if someone was talking to you about the
union on company time.”

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an
administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
2 All dates are in 1996 unless otherwise indicated.
3 We agree with the judge—and the Respondent does not dispute—
that Moosman’s remark conveyed an unmistakable threat of unlawful
discharge.
After these warnings, Hrabik received further
complaints from two employees on June 13 or 14 that
Ramirez was harassing them by repeatedly urging them
to attend a union meeting. Following these complaints,
Hrabik and Moosman again met with Haga, who said
that “harassing” employees on company time “had to
stop.” Later, Moosman again told Ramirez and the other
employees “that there had been complaints about some
employees harassing others on worktime and that this
had to stop.”
The judge found that the Respondent, by the above
conduct, discriminatorily promulgated and maintained a
rule prohibiting employees from discussing the Union on
worktime, but took no action to limit any other
discussions during worktime. The judge further found
that the Respondent failed to meet its burden of
establishing that production or plant discipline
necessitated its rule prohibiting only union discussions
during worktime. The judge thus concluded that by
barring only union discussions while tolerating other
discussions about nonwork matters during working time,
the Respondent violated Section 8(a)(1) of the Act. As
noted, we agree with that conclusion. Our dissenting
colleague also agrees.
On June 17, the day before his discharge, Ramirez
clocked out at the end of the workday, but then saw Mike
Jennings reporting for work on the second shift. Ramirez
spoke with Jennings as he punched in and continued the
conversation as Jennings walked to his work station.
Ramirez estimated that he accompanied Jennings about
15–20 feet onto the plant floor and spoke with him for
about 90 seconds in an effort to persuade Jennings to
meet personally with union organizer Pettaway. When
Ramirez observed Haga watching from about a hundred
feet away, however, Ramirez left the building. Haga
then asked Jennings if Ramirez was “bothering” him, and
Jennings replied, “Yeah, he was bothering me about the
328 NLRB No. 89
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 718
damn union stuff and won’t leave me alone.”4 A short
while later, Haga told Moosman to pull Ramirez’
timecard and to have Ramirez report to Haga’s office
before starting work the following day.
When Ramirez met with Haga in Haga’s office the
next day, Haga rhetorically asked Ramirez “what am I
going to do with you, John[?]” Haga mentioned to
Ramirez that he had received a good raise and that his
benefits were growing, but that people were complaining
about him bothering them all the time and that it was
affecting productivity, so he had to change his ways.
Ramirez denied that he was bothering anyone. Haga
then confronted Ramirez with his own observation of
him on the previous evening and of Jennings’ report that
Ramirez had been bothering him, but Ramirez still
denied that he was bothering anyone. When Haga again
stated, “what am I going to do with you,” Ramirez
replied, “well you’re the plant manager you do whatever
you have to do.” By this time Haga perceived that
Ramirez had “a really bad attitude about it.” He
informed Ramirez that he would be discharged but
offered the opportunity for him to quit so there would be
no record of his firing. Ramirez refused to quit, and thus
was discharged.
Later that morning, Hrabik briefly spoke to employee
Robert Rodriguez, who had learned of Ramirez’
termination from Moosman. At that time, Hrabik
pointed toward the office door and, in apparent reference
to Ramirez’ discharge, Hrabik remarked to Rodriguez, in
effect, that Rodriguez should now understand why he
should not talk about the union on company time.
According to Rodriguez (who the judge found to be a
truthful and forthright witness), Hrabik then “kind of
giggled and kept walking toward the main office.”
The judge rejected the Respondent’s contention that
Ramirez’ union activities lacked protection, because they
rose to the level of harassment, as well as the
Respondent’s claim that Ramirez’ discharge resulted
from his dishonesty and insubordination during his
meeting with Haga on June 18. Rather, the judge
concluded that the Respondent discharged Ramirez
because he failed to adhere to the Respondent’s unlawful
rule barring union talk during worktime, and thus
violated Section 8(a)(3) of the Act. Again, we agree with
that finding.
In finding Ramirez’ discharge unlawful, we note that
the chain of events leading to the discharge was a direct
result of the Respondent’s enforcement of its unlawful
rule prohibiting talk about the Union during worktime.
The discharge occurred in the context of numerous other
unexcepted-to 8(a)(1) violations by the Respondent:
threatening to discharge employees who engaged in

4 The judge found Haga’s inquiry of Jennings to be coercive
interrogation in violation of Sec. 8(a)(1) and, as noted, we agree with
that finding.
union activities; coercively interrogating employees
about their union activities and sympathies, and those of
other employees; expressing disappointment in
employees who attended union meetings; threatening to
close the plant if employees chose union representation;
threatening to retaliate against employees for their union
activities; creating the impression that employee union
activities were under surveillance; and attempting to
convince employees that it would be futile for them to
seek representation. Further, several hours after
Ramirez’ discharge and in apparent reference to that
discharge, Supervisor Hrabik remarked to employee
Rodriguez that he (Rodriguez) should now understand
why he should not talk about the Union on company
time; the Respondent did not except to the judge’s
finding that this comment, suggesting that employees
could be discharged for failing to adhere to its unlawful
rule prohibiting union talk on working time, violated
Section 8(a)(1).
The Respondent and our dissenting colleague
essentially contend that the Respondent’s discharge of
Ramirez was lawful, because the union solicitation
activity that motivated it was beyond the ambit of
Section 7, i.e., that the solicitations rose to the level of
unprotected harassment. We agree with the judge that
those solicitations did not lack protection under the Act.
Based on testimony credited by the judge, it is clear
that—with the exception of one incident that was
unknown to the Respondent before the discharge, and
therefore could not have motivated it—all of Ramirez’
worktime solicitations were brief and did not involve any
obvious disruption in production.5 Indeed, there is no
evidence that employees whom Ramirez solicited more
than once ever even told him that he was interfering with
their work or that further solicitations would have that
effect.
Nor do we find that the Respondent has established
that it reasonably believed, based on complaints made by
solicited employees to supervisors, that Ramirez was
engaged in unprotected approaches to employees as
opposed to merely persistent solicitation. According to
credited or undisputed testimony, the reports that several
employees made to the Respondent’s supervisors about
Ramirez’ solicitations were couched in language that
Plant Manager Haga had used in instructing the
supervisors about prohibited solicitations and that
Supervisor Moosman had used to employees. Those
admonitions appeared to equate repeatedly “talking to”
anyone about “the union on company time” with
reportable harassment. However, an employer may not
5 The one conversation that was more than momentary was a night-
shift conversation with Jennings and Nielsen on June 6, 1996. Ramirez
testified that it lasted about 20 minutes and Jennings testified that it
lasted about 45 minutes. The judge did not resolve the contradiction;
but in any event there was no evidence that anyone told the Respondent
about this incident before Ramirez’ discharge.
FRAZIER INDUSTRIAL CO. 719
lawfully take action against an employee on the basis of
such an assumption. As we have previously stated:

The Board has held that employers violate
Section 8(a)(1) of the Act when they invite their
employees to report instances of fellow employees’
bothering, pressuring, abusing, or harassing them
with union solicitations and imply that such conduct
will be punished. It has reasoned that such
announcements from the employer are calculated to
chill even legitimate union solicitations, which do
not lose their protection simply because a solicited
employee rejects them and feels “bothered” or
“harassed” or “abused” when fellow workers seek to
persuade him or her about the benefits of
unionization.6

In the present case, there was no allegation, and hence no
finding, of an independent violation based on the
Respondent’s invitation to employees to report harassing
solicitations. But, it was alleged, and we have found, that
the Respondent unlawfully maintained and enforced a rule
that prohibited nonwork-related conversations during
working time if they were about the Union—and only if
they were about the Union. The Respondent admits that it
discharged Ramirez because of his union solicitations.
Given the evidence in the case, the Respondent’s motivation
is not rendered lawful simply because it equated those
solicitations with unprotected harassment.
Our colleague contends that BJ’s Wholesale Club, 318
NLRB 684 (1995), is analogous to this case and warrants
finding that Ramirez’ solicitations were unprotected. We
find that case to be distinguishable. First, in BJ’s, the
Board noted that the legitimacy of the employer’s pre-
existing no-harassment rule was not in dispute and that
the employee involved (Cavaliere) had previously been
counseled for harassment as a result of conduct that did
not involve union activity. Thus, in that case, unlike
here, the employee was not disciplined for violating an
unlawfully-promulgated no-solicitation rule. Second, in
BJ’s, the Board noted that the respondent employer did
not solicit complaints from employees about Cavaliere’s
union activity. Here, Supervisor Moosman told
employees that he “wanted to know about it if someone
was talking to you about the union on company time,”
and on July 17, Plant Manager Haga asked employee
Jennings if Ramirez was “bothering” him.
Our colleague contends that Ramirez’ alleged
dishonesty and insubordination during his meeting with
Plant Manager Haga on June 18 also caused his
discharge. With respect to the claim that Ramirez was
being dishonest in claiming that he was not bothering
employees, we agree with the judge that Ramirez was
merely expressing his opinion that he was not

6 Greenfield Die & Mfg. Corp., 327 NLRB 237 (1998), and cases
there cited (footnotes omitted). Accord: Publishers Printing Co., 317
NLRB 933, 934 (1995), enfd. mem. 106 F.3d 401 (6th Cir. 1996).
“bothering” employees by his conduct. Further,
regarding the claims of both dishonesty and
insubordination, the judge found that the evidence
strongly indicated that Haga had decided to terminate
Ramirez before their meeting. Thus, Haga initially
testified that the only reason for Ramirez’ discharge was
because Haga had witnessed Ramirez harassing a fellow
employee during worktime, and because Ramirez had
been accused of harassing other employees on two
previous occasions. This is consistent with Haga having
Ramirez’ timecard pulled on the evening of June 17,
before his meeting with him on June 18.
Thus, contrary to our dissenting colleague, we agree
with the judge that Ramirez was discharged because he
failed to adhere to the Respondent’s unlawful rule
barring union talk during working time, and thus his
discharge violated Section 8(a)(3) and (1) of the Act.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law judge and
orders that the Respondent, Frazier Industrial Company,
Pocatello, Idaho, its officers, agents, successors, and
assigns, shall take the action set forth in the Order.

MEMBER BRAME, dissenting in part.
I agree with my colleagues that the Respondent
violated Section 8(a)(1) of the Act by maintaining and
enforcing a rule prohibiting only union talk during
working time while permitting other nonwork
discussions, as found by the judge. Contrary to my
colleagues, however, I find that the Respondent did not
violate Section 8(a)(3) and (1) of the Act by discharging
employee John Ramirez, and I also find that the
Respondent did not violate Section 8(a)(1) by Supervisor
Dennis Haga’s asking employee Mike Jennings whether
Ramirez had been bothering him.
In concluding that the Respondent did not violate the
Act by discharging Ramirez, I agree with the Respondent
that Ramirez’ union activities lacked protection under the
Act, because, undertaken during worktime, they rose to
the level of harassment and interfered with production.
The Respondent manufactures steel storage systems
for warehouses. The Respondent commenced production
at the Pocatello, Idaho facility at issue here in the spring
of 1996,1 employing nine welders and nine others to
perform fabrication, maintenance, painting, and other
operations. Ramirez applied for a welder’s position with
the Respondent at the request of union organizer Mike
Pettaway, who expected Ramirez to assist in the
organizing of the Respondent’s work force. Ramirez
began work as a welder for the Respondent on March 7,
and commenced his organizing activities at the plant
toward the end of April by soliciting employees to sign
authorization cards. Further, Ramirez informed
1 All dates are in 1996.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 720
employees about union organizing meetings held on June
3, 6, and 13, and urged them to attend. He also sought to
persuade employees hesitant about attending the
meetings to meet privately with Pettaway. Ramirez
himself estimated that he spoke with someone about
unionization every day or every other day before his
discharge on June 18, and the judge found that Ramirez
engaged in union activities during working time.
Starting in late May and early June, the Respondent
received numerous complaints from employees that
Ramirez was bothering them about the Union.2 On June
13, employee Todd Chandler complained to Supervisor
Hrabik that Ramirez “was harassing him to be present at
[a] union meeting after work.” Chandler complained to
Hrabik after Ramirez had approached him during
worktime on five or six occasions, over the course of
several days, to attend an upcoming union meeting.
Chandler explained that he did not want to stir up trouble
at the plant, but that he wanted Hrabik to “drop a hint” to
Ramirez that Chandler did not want to be bothered all the
time.
The next day, employee James Frasure complained to
Supervisor Hrabik that Ramirez would not leave him
alone about the Union. Frasure complained to Hrabik
after Ramirez had approached him four times in 1 day,
during worktime, urging him to attend a union meeting.
Frasure stopped working while Ramirez spoke with him.
Frasure testified that he “kind of unloaded” on Hrabik,
telling him that Ramirez was continually bothering him
while he was trying to work and that he was very upset.3
Earlier, in late May, Ramirez had asked employee
Mike Jennings to sign an authorization card during
worktime. Jennings replied that he would think about it.
Ramirez then asked Jennings four or five times during
the succeeding days whether he wanted to attend a union
meeting. Jennings complained to his supervisor,
Moosman, about Ramirez’ repeated soliciting of him.
Ramirez also approached employee Tom Neilsen about
the Union, and Neilsen told Ramirez that he did not
support the Union.
Subsequent to these conversations with Jennings and
Neilsen, on the evening of June 6, Ramirez visited
Jennings and Neilsen while they were working on the
night shift. For a period of time lasting up to 20 minutes
(Ramirez’ testimony) or 45 minutes (Jennings’
testimony), Ramirez talked to Jennings and Neilsen
together about the benefits of joining the Union and
invited them to meet with Pettaway. Jennings and
Neilsen both testified that they could not safely work
while Ramirez spoke with them because Ramirez was in

2 In early June, Supervisor Hrabik spoke to Supervisor Moosman
about the complaints Hrabik had received from employees about
Ramirez’ union activities, and together they spoke to Plant Manager
Haga.
3 Following these complaints by Chandler and Frasure, Hrabik again
spoke to Moosman and they later met with Haga.
danger of getting flash burn if they began welding. Both
Jennings and Neilsen testified that they tried without
success to discontinue the conversation with Ramirez
numerous times by stating that they needed to get back to
work, and that Ramirez left only after Jennings promised
to think about meeting with Pettaway.4
Then, on the evening of June 17, in the plant’s parking
lot after work, Ramirez asked employee Clair Monson if
he’d like to attend an organizing meeting. Monson
became very angry and began screaming at Ramirez.
Employee Pat Burrington, who fled the scene because he
felt that it was “going to get ugly,” testified that he
believed that Plant Manager Haga observed the
altercation.
The events directly leading to Ramirez’ discharge on
June 18 are as follows. Ramirez clocked out at the end
of the workday on June 17, but then saw Mike Jennings
reporting for work on the second shift. Ramirez spoke
with Jennings as he punched in and continued the
conversation as Jennings walked to his work station.
Ramirez estimated that he accompanied Jennings about
15–20 feet onto the plant floor and spoke with him for
about 90 seconds in an effort to persuade Jennings to
meet personally with union organizer Pettaway. When
Ramirez observed Haga watching from about a hundred
feet away, however, Ramirez left the building. Haga
then asked Jennings if Ramirez was “bothering” him.
Jennings replied, “Yeah, he was bothering me about the
damn union stuff and won’t leave me alone.” A short
while later, Haga told Supervisor Moosman to pull
Ramirez’ timecard and to have Ramirez report to Haga’s
office before starting work the following day.
When Ramirez met with Haga in Haga’s office the
next day, Haga asked Ramirez “what am I going to do
with you, John[?]” Haga mentioned to Ramirez that he
had received a good raise and that his benefits were
growing, but that people were complaining about him
bothering them all the time and that it was affecting
productivity, so he had to change his ways. Ramirez
denied that he was bothering anyone. Haga then
confronted Ramirez with his own observation of him on
the previous evening and of Jennings’ report that
Ramirez had been bothering him, but Ramirez still
denied that he was bothering anyone. Haga again stated,
“what am I going to do with you?” Ramirez replied,
“well you’re the plant manager you do whatever you
have to do.”
Although Haga had by then recognized that Ramirez
had “a really bad attitude about it,” he informed Ramirez
that he would be discharged but offered him the
opportunity to quit so there would be no record of “his
firing.” Ramirez refused to quit. After Ramirez received
4 The Respondent did not know about this June 6 incident until after
it discharged Ramirez.
FRAZIER INDUSTRIAL CO. 721
his final paycheck, Moosman accompanied him to collect
his tools and then escorted him from the plant.
The Respondent claims that its discharge of Ramirez
resulted from his dishonesty and insubordination during
this meeting with Haga. Ramirez denied bothering
employees about the Union during worktime, even
though many employees had complained to their
supervisors and Haga himself had witnessed Ramirez
doing so. Further, rather than recognize the Respon-
dent’s legitimate interest in maintaining produc-tion,
Ramirez responded with a flippant challenge: “[Y]ou’re
the plant manager you do whatever you have to do.” In
short, despite his repeated badgering of coworkers and
interference with their work, of which he could not help
but be aware, particularly given his June 6 interaction
with Jennings and Neilsen, Ramirez denied the obvious.
Moreover, he refused to discuss any change in his
behavior and, instead, dared Haga to fire him. Ramirez’
calculated insubordination, coupled with his failure to
consider the Respondent’s interest in production, forced
Haga to terminate Ramirez.
“[W]orking time is for work,” and an employer may
make and enforce reasonable rules governing employee
conduct.5 Even in the face of an unlawful rule, an
employer may discharge an employee for solicitation
which interferes with production if such interference was
the basis for the discharge.6 An examination of the facts
of the instant case establishes that this is exactly what
occurred here: Ramirez confronted the Respondent with
a pattern and practice of harassment of his fellow
employees, who complained about Ramirez’ unwanted
and constant harassment and later testified about his
actions. This was a small unit, and the constant
badgering began to affect the workplace. Ramirez
interrupted Chandler five or six times during worktime
over the course of several days; he interrupted Frasure
four times in 1 day while Frasure was trying to work.
Haga apparently witnessed an argument and near fight
between Ramirez and Monson. Finally, on June 17,
Haga witnessed Ramirez follow Jennings onto the plant

5 Peyton Packing Co., 49 NLRB 828, 843 (1943), enfd. 142 F.2d
1009 (5th Cir. 1944); Republic Aviation Corp. v. NLRB, 324 U.S. 793,
802–803 (1945), rehearing denied 325 U.S. 894 (1945).
6 Miller’s Discount Dept. Stores, 198 NLRB 281 (1972), enfd. 496
F.2d 484 (6th Cir. 1974) (“if an employee is discharged for soliciting in
violation of an unlawful rule, the discharge also is unlawful unless the
employer can establish that the solicitation interfered with the
employees’ own work or that of other employees, and that this rather
than violation of the rule was the reason for the discharge”) (emphasis
added). In Crestfield Convalescent Home, 287 NLRB 328, 344–345
(1987), enf. denied on other grounds 861 F.2d 50 (2d Cir. 1988), the
Board similarly held “the mere absence of a valid no-solicitation/-
distribution rule does not confer on employees the absolute right to
discuss union matters during worktime to the detriment of their work
performance, and an employer may legitimately penalize an employee
for discussing union matters during worktime on condition that such
discipline is not disparately or discriminatorily applied,” citing
Brigadier Industries, 271 NLRB 656 (1984); accord: Restaurant Corp.
of America v. NLRB, 827 F.2d 799, 805–807 (D.C. Cir. 1987).
floor while Jennings was on worktime. Jennings told
Haga after this incident that he wanted Ramirez to leave
him alone.
My colleagues contend that the Respondent’s
discharge of Ramirez was a direct result of the
Respondent’s enforcement of its unlawful ad hoc rule
prohibiting only union talk during working time, while
permitting talk about other nonwork topics. The Acting
General Counsel, however, offered no evidence that
these discussions about other nonwork topics ever led to
employees’ complaining to management or that such
discussions affected production. By contrast, employees
called the Respondent’s attention to Ramirez’ actions,
and they continued to complain from late May through
mid-June. What distinguished Ramirez’ conduct was not
the content of his message, but that he engaged in
continual unwelcome solicitation of employees that
resulted in complaints and confrontation. It was this
aspect of Ramirez’ behavior—the constant harassment of
his fellow employees which interfered with production
and plant discipline—that was the reason for his
discharge.7
I would thus find that Ramirez’ repeated harassment of
employees about the Union constituted a sufficient
reason for the Respondent to discharge him. Even with
the Respondent’s other conduct which the judge found to
have violated Section 8(a)(1) (and to which the
Respondent filed no exceptions),8 the Respondent could
still take action against Ramirez when his continual
harassment of his fellow employees during worktime
resulted in management receiving multiple complaints
from multiple employees about his behavior. The
Respondent cannot be precluded from disciplining an
employee who is repeatedly harassing fellow employees,
and negatively affecting the work environment, simply
because other conduct by the Respondent has been found
to violate the Act.9
Finally, there is no evidence that the Respondent
sought to terminate Ramirez. Indeed, the evidence is that
7 For example, in Adco Electric, 307 NLRB 1113 (1992), enfd. 6
F.3d 1110 (5th Cir. 1993), the Board, in concluding that the employer’s
warning an employee not to leave his work and interrupt others in his
solicitation efforts for the union was lawful, found that although
employees could talk about anything as they worked, there was no
evidence that the employer had ever tolerated employees’ leaving their
work to interrupt those who were working for the purpose of soliciting
for some cause. Similarly, in the instant case, there is no evidence that
the Respondent tolerated behavior which led to repeated complaints
from employees about harassment and work interference.
8 Inter alia, the Respondent has not excepted to the judge’s finding
that Hrabik’s comment to employee Rodriguez subsequent to Ramirez’
discharge violated the Act. The judge found that Hrabik remarked to
Rodriguez that he should now understand why he should not talk about
the union on company time. I note, however, that Ramirez did not
simply talk to employees, he harassed them. Hence, the finding of this
violation does not negate the lawfulness of Ramirez’ discharge.
9 Since Ramirez’ activities did not constitute “legitimate union
solicitations,” the reasoning of Greenfield Die & Mfg. Corp., 327
NLRB 237 (1998), cited by my colleagues, is inapplicable.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 722
Haga sought to salvage Ramirez. First, the Respondent
waited approximately 3 weeks from the time it first
received complaints about Ramirez’ behavior before
meeting with him individually on June 18. In my view,
the Respondent’s 3-week delay before meeting with
Ramirez individually indicates that it was not simply
waiting for the first opportune moment to discharge him
because of his union activities. Second, the Respondent
did not maintain surveillance over Ramirez, as the June 6
second-shift incident with Jennings and Neilsen showed.
Third, Haga initiated the June 18 discussion with an air
of frustration: he reported complaints, effect on
production, and Ramirez’ raises, and asked rhetorically,
“what am I going to do with you.” Clearly, he invited
some recognition of management’s legitimate concerns.
Ramirez, however, made no attempt to accommodate or
discuss management’s concerns, but instead responded
with a challenge: “well you’re the plant manager you do
whatever you have to do.” In the face of such a
challenge, Haga had to assert the Respondent’s interest
in production or surrender control of working time to
Ramirez.
The instant case is factually most similar to BJ’s
Wholesale Club, 318 NLRB 684 (1995), in which a
known employee union proponent was issued a warning
for “harassing [a] team member” while soliciting
authorization cards. The soliciting employee, Cavaliere,
approached a coworker, LaTorre, during her working
time and asked her to sign an authorization card several
times in one day. LaTorre responded initially that she
was busy and would look at the card later. On a second
solicitation, she told Cavaliere to leave her alone, that
she was busy and did not have time to look at the card.
After the third solicitation, where she was asked if she
had signed the card and responded no, LaTorre became
upset and complained to her manager that Cavaliere
“kept buggin[g]” her, that she “didn’t want to be
bothered by no Union,” and asked her manager to tell
Cavaliere to leave her alone.10 The manager replied that
he would take care of it. The employer then issued a
warning to Cavaliere stating that any further violations
could result in termination. In affirming the judge’s
conclusion that the respondent had not violated Section
8(a)(3) of the Act by issuing the warning to Cavaliere,
the Board stated, “we find that the [r]espondent lawfully
responded to employee Teresa LaTorre’s request,
following repeated interruptions during work time, that
[r]espondent stop Cavaliere from harassing her while she
worked.”11 Similarly, in the instant case, the Respondent
was lawfully responding to multiple complaints from
multiple employees regarding Ramirez’ repeated
harassment of them during worktime about the Union.12

10 Id. at 685.
11 Id. at 684 fn. 2.
12 My colleagues also mention, as did the judge, that some of
Ramirez’ fellow employees failed to tell him directly to leave them
Thus, I find that the Respondent did not violate the Act
by its discharge of Ramirez for his continued harassment
of employees about the Union during worktime.
Moreover, I also would find that Ramirez’ dishonesty
and insubordination during his June 18 meeting with
Haga further supported the Respondent’s decision to
discharge him. Thus, contrary to my colleagues, I find
that even assuming that the General Counsel has
established a prima facie showing that Ramirez’
protected conduct was a motivating factor in his
discharge, the Respondent has met its burden of showing
that the discharge would have occurred even in the
absence of protected activity. Wright Line, 251 NLRB
1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982). Accordingly, I conclude
that the Respondent did not violate Section 8(a)(3) and
(1) of the Act by discharging Ramirez on June 18.13

Michael T. Pennington and Angie L. Harmeyer, Esqs., for the
General Counsel.
Robert Leinwand and Michael Hoffman, Esqs. (Littler,
Mendelson, Fastiff, Tichy & Mathiason), of San Francisco,
California, for the Respondent.
DECISION
STATEMENT OF THE CASE
WILLIAM L. SCHMIDT, Administrative Law Judge. Based on
a charge filed by the International Association of Sheet Metal
Workers Association, Local 60 (Local 60 or the Charging
Party), the General Counsel alleges here that Frazier Industrial
Company (Company or Respondent) violated Section 8(a)(1)
and (3) of the Act. The General Counsel’s amended complaint
(complaint) alleges that Respondent independently violated
Section 8(a)(1) by a variety of acts and statements detailed
below and that the Company violated Section 8(a)(1) and (3) by
discharging John Ramirez on June 18, 1996.1 Respondent’s
timely answer denies that it committed the alleged unfair labor
practices.
I conducted a hearing in this case at Pocatello, Idaho, on
November 7 and 8. After carefully considering the record, the
demeanor of the witnesses who testified, and the posthearing
briefs of the General Counsel and Respondent, I have

alone. I note that they instead complained to management about
Ramirez’ constant solicitations. There is no requirement that an
employee confront a fellow worker directly before complaining to
management about that fellow worker’s conduct. Rather, I find it
understandable that the other employees did not want to risk entering
into a direct confrontation with Ramirez about his behavior. Further, to
whom the employees complained is not the relevant point; what is
relevant is that they did complain, and thus management was aware that
there was a widespread problem with Ramirez’ continued harassment
of his fellow employees.
13 I also disagree with my colleagues that Haga’s inquiry of Jennings
on June 17 as to whether Ramirez was bothering him violated Sec.
8(a)(1). Although my colleagues agree with the judge that this inquiry
amounted to an interrogation of Jennings, I find that Haga’s
questioning was lawful in view of the repeated complaints by
employees, including Jennings, of harassment by Ramirez. See Bates
Nitewear Co., 283 NLRB 1128 (1987).
1 Unless shown otherwise, all further dates refer to the 1996 calendar
year.
FRAZIER INDUSTRIAL CO. 723
concluded that Respondent violated Section 8(a)(1) and (3)
substantially as alleged based on the following
FINDINGS OF FACT
I. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent, a corporation, with an office and place of
business in Pocatello, Idaho, manufactures steel storage
systems for warehouses. In the year preceding the issuance of
the complaint, the Company’s direct inflow to Idaho exceeded
the dollar volume amount established by the Board for
exercising its statutory jurisdiction over nonretail enterprises.
Accordingly, I find that the Board has jurisdiction to resolve
this dispute and that it would effectuate the purposes of the Act
for it to do so.
The Company has operations at other locations throughout
the United States but this case involves only its Pocatello
facility. Respondent leased the Pocatello facility in February
1996 and commenced production about a month or so later.
Dennis Haga, who has been with the Company for a number of
years at other locations, went to Pocatello as the plant manager.
In that capacity Haga hires and fires employees, and otherwise
oversees all operations. The three plant supervisors report
directly to Haga. Two, Welding Supervisor Clint Moosman
and Preparation Supervisor Marty Hrabik, played significant
roles in the events involved here.2
In the plant’s startup phase, Haga hired nine welders and
nine others to perform fabrication, maintenance, painting, and
other operations. In its initial months, the Pocatello plant
operated with one shift lasting officially from 6 a.m. until 2:30
p.m. During those hours, employees received a lunchbreak
plus two shorter break periods, one before and one after the
lunchbreak. However, from near the beginning of operations
the production schedule required that employees work 2 to 4
overtime hours per day. Finally, in late May or early June, the
Company started a second shift which consisted of at least two
employees, Mike Jennings and Tom Neilsen. The second shift
ran from 4:30 p.m. until about 2:30 a.m. Although Haga and
Moosman apparently dropped in from time to time, the second
shift employees worked mostly without supervision and
structured their own lunch and break periods. As Haga put it,
“The boys worked by themselves so they, there was no
timeclock, I told them to take their breaks when they wanted
to.”
The Company maintained and distributed an employee
handbook containing its policies and rules at other locations but
the Pocatello employees never received the Company’s
handbook until July after certain additions applicable to the
Pocatello plant had been made and after the events pertinent to
this case occurred. The manual contains a broad
antiharrassment policy and the particular rules applicable to the
Pocatello plant include a no-solicitation no-distribution rule.
In the meantime, the Pocatello employees learned of the
Company’s policies on an ad hoc basis verbally from their
supervisors. As discussed below, this circumstance is of
particular import in connection with the union solicitation
activities of Ramirez, the alleged discriminatee in this case.

2 A third supervisor, Lance Harris, was never mentioned in
connection with any of the events involved in this case and he did not
testify.
Notwithstanding its written policies, the Company
acknowledges—and the evidence establishes—that a relaxed
plant culture existed at its Pocatello plant in the sense that
employees engaged in personal conversations while working
about all sorts of topics pertaining to everyday life. Thus, in his
opening statement, Respondent’s counsel stated:

The question presented in this case is not whether
employees occasionally speak to each other on company
time about car races or personal issues, to say that doesn't
happen I think is just simply to ignore the reality of the
work place. No provision of the Act, however, forces an
employee to work under constant badgering and
harassment from a professional union organizer.
When employees are badgered and harassed to the
point where they go to their supervisors and complain,
where there are altercations, where the harassment
threatens the working environment, where the organizer
refuses to cease his harassment, dishonestly denies the
harassment, gives no indication that he will repent or
change his behavior; the [A]ct [does] not handcuff an
employer from taking corrective action.

With one exception, Ramirez’ on-the-job conversations relating
to the union organizing matters resulted in only momentary
work interruptions, if any at all. Most other nonwork
conversations on working time likewise appear to have
involved only brief interruptions but a few described by some
witnesses obviously resulted in significant work interruptions.
No evidence establishes that Ramirez, while working, ever left
his assigned work area to engage in his union activities.
When the Company initially sought workers, Ramirez, a
Local 60 apprentice already employed elsewhere, applied for a
welder’s position with the Company at the behest of Local 60
organizer Mike Pettaway. Pettaway expected Ramirez, as a
Local 60 member, to assist in organizing the Company’s work
force.3 Quite clearly, Ramirez failed to include on his
application form any reference to one recent employer where he
had recently engaged in union organizing activities on behalf of
Local 60.4 No evidence establishes, however, that the
Company routinely sought references from former employers
either before it hired employees or at any time later.
Nevertheless, Ramirez passed the Company’s welder test and
3 Ramirez previously cooperated with Pettaway’s organizing efforts
by obtaining employment with at least two other employers where he
encouraged employees to unionize. In its brief, Respondent
characterizes Ramirez as a “professional union organizer.” No
evidence shows that Ramirez received any compensation for his
organizing activities. On the contrary, the only permissible inference is
that Ramirez’ sole source of income came from the jobs he held with
various area employers although both he and other employees who
attended the Union’s meetings obviously received dinners and drinks
paid for by the Union.
4 Thus, the Company’s employment application form requires
applicants to list their three most recent employers. Ramirez omitted
any reference to his recent employment at G & L Metal, another
company in the area where he engaged in organizing activities on
behalf of Local 60 and against which he or Local 60 filed an unfair
labor practice charge concerning his termination there. The following
form language preceding the applicant’s signature line makes such an
omission a potentially dischargable offense: “I understand that if any
false information, omissions, or misrepresentations are discovered, my
application may be rejected and, if I am employed, my employment
may be terminated at any time.” See R. Exh. 7, p. 2.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 724
started to work on March 7.5 Ramirez commenced his
organizing activities at the plant toward the end of April by
soliciting employees to sign union authorization cards.
In conjunction with Ramirez’ efforts, Pettaway scheduled
and held union organizing meetings on June 3, 6, and 13.
Ramirez informed employees about these scheduled meetings
and urged employees to attend. He also sought to persuade
employees hesitant about attending meetings to meet privately
with Pettaway. All told, Ramirez estimated that he spoke with
about half of the plant’s work force—some obviously on
several occasions as he estimated that he probably talked to
someone or another about unionization every day or every other
day—before Haga fired him on June 18.
Following his June 18 termination, Ramirez applied for
unemployment benefits with the Idaho Department of
Employment. On his application, Ramirez denied that he
engaged in union organizing on “plant time.” Indeed, he
specifically asserted that he only engaged in organizational
activities “before work, [at] lunch, or after work.” See
Respondent’s Exhibits 1 and 2. Respondent protested his claim
for benefits and furnished written statements from its
supervisors and certain employees seeking to establish that
Ramirez had harassed employees about the union matters after
he had been warned twice not to do so. Based on these
submissions, the Idaho Department of Employment
Determination credited Respondent’s claim that Ramirez
engaged in “union organizing on company time” and concluded
that he engaged in misconduct warranting a denial of benefits
until he again qualified for benefits by obtaining “bona fide
work” providing wages of a specified amount. See General
Counsel’s Exhibit 4.
B. Credibility
Altogether 12 witnesses testified in this proceeding. Both
the General Counsel and Respondent called plant manager
Haga and supervisor Moosman as witnesses; the General
Counsel called Ramirez in his case-in-chief and again on
rebuttal.
Respondent vigorously attacks the Ramirez’ credibility and
to a lesser extent the credibility of employee Alan Wilcox.
Although I share Respondent’s concern about the reliability of
portions of Ramirez’ testimony, I am unwilling to disregard his
testimony entirely. In particular, I found Ramirez’ testimony
and prior statements about his union activities around the plant
painfully contradictory. Thus, if asked in a leading fashion
whether, in effect, he engaged in union activities at the plant
only on his own time, Ramirez almost invariably responded
affirmatively. On the other hand, if the question called for a
narrative response on this subject, Ramirez without hesitation
recounted events making it unmistakably obvious that he
engaged in union activities on working time. Furthermore,
Ramirez denied that any of the supervisors ever warned
employees about engaging in union activity on working time.
Almost all other employee witnesses recalled that Moosman
made a brief statement about the subject to a group of
employees, including Ramirez, in the breakroom.
Yet in certain important respects Ramirez’ testimony is
reliably corroborated by other very credible witnesses or is
uncontradicted. For example, Haga and Ramirez provided

5 Pettaway also sought employment with Respondent but failed the
welding test and was not hired.
nearly identical accounts about the events leading to his
discharge and in numerous other instances there is no material
dispute about several events described below. However, I have
relied on Ramirez’ testimony essentially where it is
corroborated or not materially contradicted. And, in general,
where conflicts do exist, the findings made below represent my
careful consideration of numerous factors such as related
established or admitted facts, the inherent probabilities,
reasonable inferences permitted by the record, the weight of the
evidence as affected by factors ranging from the use of leading
questions to the degree of unanimity among the witness, and
other variant factors affecting credibility including the
demeanor of the witnesses involved. Northridge Knitting Mills,
223 NLRB 230, 235 (1976). In certain instances below, I have
further explained the basis for my finding in light of conflicting
evidence; in other instances I have not but suffice it to say that
in each instance the factual findings made below represent my
conclusions as to the most reliable account about the nature and
character of events following a consideration of all of the
evidence. In brief, the version of the events detailed below is
predicated on testimony which I believe to be credible,
accurate, and reliable.
Finally, contrary to Respondent’s argument concerning
Wilcox, I have given considerable weight to his testimony as
well as the testimony of employee Robert Rodriguez. Both
were still employed at the company at the time of the hearing.
On certain critical matters they testified adverse to their current
employer and hence, their own pecuniary interest. The Board
has frequently observed that such employee testimony “is apt to
be particularly reliable” and logic strongly indicates this to be
the case. Gold Standard Enterprises, 234 NLRB 618 (1978),
and the cases cited therein at fn. 5. That aside, however, both
of these witnesses otherwise impressed me as making a sincere
effort to be truthful and forthright while testifying.
C. The Specific Allegations
1. Moosman’s early threat
a. Relevant evidence
Both Ramirez and employee Robert Rodriguez recalled an
incident in the plant lunchroom during a break (Ramirez placed
the incident in late March but Rodriguez, although uncertain,
thought it occurred in May) when an employee remarked to a
group of employees seated with him that the employees ought
to “start a union.” Supervisor Moosman overheard the remark
and became “real flustered about it.” Rodriguez credibly
testified that Moosman “took his hat off[,] . . . acted real pissed
off and said, ‘well if I hear anyone going union . . . they’ll be
down the road.’”6
b. Further findings and conclusions
Complaint paragraph 5(a) alleges, in substance, that
Respondent violated Section 8(a)(1) when Moosman told a
group of employees “that if he ever heard anyone talking about
6 Moosman denied that he made any such remark but I do not credit
this denial. Even though the testimony of Ramirez and Rodriguez does
not precisely coincide as to the substance of Moosman’s response and
other incidental details about the setting, both agree generally that
Moosman made a threatening remark to the group of employees after
an employee made a suggestion about unionizing. For reasons
specified above, I have considerable confidence in Rodriguez’
testimony and regard it as the most credible account of this incident.
FRAZIER INDUSTRIAL CO. 725
the Union they would be ‘down the road.’” Respondent argues
that no credible evidence supports this allegation. Citing
Rossmore House, 269 NLRB 1176 (1984), Respondent further
argues that if only Ramirez and Rodriguez overheard
Moosman’s remark, it would not amount to coercion because
they were “avid” union supporters. By inference, Respondent
appears to contend that the analytical model addressed in
Rossmore and its progeny applies in this instance.
Having credited Rodriguez’ account about this incident, I
find that Moosman’s remark that employees talking union
would be “down the road” conveys an unmistakable discharge
threat. His idiomatic remark is unquestionably coercive,
especially when considered in the context of Moosman’s
described demeanor at the time. I reject Respondent’s assertion
that such a remark to “avid” union supporters would not be
coercive. It is virtually impossible to conceive of a situation
where an outright threat, angrily expressed by a supervisor, to
discharge even an overtly active union supporter would not
give rise to apprehension about exercising Section 7 rights
around the workplace. Rossmore is inapposite to this type of
inherently coercive remark. That case and those which follow
it establish a framework for analyzing employer interrogation
of employees about their union activities to determine its
coerciveness. Accordingly, I find Respondent violated Section
8(a)(1), as alleged in complaint paragraph 5(a). M. J.
Mechanical Services, 324 NLRB 812 (1997).
2. The prohibition against union talk
a. Relevant evidence
Supervisor Hrabik received a couple of “complaints” (word
used in counsel’s leading question rather than by witness) from
employees in late May and early June about Ramirez’ union
activities. He spoke to Supervisor Moosman about it in early
June and together they spoke with plant manager Haga.7 When
the three men met in Haga’s office, Haga instructed the
supervisors to warn their employees “that they could do
whatever they wanted to on their own time, but on company
time they need not to talk about the union or bother . . .
anybody about it.”
Following that meeting, Moosman went to all of the welders’
workstations and explained that there had been complaints
about some employees “harassing” others to join a union.
Moosman “warned” each one, including Ramirez, what they
did on their own time was their business but that that they could
not “harass” employees about the Union during “company
time.”8 In addition, Moosman delivered the same instruction to

7 I credit Supervisor Hrabik’s account about the initiation of this
meeting with Haga. Moosman too claimed credit for initiating this
meeting but his account varied and failed to explain how Hrabik
became involved. According to Moosman, he arranged for the meeting
with Haga after Jennings came to him “complaining about some
harassment.” Aside from all else, this mischaracterizes what occurred.
Rather that “complaining,” Jennings merely reported to Moosman that
he had been approached by Ramirez about a union and asked Moosman
to explain what was going on. Moosman told Jennings that he did not
know. As I credit Hrabik’s account, I find that Moosman did nothing
about the information received from Jennings until Hrabik later spoke
to him.
8 In his direct testimony, Moosman went to some length to sanitize
Haga’s instruction and his subsequent warning to the employees of any
reference to a union. However, Moosman’s prehearing affidavit (G.C.
Exh. 8), and Haga’s direct testimony each focus precisely on the
a group of employees, also including Ramirez, in the
lunchroom on a break. During the lunchroom meeting,
Moosman also told the employees that he “wanted to know
about it if someone was talking to you about the union on
companytime.”
On June 13, employee Todd Chandler complained to
Spervisor Hrabik that Ramirez “was harassing him to be
present at [a] union meeting after work.” Chandler went to
Hrabik after Ramirez attempted to induce Chandler on five or
six occasions over the course of several days to attend an
upcoming union meeting. Although Chandler lacked interest in
attending a union meeting, admittedly he never informed
Ramirez of this lack of interest. Instead, he went to Hrabik in
an effort to get his supervisor to drop a “hint” to Ramirez for
him.
The following day, June 14, employee James Frasure
complained to Supervisor Hrabik that Ramirez would not leave
him alone about the Union. Frasure’s report to Hrabik followed
four or five work time approaches on one particular day in
which Ramirez urged Frasure to attend a Union meeting.
Ramirez’ remarks to Frasure, though numerous, were brief and
on each occasion Frasure responded to Ramirez by saying, in
effect, that he would think about it. Frasure too never told
Ramirez that he was upset or bothered by these numerous
solicitations. However, when Frasure later encountered Hrabik
while searching for a blueprint, he purportedly “kind of
unloaded” on Hrabik. Frasure told the supervisor about
Ramirez’ solicitations and asserted to Hrabik that he was “real
pissed off.”
Following Frasure’s complaint, Hrabik purportedly went to
Moosman again and the two later met with Haga.9 At this
meeting, Haga told the two supervisors that “harassing”
employees on Company time “had to stop.” Later, Moosman
again told Ramirez and the other employees “that there had
been complaints about some employees harassing others on
work time and that this had to stop.”
b. Further findings and conclusions
Complaint paragraph 5(b) alleges, in effect, that Respondent,
by Supervisor Moosman, promulgated and maintained a rule
prohibiting employees from discussing the Union on Company
time. The evidence permits the conclusion, which I have made,
that Respondent established an ad hoc rule prohibiting union
talk on working time but took no steps to limit any other
nonwork discussions on worktime. Where, as here, Respondent
sought to suppress only unionization talk during working time,
the discriminatory character of Respondent’s ban is self–
evident. Emergency One, Inc., 306 NLRB 800 (1992), and the
cases cited at 806. As such, the refinements in Haga’s
prohibition when relayed to the employees, i.e., whether it was
made clear that employees were free to discuss union matters
on their breaktimes and outside work hours, becomes
immaterial. By barring only union discussions while tolerating

relationship of the restriction to the nascent union activity. In addition,
I find it highly improbable that Moosman would have gone about the
plant warning employees not to harass other employees on “company
time” without putting it in any context.
9 Moosman claimed that there had been other similar complaints
leading to this second meeting with Haga but no specific evidence
concerning complaints other than those by Chandler and Frasure was
developed and I doubt that anything other than their complaints caused
this second meeting.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 726
other discussions about matters unrelated to work during actual
working time, Respondent plainly infringed on its employees
Section 7 rights.
Respondent had the burden of establishing that production or
plant discipline necessitated its rule prohibiting only union
discussions on worktime. State Chemical Co., 166 NLRB 455
(1967). In an effort to establish a production or plant discipline
necessity for its discriminatory rule, Respondent called several
employee witnesses in addition to Frasure. Their testimony is
detailed below in the section dealing directly with Ramirez’
discharge. As I have concluded for reasons stated in that
section that this evidence fails to establish a production or
discipline necessity for this rule, I find that Respondent’s
efforts to suppress only union talk during working time while
permitting other nonwork discussions violated Section 8(a)(1),
as alleged. M. J. Mechanical Services, supra; Industrial Wire
Products, 317 NLRB 190 (1995).
3. Moosman–Rodriguez union meeting conversations
a. Relevant evidence
In early June, Rodriguez attended a union meeting. The
following day, Moosman remarked to Rodriguez that he had
heard a rumor about a “little bitch session” where employees
talked about “stuff” they did not like about the shop. Moosman
then added that he “was disappointed” in Rodriguez. As their
conversation continued, Rodriguez admitted that he and others
had discussed whether or not they wanted to continue working
at the shop “with them three [presumably, Haga, Hrabik and
Moosman] the way they were.” Following this remark,
Moosman took out his knife, opened it, handed it to Rodriguez
handle first and stated: “well don’t cut your own throat.”
Without responding, Rodriguez handed the knife back to
Moosman and went about his work.10
Shortly after lunch that same day, Moosman again
approached Rodriguez at his work station and asked who had
attended the meeting. Rodriguez told Moosman that he had
attended the meeting but declined to disclose who else had
attended. Instead, he told Moosman that he would have to find
that out “on his own.” Moosman then told Rodriguez: “[W]ell,
I just don’t know if I can trust you . . . anymore. You know,
you’re a pretty good worker and you could go places in this
business . . . you’ve done a great job so far for me but. . . if you
continue to cut your own throat I’m not going to be able to do
anything for you.”
b. Further findings and conclusions
In complaint paragraphs 5(e), (f), (g), and (h), the General
Counsel alleges that Respondent violated Section 8(a)(1) in the
course of these Moosman–Rodriguez exchanges. In his brief,
the General Counsel argues that Moosman’s “bitch session”
remark amounted to unlawful interrogation, created the

10 No one contends that Moosman threatened physical harm toward
Rodriguez and, in my judgment, any such inference would be entirely
unwarranted. Even though I have not credited some portions of
Moosman’s testimony, he did not impress me as an individual inclined
to irrationally make physical threats. On direct examination, Rodriguez
testified that he did not respond at all to Moosman during this
conversation but when cross-examined from his prehearing statement
Rodriguez readily admitted a discussion at the union meeting about
quitting over working conditions. Based on Rodriguez’ cross-
examination account, Moosman’s use of his knife appears to be a
plausible, symbolic response. Hence, I have concluded that Rodriguez
referred to employee discussions at the meeting about quitting.
impression of surveillance, and was otherwise coercive
“because it could reasonably be interpreted to suggest that
[Rodriguez] would be treated differently by his supervisor” for
supporting the union. In addition, the General Counsel
contends that Moosman’s “don’t cut your own throat” remark
amounted to an “unlawful threat of unspecified consequences.”
Respondent quibbles over whether the substance of
complaint paragraphs 5(e) and (f) occurred in one or two
conversations but I do not perceive that argument of
significance.11 In fact, for purposes of analysis I am of the
view that regardless of the number of separate conversations
there may have been, these post-meeting exchanges between
Moosman and Rodriguez should logically be treated together as
the evidence supports the conclusion that all are bound together
with a common theme, i.e., Moosman’s curiosity about the
participants and substance of the meetings. Regardless,
Respondent contends that Moosman’s inquiry concerning the
identity of those in attendance at the “bitch session” had no
coercive quality because Rodriguez was “an open Union
supporter” and because Moosman did not press the question
after Rodriguez refused to answer. Respondent further
contends that the “cut your own throat” statement coupled with
passing the knife was, as I have found, a symbolic gesture using
a figure of speech designed as a plea for Rodriguez to set aside
any notion of quitting.
At the outset, I do not agree with Respondent’s assessment
that Rodriguez was “an open Union supporter.” Although
Rodriguez signed a union card and attended some of the Union
meetings, no evidence merits the conclusion that Rodriguez
engaged in any overt union activity around the plant or
otherwise openly manifested his support for the Union. Hence,
I concur with the General Counsel’s argument that Moosman’s
initial “bitch session” remark to Rodriguez violated Section
8(a)(1) as such a statement would reasonably cause an
employee to assume that his union activities had been placed
under surveillance. United Charter Service, 306 NLRB 150
(1992). In addition, I agree that Respondent also violated
Section 8(a)(1) by Moosman’s expression of disappointment
over Rodriguez’ attendance at the meeting as that statement
would reasonably restrain an employee from further exercising
Section 7 rights out of fear that conduct displeasing to his
supervisor would lead to some form of discrimination.
I further conclude that Moosman’s later inquiry about the
identity of those who attended the meeting with Rodriguez
amounts to coercive interrogation but nothing more. No
evidence would support a conclusion that Moosman had a
legitimate purpose in making this type of inquiry. And even
assuming, as Respondent contends, that Rodriguez openly and
actively supported the Union around the plant, the coercive
character of Moosman’s inquiry becomes quite evident from
his subsequent implication that Rodriguez would be “cutting
his own throat” by refusing to cooperate. Therefore, I conclude
that Respondent violated Section 8(a)(1) when Moosman asked
Rodriguez to identify others who attended the Union meeting.
Williamhouse of California, 317 NLRB 699, 713 (1995).
11 However, my findings here are based almost entirely on
Rodriguez’ testimony which I credit. Regardless, some matters
pertaining to this exchange are not in dispute and Moosman was never
called upon to address other matters. Thus, Moosman, in effect, admits
that he spoke to Rodriguez about the meeting at least once, that he
asked who had attended and that he made the “cut your own throat”
remark after Rodriguez disclosed that he had thought about quitting.
FRAZIER INDUSTRIAL CO. 727
The General Counsel’s also argues that Moosman’s “go
places” statement impliedly promised Rodriguez an
advancement with the Company if he discontinued his support
of the Union. In my judgment, the General Counsel
misinterprets the fundamental nature of the transaction between
Moosman and Rodriguez at the time of this utterance. As I
perceive their exchanges by considering them in their entirety,
Moosman sought only to have Rodriguez identify those other
employees who attended the union meeting. Rather than
promising Rodriguez anything, Moosman’s remark after
Rodriguez declined to identify others amounts to little other
than the “fist in a velvet glove” treatment designed to coerce
Rodriguez’ cooperation.
However, the General Counsel’s allegation in complaint
paragraph 5(h), and his argument in support, segregates and
isolates each sentence, phrase or clause from the whole in order
to compound a single transaction into several isolated
statements, events, and violations. Rigidly applied, this
approach produces a hodgepodge of ambiguous statements and
obscure events that foment unproductive argument and
excursions into a world of useless abstractions at odds with the
analytical scheme established by the Board long ago to
differentiate lawful and unlawful interrogation. See Blue Flash
Express, 109 NLRB 591 (1954). For this reason, I reject the
General Counsel’s claim that Moosman made any separate and
distinguishable “implied promise of promotion or advancement
. . . if Rodriguez [discontinued] his support for the Union.”
Hence, I recommend dismissal of complaint paragraphs 5(h).
4. Hrabik’s fence and other related discussions
a. Relevant evidence
Sometime in early June, machine operator Allen Wilcox
agreed build a backyard fence at Supervisor Hrabik’s residence
to partially pay a debt he owed to Hrabik. Pressured by his
wife’s concern for the safety of their children, Hrabik arranged
with Wilcox to start the project after work on June 6. That
evening, however, Wilcox first went to a personal, self–
improvement meeting and then to a union meeting. As a result,
Wilcox failed to keep his appointment with Hrabik and,
presumably, never notified Hrabik.
At work the following morning, Hrabik told Wilcox (in the
presence of Rodriguez and in a “real crappy” tone of voice) that
it really hurt “dissing me for that meeting.” Hrabik agreed that
he expressed his displeasure to Wilcox but denied using any
form of the colloquial expression “dis.” Moreover, Hrabik
claimed that his reference was to Wilcox’s personal meeting
rather than the union meeting. Regardless, Wilcox told Hrabik
that his “life didn’t revolve around him” but added, before
walking away, that he would be available to work on the fence
that evening and into the weekend.
Later that day when he punched out at the end of his shift,
Hrabik asked Wilcox how the meeting was. When Wilcox
asked if Hrabik referred to his personal meeting, Hrabik
replied: “[N]o you know what meeting.” Wilcox then asked
who had told him but Hrabik said nothing further.
In the next few days, Wilcox worked on Hrabik’s fence as
promised. Rodriguez accompanied and assisted Wilcox on a
portion of this project. On one occasion, Hrabik brought
refreshments for the two men and the three of them conversed
for awhile. During their discussion, one of the two employees
asked Hrabik for his opinion about the union organizing.
Hrabik told them that the Company did not “have any stock
here in Pocatello.” He also stated: “You know, Frazier isn’t
going to allow this, the union to spread to the other companies,
they’ll just close this plant up and . . . move on.” Hrabik
further told the two men that if his job was threatened he would
“cut their throats” and that if he got fired “for all this stuff,”
they were “going down” with him.
A few days after the June 6 union meeting, Hrabik spoke to
Wilcox alone at his machine. By this time Wilcox had made it
clear at least to Hrabik that he favored unionization. On this
occasion, Hrabik asked Wilcox why the employees wanted a
union. Wilcox told Hrabik that he was not happy with his raise,
that he felt the Company had lied to the employees about the
raises, and that he could make more money “working
construction.” Hrabik responded that a couple of employees
seemed very happy with their raises and asked Wilcox what he
thought the Union could do for the employees. Wilcox said
that he “wasn’t sure, maybe better pay or better benefits
including a life plan.” Hrabik then told Wilcox that the
Company “didn’t have to give [employees] better benefits, they
could just take them away.” Wilcox responded that he would
quit if the Company did that. At that point Hrabik stated:
“[Before the Company] went union they would either hire non–
union or shut the plant down.”
b. Further findings and conclusions
Complaint paragraph 5(j) alleges that Hrabik’s “dissing”
statement to Wilcox is unlawful. Respondent contends that the
General Counsel failed to prove the unlawful nature of this
statement. As Respondent argues, the point of the remark “was
not to find out if Wilcox was at a union meeting; it was to
chastise Wilcox for not upholding his end of a bargain and was
unrelated to his job at Frazier or the Union.” I agree. Hrabik’s
“dissing me” statement—even if delivered in a “real crappy”
tone of voice—related only to Wilcox’s failure to keep a
personal commitment he had made to Hrabik. I cannot agree at
all with the General Counsel’s contention that it is reasonable
to presume Hrabik’s extreme reaction resulted from Wilcox’s
choice to attend a union meeting rather than keep his prior
appointment with Hrabik. Even assuming that Hrabik referred
to the union meeting, every shred of evidence in this record
shows that the source of his irritation that morning related
solely to Wilcox’s irresponsible failure keep his personal
appointment with Hrabik. Undoubtedly, Wilcox knew of the
considerable personal importance Hrabik placed on the fence
project. Under the circumstances, I find that it is far more
reasonable to conclude that Hrabik’s reaction toward Wilcox’s
cavalier conduct would likely have been the same even in the
absence of any union activity. Accordingly, I recommend
dismissal of complaint paragraph 5(j).
Complaint paragraph 5(m) alleges that Hrabik’s brief remark
as Wilcox punched out on June 7 violated Section 8(a)(1).
Where, as here, no other evidence establishes a legitimate basis
for Hrabik’s knowledge that Wilcox attended a union meeting
the previous evening and as Wilcox’s response eliminated the
other meeting he attended as the basis for the question,
Hrabik’s remark would likely convey to Wilcox that his union
activities were under surveillance.12 Accordingly, I find that

12 As noted, Wilcox attended two meetings the previous evening.
There is no evidence that at the time of the earlier “dissing” statement,
Wilcox or anyone else disclosed the fact that he also attended a union
meeting.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 728
Respondent violated Section 8(a)(1) by Hrabik’s remark at this
time. Emerson Electric, 287 NLRB 1065 (1988).
Complaint paragraph 5(k) alleges that several remarks made
by Hrabik to Wilcox and Rodriguez during the refreshment
break at his home violated Section 8(a)(1) Hrabik’s prediction
in this conversation that Respondent would close the Pocatello
plant if its employees succeeded in obtaining union
representation is not protected by Section 8(c) as Respondent
seems to contend. Respondent’s reliance on cases suggesting
that a supervisor’s similar remarks made in a context showing
them to be solely the supervisor’s opinion are inapposite. By
its explicit terms, the free speech protection established in
Section 8(c) excludes statements containing threats “of reprisal
or force.” Although, these two employees undoubtedly realized
that Hrabik (or Haga for that matter) lacked authority to
actually close the Pocatello plant, employees generally have no
means of knowing the degree to which higher management
makes lower–level supervisors privy to contingency plans.
Here, however, Hrabik’s subsequent forceful threats that he
would (again figuratively speaking) cut throats and take others
down with him if he lost his job over the organizing activities
establish that he resolutely perceived that union organizing
activities would lead to the plant’s demise. Hence, the sheer
strength of Hrabik’s expressed fear of this consequence would
likely lend significant credence to the plant closing proposition
in the minds of the employees who overheard it. Put another
way, Hrabik’s subsequent threats of retaliation lifted this
discussion beyond an idle backyard debate or speculative
exercise. Instead, by telling employees that the plant would
close if organized and that he would retaliate against those
causing it to close, Hrabik effectively issued an alarm to these
two employees that success in organizing could only lead to a
loss of employment sooner or later. Accordingly, I find
Respondent violated Section 8(a)(1), as alleged in complaint
paragraph 5(k), by Hrabik’s plant closing remark as well as his
subsequent threats to personally retaliate against employees if
he lost his job as a consequence. NLRB v. Gissel Packing Co.,
395 U.S. 575, 618 (1969).
As the General Counsel’s brief makes clear, notwithstanding
the different dates alleged in complaint paragraphs 5(l) and
5(n), the conduct involved occurred in a single conversation,
the one between Hrabik and Wilcox at the latter’s machine. As
the evidence shows that this conversation occurred a few days
after Wilcox attended the June 6 meeting, the date alleged in
complaint paragraph 5(l) more closely approximates the time of
this exchange.
The General Counsel argues that in this conversation Hrabik
unlawfully interrogated Wilcox, threatened to discriminate
against union supporters in hiring, and again threatened that the
plant would close. Respondent contends that “Hrabik only
made a permissible inquiry into the reason Wilcox supported
Local 60.” Although this conversation began in the fashion
described by Respondent, it certainly did not end that way.
Instead, I find that Hrabik soon lapsed into statements designed
to convey the futility of any organizational effort by telling
Hrabik that Respondent could take away benefits,
discriminatorily hire workers with antiunion proclivities and
close the plant. Contrary to Respondent’s apparent argument,
these latter remarks do not describe the potential outcome of
any legitimate collective-bargaining process; rather they
describe illegal activities designed to thwart employee desires
for representation. Concluding as I have that Hrabik’s remarks
in the latter part of this conversation were designed to
unlawfully interfere with Wilcox’s exercise of his Section 7
rights in violation of Section 8(a)(1), I further find that his
initial questioning of Wilcox was also unlawful. Outboard
Marine, 307 NLRB 1333, 1335 (1992). This is especially true
where, as here, Hrabik had earlier engaged in unlawful conduct
directed at Wilcox.
5. Ramirez’ discharge and the fallout
a. Relevant evidence
At the end of his workday on June 17, Ramirez clocked out
but came on Mike Jennings reporting for work on the second
shift. Ramirez engaged Jennings in conversation as he punched
in and continued the conversation with him while Jennings
walked his work station. Ramirez estimated that he
accompanied Jennings about 15 to 20 feet onto the plant floor
and spoke with him for about 90 seconds in an effort to
persuade Jennings to make an appointment to meet personally
with Union Organizer Pettaway.13 However, when Ramirez
observed plant manager Haga watching from the area of the
second upright jig, about a hundred feet away, he turned away
and left the building.
When Jennings reached the area of the upright jigs, Haga ask
him if Ramirez had been “bothering” him. Jennings answered,
“Yeah he was bothering me about the damn union stuff and
won’t leave me alone.”14 A short while later, Haga told
supervisor Moosman to pull Ramirez’ timecard and to inform
him to report to his office before starting to work the following
day. Moosman did as told and, promptly after Haga arrived at
the plant on June 18, he spoke with Ramirez in his office.
Haga began by rhetorically asking Ramirez, “what am I
going to do with you, John[?]” Haga then pointed out to
Ramirez the he had received a good raise and that his benefits
were growing but that people were complaining about him
bothering them all the time and that it was affecting their
productivity and his productivity so he had to change his ways.
Ramirez denied that he was bothering anyone. Haga then
confronted Ramirez with his own observation of him on the
previous evening and of Jennings’ report that Ramirez had been
bothering him but Ramirez still denied that he was bothering
anyone. When Haga again lamented “what am I going to do
with you,” Ramirez told him “well you’re the plant manager
you do whatever you have to do.” By this time Haga perceived
that Ramirez “had a really bad attitude about it” so he informed
Ramirez that he would be discharged but offered the
opportunity for him quit so there would be no record of “his
firing.” Ramirez refused to quit. After Ramirez’ received his
final paycheck, Moosman accompanied Ramirez to collect his
tools and then escorted him from the plant.
Later that morning, Hrabik briefly spoke to Rodriguez who
had learned of Ramirez’ termination from Moosman. At that
time, Hrabik pointed toward the office door and, in apparent

13 According to Ramirez’ uncontradicted testimony, Jennings agreed
during the course of this brief exchange that he and Neilsen would fix a
time to speak with Pettaway.
14 This finding is based on Haga’s account. Jennings recalled telling
Haga that Ramirez was bothering him and that he was “getting tired of
it . . . I’ve had other problems on my mind and I was just getting pretty
fed up with the whole deal.” Ramirez claims that Jennings gave no
indication to him that he felt annoyed or that he did not want to discuss
any union matter.
FRAZIER INDUSTRIAL CO. 729
reference to Ramirez’ discharge, Hrabik remarked to
Rodriguez, in effect, that he should now understand why he
should not talk about the union on companytime. According to
Rodriguez, Hrabik then “kind of giggled and kept walking
toward the main office.”
b. Further findings and conclusion
Complaint paragraphs 6 and 7 allege that Respondent
violated Section 8(a)(3) by discharging Ramirez. Section
8(a)(3) prohibits employers from discriminating in regard to an
employee’s “tenure of employment . . . to encourage or
discourage membership in any labor organization.” An
employer violates Section 8(a)(3) by terminating employees for
antiunion motives. Equitable Resources, 307 NLRB 730, 731
(1992).
Under the causation test established by the Board Wright
Line, 251 NLRB 1083 (1980), and approved by the Supreme
Court in NLRB v. Transportation Management Corp., 462 U.S.
393 (1983), the General Counsel must make a prima facie
showing sufficient to support an inference that the employee’s
protected conduct motivated the employer’s adverse action. In
this case, the General Counsel met that burden. Thus, the
General Counsel established that Ramirez served as the
Union’s principal in–plant organizer, that his activities were
well known to management, that Respondent’s manager and
supervisors engaged in numerous unlawful activities preceding
Ramirez’ discharge evidencing animus toward employee
organizational activities generally, and that the chain of events
leading to Ramirez’ termination strongly suggest that it resulted
from the enforcement of Respondent’s unlawful no union talk
rule.
Where the General Counsel establishes a prima facie case,
the burden of persuasion shifts to Respondent to establish that
the same adverse action would have been taken even in the
absence of the employee’s protected activity. Best Plumbing
Supply, 310 NLRB 143 (1993). To meet this burden “an
employer cannot simply present a legitimate reason for its
action but must persuade by a preponderance of the evidence
that the same action would have taken place even in the
absence of the protected conduct.” Roure Bertrand Dupont,
Inc., 271 NLRB 443 (1984).
Respondent contends that Ramirez’ union activities lacked
protection under the Act as union activities during working
time rose to the level of harassment. The employee witnesses
called by Respondent established unmistakably that Ramirez
spoke with employees about the Union’s meetings and the
potential benefits of unionizing on several occasions during
working time and he admits as much. Respondent’s evidence
shows that Ramirez spoke to Chandler on several occasions
over the course of several days and that he spoke to Frasure,
who fabricated the materials Ramirez welded, several times on
one particular day. Neither of these two employees ever
rebuked Ramirez for his repeated solicitations nor otherwise
expressed their lack of interest in the Union, its meetings or its
potential benefits. By contrast, when Ramirez spoke with
Neilsen initially about the Union, Neilsen informed him
forthrightly that he “wasn’t really for the union.” Save for the
incident described below where Neilsen was present essentially
as a bystander, Ramirez never spoke to Neilsen about the
subject again.
Jennings, the other employee witness called by Respondent
to buttress its claim that Ramirez’ conduct amounted to
harassment, also recounted several contacts with Ramirez about
the Union. The Ramirez’ solicitation of Jennings on June 17 to
meet privately with organizer Pettaway, which precipitated his
discharge, would be difficult to label as harassment by itself.
This brief exchange enroute from the breakroom to Jennings’
work area ended well before Jennings arrived at his work
station. Although Jennings claims, contrary to Ramirez, that he
told Ramirez that he was not interested in meeting with
Pettaway, their conversation appeared to have ended at about
that point when Ramirez saw Haga looking at them.15
Without question, Ramirez spoke with Jennings several
times before June 17. In general terms, Jennings claimed that
he told Ramirez on numerous occasions that he was not
interested in the Union but I am unable to credit this assertion.
Conduct by both Jennings and Ramirez tends to suggest
otherwise. Thus, as noted, Ramirez never singled out Neilsen
for further solicitation after Neilsen informed him that he had
no interest in the Union. By contrast, Jennings’ conduct
appears substantially different and inconsistent with his
professed lack of interest in the Union. Thus, when Ramirez
gave him a union card to sign, Jennings told Ramirez that he
would take it home and discuss it with his wife. Not
unexpectedly, that prompted further inquiries about the card by
Ramirez. As time progressed, Ramirez invited Jennings to
meet privately with Pettaway at a local bar. Again Jennings
gave an inconclusive response by saying that he would think
about it. This prompted Ramirez to visit the plant on the
evening June 6 at about 6 p.m. where he visited at some length
with Jennings and Neilsen, the two night-shift employees. At
the time Jennings and Neilsen were welding uprights.
Apart from again inviting Jennings to meet with Pettaway,
Ramirez also talked about the advantages he perceived from
unionization and about his organizing activities while employed
at other shops. Estimates about the length of this conversation
varied; Ramirez claimed it lasted about 20 minutes but Jennings
said they spoke for about 45 minutes. As noted, Respondent
structured the unsupervised night shift in a manner that allowed
those two employees to take breaks at their own discretion.
Both Jennings and Neilsen claim that they attempted without
success to discontinue the conversation with Ramirez three or
four times and that Ramirez left only after Jennings again
promised Ramirez that he would think about meeting with
Pettaway. Although Jennings estimated that the two men could
have produced three or four more uprights during the time
Ramirez spoke with them, Respondent adduced no evidence
establishing either that the night-shift output for that evening
fell short of normal or that Jennings and Neilsen were ever
questioned about their low production for that evening. In fact,
the evidence shows that Respondent never learned of this
incident until after terminating Ramirez.
Even though Respondent’s evidence establishes that Ramirez
tenaciously solicited employees to sign cards, attend the
Union’s meetings, or meet individually with Pettaway, his
persistence, in the main, resulted in those instances where he
received tepid or inconclusive responses from the employees
with whom he spoke. Moreover, with the exception of the
lengthier night shift conversation, all of the Ramirez’ worktime
union solicitations were obviously brief and likely involved

15 Ramirez claims that Jennings told him at this time that both he and
Neilsen would schedule an appointment with Pettaway.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 730
little, if any, disruption in production.16 As for the night shift
discussion, no evidence establishes that Ramirez’ conversation
with Jennings and Neilsen resulted in production levels out of
line with that produced on other nights. Additionally, no
evidence shows that Ramirez’ worktime solicitations were
other than courteous or produced disruptive arguments.17
Likewise, no evidence establishes that Moosman’s warnings
to Ramirez were ever couched in more than general terms. As
a consequence, Ramirez had no way of knowing whether his
solicitations annoyed any particular individual or whether the
warnings came only as the result of management’s undue
sensitivity about any organizing activity. For this reason, the
facts here stand in significant contrast to those in B J’s
Wholesale Club, 318 NLRB 684 (1995), cited by Respondent,
where the solicited employee made it abundantly clear to the
solicitor before going to management that she preferred not to
be bothered. Likewise, the facts here are distinguishable from
those in Patrick Industries, 318 NLRB 245 (1995), also cited
by Respondent, where the solicitor became egregiously
insulting before the employee sought management assistance.
Merely labeling Ramirez’ conduct as harassment does not
necessarily make it so. Based on the evidence Respondent
presented, I have concluded that Respondent failed to establish
that Ramirez’ solicitations, though perhaps numerous, can be
characterized as harassment. At best, the evidence shows that,
from the outset, Respondent and some employees treated
virtually any union solicitation by Ramirez as harassment. In
fact, the scope and character of Ramirez’ union activity appears
to have been well within the bounds of other nonwork activity
Respondent regularly tolerated on worktime.18 I find, therefore,
that Ramirez’ worktime activities were protected.
Respondent further claims that Ramirez’ discharge resulted
from his dishonesty and insubordination during his meeting
with Haga on June 18. In support of this contention, Haga
claimed at the outset of their June 18 meeting that he had no
intention of discharging Ramirez. While testifying as
Respondent’s witness, Haga sought to suggest that the decision
to discharge Ramirez came about in the course of the June 18
meeting. Thus, he explained in that portion of his testimony
that he fired Ramirez because “he was dishonest, he wouldn't
admit that he was [“bothering” Jennings] . . . insubordination, I
guess . . . the way he talked to me.” The claim Ramirez
exhibited dishonesty by refusing to admit that he was bothering
Jennings the evening before lacks merit. At most, Ramirez was
merely expressing his own disagreement with Haga’s assertion
to that effect.

16 Presumably, if Ramirez’ activities on the day shift interfered with
production or distracted others, one of the supervisors present would
have intervened. Respondent adduced no evidence of this nature.
17 Only one employee, Clair Monson, reacted to Ramirez’ union
solicitation with overt hostility. Ramirez met Monson on June 17 in the
plant parking lot after work and invited him to attend a union meeting.
Monson became very angry and began screaming at Ramirez. Monson
told Ramirez that unions did not look “out for your benefit, they’re only
for themselves.”
18 In his testimony, Haga alluded to Respondent’s title VII
antiharassment policy detailed in its employee manual and Respondent
cites that policy in its brief. Although by its very terms, this policy
would appear inapposite to the situation at hand, the Board has
nevertheless held otherwise. See, e.g., Patrick Industries, supra.
Regardless, the application of such policies presupposes that
harassment occurred in the first place. Here, I have found that it did not
and, hence, the policy is not material.
Other evidence strongly suggests that Haga had made up his
mind to terminate Ramirez well before their meeting. Thus,
when called as General Counsel’s 611(c) witness on the first
day of the hearing, Haga stated that the only reason for
Ramirez’ discharge was, as explained in his June 18
memorandum,19 because he had witnessed Ramirez harassing
“a fellow employee [Jennings] who was on company time” and
because Ramirez had been accused of harassing other
employees on two previous occasions. This explanation is
consistent with having Ramirez’ timecard pulled on the evening
of June 17 by Moosman and explains the two memos submitted
to him by supervisor Hrabik on June 17 concerning reports
from Frasure and Chandler the week before.20 Additionally,
Ramirez testified without contradiction that Haga had already
prepared a resignation form for him to sign when they talked on
June 18. Finally, none of the submissions which Respondent
submitted to the Idaho Department of Employment in
connection with Ramirez’ subsequent application for
unemployment benefits suggest that he was discharged for any
reason other that the alleged harassment of employees
concerning the Union. Hence, I find that Haga decided to
terminate Ramirez on June 17 after he observed him speaking
with Jennings who was on the clock and learned that the subject
of their brief exchange was the Union.
Accordingly, I have concluded that the characterization of
Ramirez’ activities as harassment amounts to little more than a
self-serving justification Respondent seized on to rid itself of an
active and persistent employee organizer. The evidence here
merits the conclusion that Respondent discharged Ramirez
because he failed to adhere to Respondent’s unlawful rule
barring union talk on working time. For this reason, I find that
Respondent discharged Ramirez in violation of Section 8(a)(3).
M.J. Mechanical Services, supra.
Complaint paragraph 5(c) alleges that Haga’s inquiry of
Jennings as to whether Ramirez was bothering him violated
Section 8(a)(1). The General Counsel argues that Haga was
“obviously interrogating Jennings for the purpose of confirming
his suspicions about the nature of the conversation.” I agree.
No evidence suggests that Respondent’s supervisors ever took a
similar interest in conversations between employees enroute to
and from their machines.
Finally, the General Counsel alleges in complaint paragraph
5(i) that Hrabik’s postdischarge comment to Rodriguez violates
Section 8(a)(1) and argues in his brief that the comment is
unlawful, because it could reasonably be interpreted to mean
that he too would be fired if he engaged in protected union
organizing activity. Respondent argues no 8(a)(1) violation
occurred because Hrabik merely “repeated a lawful non–
solicitation rule.” As found above, Respondent’s prohibition
against only union talk on working time violates Section
8(a)(1). Accordingly, I find that Hrabik’s unmistakable
inference that an employee could be discharged for failing to
adhere to this unlawful rule also violated Section 8(a)(1).21
19 See G.C. Exh. 3.
20 See attachments to G.C. Exh. 3.
21 Respondent also argues that Rodriguez’ version of the remark
should not be credited. Hrabik testified that he said: “This is the reason
why we work on work time.” Either way, I would still find the remark
unlawful as it implied that employees would be discharged for refusing
to abide by Respondent’s unlawful rule.
FRAZIER INDUSTRIAL CO. 731
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. By threatening to discharge employees who engage in
union activities; coercively interrogating employees about their
union activities and sympathies, and those of other employees;
expressing disappointment in employees who attend union
meetings; threatening employees that it would close the plant if
employees chose union representation; threatening to retaliate
against employees for their organizational activities; creating
the impression that employee union activities were under
surveillance; attempting to convince employees that it would be
futile for them to seek representation for collective-bargaining
purposes; by maintaining and enforcing a rule prohibiting talk
on working time only about matters pertaining to unionization;
and by suggesting that employees could be discharged for
failing to adhere to its unlawful rule prohibiting union talk on
working time, Respondent engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
4. By discharging John Ramirez on June 18, Respondent
engaged in an unfair labor practice within the meaning of
Section 8(a)(1) and (3) of the Act.
5. The unfair labor practices of Respondent affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease and
desist therefrom and to take certain affirmative action designed
to effectuate the policies of the Act.
Relying primarily on Vilter Mfg. Corp., 271 NLRB 1544
(1984), Respondent argues that Ramirez should be denied the
usual reinstatement remedy because he falsified his
employment application as well as his unemployment benefit
application and because he lied to Haga during the discharge
interview. I find Vilter inapposite to the circumstances here22
and I reject Respondent’s argument concerning Ramirez’
reinstatement for the following reasons.
First, Ramirez’ assertion to Haga in the discharge interview
that he was not “bothering” Jennings represented Ramirez’ own
opinion about the nature of his engagement with Jennings on
June 17. The fact that Haga or Jennings happen to think
otherwise is a qualitative judgment rather than a matter of
absolute fact. Second, although Respondent established that
Ramirez failed to list a G & L Metal as a recent employer on

22 I do not agree with Respondent’s argument suggesting that Vilter
stands for the general proposition that false statements on
unemployment benefit application forms is sufficient to warrant denial
of reinstatement in discrimination cases under Sec. 8(a)(3). The result
in Vilter turns on its own peculiar facts. There the employer
maintained a progressive disciplinary system which assessed points
against an employee for particular types of misconduct. An arbitrator
determined that a discharged employee had not yet accumulated
sufficient points to sustain a discharge under the disciplinary system but
the employer declined to reinstate the employee on the ground that the
employee, subsequent to his discharge, made false statements on his
unemployment benefit application which merited the assessment of
enough additional points to warrant his discharge. The Board agreed
and dismissed the General Counsel’s complaint alleging that the
employer violated Sec. 8(a)(3) by refusing to reinstate the employee as
ordered by the arbitrator.
his employment application, the language on Respondent’s
application form warns of dismissal only as a potential option
and no evidence establishes that Respondent has routinely
dismissed employees for similar omissions. Third and finally,
the Idaho Department of Employment Determination finding
that Ramirez’ engaged in “misconduct in connection with
employment” because he engaged in union organizing on
“company time” applies a legal standard in conflict with the
National Labor Relations Act on a matter preempted by the
Act. Under the Act, in the absence of a lawful, employer–
established rule prohibiting solicitations, an employee may not
be lawfully discharged for engaging in union organizing even
on working time if such activity does not interfere with
production. Miller’s Discount Department Stores, 198 NLRB
281 (1972). As found herein, Respondent never established a
lawful rule prohibiting union organizing on worktime prior to
Ramirez’ discharge. However, the Determination by the Idaho
Department of Employment presumed the existence of a lawful
rule where, in fact, none exists. Because of this presumption,
an employee would be required to assert, as Ramirez did, that
he or she only engaged in those activities on nonworktimes,
i.e., before and after work or on break periods, in order to
qualify for benefits. In my judgment, penalizing an unlawfully
discharged employee by denying reinstatement in these
circumstances would be at odds with the fundamental purposes
of the Act and essentially unjust.
Accordingly, the Respondent, having discriminatorily
discharged John Ramirez, must offer him reinstatement and
make him whole for any loss of earnings and other benefits,
computed on a quarterly basis from the date of his discharge to
the date of a proper offer of reinstatement, less any net interim
earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest as computed in New Horizons for the
Retarded, 283 NLRB 1173 (1987).
Respondent must further expunge from any of its records any
reference to Ramirez’ June 18 discharge and notify him in
writing that such action has been taken and that any evidence
related to that termination will not be considered in any future
personnel action affecting him. Sterling Sugars, Inc., 261
NLRB 472 (1982). As the Idaho Department of Employment
Determination disqualified Ramirez’ access to benefits
prospectively until he requalifies, Respondent must notify that
agency in writing that it withdraws its protest of Ramirez’
application for benefits following his June 18 discharge and
move to have that Determination vacated.23
Finally, Respondent must post the attached notice to inform
employees of their rights and the outcome of this matter.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended24
ORDER
The Respondent, Frazier Industrial Company, Pocatello,
Idaho, its officers, agents, successors, and assigns, shall
1. Cease and desist from
23 Under no circumstances, should the remedial action required here
be construed as entitling Ramirez to both backpay and unemployment
compensation benefits for the same period of time.
24 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and
recommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 732
(a) Discharging or otherwise discriminating against
employees for supporting Sheet Metal Workers Association,
Local 60 or any other union.
(b) Coercively interrogating any employee about union
support or union activities.
(c) Threatening to discharge employees for engaging in
union activities.
(d) Expressing disappointment in employees who attend
union meetings.
(e) Threatening to close its plant if employees choose union
representation.
(f) Threatening to retaliate against employees for their
organizational activities.
(g) Creating the impression that employee union activities
are under surveillance.
(h) Attempting to convince employees that it would be futile
for them to seek representation for collective bargaining
purposes.
(i) Maintaining and enforcing a rule prohibiting talk on
working time only about matters pertaining to unionization.
(j) Suggesting that employees could be discharged for failing
to adhere to an unlawful rule prohibiting union talk on working
time.
(k) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act, or discriminating against
employees because they engage in lawful union activities.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer John
Ramirez full reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privileges
previously enjoyed.
(b) Make John Ramirez whole for any loss of earnings and
other benefits suffered as a result of the discrimination against
him in the manner set forth in the remedy section of the
administrative law judge’s decision in this case.
(c) Within 14 days from the date of this Order, remove from
its files any reference to the John Ramirez’ discharge June 18,
1996, and notify Ramirez in writing that this has been done and
that this discharge will not be used against him in any way.
(d) Within 14 days from the date of this Order, notify the
Idaho Department of Employment that it withdraws all
objections to Ramirez’ application for unemployment benefits
filed on June 18, 1996, and move to vacate that agency’s
Determination mailed July 2, 1996.
(e) Within 14 days after service by the Region, post at its
Pocatello, Idaho, plant copies of the attached notice marked
“Appendix.”25 Copies of the notice, on forms provided by the
Regional Director for Region 27 after being signed by the
Respondent's authorized representative, shall be posted by the
Respondent immediately upon receipt 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

25 If this Order is enforced by a judgment of the United States court
of appeals, the words in the notice reading “Posted by Order of the
National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board.”
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 April 1996.26
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically found.
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 violated the
National Labor Relations Act and has ordered us to post and abide
by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of their
own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT discharging or otherwise discriminate against
any of you for supporting Sheet Metal Workers Association,
Local 60 or any other union.
WE WILL NOT Coercively interrogating any employee about
union support or union activities.
WE WILL NOT threaten to discharge employees for engaging
in union activities.
WE WILL NOT express disappointment in employees who
attend union meetings.
WE WILL NOT threaten to close its plant if employees choose
union representation.
WE WILL NOT threaten to retaliate against employees for their
organizational activities.
WE WILL NOT create the impression that employee union
activities are under surveillance.
WE WILL NOT attempt to convince employees that it would be
futile for them to seek representation for collective-bargaining
purposes.
WE WILL NOT maintain and enforce a rule prohibiting talk on
working time only about matters pertaining to unionization.
WE WILL NOT suggest that employees could be discharged for
failing to adhere to an unlawful rule prohibiting union talk on
working time.
WE WILL NOT in any like or related manner interfering with,
restraining, or coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act, or discriminating
against employees because they engage in lawful union
activities.
26 This month represents the approximate date of the first unfair
labor practice in accord with the requirement the Board established in
Excel Container, Inc., 325 NLRB 17 (1997).
FRAZIER INDUSTRIAL CO. 733
WE WILL, within 14 days from the date of the Board’s Order,
offer John Ramirez full reinstatement to his former job or, if
that job no longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other rights or
privileges previously enjoyed.
WE WILL make John Ramirez whole for any loss of earnings
and other benefits resulting from his discharge, less any net
interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s Order,
remove from its files any reference to the unlawful discharge of
John Ramirez, and WE WILL, within 3 days thereafter, notify
him in writing that this has been done and that his June 18,
1996 discharge will not be used against him in any way.
WE WILL, Within 14 days from the date of the Board’s Order,
withdraw the objection we filed with the Idaho Department of
Employment to John Ramirez’ application for unemployment
compensation benefits following his June 18, 1996 discharge
and we will move to have that agency vacate its Determination
on Ramirez’ application for benefits.

FRAZIER INDUSTRIAL COMPANY