Gunderson Rail Services, LLC d/b/a Greenbrier Rail Services

National Labor Relations Board - Board Decisions

Jun 23, 2016

364 NLRB No. 30 (N.L.R.B. 2016)

364 NLRB No. 30
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Gunderson Rail Services, LLC d/b/a Greenbrier Rail
Services and Sheet Metal Workers’ Internation-
al Association, Local 359, AFL–CIO. Cases 28–
CA–093183, 28–CA–103909, 28–CA–104184, 28–
CA–106613, 28–CA–111186, 28–CA–112806, and
28–RC–093179
June 23, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA
AND MCFERRAN
On June 30, 2014, Administrative Law Judge Eleanor
Laws issued the attached decision. The Respondent and
the General Counsel filed exceptions, supporting briefs,
answering briefs, and reply briefs.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record in
light of the exceptions and briefs and has decided to af-
firm the judge’s rulings, findings,1 and conclusions and

1 There are no exceptions to the judge’s findings that the Respondent
did not violate Sec. 8(a)(1) of the Act by (i) paying the CEO bonus in
December 2012, (ii) increasing the maximum hourly employee pay rate
in January 2013, (iii) implementing a safety committee in May 2013, or
(iv) observing the union handbilling in April 2013.
The Respondent excepted to the judge’s findings that Foreman Mar-
tin Torres unlawfully interrogated employee Jorge Martinez in October
2012 and that certain of its handbook rules violated Sec. 8(a)(1). How-
ever, neither the Respondent’s exceptions nor its supporting brief ad-
vance any grounds for reversing these findings. In these circumstances,
the Board’s rules provide that the Respondent’s exceptions to these
findings “may be disregarded.” Board’s Rules and Regulations Sec.
102.46(b)(2); see Holsum de Puerto Rico, Inc., 344 NLRB 694, 694 fn.
1 (2005), enfd. 456 F.3d 265 (1st Cir. 2006).
The General Counsel and the Respondent have 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.
In affirming the judge’s finding that the Respondent violated Sec.
8(a)(3) and (1) by discharging Juan Silva, we find it unnecessary to
pass on the judge’s additional finding that the Respondent violated Sec.
8(a)(5) and (1) by failing to offer to bargain about its discharge of Sil-
va. In affirming the judge’s dismissal of the allegation that the Re-
spondent unlawfully told employees that if they selected the Union they
would no longer be able to bring complaints directly to management,
we note, without passing on whether it was correctly decided, that Tri-
Cast, Inc., 274 NLRB 377 (1985), is extant law, which the General
Counsel concedes is controlling on this issue.
We agree with the judge that the Respondent violated Sec. 8(a)(1) in
May 2013 by implementing a “safety poker” program, through which
employees could win significant prizes. We note that the program was
to adopt the recommended Order as modified and set
forth in full below.2
The General Counsel has excepted to the judge’s fail-
ure to find a violation based on the allegation set forth in
paragraph 5(o) of the complaint, which asserted that the
Respondent, by Plant Manager Eric Valenzuela, violated
Section 8(a)(1) by informing employees that engaging in
union or protected, concerted activities could result in
job loss. During a rehire interview with employee Omar
Ramos in March 2013, Valenzuela stated:
[I]t seems to me like people think that [the layoff] was
because of the Union—which was not. The reason for
the layoff was that the company was losing money, and
probably the Union thing may or may not have any—
anything to do. But . . . you know, people talking about
it, wasting time, . . . , thinking and talking about it made
things worse, . . . because you do that on your own

implemented only at the Tucson facility, where an election petition had
been filed. Also, despite its popularity, the Respondent abruptly dis-
continued the program after the election, a mere 3 months after its start.
Member McFerran finds it unnecessary to pass on the judge’s find-
ing that the Respondent unlawfully failed to rehire employees in March
2013. The Board already is adopting the judge’s finding that the Re-
spondent unlawfully laid off those employees in November 2012, and
providing appropriate reinstatement and backpay remedies for that
violation. Those remedies subsume the ones that would accompany the
additional refusal-to-hire violation.
Member McFerran also finds it unnecessary to pass on the judge’s
finding that the Respondent unlawfully threatened employees by ex-
horting them in a campaign flyer not to “subject your family” to the
risks of collective bargaining. She finds this alleged threat cumulative
of other threats found by the judge and adopted by the Board.
Further, Member McFerran would not adopt the judge’s finding that
the Respondent unlawfully implemented a “safety poker” game in May
2013. In her view, the record establishes that the “safety poker” game
was a direct response to four safety incidents the preceding month at
the Tucson facility, not the organizing campaign. In fact, at the time,
the Region had suspended processing of the Union’s representation
petition due to pending unfair labor practice charges. Finally, the Re-
spondent discontinued the “safety poker” game in July, following a
significant reduction in the number of safety incidents at the facility.
All of these circumstances indicate that the “safety poker” game was
unrelated to employees’ organizing activity.
2 We shall modify the judge’s recommended Order to conform to the
Board’s standard remedial language. We shall substitute a new notice
to conform to the Order as modified and to the Board’s standard reme-
dial language.
In adopting the judge’s tax compensation and Social Security report-
ing remedies, we rely on Don Chavas, LLC d/b/a Tortillas Don Chavas,
361 NLRB No. 10 (2014), as modified by AdvoServ of New Jersey,
Inc., 363 NLRB No. 143, slip op. at 1–2 (2016). We do not rely on the
following decisions cited in the judge’s decisions: Latino Express, 359
NLRB No. 44 (2012); Crowne Plaza Hotel, 352 NLRB 382 (2008); and
AC Specialists, Inc., 359 NLRB No. 159 (2013). We note that San Luis
Trucking, 352 NLRB 211 (2008), cited by the judge, was reaffirmed by
the Board at 356 NLRB 168 (2010), and enfd. mem. 479 Fed.Appx.
743 (9th Cir. 2012), and that DirecTV U.S. DirecTV Holdings, LLC,
359 NLRB No. 54 (2013), also cited by the judge, was reaffirmed by
the Board at 362 NLRB No. 48 (2015).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2
time, then you’re okay, but if you do it during work—
the company was losing money. They have been los-
ing money for months and months. So they were going
to shut down this plant.
We recognize that Valenzuela’s statements during the
course of the interview were somewhat equivocal in
terms of whether the employees’ union or concerted,
protected activities directly caused the mass layoff, found
herein to be unlawful, in November 2012. Nevertheless,
we find that Valenzuela’s conclusion that employees’
organizing activities “made things worse” would send a
clear message to Ramos that employees’ organizing ac-
tivity could lead to an adverse employment action, in-
cluding a layoff.3 Accordingly, we find that Valenzue-
la’s statements were coercive and violated Section
8(a)(1).4
For the reasons given by the judge, and those articulat-
ed here, we agree with her finding that the Respondent
violated Section 8(a)(5) and (1) of the Act by closing its
Tucson facility and relocating the work performed there
without bargaining with the Union. As the judge found,
the relocation of unit work and closure of the Tucson
facility was unaccompanied by a basic change in the na-
ture of the Respondent’s business: it repaired and ser-
viced railcars before and after the closure of the Tucson
plant. The judge further found that, although the Tucson
facility’s largest customer, TTX, decided to shift its rail
car work to the Respondent’s facilities other than Tuc-
son, the Tucson facility retained sufficient non-TTX
work to support 17 full-time employees. The judge addi-
tionally found that labor costs were a primary factor in
the Respondent’s assessment of whether various facili-
ties—including Tucson—should be “fixed” or, instead,
“closed.” Rather than bargain with the Union to address
the future of the Tucson plant in light of the relocation of
the TTX work, the Respondent’s management officials
unilaterally decided that there were “no options” other
than to close down the facility. Finally, we agree with
the judge that the Respondent failed to establish that the
continued operation of the Tucson facility was not ame-

3 In so finding, we note that there is no evidence that the Respondent
ever expressed any concerns with regard to employees discussing other
non-work issues during work time.
4 The Respondent asserts that the Board should not reach this allega-
tion because counsel for the General Counsel “did not argue that the
statement constituted an unlawful threat.” However, as noted above,
Valenzuela’s statements were expressly alleged as an independent
8(a)(1) violation in the complaint. Further, the General Counsel pro-
duced evidence in support of this allegation at the hearing. Because the
Respondent had notice of the allegation and had the opportunity to
litigate the issue before the judge, we find that the issue is properly
before the Board.
nable to resolution through the bargaining process.5 As
explained by the judge, any contention that the Union
could have offered nothing through collective bargaining
is speculative, as the Respondent could not claim to
know what solutions the give-and-take of bargaining
might have generated. We note, for example, that the
question of whether the facility could continue as a
smaller operation, consistent in size with some of the
Respondent’s other facilities, “would be a fruitful subject
of labor-management negotiations.” Dubuque Packing
Co., 303 NLRB 386, 390 (1991) (applying First National
Maintenance Corp. v. NLRB, 452 U.S. 666 (1981), in
finding unlawful the respondent’s relocation of opera-
tions), enfd. 1 F.3d 24, 31 (D.C. Cir. 1993).6
We further agree with the judge that the appropriate
remedy for the Respondent’s failure to bargain includes
restoration of operations at the Tucson facility. The
Board, with Supreme Court approval, has ordered such a
restoration remedy returning to the status quo ante where
the change in operation was effectuated in violation of
the employer’s bargaining obligation. See Fibreboard
Corp. v. NLRB, 379 U.S. 203, 215–216 (1964). “When
bargaining unit work has unilaterally and unlawfully
been removed, whether by subcontracting or relocation,
it is appropriate to order restoration of the work to the
bargaining unit, unless the employer has demonstrated
that restoration would be unduly burdensome.” Power,
Inc., 311 NLRB 599, 600 (1993), enfd. 40 F.3d 409
(D.C. Cir. 1994). Accord Vico Products Co., 336 NLRB
583, 587, 599 (2001), enfd. 333 F.3d 198 (D.C. Cir.
2003); Flamingo Hilton-Reno, 321 NLRB 409, 409
(1996), enfd. mem. 141 F.3d 1177 (9th Cir. 1998). The
Respondent may introduce at compliance any evidence
not available before the close of the hearing bearing on
the appropriateness of the restoration remedy, including
events subsequent to the decision of the United States
Court of Appeals for the Ninth Circuit in Overstreet ex
rel. NLRB v. Gunderson Rail Services, 587 Fed.Appx.
379 (9th Cir. 2014), reversing and vacating 5 F.Supp.3d
1073 (D. Ariz. 2014).

5 Indeed, the Respondent’s effort to retain TTX as a customer at
Tucson was based almost entirely on offering reduced labor costs. We
fail to see why the Respondent could not apply the same approach to
maintaining or expanding its non-TTX customer base at Tucson in the
context of collective bargaining.
6 The judge dismissed the allegation that the Respondent’s relocation
of unit work and concomitant closure of the Tucson plant violated Sec.
8(a)(3) and (1) of the Act. That dismissal—which was based on a
finding that the motive for the closure was economic and not based on
antiunion animus—in no way precludes a finding that the closure vio-
lated Sec. 8(a)(5). The 8(a)(5) allegation does not turn on motive but
on whether the closure was amenable to the collective-bargaining pro-
cess.
GUNDERSON RAIL SERVICES, LLC 3
ORDER
The National Labor Relations Board orders that the
Respondent, Gunderson Rail Services, LLC d/b/a Green-
brier Rail Services, Tucson, Arizona, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Maintaining the provision in its employee hand-
book that contains the following language:
Appearance and Attire
Regardless of the work environment, provocative slo-
gans or images on clothing, hats, etc., and revealing or
impractical attire, is not appropriate.
(b) Maintaining the provision in its employee hand-
book that, in relevant part, contains the following lan-
guage:
External Communications
GRS has appointed specific representatives to serve as
information channels for news media. These represent-
atives are responsible for approval of all press releases,
responding to media inquiries, and coordinating inter-
views with the media—with the exception of marketing
or employment related advertising—other employees
should refrain from communications with the media.
(c) Maintaining the provision in its employee hand-
book that contains the following language:
Solicitation and Distribution Policy
Solicitation and the distribution of literature or petitions
by any employee or any other individual with the ex-
ception of GRS approved service providers is expressly
prohibited.
(d) Maintaining the provision in its employee hand-
book that contains the following language:
Confidential Information
Confidential information. Greenbrier’s confidential and
proprietary information includes (among other items)
. . . personnel information . . . . Confidential infor-
mation must be used only by authorized persons and
only in accordance with Greenbrier policies and proce-
dures.
(e) Coercively interrogating employees about their un-
ion membership, activities, and sympathies, and the un-
ion membership, activities, and sympathies of other em-
ployees.
(f) Promising to erase attendance points and erasing at-
tendance points in order to discourage employees from
supporting the Union.
(g) Implementing a safety incentive program in order
to discourage employees from supporting the Union.
(h) Soliciting complaints and grievances from employ-
ees and impliedly promising to remedy them in order to
discourage employees from supporting the Union.
(i) Promising increased benefits and improved terms
and conditions of employment for refraining from sup-
porting the Union.
(j) Threatening employees with plant closure if they
selected the Union as their collective-bargaining repre-
sentative.
(k) Threatening employees and denigrating the Union
by telling employees that the company is spending mon-
ey on attorneys’ fees to defend against unfair labor prac-
tice charges during difficult economic times.
(l) Threatening employees that selecting a union repre-
sentative would be futile.
(m) Threatening employees with harm if they selected
the Union as their collective-bargaining representative.
(n) Threatening employees that engaging in union or
protected, concerted activities could result in job loss.
(o) Laying off or firing employees because of their un-
ion membership, activities, and sympathies.
(p) Refusing to recall or rehire employees because of
their union membership, activities, and sympathies.
(q) Failing and refusing to recognize and bargain with
Sheet Metal Workers’ International Association, Local
359, AFL–CIO as the exclusive collective-bargaining
representative of the employees in the bargaining unit.
(r) Unilaterally changing the terms and conditions of
employment of its unit employees without first notifying
the Union and giving it an opportunity to bargain, includ-
ing: closing the Tucson facility; laying off employees;
recalling and rehiring employees, including determining
the manner in which the recalls were to be effected; re-
vising the implementation of the annual wage increase;
and implementing and rescinding a safety incentive pro-
gram.
(s) In any other manner interfering with, restraining, or
coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days of the Board’s Order, rescind the
following provision in its employee handbook:
Appearance and Attire
Regardless of the work environment, provocative slo-
gans or images on clothing, hats, etc., and revealing or
impractical attire, is not appropriate.
(b) Within 14 days of the Board’s Order, rescind the
following provision in its employee handbook:
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4
External Communications
GRS has appointed specific representatives to serve as
information channels for news media. These represent-
atives are responsible for approval of all press releases,
responding to media inquiries, and coordinating inter-
views with the media—with the exception of marketing
or employment related advertising—other employees
should refrain from communications with the media.
(c) Within 14 days of the Board’s Order, rescind the
following provision in its employee handbook:
Solicitation and Distribution Policy
Solicitation and the distribution of literature or petitions
by any employee or any other individuals with the ex-
ception of GRS approved service providers is expressly
prohibited.
(d) Within 14 days of the Board’s Order, rescind the
following provision in its employee handbook:
Confidential information
Confidential information. Greenbrier’s confidential
and proprietary information includes (among other
items) . . . personnel information . . . . Confidential in-
formation must be used only by authorized persons and
only in accordance with Greenbrier policies and proce-
dures.
(e) Furnish all current employees with inserts for its
employee handbook that (i) advise that the unlawful pro-
visions have been rescinded or (ii) provide lawfully
worded provisions on adhesive backing that will cover
the unlawful provisions; or, in the alternative, publish
and distribute to all current employees a revised copy of
its employee handbook that (i) does not contain the un-
lawful provisions, or (ii) provides lawfully worded provi-
sions.
(f) On request, bargain with the Union as the exclusive
collective-bargaining representative of the employees in
the following appropriate unit concerning terms and con-
ditions of employment and, if an understanding is
reached, embody the understanding in a signed agree-
ment:
All full-time and regular part-time AAR write-up em-
ployees, airmen, laborers, material handlers, mainte-
nance mechanics, painters, switchmen, and welder re-
pairmen employed by the Respondent at its facility in
Tucson, Arizona, excluding all other employees, in-
cluding quality assurance inspectors, office clericals,
guards, safety coordinators, and supervisors (plant
managers, production managers, foremen, quality as-
surance managers, material managers, plant accounting
managers) as defined in the Act.
(g) Upon request, rescind any or all unilateral changes
to the terms and conditions of employment of unit em-
ployees, including: closing the Tucson facility; laying off
employees; recalling and rehiring employees, including
determining the manner in which the recalls were to be
effected; revising the implementation of the annual wage
increase; and implementing and rescinding a safety in-
centive program.
(h) Restore the status quo ante by reestablishing and
resuming operations at the Tucson, Arizona facility as
they existed prior to the date of the facility’s closure in
October 2012.
(i) Within 14 days from the date of this Order, offer:
Alex Amador Jose Angel Ortega
Jesus Fernando Barnes Carlos Contreras Ortiz
David Bottinueu Gabriel Ortiz
Oswaldo Chavira Brian Perona
Karim Duqmaq Juan Silva Gutierrez
Hector Federico Guillermo Gonzalez Pico
Jaime Hernandez Jesus Omar Ramos
Jesus Armando Lopez-
Nuno
Jeff Raske
Jesus Martinez Jesus Ruiz
Jorge Martinez Oscar Salinas
Ricardo Martinez Brian Scaggs
Karl Mason Jose Manuel Sepulveda
Juan Morales Rogelio Martinez
Chad Morshback Frank Soto
Guillermo Murguia Martin Valdez
full reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privileges
previously enjoyed.
(j) Make whole the following employees for any loss
of earnings and other benefits suffered as a result of the
discrimination against them, in the manner set forth in
the remedy section of the judge’s decision:
Alex Amador Jose Angel Ortega
Jesus Fernando Barnes Carlos Contreras Ortiz
David Bottinueu Gabriel Ortiz
Oswaldo Chavira Brian Perona
Karim Duqmaq Juan Silva Gutierrez
Hector Federico Guillermo Gonzalez Pico
Jaime Hernandez Jesus Omar Ramos
Jesus Armando Lopez-Nuno Jeff Raske
Jesus Martinez Jesus Ruiz
Jorge Martinez Oscar Salinas
Ricardo Martinez Brian Scaggs
GUNDERSON RAIL SERVICES, LLC 5
Karl Mason Jose Manuel Sepulveda
Juan Morales Rogelio Martinez
Chad Morshback Frank Soto
Guillermo Murguia Martin Valdez
(k) Within 14 days from the date of this Order, offer
full reinstatement to unit employees who were trans-
ferred, discharged, or quit due to the unlawful closure of
the Tucson facility to their former jobs at the Tucson
facility, or, if those jobs no longer exist, to substantially
equivalent positions of employment, without prejudice to
their seniority or any other rights or privileges previously
enjoyed. In the event there are insufficient openings to
accommodate all the former Tucson unit employees who
wish to return to work at the Tucson facility, including
those employees who accepted transfers to the Respond-
ent’s other facilities, the Respondent is to bargain in
good faith with the Sheet Metal Workers’ International
Association, Local 359, AFL–CIO about the creation of a
preferential recall list and return employees to work at
the Tucson facility pursuant to that recall list. Those
employees who accepted employment at the Respond-
ent’s other facilities are free to remain there and are un-
der no obligation to accept Respondent’s offers to return
to work in Tucson.
(l) Make the unit employees whole for any loss of
earnings and other benefits suffered as a result of the
Respondent’s unilateral closure of the Tucson facility.
(m) Within 14 days from the date of this Order, re-
move from its files any reference to the unlawful dis-
charges and the unlawful layoffs and within 3 days
thereafter notify the laid-off and discharged employees in
writing that this has been done and that the discharges
and layoffs will not be used against them in any way.
(n) Compensate employees entitled to backpay under
the terms of this Order for the adverse tax consequences,
if any, of receiving lump-sum backpay awards, and file
with the Regional Director for Region 28, within 21 days
of the date the amount of backpay is fixed, either by
agreement or Board order, a report allocating the
backpay awards to the appropriate calendar year for each
employee.
(o) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide, at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(p) Within 14 days after service by the Region, post at its
facility in Tucson, Arizona copies of the attached notice
marked “Appendix.”7 Copies of the notice, on forms
provided by the Regional Director for Region 28, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. In addition to physical posting of paper notices,
the notices shall be distributed electronically, such as by
email, posting on an intranet or an internet site, and/or
other electronic means, if the Respondent customarily
communicates with its employees by such means. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material. In the event that, during the pendency
of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceed-
ings, 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 October 2012.
(q) Within 14 days after service by the Region, hold a
meeting or meetings during working hours at the Tucson
facility, scheduled to ensure the widest possible attend-
ance, at which the attached notice is to be read to em-
ployees by a responsible management official of the Re-
spondent or, at the Respondent’s option, by a Board
agent in the presence of a responsible management offi-
cial of the Respondent, with translation available for
Spanish-speaking employees.
(r) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
IT IS ORDERED that the complaint is dismissed insofar
as it alleges violations of the Act not specifically found.
IT IS FURTHER ORDERED that the election held on July
11, 2013, in Case 28–RC–093179, is set aside and that
the petition in that matter is dismissed.
Dated, Washington, D.C. June 23, 2016
______________________________________
Mark Gaston Pearce, Chairman

7 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6
______________________________________
Kent Y. Hirozawa, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
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 Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT maintain the following provision in our
employee handbook:
Appearance and Attire
Regardless of the work environment, provocative slo-
gans or images on clothing, hats, etc., and revealing or
impractical attire, is not appropriate.
WE WILL NOT maintain the following provision in our
employee handbook:
External Communications
GRS has appointed specific representatives to serve as
information channels for news media. These represent-
atives are responsible for approval of all press releases,
responding to media inquiries, and coordinating inter-
views with the media—with the exception of marketing
or employment related advertising—other employees
should refrain from communications with the media.
WE WILL NOT maintain the following provision in our
employee handbook:
Solicitation and Distribution Policy
Solicitation and the distribution of literature or petitions
by any employee or any other individuals with the ex-
ception of GRS approved service providers is expressly
prohibited.
WE WILL NOT maintain the following provision in our
employee handbook:
Confidential Information
Confidential information. Greenbrier’s confidential
and proprietary information includes (among other
items) . . . personnel information . . . . Confidential in-
formation must be used only by authorized persons and
only in accordance with Greenbrier policies and proce-
dures.
WE WILL NOT coercively interrogate you about your
union membership, activities, and sympathies or about
the union membership, activities, and sympathies of oth-
er employees.
WE WILL NOT promise to erase your attendance points,
or erase your attendance points, to discourage you from
supporting the Union.
WE WILL NOT implement a safety incentive program in
order to discourage you from supporting the Union.
WE WILL NOT solicit complaints and grievances from
you and impliedly promise to remedy them in order to
discourage you from supporting the Union.
WE WILL NOT promise you increased benefits and im-
proved terms and conditions of employment if you re-
frain from supporting the Union.
WE WILL NOT threaten you with plant closure if you se-
lect the Union as your collective-bargaining representa-
tive.
WE WILL NOT threaten you, or denigrate the Union, by
telling you the company is spending money on attorneys’
fees to defend against unfair labor practice charges dur-
ing difficult economic times.
WE WILL NOT threaten you that selecting a union rep-
resentative would be futile.
WE WILL NOT threaten you that you will be harmed if
you select a union representative.
WE WILL NOT threaten you that engaging in union or
protected, concerted activities could result in job loss.
WE WILL NOT lay you off or fire you because of your
union membership, activities, and sympathies.
WE WILL NOT refuse to recall or rehire you because of
your union membership, activities, and sympathies.
WE WILL NOT fail and refuse to recognize and bargain
with the Sheet Metal Workers’ International Association,
Local 359, AFL–CIO as the exclusive collective-
bargaining representative of our employees in the bar-
gaining unit.
WE WILL NOT unilaterally change your terms and con-
ditions of employment without providing notice to and
an opportunity to bargain with the Union, including:
GUNDERSON RAIL SERVICES, LLC 7
closing the Tucson facility; laying off employees; re-
calling and rehiring employees, including determining
the manner in which the recalls were to be effected; re-
vising the implementation of the annual wage increase;
and implementing and rescinding a safety incentive pro-
gram.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce you in the exercise of your rights guar-
anteed by Section 7 of the National Labor Relations Act.
WE WILL, within 14 days from the date of the Board’s
Order, rescind the following provision in our employee
handbook:
Appearance and Attire
Regardless of the work environment, provocative slo-
gans or images on clothing, hats, etc., and revealing or
impractical attire, is not appropriate.
WE WILL, within 14 days from the date of the Board’s
Order, rescind the following provision in our employee
handbook:
External Communications
GRS has appointed specific representatives to serve as
information channels for news media. These represent-
atives are responsible for approval of all press releases,
responding to media inquiries, and coordinating inter-
views with the media- with the exception of marketing
or employment related advertising -other employees
should refrain from communications with the media.
WE WILL, within 14 days from the date of the Board’s
Order, rescind the following provision in our employee
handbook:
Solicitation and Distribution Policy
Solicitation and the distribution of literature or petitions
by any employee or any other individuals with the ex-
ception of GRS approved service providers is expressly
prohibited.
WE WILL, within 14 days from the date of the Board’s
Order, rescind the following provision in our employee
handbook:
Confidential Information
Confidential information. Greenbrier’s confidential and
proprietary information includes (among other items) . .
. personnel information . . . . Confidential information
must be used only by authorized persons and only in
accordance with Greenbrier policies and procedures.
WE WILL furnish all current employees with inserts for
our employee handbook that (1) advise employees that
the unlawful provisions have been rescinded, or (2) pro-
vide lawfully worded provisions on adhesive backing
that will cover the unlawful provisions; or publish and
distribute to all current employees a revised copy of our
employee handbook that (1) does not contain the unlaw-
ful provisions, or (2) provides lawfully worded provi-
sions.
WE WILL, on request, bargain with the Union as the
exclusive collective-bargaining representative of the em-
ployees in the following appropriate unit concerning
terms and conditions of employment and, if an under-
standing is reached, embody the understanding in a
signed agreement:
All full-time and regular part-time AAR write-up em-
ployees, airmen, laborers, material handlers, mainte-
nance mechanics, painters, switchmen, and welder re-
pairmen employed by the Respondent at its facility in
Tucson, Arizona, excluding all other employees, in-
cluding quality assurance inspectors, office clericals,
guards, safety coordinators, and supervisors (plant
managers, production managers, foremen, quality as-
surance managers, material managers, plant accounting
managers) as defined in the Act.
WE WILL, on request, rescind any or all changes to
your terms and conditions of employment that we made
without first notifying the Union and giving it an oppor-
tunity to bargain, including: closing the Tucson facility;
laying off employees; recalling and rehiring employees,
including determining the manner in which the recalls
were to be effected; revising the implementation of the
annual wage increase; and implementing and rescinding
a safety incentive program.
WE WILL restore the status quo ante by reestablishing
and resuming operations at the Tucson, Arizona facility
as they existed prior to the date of the facility’s closure in
October 2012.
WE WILL, within 14 days from the date of the Board’s
Order and to the extent that we have not already done so,
offer the following individuals full reinstatement to their
former jobs or, if those jobs no longer exists, to substan-
tially equivalent positions, without prejudice to their sen-
iority or any other rights or privileges previously en-
joyed:
Alex Amador Jose Angel Ortega
Jesus Fernando Barnes Carlos Contreras Ortiz
David Bottinueu Gabriel Ortiz
Oswaldo Chavira Brian Perona
Karim Duqmaq Juan Silva Gutierrez
Hector Federico Guillermo Gonzalez Pico
Jaime Hernandez Jesus Omar Ramos
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 8
Jesus Armando Lopez-Nuno Jeff Raske
Jesus Martinez Jesus Ruiz
Jorge Martinez Oscar Salinas
Ricardo Martinez Brian Scaggs
Karl Mason Jose Manuel Sepulveda
Juan Morales Rogelio Martinez
Chad Morshback Frank Soto
Guillermo Murguia Martin Valdez
WE WILL make the following employees whole for any
loss of earnings and other benefits resulting from the
discrimination against them, less any net interim earn-
ings, plus interest:
Alex Amador Jose Angel Ortega
Jesus Fernando Barnes Carlos Contreras Ortiz
David Bottinueu Gabriel Ortiz
Oswaldo Chavira Brian Perona
Karim Duqmaq Juan Silva Gutierrez
Hector Federico Guillermo Gonzalez Pico
Jaime Hernandez Jesus Omar Ramos
Jesus Armando Lopez-Nuno Jeff Raske
Jesus Martinez Jesus Ruiz
Jorge Martinez Oscar Salinas
Ricardo Martinez Brian Scaggs
Karl Mason Jose Manuel Sepulveda
Juan Morales Rogelio Martinez
Chad Morshback Frank Soto
Guillermo Murguia Martin Valdez
WE WILL, within 14 days from the date of the Board’s
Order, offer full reinstatement to our employees who
were transferred, discharged, or quit due to our unlawful
closure of the Tucson, Arizona facility, to their former
jobs at the Tucson, Arizona facility, or if those jobs no
longer exist, to substantially equivalent positions of em-
ployment, without prejudice to their seniority or any oth-
er rights or privileges previously enjoyed.
WE WILL make whole unit employees for any loss of
earnings or other benefits resulting from our unilateral
closure of the Tucson facility, less any net interim earn-
ings, plus interest.
WE WILL compensate employees entitled to backpay
for the adverse tax consequences, if any, of receiving
lump-sum backpay awards, and file with the Regional
Director for Region 28, within 21 days of the date the
amount of backpay is fixed, either by agreement or
Board order, a report allocating the backpay awards to
the appropriate calendar year for each employee.
WE WILL within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharges and the unlawful layoffs, and WE WILL,
within 3 days thereafter, notify the laid-off and dis-
charged employees in writing that this has been done and
that the discharges will not be used against them in any
way, including in response to any inquiry from any em-
ployer, employment agency, unemployment insurance
office, or reference seeker.
GUNDERSON RAIL SERVICES, LLC D/B/A
GREENBRIER RAIL SERVICES
The Board’s decision can be found at
www.nlrb.gov/case/28-CA-093183 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations
Board, 1015 Half Street, S.E., Washington, D.C. 20570, or
by calling (202) 273–1940.
John Giannopoulos, Esq., Eva Shia, Esq. and Sophia Alonso,
Esq., for the General Counsel.
Frederick C. Miner and Steven G. Biddle, Esq. (Littler,
Mendelson, P.C.), for the Respondent.
DECISION
STATEMENT OF THE CASE
ELEANOR LAWS, Administrative Law Judge. This case was
tried in Tucson and Phoenix, Arizona, on various dates between
September 17, 2013, and February 12, 2014. The Sheet Metal
Workers’ International Association, Local 359, AFL–CIO (Un-
ion or SMW) filed the first charges in Cases 28–CA–093183
and 28–RC–093179 on November 14, 2012. The Union filed
the charge in case 28–CA–103909 on April 29, 2013 and the
charge in case 28–CA–104184 on May 2, 2013. The charge in
Case 28–CA–106613 was filed on June 5, and an amended
charge in Case 28–CA–104184 was filed on June 14, 2013.
The Union filed amended charges in Case 28–CA–093183 and
28–CA–103909, and a second amended charge in Case 28–
CA–104184 on June 28, 2013. Also on June 28, the General
Counsel issued a complaint consolidating Cases 28–CA-
093183, 28–CA–103909, 28–CA–104184, and 28–CA–106613.
The Union filed objections to the conduct of the elections on
July 17, and on July 19, 2013, the Regional Director for Region
28 issued an Order Directing Hearing on Objections. This was
consolidated with the other aforementioned cases on July 23,
2013. Gunderson Rail Services, LLC, d/b/a Greenbrier Rail
Services (Respondent or GRS) filed a timely answer denying
all material allegations and setting forth affirmative defenses.
The Union filed the charge in Case 28–CA–111186 on Au-
gust 14, 2013 and the charge in Case 28–CA–112806 on Au-
gust 30, 2013. The General Counsel issued a second complaint
consolidating these cases with the previous cases on August 30,
and the Respondent filed a timely answer on September 13,
GUNDERSON RAIL SERVICES, LLC 9
2013. The Union filed another charge on September 6, 2013,
and this was consolidated at the hearing with the previous com-
plaints.1
The complaint alleges numerous violations of Section
8(a)(5), (4), (3), and (1), of the National Labor Relations Act
(the Act) in connection with a union organizing campaign at the
Respondent’s Tucson plant between October 2012 and July
2013, and closure of the Tucson plant following an election.
The allegations include interrogation, surveillance, threats,
promises of benefits, implementation of benefits, and mainte-
nance of unlawful policies, in violation of Section 8(a)(1). The
complaint further alleges that the Respondent undertook a mass
layoff, discriminated in its rehiring of some laid-off employees,
and ultimately closed the Tucson plant, in violation of Section
8(a)(3), (4), and (1). Finally, the complaint requests a bargain-
ing order pursuant to Gissel Packing Co., 180 NLRB 54 (1969),
asserting that the Respondent’s unfair labor practices have un-
dermined the union's majority, making a fair election unlikely.
In connection with this request, the complaint alleges numerous
violations of failure to bargain in violation of Section 8(a)(5)
and (1). In addition to the unfair labor practice allegations, the
complaint was consolidated with certain objections to the elec-
tion, many of which mirror complaint allegations.
On March 14, 2014, Senior U.S. District Judge for the Dis-
trict of Arizona Frank R. Zapata issued an order granting the
General Counsel’s petition for a temporary injunction pursuant
to Section 10(j) of the Act. Among other relief, Judge Zapata’s
order granted “interim restoration of Greenbrier’s operations at
its Tucson facility and an interim Gissel bargaining order di-
recting Greenbrier to bargain in good faith to an agreement or
an impasse over the terms of a labor agreement, or a lawfully
motivated reason to move the Tucson facility.” Case 4:14-cv-
01323-FRZ (Mar. 14, 2014). The Respondent’s emergency
motion for a partial stay of the temporary injunction pending
appeal was subsequently denied. On April 23, 2014, the Court
of Appeals for the Ninth Circuit denied the stay request and
ordered Greenbrier to comply with the District Court’s order, as
clarified, by no later than May 5, 2014.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Respondent, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a limited liability company with a place of
business in Tucson, Arizona, repairs and performs maintenance
on railcars. It annually purchases and receives goods valued in

1 A final version of the complaint, including amendments granted at
the hearing, is in the record as General Counsel’s Exhibit 287. Abbre-
viations used in this decision are as follows: “Tr.” for transcript; “R.
Exh.” for Respondent’s exhibit; “GC Exh.” for General Counsel’s
exhibit; “GC Br.” for the General Counsel’s brief; and “R. Br. for the
Respondents’ brief. Although I have included several citations to the
record to highlight particular testimony or exhibits, I emphasize that my
findings and conclusions are based not solely on the evidence specifi-
cally cited, but rather are based my review and consideration of the
entire record.
excess of $50,000 directly from points outside the State of Ari-
zona. The Respondent admits, and I find, that it is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background and Respondent’s Operations
Gunderson Rail Services, LLC, d/b/a Greenbrier Rail Ser-
vices (GRS) is a stand-alone subsidiary of Greenbrier Compa-
nies, Inc., a publicly traded company headquartered in Lake
Oswego, Oregon. This case concerns GRS’s railcar repair fa-
cility in Tucson, Arizona, which is part of GRS’ wheels, repair
and parts division.
GRS employees at the Tucson facility repaired and per-
formed maintenance service on railcars.2 Lex Morrison served
as the plant manager in Tucson from September 2008 until
November 12, 2012, when he was demoted to production man-
ager and relocated to Washington.3 Following Morrison’s de-
parture, Juan Maciel, who was a general manager, took on the
additional and concurrent role of interim plant manager for the
Tucson facility on November 13, 2012. Maciel served as inter-
im plant manager until Eric Valenzuela assumed the position as
plant manager for the Tucson facility on March 4, 2013.4 Plant
managers normally report to the general manager, but in Tuc-
son, the plant manager initially reported to the regional manag-
er, Gordon Hudgens. Kevin Stewart assumed the role of gen-
eral manager with oversight of the Tucson facility on March 30,
2012, after which time the plant manager reported to him. (Tr.
292; R. Exh. 38.) Danny Dicochea, who was the quality con-
trol manager, also reported to Stewart. (Tr. 1234.) During the
relevant time period, Hudgens spent most of his time at the
Mira Loma, California facility and visited Tucson a couple
times a year. (Tr. 1515.) Stewart’s office was in Chehalis,
Washington, and he visited the Tucson facility a couple times a
month for a couple of days per visit. (Tr. 1242.)
The regional managers report to the vice president of opera-
tions who, during the pertinent time period was Gerald Michael
Torra. He reports to William Glenn, the chief commercial
officer.
In Tucson, Freddy Valdez was the production manager until
he went back to his previous position in writeup near the end of
May 2013. (Tr. 1773–1774.)
Al Lave was the vice president of human resources (HR) for
GRS from June 2011 to December 2013. He oversaw the re-
pair shops in the US, Canada, and Mexico, which were com-
prised of approximately 1,200–1,300 employees. A benefits
administrator worked in the corporate office in Lake Oswego,
Oregon, with him and reported directly to him. Four regional
managers also reported directly to Lave: two in San Antonio,

2 At the time of this decision, the Tucson shop had been closed, but
was ordered reopened pursuant an injunction filed under Sec. 10(j) of
the Act.
3 At the time of the hearing, Morrison had been terminated from
GRS.
4 Maciel retained his position of general manager while serving as
Tucson’s interim plant manager.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 10
Texas, one in Omaha, Nebraska, and one in Chicago, Illinois.
Larger repair shops have an HR generalist who reports to re-
gional HR manager with a dotted line to plant manager. At all
relevant times, Lisa Maxey was regional HR manager responsi-
ble for the Tucson facility. She spent about a week per month
in Tucson. (Tr. 1593.) The HR generalist in Tucson was Mar-
garet Madrigal until she was terminated in November 2012.
Christine Martinez (C. Martinez) served as the HR generalist
from December 2012, until September 5 or 6, 2013. (Tr. 144–
45, 1545.) The HR generalist was responsible for maintaining
employee personnel files. (Tr. 368, 371.) Julio Vasquez, the
safety manager, maintained employee safety files. (Tr. 369,
372.)
GRS operates on a fiscal year that begins on September 1
and ends on August 31.
1. The Tucson facility
GRS owns some of its repair shops and leases others.5 It
owns the Tucson facility, which is one of the larger facilities.
GRS also owns much of the equipment that was used in Tuc-
son.
TTX, a railcar pooling company,6 which is owned by the
Class I Railroads and has a fleet of over 200,000 railcars, was
GRS’s largest customer, and comprised 70 to 80 percent of the
business in the Tucson shop. GRS also had an agreement with
Pacer to have their cars repaired in Tucson’s intermodal shop.
(Tr. 2529, 2645.)
When a car came to the Tucson shop for service, writeup7
employees inspected it to determine what repairs, parts, and
materials were needed. They also estimated the number of
hours the repairs would take and entered this into a system that
tracked employees’ time spent on the cars. Switchmen then
took the cars on and off the tracks for repair.
Welder repairmen, often referred to simply as welders, ser-
viced and repaired the cars. Most cars were repaired in the
front shop, center shop or intermodal shop. Heavier repairs,
such as rebuilding a car after a derailment, were handled in the
wreck shop. Cars that needed to be painted were sent to the
paint shop. If a component of car needed repair, it was sent to
the truck shop for reconditioning. Painters sandblasted areas of
cars that needed paint, then painted the cars and applied stencils
and decals. Airmen worked on the cars’ air brake systems.
Some employees were cross-trained to perform more than one
function. Leadmen oversaw the crews and performed work on

5 GRS owns the repair shop in Chehalis, and leases the San Antonio,
Springfield, Cleburne, and Mira Loma facilities. (Tr. 1523–1524.)
6 The transcript reflects “pulling” rather than “pooling” but this is
clearly one of its many errors. In addition, “TTX” is frequently re-
ferred to as “DTX” or other incorrect variations. All transcripts have a
few errors, but this transcript contains an unacceptably large number of
errors, both in terms of using incorrect words and misidentifying who is
speaking. I did not receive a motion to correct the transcript from
either party. If the error is significant it will be pointed out, as here. It
is my strong hope that the abysmal state of this transcript is a one-time
anomaly.
7 Writeup employees are sometimes referred to as “AAR writeup
employees” in both testimony and documents. The abbreviation
“AAR” was defined in a different context as standing for “American
Association of Railroads.”
the floor.8 The leadmen reported to foremen, who oversaw the
shops and reported to the plant manager or production manager.
Once work was performed on a car, quality assurance inspec-
tors assessed it to make sure it was complete before it left the
shop. Maintenance cars had a turnaround target of 30 days and
repair cars 150 days. (Tr. 1067.)
Each employee had an individual ID card and each car was
assigned a number. When an employee was assigned to work
on a car, he scanned his ID card and entered the car’s assigned
number. That employee’s time was applied to that car until he
clocked out or entered information for a different car. Produc-
tion reports showed the customer, the type of car, the hours
allotted to the car, and the hours worked on the car. If an em-
ployee was not working productively, the leadman would bring
it to the attention of a supervisor or a manager. In such cases,
management would look at the production report for that em-
ployee. (Tr. 90–93.)
Employees who do the work on railcars are referred to as di-
rect labor. Employees who perform other tasks are called indi-
rect labor. In addition to the writeup employees and supervi-
sors/managers, other employees who did not work on cars in-
cluded materials handlers, who received parts and material for
the cars and distributed them. A materials manager oversaw
them. A maintenance man reported directly to the maintenance
manager. Tucson also had a plant accountant.
The plant manager was in charge of staffing the Tucson fa-
cility. Beginning in 2009 or 2010, GRS began using a tempo-
rary employment agency, Intermountain Staffing (Intermoun-
tain), for many of its hires in Tucson. 9 Marissa Almazan,
branch manager at Intermountain, coordinated with HR to pro-
vide the Tucson shop with temporary employees. Almazan
initially worked with Madrigal, and then after Madrigal was
terminated, she worked with Maxey. (Tr. 901.)
Intermountain used GRS applications when it was staffing
temporary workers for GRS. When the plant manager wanted
an employee to be hired through Intermountain, HR would ask
for a few completed applications. The plant manager would
then decide who he wanted to interview, and HR would set up
interviews. (Tr. 362, 903; GC Exh. 31.) The plant manager,
production manager, and usually a foremen conducted inter-
views and decided whether to hire a candidate. HR let candi-
dates know if they were chosen and conducted new employee
orientation. The temporary employees received the same orien-
tation and safety training as direct hires, which consisted of
acknowledgement of the employee handbook along with 4
hours of instruction with the HR generalist and 4 hours with the
manager. (Tr. 359–368, 435, 449.) Once they started at GRS,
temporary employees’ work was overseen by GRS supervisors.
(Tr. 88–89, 369.) Any disciplinary issues were communicated

8 The Respondent contends that leadmen are statutory supervisors
Leadmen issue oral and written warnings, give meaningful input into
promotions, effectively recommend discipline, assign and direct work
in a manner that utilizes independent judgment, authorize overtime, and
attend supervisor meetings. (Tr. 1158–1170, 2392–2393.) As such,
they meet the criteria to be considered supervisors under Sec. 2(11) of
the Act.
9 Madrigal recalled it was 2009; Marissa Almazan from Intermoun-
tain thought it was 2010. (Tr. 361, 899.)
GUNDERSON RAIL SERVICES, LLC 11
to Intermountain for handling. (Tr. 368–371.) The temporary
employees were eligible to be hired after 90 days, at which
point the foreman would share his assessment of the employee
with the plant manager. The decision to terminate or to retain a
temporary employee was entirely GRS’. (Tr. 449.)
A temporary employee hired on as a permanent employee
filed a new application and went through the new employee
process all over again, but was not re-interviewed. (Tr. 448–
449.) Attendance was wiped clean for temporary employees
hired as GRS employees. (Tr. 461.) Employees did not have to
fill out a new Greenbrier application for Intermountain each
time they were referred to work for Greenbrier. (Tr. 923.)
Foremen, were expected to do employee performance ap-
praisals twice per year. Employees performed self-assessments
which were reviewed by the plant manager, foreman and em-
ployee. The employee, foreman, and the HR generalist or re-
gional HR manager signed off on the review.10 (Tr. 376–379;
GC Exh. 32.)
2. Background events in 2011
In late 2010, welder repairman Rogelio Martinez (R. Mar-
tinez) started talking about bringing in a union. In 2011, pro-
duction employees R. Martinez, his son Jorge Martinez (J. Mar-
tinez), and Armando Lopez, led a campaign to bring in the
United Transport Union (UTU) to represent the production
workers in Tucson. Plant Manager Morrison recalled that em-
ployee Anajos Juarez was also a vocal supporter. (Tr. 115.)
J. Martinez received a written warning on August 12, 2011,
for soliciting employees about the union during work time. (Tr.
1406; GC Exh. 8.) R. Martinez received a written warning four
days later for soliciting employees about the union during work
time.11 (GC Exh. 37.) Madrigal recalled that three employees,
Gaston Ortiz, Rudy Pierson, and one other reported R. Mar-
tinez, saying he was being very pushy. (Tr. 412–13.) Madri-
gal also recalled that Armando Lopez and two other employees
were disciplined in 2011. (Tr. 414–415.) According to welder
Omar Ramos, prior to the 2011 election, his leadman Rudy
Pierson pulled him aside and told him to stay away from R.
Martinez and another individual because GRS wanted to get rid
of them for trying to bring in the Union. (Tr. 1730, 1747.)
Prior to the election, between June and October 2011, Lave
conducted several meetings at the Tucson facility with employ-
ees and managers about the UTU organizing drive. (Tr. 210–
11; 417–420.) R. Martinez recalled that during some of the
meetings GRS officials threatened to close the company down,
transfer employees to another state or lay them off/fire them.
(Tr. 1376–1377.)
In summer of 2011, due to GRS’ transition to the E-verify
system to screen for undocumented workers, Greenbrier con-
ducted an audit of employees’ social security numbers. About
85 employees, 13 of whom worked in Tucson, did not match
and were therefore ineligible to work. (Tr. 2597.) Seven weld-
er repairmen, three foremen, a quality assurance inspector, a

10 This practice changed shortly after Maxey came on board.
11 On both warnings, the employer failed to indicate whether or not
there had been previous or similar warnings, as neither the “yes” nor
“no” box is checked. It was common for employees to discuss non-
work topics such as sports and family. (Tr. 607, 880.)
leadman, and a writeup employee were ineligible to continue
working. These employees averaged over nine years of service
each. (R. Exh. 96; Tr. 2689.) The ineligible foremen were the
three most senior at the shop. There were only two quality as-
surance inspectors at the time, and the ineligible writeup work-
er was the only one at the Tucson shop at the time. (Tr. 2690;
R. Exh. 97.)
The UTU lost the election by three votes on October 28,
2011.
B. Big 5 Recovery Plan and Early Organizing Activity
Toward the end of 2011, Paul Wostman, the vice president
of business development, was charged with implementing an
initiative goal to turn around five repair shops that were under-
performing. Referred to as the “Big 5 Recovery Program”, the
initiative targeted shops in San Antonio and Cleburne, Texas;
Omaha, Nebraska; Chehalis, Washington; and the Tucson
shop.12 (Tr. 95–96, 2696–2697, 2728.) These shops were some
of the larger ones and were adversely impacted by the social
security audit. (Tr. 2696.) In addition to problems from the
immigration audit, Tucson struggled because the types of re-
pairs being requested made things less efficient. (Tr. 97–98,
128–129, 139–141.)
Hudgens sent Wostman Tucson’s hiring plan on December
14, 2011. The goal was to increase labor headcount from 74 to
95 by July in order to increase revenue and profit margins. (R
Exh. 98.) Wostman and Lave reviewed progress for each fa-
cility to meet monthly goals to increase headcount and meet
efficiency goals.13 (Tr. 2598–2599; R. Exhs. 81–86.) They
were trying to hire 2–3 employees per month. Tucson was not
able to meet its monthly hiring goals, and efficiency suffered
because Morrison had to focus more time on training a relative-
ly inexperienced work force. (R. Exhs. 49, 84.)
After becoming the general manager with oversight of Tuc-
son in the spring of 2012, Stewart began regular visits to the
Tucson facility. During one of Stewart’s first trips to Tucson,
Morrison informed him about the 2011 UTU union campaign.
(Tr. 2362–2363.) Also during one of Stewart’s first visits, he
and Maxey held communication meetings with all of the hourly
employees. The purpose was to let the employees communi-
cate any problems or concerns. (Tr. 2248–2249.) He was
aware Tucson had problems the previous year.14 (Tr. 2363.)
Stewart recalled a lot of feedback about not having the right
tools or equipment. Stewart brought the tool issues to Torra’s
attention around April or May 2012, and GRS ordered some
tools and equipment. (Tr. 295–306.)

12 In mid-September 2012, the International Association of Machin-
ists and Aerospace Workers did some campaigning at the Respondent’s
Chehalis facility. No representation petition was filed. (Tr. 165.)
13 Mr. Wostman developed “scorecards” to track performance. The
scorecards tracked financial statistics for the facilities, and were dis-
tributed at monthly meetings with GRS President Tim Stuckey. The
plant manager could enter comments to explain the statistics. (Tr.
2701–2704, 2713–2716; R. Exh. 9.)
14 Tucson made $654,000 in fiscal year 2011. (GC Exh. 265.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 12
Employees also complained about errors in assigning attend-
ance points and paid time off (PTO).15 (Tr. 2248–2249, 2341–
2342.) The Respondent uses a system called Kronos® (Kronos
system) for tracking employees’ time and attendance. Man-
agement was required to manually input the reason for an ab-
sence in order for attendance points to be tracked accurately.
Foremen were supposed to do this, but they had problems using
the system so Madrigal input the information for them. If a
foreman did not communicate that an individual who was ab-
sent had called in, the absence would default to a no-call/no-
show. (Tr. 388–393.)
Madrigal recalled Maxey performed an audit of the employ-
ees’ attendance points shortly after Maxey began working for
GRS in April 2012. As a result of the audit, about five or six
employees had their attendance adjusted. (Tr. 393, 453.)
Stewart brought individuals in from Chehalis, Washington to
train the people in Tucson. Labor utilization rates for Chehalis
and Tucson were each at 59 percent in April 2012, which was
22 percent under goal. In May, the labor utilization rate for
Chehalis was 56 percent, which was lower than Tucson. (GC
Exhs. 263, 264; Tr. 2351–2353.)
There was some restructuring of Tucson’s writeup depart-
ment during summer of 2012, and some other positions and
supervisors were moved around to better align employees’
skills and expertise. Stewart told Maxey and Morrison that
writeup employee John Anderson would become the AAR
billing supervisor, but he was not going to change his job title
for a couple of months. Some employees had not been entered
into Kronos correctly, so part of the review was to ensure each
employee was reporting to the right supervisor. In addition to
these changes, Julio Vasquez was hired as the environmental
health and safety (EHS) manager to replace the prior safety
coordinator who had been terminated. Two mechanics were
also hired and reported to Vasquez.16 (R Exhs.42–43, 47; Tr.
2265.) There was some improvement following the changes
but it was not significant enough in Stewart’s eyes. (Tr. 2268.)
Kathy Villalobos, the plant accountant, reported to Stewart
that during the month of July 2012, the Tucson facility lost
$4,418 (R. Exh. 45; Tr. 2270.) In August, the Tucson shop lost
$156,405.17 (R. Exh. 49.)
Through mid and late August, GRS was still planning to hire
more employees at the Tucson facility and it was identified as a
“fix-it” facility. The goal was to increase headcount to 95 by
August 31, 2012. The goal for San Antonio was to increase
headcount from 50 to 70. (GC Exh. 64; Tr. 559–561.)

15 He tried to hold these meetings quarterly and could recall two
more following the initial one. The subsequent meetings were much
quicker. (Tr. 2251–2252.)
16 Torra also said the decision was made to replace Morrison as plant
manager during the summer of 2012, though as discussed more fully
below, this did not take place until November. (Tr. 295.)
17 The repair shop in Atchison, Kansas, lost over $250,000 in Au-
gust. (Tr. 2422; GC Exh. 270.) For fiscal year 2012, there was a
$400,000 difference between cost of sales and total revenue for Tucson
and San Antonio. (GC Exh. 272–273; Tr. 2494.) Other facilities may
have experienced losses similar to Tucson in fiscal year 2012. (Tr.
2418–2419.)
On September 12, 2012, management noticed Tucson’s utili-
ty bill was excessively high. This was the result of two air
compressors with poor air line conditions. Stewart wanted to
have some compressed air companies come in to try to find a
solution, but he did not have the funds in 2012, so this did not
occur. (R. Exh. 46; Tr. 2274–2275.)
On September 14, Lave sent an email to Maciel, Stewart, and
Hudgens, among others, asking about the goals. He specifical-
ly asked Stewart for an explanation for missing the Tucson
headcount by 22, and asked Maciel to explain why the San
Antonio headcount was 12 short of target. (GC Exh. 205.)
Gonzalez-Pico (Pico) got a written warning for violation of
the attendance policy on September 25, 2012, Guillermo. He
had nine points as of September 24. (R. Exh. 73.)
In preparation for an executive team meeting where he
would be defending the Tucson shop’s performance, Torra
requested information from Stewart. (Tr. 2280, 2429.) On
September19, Stewart sent Torra an email, cc’d to Morrison
and Hudgens, about steps that had been taken to improve in
five key areas: safety, turnover/retention, quality, productivity,
and inventory management. He noted that the changes would
provide sustained improvement in all areas, but it would take
some time, and he would expect to see improvement in the first
quarter, with more significant improvement through the re-
mainder of fiscal year 2013. (R. Exh. 47; Tr. 2349.) He also
sent an email with financial data, noting some of the problems
in July and August. (R. Exh. 48.) Morrison informed Stewart
that their labor rate was $63 and their efficiency was 89 per-
cent. (R. Exh. 47.)
Torra participated in an executive meeting on September 20
with Chief Executive Officer (CEO) Bill Furman, the division
presidents, including the President of GRS Tim Stuckey, and
Greenbrier’s Chief Financial Officer (CFO) Mark Rittenbaum.
They discussed the shops performing poorly, including Tucson.
Torra described the cause of Tucson’s poor performance as
“very poor processes.” There was a directive to fix, sell, or
close under-performing shops, including Tucson. Management
agreed to a proposal to fix Tucson. (Tr. 2430–2433.)
In September 2012, employees were provided with a free
lunch to celebrate a month without accidents and coming out
ahead in terms of productivity. (Tr. 1479.)
Stewart approved a pay increase for Jaime Hernandez on
September 8, 2012. Morrison conveyed to Stewart that Her-
nandez had worked for GRS from 1995 until 2002, and then
was rehired in 2010. Hernandez’ foreman said he was one of
his strongest men, he “has never complained about his wages”
and “does everything he is asked to do and does it well.” Max-
ey was copied on the approval. (GC Exh. 9, 10; Tr. 135.)
Also in September, J. Martinez began to have conversations
with coworkers about the need to organize. They discussed
safety, wages, insurance, and working conditions. J. Martinez
called the United Food and Commercial Workers Union
(UFCW) and set up a meeting to discuss organizing GRS’ pro-
duction workers. (Tr. 744, 1292.) On October 24, 2012, J.
Martinez and welder Guillermo Murgia met with UFCW offi-
cial Efrain Sanchez. They both signed UFCW authorization
cards at the meeting. (Tr. 693–694, 1291–1292; GC Exh. 82,
169.) J. Martinez and some other employees passed out cards
GUNDERSON RAIL SERVICES, LLC 13
for the UFCW in late October and returned about 48 cards to
Sanchez. During this time period, front shop Foreman Martin
Torres asked J. Martinez if the union was “coming around
again.” J. Martinez said he did not know, and when asked why
he was asking, Torres replied there were “rumors . . . that had
been heard.” (Tr. 1294–1297; 1438–1443.)
As of October 2012, the Tucson shop was hiring because it
was still behind on meeting targeted headcount goals. Accord-
ing to Morrison, workflow was low, but they were trying to get
work into the shop and wanted employees in place when work
became available. (Tr. 86, 97.) According to Torra, there was
no decline in demand for work at the Tucson shop, just a de-
cline in the output. (Tr. 307.)
Also during October, Lave and Morrison discussed that it
had been almost a year since the UTU election, and the 1-year
ban on a union election was set to expire.18 Given how close
the vote was, Lave thought there might be new organizing ef-
forts. (Tr. 214.)
On October 18, 2012, Maxey sent Madrigal an email about
evaluations for October. Employees were rated on a scale of 1–
3. A score of 1 meant the employee needed improvement, a
score of 2 meant the employee was meeting requirements, and a
score of 3 meant the employee excelled. She asked why
Murguia got good marks and whether Martin, the reviewing
foreman, was confused about his rating. She further noted that
Murguia should have gotten a 1 on attendance because he had 6
attendance points. Maxey also questioned Jorge Maldonado’s
rating, stating that Martin noted he needed more work on weld-
ing but gave him good marks. Maxey pointed out that that
Jesus Lopez had 3 attendance points so he should have gotten a
2 instead of 1 on attendance. She opined that Oscar Salinas
needed to improve on safety but he got a 2 where he should
have received a 1. She noted Valdez had sent her a disciplinary
action on him that day, so he have received a 1. Maxey ex-
pressed a general concern about the lack of 1s in employee
appraisals. (R. Exh. 75.)
Lave met with the managers, supervisors, and leads on Octo-
ber 31, 2012, at the Tucson facility to inform them it had been a
year since the union’s organizing efforts. Madrigal was also
present. Leadman Antonio Acuna recorded the meeting. (Tr.
1152; GC Exh. 151.) Lave told them to keep eyes and ears
open and said there had already been chatter about another
organizing effort. (Tr. 120–121; 197, 212–213.) He stated that
“some conversation are already going on out in the shop” about
production employees being aware that “the one-year ban is
off, so there is already some discussion out there in the shop
about trying to bring the UTU or some other union back in,”
and that the Company knew employees were “somewhat ac-
tive.” (GC Exh. 151.) He noted that leadman or foreman had
heard talk about the Union coming back, and reiterated that the
philosophy of company was nonunion. (Tr. 122–123.) During
the meeting, one or two supervisors shared that they had heard
from someone on the shop floor that one or two employees had
been meeting offsite with a union person. Lave instructed the

18 Sec. 9(c)(3) of the Act forbids the direction of an election for any
bargaining unit where a valid election was held the previous year. See
29 U.S.C. § 9(c)(3).
supervisors and managers that if they saw any union materials,
they should give them to Morrison. He also told them to report
any union discussions to Morrison and to let him know if they
saw anyone at the gates or in the lunchroom. (Tr. 216– 218.)
At the time of the meeting, Acuna knew there was another
organizing effort but because he had become a leadman since
the previous campaign, he didn’t want anything to do with it.
(Tr. 1151.) Armando Lopez, one of the leaders of the 2011
campaign, had also since become a leadman in the truck shop.
J. Martinez spoke with Armando about the Union, updating him
about the process, including how many cards they had. (Tr.
1378.) J. Martinez also told his leadman Cesar Ledezma about
the organizing campaign in mid-October. (Tr. 1429.) Juan
Silva Gutierrez (Silva) spoke regularly with leadmen Ishmael
Lopez and Luis Lopez about the Union. He told Ishmael he
hoped the union would win the election and bring about chang-
es. (Tr. 653–654, 825.)
C. October 2012 Financial Losses and Response
Tucson’s financial data for October was very poor. A review
of the financial statements showed a negative of $185,000 in
“Direct Labor Applied to Jobs” whereas in September this was
zero. Money spent on repair and maintenance of equipment
and supplies rose roughly $40,000 from September to October,
and money spent on office supplies rose by more than $5000.
An Association of American Railroads (AAR) audit created an
unusual $5400 expense. Roughly $9,400 was spent on hazard-
ous waste disposal in October and no money was spent on this
in September. Other costs, such as overhead applied to jobs
and travel expenses, may have been inaccurate because of the
change to Syspro. (GC Exh. 266; Tr. 2366–2371.)
In late October, general managers and regional managers
participated in a financial call. They discussed the fact that
Tucson’s performance was unacceptable and the contributing
factors. Torra said he could no longer defend the facility. Prob-
lems were the mix of work from the customers, the plant man-
ager’s poor management, issues with tools and equipment, the
division of the facility into four shops, failure to follow pro-
cesses and procedures, and a relatively inexperienced work
force. Specifically, with regard to mix of work, there were too
many cars needing relatively light work as opposed to a mix of
cars needing light and heavy work.19 Layoffs were not dis-
cussed during this call but they discussed need to replace the
plant manager as well as the need to come up with a plan to
turn the shop around quickly. (Tr. 1236–1245.) According to
Stewart, he and Maciel, who was also on the call, were charged
with devising a plan to present at the plant managers’ meeting
in Chicago scheduled to take place November 5–7. (Tr. 1246,
2313.)
On October 31, Stewart sent an email to Torra and Hudgens,
cc’d to Morrison, regarding a $250,000 shortfall of the net
earnings target for October. He attributed $65,000 to a change
in how overhead rates were applied in Syspro and $50,000 in
unusual expenses. The remainder was because of 56 percent

19 The monthly scorecard attributed the losses to a poor work mix,
poor initial write-ups, poor efficiencies, and materials issues. (Tr.
2297–2301; R. Exh. 49.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 14
labor efficiency, i.e., proportion of billed hours versus total
hours worked, and 72 percent billing efficiency.20 Stewart
noted that the more they worked, the more they lost. (R. Exh.
50.) In a November 1 email, GRS’ Vice President of Finance,
Todd Abel, informed Stuckey that for every hour worked, the
company lost money. He noted that the Dothan, Alabama, and
Atchison, Kansas facilities were also expected to miss the plan
badly. He pointed out it was Tucson’s first month on Syspro so
hopefully things could turn around. Stuckey informed Torra
(among others) that it was time to “step up or step down” and
stated they needed to act decisively NOW” and “get intense
quickly” to “stop the bleeding” in Tucson. (R. Exh. 64.) On
November 5, Torra asked Abel for a rough estimate of the costs
to close the Tucson facility. The cost to close Tucson would
have been at least $5.3 million in property, plant and equip-
ment, which Torra determined was too expensive. (Tr. 2438–
2439; R Exh. 65.)
Stewart said that prior to the meeting in Chicago, he and
Maciel identified that the front and center shops were best suit-
ed for the work that was coming in to Tucson and looked at
what work force the buildings would support. They conveyed
this to Torra in Chicago, as discussed below. Maciel initially
stated he and Stewart decided they would downsize the work
force in Tucson in late October, but when reminded of the con-
ference, he said he learned of it at the conference. (Tr. 1046–
1049.)
Labor utilization rates in San Antonio for August, Septem-
ber, October 2012, ranged from 41 to 46 percent. (GC Exh.
282; Tr. 2746–2747.) As of November 2012, San Antonio,
Tucson, and Atchison were all on the “fix” list. (R. Exh. 65;
Tr. 2438–2444.) As of October and November 2012, the Tuc-
son shop was still hiring welders and other employees through
Intermountain Staffing. (GC Exh. 33–36; Tr. 399, 409–410.)
D. Concurrent Events in Early November
1. Organizing
In early November 2012, Sanchez told J. Martinez that the
Sheet Metal Workers Union was more in line with the work the
GRS employees performed, so he arranged for them to meet.
(Tr. 1297.) J. Martinez, R. Martinez, and Murguia went to the
Sheet Metal Workers’ office on November 5. Greg Sudyam,
marketing representative for the Sheet Metal Workers Union,
was present along with business manager Dion Abril and busi-
ness representatives Pat Montroy, Marco Molina, and Jeff Hol-
ly. Sanchez also attended. (Tr. 1446.) J. Martinez, R. Martinez
and Murguia each signed Sheet Metal Workers authorization
cards and took cards to pass out to their coworkers. (Tr. 695,
1408–1409, 1822; GC Exhs. 83, 170, 201.) About a dozen
other employees also went to the November 5 meeting, but no
managers, foremen, or leadmen attended. (Tr. 697, 748–750.)

20 The American Association of Railroads has industrywide matrix,
the Office Manual, with standard number of hours that can be charged
for different work performed. Billing efficiency rate is number of
hours worked measured against number of hours that can be billed for
the work performed. (Tr. 1500–1501.)
The organizers wanted to keep the organizing efforts a secret.21
(Tr. 756.)
The following day, J. Martinez passed out SMW authoriza-
tion cards to coworkers in the intermodal shop, wreck shop, and
lunch room. He told coworkers to read the cards and sign if
they agreed, and watched them initial and sign the cards. (Tr.
1302–1321.) He explained that the cards would give authori-
zation for collective bargaining and if 30 percent returned
cards, they could petition for an election and would then need a
majority to win. (Tr. 1446–1447.)
Ramos talked to coworkers around the truck shop area dur-
ing lunch and breaks, and passed out SMW authorization cards
in the lunch area and by the time clock. He explained the con-
sequences of signing a card as being represented by the Union
and having a better chance at job security. (Tr. 1712–1716.)
Ramos spoke to employee Brian Perona in October 2012 about
the SMW, but Perona said he did not want to get involved be-
cause when he worked for GRS in California, some employees
who tried to bring in a union got fired. (Tr. 1755.)
Murguia passed out cards to coworkers before and after
work. He told coworkers to read the cards carefully and to sign
if they wanted the SMW and not sign if they didn’t. The fol-
lowing employees filled out SMW cards in his presence: Jesus
Nuno, Alex Amador, Jesus Arellanes, Jorge Maldonado, Adol-
fo Alonso, Jesus Lopez Nunez, Juan Manuel Enriquez, Jesus
Peralta, Jaime Hernandez, Jesus Ruiz, Jesus Barnes, Pedro
Contreras, Javier Madrid, Roberto Ruelas, Jesus H. Lopez ,
Ramon Parra, Engenio Ruiz, Jose Barcelas, Everaldo Andolon,
Jeff Raske, and Guillermo Gonzales Pico. (GC Exh. 84–123,
130.) Ramos also signed a card and gave it to R. Martinez.
(Tr. 1717; GC Exh. 223.) Pico collected cards from Alberto
Salas and Oscar Lopez and gave them to J. Martinez (GC
Exhs. 131–133; Tr. 876–877.) Angel Ortega, Victor Sigueros,
Alcides Valencia, Cilboto Milton, and Jose Soto signed cards
on November 6. (GC Exhs. 236–245; Tr. 1720–1727.) Ricar-
do Martinez signed a card on November 7. (GC Exh. 149; Tr.
930–931.) Oswaldo Chavira Duran (Chavira) signed a card on
November 7. (GC Exh. 234; Tr. 1718.) Miguel Valdez, Artu-
ro Sanchez, Eliseo Aguilar, Angel Amavizca, Jesus Martinez,
Gabriel Ortiz, Javier Garcia, Michael Robles, and Eddie Du-
arte, signed cards on November 6 and gave them back to J.
Martinez. (Tr. 1307–1321; GC Exhs. 170–187.) He collected a
card signed by Gamaliel Rabago on November 8, though it was
mistakenly dated as “11/16.”22 (Tr. 1322–1324; GC Ehxs.
188–189.) J. Martinez also collected from Ricardo Castro and
Carlos Ortiz on November 8. Rabago gave Jorge Martinez
cards from Martine Martin and Brian Scaggs. Juan Silva
signed a union card on November 7, and Hector Federico also
signed a union card. (GC Exh.78; Tr. 595–596, 650.) Manag-
ers were not present when employees signed the SMW cards.
(Tr. 763.)
J. Martinez, R. Martinez, and Murguia gave the cards to the
Union at a meeting on November 8. (Tr. 1337.) Sudyam re-

21 Union supporters did not wear union insignia at work or otherwise
advertise their support for the SMW or any union.
22 It is clear from the date stamp on the card showing its receipt at by
NLRB as November 11, that it was not signed on November 16.
GUNDERSON RAIL SERVICES, LLC 15
called the SMW collected a total of 51 cards. He made copies
of the cards and put them in a safe with the intention of sending
them to the NLRB with a petition. (Tr. 1825–1828.) As of
November 8, there were 84 production employees, 10 of whom
were temporary employees. Not counting cards from tempo-
rary employees or leadmen, there were 46 signed authorization
cards. (GC Exhs. 25, 15.)
During the week of November 5, Madrigal heard from mate-
rials manager Keith Tarpley that there was talk of the union
coming back. The same week, Vasquez also told Madrigal that
a lot of employees were saying the Union was trying to come
back. She planned to let Morrison know about it when he re-
turned to the Tucson shop on November 12. (Tr. 421–422.)
The morning of the layoff, Murguia recalled Foreman Martin
Torres told him “it looks like they were going to lay people off
from work because the situation was looking pretty bad.” He
also said he “thought that it was because of the Union.” (Tr.
739–740.)
2. Plant manager’s conference and layoff planning
There was a plant manager’s conference in Chicago on No-
vember 5–7. Lave, Hudgens, Stewart, and Maciel attended,
among others.
During one of the evenings of the conference, Stewart and
Maciel met with Torra and possibly Hudgens at a bar to discuss
right-sizing Tucson Maciel and Stewart said their plan was to
close all but the two original shops, the front shop and center
shop, and to reduce the work force accordingly. Torra said to
do it and clear everything with Lave. (Tr. 299, 1236, 1245–
1248; 2313–2316, 2361.) The meeting lasted about an hour
and no written documents were presented. (Tr. 2361–2362.)
Torra had ultimate decision-making authority regarding
downsizing the Tucson shop. His decision to lay off employees
was the result of discussions with Maciel and Stewart. They
determined there was a “process issue” so to fix the process it
made sense to consolidate operations. They had tried to in-
crease volume of the shop by hiring more employees, buying
some new equipment, and making management changes, but
these efforts did not work. (Tr. 287–292.) Torra told Maciel
and Stewart to consider skill and ability, per their assessments,
in determining which employees to layoff. (Tr. 309, 333.)
Torra said he was unaware there was a union campaign going
on at the Tucson facility. (Torra 310–311.)
Stewart began executing the plan by selecting the manage-
ment staff and identifying the appropriate number of direct
workers and support positions. (Tr. 2314.) He and Maciel
determined they would need 56 direct and 19 indirect employ-
ees. (Tr. 1057, 1063, 2323; GC Exh. 15; R. Exh. 52.) Stewart
came up with the number of employees based on the number of
car spots in the two facilities that were to remain open along
with the hours of work and mix of cars. (Tr. 1252–1253.)
Maciel did not discuss workload with Stewart prior to coming
up with this target headcount. (Tr. 1065.)
According to Maciel, he and Stewart started working on the
plan when they got back from Chicago. They requested a list of
employees from Maxey, which she provided on November 7.
The list contained each employee’s id number, seniority date,
last hire date, position, supervisor and pay rate. (GC Exhs. 157,
227; Tr. 1056.) By Stewart’s account, Maciel selected who
would be retained as part of the direct work force on November
8, based on which employees had the skills they needed to per-
form the work coming from TTX. (Tr. 1258.) Stewart was not
familiar enough with the direct work force to know the em-
ployees’ skills. (Tr. 2316–2317; R. Exhs. 51, 54.) Stewart
recalled Maciel telling him he spoke with production manager
Valdez and Valdez’s predecessor Jerry Dover to determine
which employees to keep. (Tr. 1256–1257.) Stewart did not
review personnel files. (Tr. 1259.)
Maciel recalled that he and Stewart went down the list em-
ployee by employee to decide who they wanted to retain.
Maciel decided who to let go based on feedback from Stewart
and Valdez. (Tr. 1059–1062.) The factors they considered
were the employees’ skills, performance, safety, and cross-
training. They had no input from supervisors or foremen.
Maciel did not review any documents such as attendance rec-
ords or performance evaluations. (Tr. 1052–1055.)
Valdez testified he was not asked about any individual em-
ployee’s performance or whether any individual employees
should be laid off or retained. (Tr. 1803–1804). He first
learned about the layoffs the day they occurred, during a group
meeting of employees who were told they were being retained.
(Tr. 1801–1804.) Morrison was not asked to run any reports
prior to November 2012 layoffs, nor was he asked who had
high productivity or good attendance. (Tr. 133–134.)
Hudgens did not recall talking about the layoffs at the con-
ference in Chicago, stating that the general managers went
around him and dealt directly with Torra. (Tr. 1492–1493.)
Stewart informed Lave of layoffs at the conference on No-
vember 7. He told him the shop was continuing to lose money
and the operations team had decided to restructure it by chang-
ing the plant manager, laying out the shop differently to address
inefficiencies, and reducing the headcount because there was a
lack of railcars. (Tr. 151.) Stewart also informed Lave that
Jack Lopez, the quality assurance inspector, and Madrigal, the
HR analyst, were being removed. (Tr. 172.) That same day,
Stewart sent an email to Maxey and Lave, cc’d to Maciel and
Hudgens, with a directive to hold off on new hires because of
the impending layoffs. (GC Exh. 70; Tr. 578.)
Maciel and Stewart decided that employees needed to be let
go on November 12. (Tr. 1053.) Lave learned that November
12 would be the date of the layoffs on November 8 or 9. (Tr.
156.)
On November 8, Stewart sent Maciel an email, cc’d to
Hudgens, entitled, “fill in the blanks” stating that they just
needed to finish filling in 56 direct and 19 indirect employees.
Hudgens responded that it would be easy to figure out how
many hours they could bill with this headcount, and asked if
one of them was going to estimate which fixed costs could go
down with this headcount in order to get to a break-even point.
(GC Exh. 204.)
Madrigal was not asked to pull attendance records, perfor-
mance reviews, disciplinary records, or personnel files prior to
the layoffs. Personnel files existed in hard copy only and were
maintained at the Tucson facility. (Tr. 389–396.) According to
Maxey, to assess performance, they used just “general infor-
mation about employees’ performance.” (Tr. 1628.) Maxey
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 16
recalled giving attendance reports to Stewart, Maciel, and Lave.
(Tr. 1626.) Lave did not know the number of attendance points
the employees had. (Tr. 181.)
On Saturday, November 10, Lave reviewed the layoff deci-
sions to make sure there was not disparate treatment or impact
or concerns with Family and Medical Leave Act (FMLA),
Equal Employment Opportunity (EEO), Uniformed Services
Employment and Reemployment Rights Act (USERRA) and
workers’ compensation. (Tr. 154.) He otherwise was not in-
volved in the decisions about which production workers should
be laid off, but noted that GRS’ protocol is to look at perfor-
mance quality, safety record, attendance, and whether they are
cross-trained in other jobs. 23 He assumed Stewart and Maciel
assessed these factors. (Tr. 495–499.)
In an email sent at 12:35 a.m. Saturday night/Sunday morn-
ing to Hudgens, Maciel, and Stewart (cc’d to Stuckey, Torra,
and Maxey), Lave responded to the proposed layoffs, express-
ing concerns that there were too many employees in their 50s
and 60s, and too many Hispanic and older repair people being
terminated so he made suggestions to make it more balanced.
(Tr. 182; GC Exhs. 11, 14, 16; R. Exh. 55.) Based on Lave’s
concerns, Stewart and Maciel made some changes. John An-
derson, a writeup employee,24 was retained because of Lave’s
recommendation. He noted that the AAR writeup employees
Stewart and Maciel proposed to retain each had only 3 months’
experience, while Anderson had at least 6 years, and the other
employee proposed for layoff had 9 months of experience.
Fonseca was retained as painter based on feedback from Lave
that he was the only American Indian/Alaskan Native employ-
ee, he was 64 years old, and had been with GRS 5 years. Based
on Lave’s concerns that only Hispanic welders were targeted
for layoffs, welders Ramon Parra and Eugenio Ruiz, who had
been recommended for layoff, were instead retained. Welders
Oswaldo Chavira and Brian Scaggs were recommended for
retention but were instead laid off. (Tr. 1070–1077; R. Exh.
56).
E. The Layoffs
On November 12, employees were divided into two separate
meetings: one for employees being laid off and another for
employees being retained. Maxey had previously distributed
talking points and a timeline to Hudgens and Maciel (with Lave
cc’d) for meeting with the employees in Tucson. Maciel and
Valdez met with the employees being retained, and Hudgens
and Maxey met with the employees being terminated. (GC Exh.
42.)
Employees who were being retained met in the front of the
facility. Maciel addressed the Spanish speaking employees and
said that GRS was letting people go, but this group was going
to stay. Silva recalled being told they were the best employees
so they were chosen to stay, and they “were going to erase all
the points and everybody was going to have to start a clean
sheet like so everybody had zero.” (Tr. 658.)

23 Maxey recalled the factors as position, cross-training, attendance,
safety record, and equipment they could operate. (Tr. 1624.)
24 At the time of the hearing he was billing manager.
The 27 employees who were being let go on November 12
met with Hudgens and Maxey.25 J. Martinez taped the meeting.
(Tr. 1377–1378.) Vasquez provided Spanish translation.
Hudgens let the employees know they were being let go be-
cause the shop had been losing a lot of money the last few
months, and their efforts to bring people in and train them had
failed, so they needed to take immediate, drastic action.
Hudgens then said Maxey was there to answer any questions.
When asked how employees were chosen, Maxey responded
that it was a matter of restructuring the whole shop, and they
considered productivity, performance, attendance, and profita-
bility. Some of Maxey’s comments were inaudible. Vasquez’
translation stated:
There were a lot of factors that influenced what has happened
here and why this decision was taken. The people that are in
this group here, in some cases, it was because they had an at-
tendance record and in other cases, it was because of produc-
tivity. In other cases, it was the manner in which they just
handled themselves in general or they performed in general.
And in other cases, it was also that the people that are here are
here as a support team.
Maxey informed them they would be paid for that shift that day
along with any accrued PTO. Hudgens let them know that
Morrison and Madrigal had been let go.
Between 21 and 23 minutes into the meeting, J. Martinez
stated in Spanish, with an interpreter translating to English in
the background:
Last year, they brainwashed you guys all, promising you
things that—things so that you wouldn't vote for the union,
because they were defending the company in order to suppos-
edly give them a second opportunity. But you can have this
down for sure. That this Monday, there's going to be a peti-
tion for a union vote. They want to vote. Yes, they want to
vote. And that's the petition for a vote. And I'm going to tell
you this. And I'm telling you this, because I'm one of their
leaders. It's that simple. So this Monday, we'll have—they're
going to have a petition. So just, you know, to be prepared.
A couple of other employees referred to a union organizing
campaign. An employee stated, “I wanted to vote for the un-
ion” and another said “I wanted to vote for the union last year.”
After a few other comments, the meeting ended with Maxey
offering to answer any questions. (Tr. 1354–1375; GC Exhs.
199–200.)
R. Martinez and Juan Morales were not at work on Novem-
ber 12, so they were notified of their terminations on November
13.26 (Tr. 1697–1698.) In total, 29 employees were laid off.

25 These employees were Alex Amador, Jesus Fernando Barnes, Da-
vid Bottinueu, Oswaldo Chavira, Karim Duqmaq, Hector Federico,
Jaime Hernandez, Jesus Armando Lopez-Nuno, Jorge Martinez, Jesus
Martinez, Ricardo Martinez, Karl Mason, Chad Morshback, Guillermo
Murguia, Jose Angel Ortega, Carlos Contreras Ortiz, Gabriel Ortiz,
Brian Perona, Guillermo Gonzalez Pico, Jesus Omar Ramos, Jeff
Raske, Jesus Ruiz, Oscar Salinas, Brian Scaggs, Jose Manuel Sepul-
veda, Frank Soto, and Martin Valdez.
26 Juan Morales is listed in the complaint as being laid off on No-
vember 12, but the evidence shows it was November 13.
GUNDERSON RAIL SERVICES, LLC 17
Employees were terminated with no expectation or promise of
recall. (Tr. 155–156; GC Exhs. 199–200.) Among the em-
ployees retained were three from a temp agency, each of whom
had been working at the Tucson shop for less than 2 months.
(GC Exh. 139–141; Tr. 909–912.) Jaime Hernandez, who was
“one of the strongest” employees and had received a raise ap-
proved by Maxey on September 8, was laid off.
Morrison was removed as plant manager as of November 12,
and Juan Maciel was named interim plant manager. (R. Exh.
66.)
At the time of the layoffs employees were working mandato-
ry overtime on a weekly basis. About half employees were
working overtime about 10 to 13 hours per week, Mondays
through Thursdays and Saturdays. (Tr. 398, 454–455.)
F. Attendance Audit
On November 12–14, Maxey spent time reviewing employee
attendance because prior to the layoff, individual employees
had told her about errors. (Tr. 483, Tr. 1632–1633.) The con-
cern was that Madrigal had not been keeping proper records,
and some people were assessed attendance points that were
unwarranted, while others were not assessed points when they
should have been. Maxey and Maciel raised the idea of rolling
back attendance points with Lave. He agreed it did not seem
fair to go forward with bad data, and thought it also would give
employees a morale boost. (Tr. 481–488; GC Exh. 40.) Torra
approved the rollback on November 15, and it was announced
to employees that same day. (Tr. 488; GC Exh. 41.) Maxey
(with Maciel translating) told employees they had found some
errors with the points, and to ensure fairness to all employees,
they were rolling back the points, but the same attendance poli-
cy was still in place. (Maxey 1629–1631.)
G. The Petition and Request for Recognition
Murguia informed the Union about the layoffs on November
12, and five or six employees met with the Union at its Phoenix
office on November 13. (Tr. 1828.) The Union filed a petition
for election on November 14 and submitted 51 signed authori-
zation cards. (GC Exh. 1(c); Tr. 1831.)
On November 20, Sudyam and Holly went to Greenbrier’s
Tucson facility and asked to speak to Valdez. The receptionist
told them that any communications needed to be directed to
Lave. (Tr. 1833.) That same day, the Union sent, via certified
mail, a document entitled, “Recognition Agreement” to Lave.
The recognitoin agreement states that the Union has submitted
and the employer is satisfied that it represents a majority of its
employees in an appropriate unit. It further sets forth agree-
ments pertaining to representation and collective bargaining.
(GC Exh. 251, 259, 260; Tr. 1951–1952.) No cover letter was
sent with the recognition agreement. (Tr. 2609.) The Union
did not follow up with Lave and did not send him cards or a list
of employees who had signed cards, nor did Lave follow up
with the Union. (Tr. 1975–1976, 2610.)
Maxey claimed she did not know about the union organizing
drive until the petition was served in November 2012, and that
she never saw anyone sign cards or any other indicia of union
support from employees. (Tr. 1561.) Lave said he did not
know about the organizing drive until the petition was served
on November 15. (Tr. 2608.)
H. Pay Raise and Bonus
Hourly employees who are at the top of GRS’ pay scale for
their positions are considered to be “capped” and are subject to
annual pay increases. GRS historically determined what the
increases would be in November or December, and they were
paid retroactive to September 1, the beginning of the fiscal
year. (Tr. 2617–2621.)
On November 27, 2012, Stuckey announced that for em-
ployees who were at the top of their pay range, hourly pay in-
creases would take place on January 1 instead of the usual date,
September 1. To facilitate the change, eligible employees re-
ceived a one-time lump sum of $350. (R. Exhs. 90–92.)
The Bill Furman year-end bonus, also referred to as the CEO
bonus, was paid in mid-December 2012 to all employees in the
corporation. Lave heard about it from Walt Hannon, the senior
VP of and chief human resources officer for Greenbrier Com-
panies, Inc. The employees who were working on the Decem-
ber 14 payout day received the bonus. (Tr. 500–502.) How
much an employee received depended on years of service to
Greenbrier. Other subsidiaries did a flat-rate bonus. (GC Exh.
43, Tr. 505–506; R. Exh. 88.)
I. Rehiring Employees and Continued Recovery Planning
On December 10, Abel sent an email to Torra, Lave, and
Bernie Ferguson, vice president of sales and marketing, stating
that Furman had requested a case history of Tucson that culmi-
nated in its current dire situation. Torra responded on Decem-
ber 16, recounting a plant manager passing away in 2009, a
large layoff in 2009, loss of employees due to INS issues in
2011, the union vote in 2011, and a couple other personnel
changes. (R. Exh. 271.)
In early 2013, GRS management decided to start bringing
back some of the employees it that had been laid off. Torra
wanted to see a 15–20-percent increase in labor efficiency be-
fore bringing back employees. Torra gave approval to start re-
hiring employees in February 2013. He based this decision on
improved efficiencies in the work force. (Tr. 234, 333–339.) In
December 2012, the labor utilization rate in Tucson was 55
percent, in January 2013 it was 46 percent. By Stewart’s ac-
count, he had the discretion to determine when labor utilization
rates were under control, and he decided to start rehiring em-
ployees in Tucson because the labor utilization rates had hit the
desired target. Stewart considered a labor utilization rate of
between 60 to 80 percent as being under control; rates of 46
and 56 percent were not considered under control. (Tr. 1268,
1278–1279)
To meet profit goals, they decided to they needed to increase
headcount to about 70–90 employees. To ensure training was
done properly and to minimize stress on management and sup-
port staff, the re-hiring was to be done gradually, around four
employees per month. (Tr. 1086, 1267–1269, 1274.) They
were going to rehire some welder repairmen based on skillset
and the ability to return to work without needing any training.
Maciel wanted candidates who had passed a welding test and
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 18
had previous railcar repair and welding experience. (Tr. 1556–
1559.)
To select who should be rehired, Stewart said Maciel talked
to Valdez and Dover, and came up with the employees he
thought had the skillset they needed. (Tr. 1270.) Maciel said
he determined who to rehire with input from Valdez. (Tr.
1087–1088, 2380.) Valdez said he was not consulted about
whom to rehire. (Tr. 1975–1996.)
There was no written rehiring process and the former em-
ployees seeking to be rehired were considered to be the same as
new hires. They were required fill out a new job application
and return it to C. Martinez. She would then set up an inter-
view with the plant manager. (GC Exh. 206.) C. Martinez said
she gave the former employees about a week to get back to her
with a completed application. (Tr. 2796.) Maciel was not sure
whether all re-hires submitted a new application. He did not
see or review the applications. (Tr. 2380.)
Maxey reviewed all rehire decisions and looked at the former
employees’ applications and separation information, but HR
did not review performance records or evaluations. (Tr. 581–
582, 1550–1553.) Maxey and Lave told C. Martinez to keep a
log of which former employees she called, their response, and
if there was anything unusual about her interactions with the
former employees. Maxey reviewed the log about once a
week.27 (Tr. 1667–1670.) Maxey looked for how the former
employees interviewed, whether they filled out their applica-
tions completely, and whether they had questions or concerns
about going back to work. She screened for employees who
had negative attitudes or a chip on their shoulder about coming
back to work. (Tr. 1576–1577, 1684–1686; GC Exh. 206, p.
11.)
Lave reviewed all candidates with felony convictions prior to
GRS offering them a position. These employees filled out the
regular application along with a supplemental application that
addressed the details of their felony convictions. (Tr. 552.)
On January 23, Stewart sent Lave an email asking whether
he had made progress on the first four employees set to be re-
called. Lave responded that Torra would be discussing it with
Stewart and Maciel. (GC Exh. 44.) On January 25, 2013, Lave
reviewed the names of four employees for potential recall to
see if they would present any issues. (GC Exh. 45; Tr. 517.)
On Friday February 1, Maciel gave C. Martinez a list of five
laid-off employees he was considering for re-hire: Martin Val-
dez (M. Valdez), Jaime Hernandez, Carlos Contreras Ortiz (C.
Ortiz), Gabriel Ortiz (G. Ortiz), and Oswaldo Chavira. (GC
67.) She called them all that same day. She scheduled inter-
views for C. Ortiz and Chavira for February 4, Hernandez and
G. Ortiz for February 5, and M. Valdez for February 6.
C. Ortiz was the first interview on February 4. He came in,
completed an application, and interviewed with Maciel. He was
offered a job as a welder repairman, and accepted effective
February 5. (GC Exh. 67; R. Exh. 57.)
Later that day, Chavira came and went straight to Maciel’s
office. Maciel sent him back up front to complete the applica-

27 A similar log was not maintained for new hires. C. Martinez gen-
erally made the entries but sometimes would cut and paste from emails.
(Tr. 2770–2771.)
tion. He entered in a hurry, said he did not have time to fill out
the application, and asked if he could take it with him. He said
he had a new job and wanted to see if he liked it before decid-
ing whether to return to GRS. He was “short” when speaking
with them, and C. Martinez noted, “Juan not impressed with his
tone.” He asked if he could bring the application back in a
couple of weeks. C. Martinez said that was fine but there was
no guarantee the job would still be open. (GC Exh. 67.)
Maciel recalled Chavira stating that had another job and needed
about 30 days to consider whether or not he wanted to come
back. Maciel instructed him to take an application if he was
interested, but recalled that he never did. (Tr. 2390.) After
Chavira left, C. Martinez spoke with Maciel, who told her Val-
dez knew of another candidate they could call, Hector Federico.
She called Federico and scheduled him to come in on February
6. (GC Exh. 67.)
Hernandez and G. Ortiz each came in on February 5, filled
out applications, and interviewed with Maciel. They both were
offered and accepted jobs as welder repairmen effective Febru-
ary 6. (R. Exhs. 58–59; GC Exh. 67.) M. Valdez and Federico
went through the same motions on February 6, and were of-
fered and accepted jobs. Federico was earning $11 per hour as
general labor prior to the layoff but was brought back as
switchman at $13.74 per hour effective February 11. He had
not worked as a switchman before but he received on-the-job
training when he was rehired. (GC Exhs. 67, 72; R. Exh. 61;
Tr. 618.) M. Valdez, who had a felony conviction on his rec-
ord, was hired as a welder repairman effective February 11.28
(Tr. 1575; GC 206 p. 8; R. Exh. 60.) C. Martinez made a note
on February 6 that Chavira told him he would let her know on
February 8 whether or not he was interested in returning to his
job. (GC Exh. 67.)
On February 7, Juan Morales, who was a painter at the time
of his layoff, submitted an unsolicited application.
On February 14, Stewart and Maciel told Lave they needed
to increase the headcount from 57 to 65 over the next 45 days.
Work had increased, there was a backlog, and production em-
ployees were working overtime. (GC 46; Tr. 1095; 1554–
1555.)
On February 19, Chavira called C. Martinez to let her know
he had dropped off his application on the 15th. She told him
she would get back to him after speaking with Maciel. C. Mar-
tinez obtained Chavira’s phone number and emailed Maciel to
let him know about Chavira’s interest. Maciel did not recall
following up with Chavira. (GC Exh. 67; Tr. 2400–2401.)
According to Lave’s notes, Chavira dropped off an application
on February 15, called to follow up on February 19, and came
by the office on April 24 to inquire about employment. He was
not rehired due to bad interview attitude, refusal to complete
application, and delay in eventually completing application.
(GC Exh. 63.)
Also on February 19, Ricardo Martinez (Ricardo M.) submit-
ted an unsolicited application. C. Martinez’ notes describe
Ricardo M. as a painter, but GRS records show him as a gen-
eral laborer at the time of the layoffs. (GC Exhs. 63, 67.)

28 Lave was involved in the decision on whether Valdez would be of-
fered a position because of his felony conviction. (Tr. 553.)
GUNDERSON RAIL SERVICES, LLC 19
Welder Brian Scaggs submitted an unsolicited application on
February 21. (GC Exh. 67.)
On March 1, C. Martinez sent Maxey quotes to run employ-
ment ads. (GC Exh. 219.) On March 4, Maxey told Stewart
and Maciel she had placed an ad on Craigslist and One Start,
the local unemployment office, for a maintenance mechanic.
(Tr. 1635–1636.) Stewart suggested they may have better luck
if they targeted better communities.
Valenzuela started as the new plant manager on March 4,
2013. Stewart informed Valenzuela about the layoff and told
him the union claimed it was due to the organizing. (Tr. 1123–
1224.) Valenzuela oversaw the rehire process from this point
forward, and Maciel’s involvement was minimal. (Tr. 2390.)
According to Valenzuela, he would tell Maxey the number of
employees they needed for the month and she would send him a
list of names. Valenzuela initially testified he did not review
files during the rehire process, but asked C. Martinez to see if
there were problems such as missing work. (Tr. 1204.) He
later testified that he looked at employees’ files prior to hiring
them to see if they had safety or attendance issues. (Tr. 2111.)
On March 6, Maxey sent C. Martinez a list of five employees
GRS would like to bring back from layoff. She instructed her
to, as with the others, “keep very detailed notes of your interac-
tions with them.” When C. Martinez responded, she asked if
she should sit with the employees as they fill out applications,
and Maxey responded that she should sit with them first and
then ask Valenzuela how he wanted to proceed with interviews.
(GC Exh. 206, p. 12.) C. Martinez’ log for March 7 states she
received a list of the following employees: Antonio Acuna,
Jesus Lopez Nuno, Jose Sepulveda, Joes Ortega, and Jesus
Barnes. She called them that same morning, was unable to
reach Acuna and Ortega, and left a voicemail for Nuno. Sepul-
veda and Barnes agreed to come in on March 8. Nuno came
into the office on March 8 and asked if he could take an appli-
cation home so that his brother could help him read and com-
plete it. Sepulveda and Barnes completed applications, inter-
viewed with Valenzuela, and accepted positions as welder re-
pairmen. (GC Exh. 67; R. Exhs. 10–13.)
Acuna called Foreman Hector Barajas on March 8 and 9, and
told him he was interested in coming back. C. Martinez told
Barajas to have Acuna call her and come fill out an application.
She talked to Maxey about accommodating Acuna’s schedule
as much as possible because he was working out at the mines.
(GC Exh. 67.)
Nuno returned his application on March 11, spoke with
Valenzuela, and accepted a job as a welder’s helper. (R Exhs.
14–15.) Acuna came to the office on March 11, filled out an
application, spoke with Valenzuela, and accepted a position as
a welder repairman. (R. Exhs. 16–17.) C. Martinez emailed
Maxey to let her know that Acuna had asked about position and
pay, since he had been a lead prior to the layoffs. She men-
tioned that Acuna knew they were only hiring welders, not
leadmen. (GC Exh. 206, p. 17.)
On March 13, C. Martinez sent Almazan at Intermountain a
position description for a mechanic position they were trying to
fill. (GC Exh. 143.) On March 14, Almazan inquired as to
whether Greenbrier had an interest in hiring Michael Downing,
who was laid off from an industrial maintenance position at
another company, and he was hired March 25. (GC Exh. 145.)
Also on March 14, C. Martinez asked Almazan if they could set
up an interview with Adolph Martinez, a certified welder with
industrial maintenance experience who had applied through
Intermountain. (GC Exh. 144.)
Murguia called Valenzuela on March 14, stating that he has
heard people were being hired back, and he wanted to return to
work.29 (Tr. 805–806.) Valenzuela recalled that Murguia came
to his office later that same day and asked for his job back.
Valenzuela told him he should fill out an application and they
next time they were ready to hire they would probably call him.
Valenzuela also recalled Murguia looked upset and said the
reason was that they had hired back Lopez-Nuno as a helper
even though he had more experience. Valenzuela explained
that they hired based on the needs of the plant and the workers’
skills. He left without submitting an application. (Tr. 2127–
2128; R. Exh. 28.) C. Martinez made notes about Valenzuela’s
conversation with Murguia, stating that Valenzuela said
Murguia was very aggressive and noting, “Eric tried to address
his concerns and explain how the process was working but
Guillermo didn’t want to hear it.” (GC Exh. 67.)
On March 14, Oscar Salinas came to C. Martinez’ office,
“hands on his hips” and said he heard they were “calling every-
one back to work” and wanted to know why he had not re-
ceived a phone call. C. Martinez told him he could fill out an
application and go through the process. She perceived him as
arrogant and noted that he voiced displeasure about having to
fill out a new application since he had already worked for GRS.
He picked up an application but did not complete and return it.
Salinas brought back his application on March 15, but it was
not complete. C. Martinez showed him what he needed to do,
and he agreed to bring back the completed application the fol-
lowing Monday, March 18. She noted he presented himself in
a much calmer manner, and was pleasant and polite. (GC Exh.
67.)
Ortega’s wife came to the office on March 18 to get a letter
documenting the status of her husband’s employment. C. Mar-
tinez gave her the letter. (R. Exh. 100.) She also gave her a
business card with the Company’s phone number and told Mrs.
Ortega that they had been trying to get in touch with her hus-
band to potentially return to work, but they did not have a
working phone number for him. C. Martinez did not recall
receiving a completed application for Ortega. (GC Exh. 67; Tr.
2775.)
On March 18, Valdez sent Maxey an email telling her that
Murguia had come to the front shop the week of January 21,
and had an attitude, stating that he had the right to go into the
front shop and hang out with his ex-coworkers. Maxey passed
this information to Lave. (GC 206, p. 19.)
On March 19, C. Martinez was told to contact Brian Perona
and Jorge Martinez (J. Martinez) to go through the rehire pro-
cess. J. Martinez agreed to come in the following day. C. Mar-
tinez left a message for Perona. (GC Exh. 67.)

29 C. Martinez’ log entry about this conversation is March 14, and
she sent an email on March 15 stating the conversation occurred yes-
terday. (GC Exhs. 67, 206, p. 18.) Valenzuela’s March 18 email states
it was March 12, and Murguia could not recall the exact date.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 20
C. Martinez’s log states that Salinas returned his application
on March 20. (GC Exh. 67.) She testified that she gave him
back the application because it was not complete and he never
returned it. (Tr. 2779.) J. Martinez turned in his application,
met with Valenzuela, and was offered and accepted a job as a
welder repairman effective March 25. (R. Exhs. 18–19.) C.
Martinez left another message for Perona. He called her back
the next day, March 21, and said he was interested in returning,
but wanted to know if he would be re-hired at the same pay and
with his original hire date. She told him Valenzuela would be
able to answer these and other questions he posed. He came in
later that afternoon, completed the application, and met with
Valenzuela. Perona was rehired as a welder repairman on April
1. (R. Exh. 21.)
On March 22, C. Martinez attempted to call Omar Ramos,
but the number she called was not in service. She called Brain
Scaggs and Juan Morales, both of whom agreed to come in on
March 26. She left voice messages for R. Martinez.
Morales, who had worked for GRS as a painter, had previ-
ously submitted an unsolicited application on February 7. He
was re-hired on April 1 as a welder repairman. His previous
wage with GRS had been $13.01, and his new wage was $14
per hour. (R. Exhs. 22–23.) Scaggs, who had submitted an
unsolicited application on February 21, was hired as a welder
repairman on April 1. (R. Exhs. 24–25.)
Ramos came to C. Martinez’ office on March 25, stating that
Freddy Valdez told him he had his job back. She explained
there was an opportunity, and he needed to fill out an applica-
tion and interview with Valenzuela. He started filling out the
application but omitted certain information. When C. Martinez
told him he needed to complete the whole application, he said
that he thought GRS had to hire back the laid-off employees
before they hired anyone else. She told him he could take the
application home and return it later. He became angry, took the
application, and left. C. Martinez noted that he returned in the
afternoon with his application. (GC Exh. 67.) Ramos recalled
filling out the application on the spot. (Tr. 1758.)
Ramos interviewed with Valenzuela, who said he was calm
and the interview went without incident. (Tr. 2135.) Ramos
recorded the interview. Valenzuela stated that he knew people
felt the layoff was because of the Union. He stated that the
reason for the layoff was that the company was losing money,
and the Union “may or may not have had anything to do” with
it. He said that people talking about it, wasting time, and think-
ing about it made things worse. Valenzuela mentioned that the
Company had been losing money the last two years and the
Tucson shop was going to be closed down, but they came up
with a plan to turn things around by downsizing. He also men-
tioned that they brought him in to bring the plant back to where
they were before. He noted that a lot of people were worried
that GRS was bringing back people who were strong Union
supporters but he didn’t care. (GC Exh. 236.) Valenzuela testi-
fied that Ramos brought up the Union during the interview and
stated that he supported the Union and thought they could fix
some problems. This was conveyed to Maxey, Stewart, and
Maciel in an email. Specifically, with regard to the Union,
email stated:
He went on to telling (sic) me that he was an active member
of the group trying to form a union. He said he didn’t believe
that a union was necessary under normal circumstances, but
that things were so bad that he didn’t see any other option be-
cause of the following issues: He said the uniform money was
being discounted from his paycheck week by week even
though he didn’t have uniforms and nobody did anything
about it. His paycheck was shorted quite often and Margaret
and Lex would do nothing to fix it. Last he said he didn’t feel
comfortable because people in authority positions had favor-
ites and if the rest of the employees were not in the good side
of such authority people, they were doomed to low pay in-
creases, worst jobs, and even unemployment.
(Tr. 2136–2137; R. Exh. 30.) Ramos was not hired back, as
discussed more fully below.
R. Martinez came in and completed an application on March
25, and interviewed with Valenzuela. He was offered a job as a
welder repairman, and was rehired as of April 16, pending 2
weeks’ notice to his current employer. (R. Exhs. 26–27.)
On March 25, Murguia showed up to talk to Valenzuela, but
he had not completed an application. Valenzuela stated that he
was very humble and begged for his job back. (R. Exh. 29; Tr.
2130.)
During a conference call on March 27, Maxey informed
Valenzuela and C. Martinez that a decision had been made not
to bring back Ramos. Based on his behavior when he came to
re-apply and his history, they felt it was best not to bring back a
disruptive employee. (GC Exh. 67.)
On March 29, Valenzuela sent Maxey an email stating that
Murguia had called him on March 28 to check on job openings.
He told Maxey that Murguia was aware they were hiring people
from the outside, so he wanted to make sure they didn’t forget
about him. Valenzeula told Murguia he would keep him in
mind. (GC Exh. 206, p. 20.)
Murguia continued to call and ask to be rehired. C. Mar-
tinez’ log states that Murguia came to the shop on April 9 and
demanded to see Stewart. J. Vasquez and C. Martinez went to
talk to him and explain the situation. C. Martinez introduced
herself and explained that he was welcome to take an applica-
tion, but he could not just stay in the office. (GC Exh. 67.)
C. Martinez recalled he took an application, and thought sub-
mitted it to the plant manager.30 (Tr. 2781, 2784.) Murguia,
however, said he did not complete an application. (Tr. 809.)
Alcides Valencia, who was working as a temporary employ-
ee through Intermountain at the time of the layoffs, was hired
as a GRS employee on April 15. (GC Exhs.142, 147.)
On April 9–11, 2013, there was an executive planning meet-
ing where one of the topics discussed was the San Antonio
facility, which was slated for closure in September or Decem-
ber 2013. They also discussed the recovery plan for Tucson.
The strategy was to consolidate the work force to TTX and
raise rates. (Tr. 522–524, 2449; GC Exh. 49.)
An April 24 draft of GRS’ recovery plan notes that labor ef-
ficiency in Tucson improved from 60 percent in December to
93 percent in February. The plan was to increase headcount to

30 She did not see him engaged in any aggressive behavior. (Tr.
2800.)
GUNDERSON RAIL SERVICES, LLC 21
75, close the truck shop, and continue training. It also notes,
“Now process Stabilized, recalling most of direct employees
furloughed.”31 The plan also called for closure of the San An-
tonio facility by the end of September. (GC Exh. 162, 166.)
On May 9, Ortega came to the shop unsolicited and spoke
with “Juan,”32 who encouraged him to apply for a job. (GC
Exhs. 63, 67.)
On May 15, Salinas came to the shop to inquire about em-
ployment and C. Martinez said all positions had been filled.
Salinas asked to see Valenzuela, but C. Martinez conveyed that
he was busy. C. Martinez took his name and number and, when
he continued to hang around, he was instructed to leave. (GC
Exhs. 63, 67.)
As of May 2013, there were still four positions that needed
to be filled to meet target headcounts for direct labor. (Tr.
1693.) After May, roughly five new employees were hired
from the outside. (Tr. 2798–2799; GC Exh. 63.)
Lave maintained a list of employees called for rehire, deline-
ated by: name on charge, name on payroll, layoff date, title at
RIF, rehire date, title at rehire, and comments. Carlos Ortiz
was rehired into his previous welder repairmen position on
February 5, 2013. Other welder repairmen hired back to the
same position were Jaime Hernandez and Gabriel Ortiz on Feb-
ruary 6, Jesus Barnes on March 12, Brian Scaggs and Brian
Perona on April 1, and Rogelio Martinez on April 16. Martine
Valdez, Manuel Sepulveda, and Jorje Martinez were airmen at
the time of the layoff and were rehired as welder repairmen.
Valdez was rehired on February 11, Sepulveda on March 12,
and Martinez on March 25. Jesus Lopez-Nuno was a switch-
man when he was laid off and was rehired as a laborer repair-
man on March 13. Antonio Acuna, a leadman when laid off,
was rehired as a welder repairman on March 18. Lave’s list
states Morales was hired back into his previous position as a
painter on April 1, however the hiring documentation states he
was hired back as a welder repairman. (GC Exh. 63; R. Exh.
23.) Hector Federico, a general laborer at the time he was laid
off, was rehired as a switchman on February 11. (GC Exhs. 63,
72; Tr. 595.)
Murguia was not re-hired. According to Maxey, this was
because he failed to follow the rehire process by not submitting
an application. He was also “obstinate, belligerent with staff”
on several occasions. In addition, he frequently showed up
without invite and went to areas where he should not have
been. Maxey learned Murguia was belligerent from Valenzue-
la, who said he was using a loud voice and being very aggres-
sive. (Tr. 1641–1642.) Maxey had asked C. Martinez and
Valenzuela to email their interactions with Murguia so she
would have a record.33 (Maxey Tr. 1678.)

31 Torra believed they attempted to rehire all production employees.
(Tr. 334.) He also testified that at this point, GRS planned to approach
TTX with a new billing structure and convert San Antonio and Tucson
to 100 percent TTX facilities. (Tr. 2452.)
32 This likely refers to Maciel, the former acting plant manager.
33 Lave also had input into the decision not to rehire Murguia. (Tr.
556.)
Valenzuela recommended bringing Ramos back, but he was
not rehired.34 (Tr. 2136–2139; R Exh. 30.) According to Lave,
this was based on his conduct when he came to apply. (Tr. 520,
555.) Maxey also recalled that he had a history of being argu-
mentative with Madrigal, in particular regarding attendance
points, but said the focus in deciding not to rehire him was on
his most recent behavior. (Tr. 1647–1648.) Valenzuela testi-
fied that he later found out that Ramos had “a lot of conflict
with employees and supervisors” and the way he treated C.
Martinez let him know he was probably “very confrontation
and conflict prone.”35 (Tr. 2140.)
Ramos’ most recent performance appraisal shows he re-
ceived a 3–excels, the highest score, on “mutual respect,” and
the comments were, “He gets along and respects everyone.”
For “Teamwork and Cooperation” Ramos received a 3, and the
comments stated, “He works good with and around others and
pulls out his part of this work as asked upon.” He also received
3’s in “Responsibility and Initiative,” “Job Knowledge,” “Qual-
ity of Work,” with some positive comments about his job per-
formance. He received the highest rating for “Productivity.”
He received a 2–meets requirements for “Safety,” “Attend-
ance,” and “Customer Focus,” with a comment that he needed
to improve attendance. Under “Strengths” Ramos’ supervisor
commented, “Puts out quality work and never says no to any-
thing asked of him.” There were no opportunities for develop-
ment listed. At the end, in the comments section, the appraisal
states, “Omar is a very good and hard worker!” Ramos re-
ceived a total score of 28, and the appraisal was signed in late
September 2012, by Ramos, his leadman Valdez, and Maxey.
(GC Exh. 208.)
Another welder who was recalled to work, Jesus Barnes, re-
ceived a total score of 20 on his most recent performance ap-
praisal in June 2012. Barnes received a score of 3–excels in
“Safety”, with the comments that he follows procedures and
helps others in aspects of safety. He received scores of 2–
meets requirements, for “Mutual Respect,” “Attendance,” “Re-
sponsibility and Initiative,” “Job Knowledge,” “Customer Fo-
cus,” and “Quality of Work,” with comments that he has much
room to improve job knowledge, and the quality of his work
meets standards, but his job knowledge affects work quality.
He received either a 2 or 1–needs improvement on “Productivi-
ty” with the comment, “Would like to see work output in a
more timely manner.” He received a score of 1–needs im-
provement, in teamwork, with the comment that he had trouble
working with another employee due to a small conflict and he
needed to separate personal emotions from job responsibilities.
“Strengths” were noted as a strong will to learn and good at-
tendance. For “Opportunities for Development,” Barnes’ su-
pervisor stated, “has a lot more procedures to learn, needs to
learn work order.” The supervisor also noted additional oppor-
tunities for development were learning MIs (maintenance in-

34 Valenzuela recalled that Ramos and Murguia were the only indi-
viduals he interviewed but did not hire. (Tr. 1197.)
35 Valenzuela testified that he, Maxey, and Stewart decided not to
rehire Ramos, but this does not appear to be the case, as C. Martinez’
log entry states that Maxey conveyed to Valenzuela “corporate’s” deci-
sion not to rehire him. (GC Exh. 67.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 22
structions) and work orders. (GC Exh. 220; Tr. 1659.) Carlos
Contreras had a score of 24 and was the first employee called
back as a welder repairman. Brian Perona was also rehired as a
welder repairman with a total score of 27.36 (GC Exhs. 223–
224.)
Alex Amador, a painter, was not contacted or considered for
rehire. Lave’s notes indicate Morales was hired back as a
painter instead. (GC Exh. 63.) Other employees who had been
laid off on November 12 also were not contacted.
Foreman Fonseca, materials manager Keith Tarpley, and
Martin Valdez, told C. Martinez they were surprised GRS was
bringing back strong union supporters. (Tr. 2786–2789.)
J. April 23 Handbilling
On April 23, 2013, at around 4:40 a.m. SMW representatives
Sudyam and Molina handed out canvas lunch sacks with the
union insignia to employees as they drove to work. Inside each
sack were a SMW mug and a flyer. (Tr. 2145; 1840–1841,
1904.)
Valenzuela went outside to where the union representatives
were after John Hardenbrook, materials supervisor, told him
there were people out at the entrance to the facility and he al-
most ran them over. (Tr. 1171.) Valenzuela and Valdez drove
out to the entrance and Valenzuela asked them to leave the
property.37 Sudyam and Molina identified themselves as being
with the Union and said they were doing their job and were not
going to leave. Valenzuela observed them handing out flyers
and speaking with employees. According to Sudyam, Valen-
zuela and Valdez walked with Sudyam and Molina as they
approached cars to hand literature to employees. (Tr. 1844.)
Valenzuela called the police and told them the union agents
were causing traffic and creating a very dangerous situation.
(Tr. 2151.) Valenzuela was out at the entrance for approxi-
mately 7–8 minutes. When Vasquez arrived for work, he told
Sudyam and Molina that it was unsafe to be handing out mate-
rials in the dark, and by law they needed to wear vests. He
remained in the area about 15 minutes. (Tr. 1879, 2075–2076.)
Sudyam and Molina moved their cars across the street and
came back to hand out flyers. At this point, Valenzuela went
back to his office. (Tr. 1176–1177.)
Valenzuela called Stewart and Lave and then sent an email
to Lave and Maxey at 6:31 a.m. telling them what had oc-
curred. Lave told Valenzuela that if the union agents returned,
they were legally entitled to be there if they remained out at the
sidewalk along the street and off GRS’ property. If they were
backing up traffic, it was in Valenzuela’s discretion to call the
police. Lave instructed Valenzuela to keep things cordial and
nonconfrontational. (Tr. 582–586, 1178–1179.)
Valenzuela said he had been unaware of the SMW organiz-
ing efforts prior to this. (Tr. 1122–1123.) After April 23, the
Union continued to handbill on future occasions without inci-

36 Brian Scaggs who worked in writeup, received a score of 18 on his
appraisal, which he signed on October 2, 2013, and Valdez signed on
August 20, 2012. (GC 225.) He was moved back to a welding position
because he did not do very well in writeup. (Tr. 1664.)
37 Sudyam described him as aggressive, stating he was yelling and
cursing. (Tr. 1842.) Valenzuela denied using profanity and recalled
they were speaking Spanish. (Tr. 2149.)
dent. (Tr. 1846.) Federico handed out union flyers with the
union agents a couple times a week over a couple months. (Tr.
655–656.) Valenzuela would send Lave any flyers he saw
when union representatives came to the facility. (Tr. 1135–
1137.)
On May 15, Torra, Stuckey, Glenn, and Ferguson attended a
meeting with executives from TTX in Lombard, Illinois. Pre-
sent for TTX were vice president of equipment, Sharon
Harmsworth, assistant vice president of operations, John
Cutrone, and assistant vice president of supply chain, Adam
Lent. (Tr. 2453; R. Exh. 67.) According to Ferguson, one
purpose of the meeting was to help GRS understand what TTX
needed in terms of capacity, as the volume of work was down
in both San Antonio and Tucson. The GRS executives were
concerned that both shops were performing poorly and giving
bad customer service. TTX had suggested they visit their
Acorn repair facility in Jacksonville, Florida. They visited the
facility and said they could give them a proposal that would
make Tucson and San Antonio look like Acorn. (Tr. 2509–
2512.) Harmsworth recalled GRS conveying that due to the
pressures they were facing from Wall Street with Carl Icahn
trying to take over the Company, they were looking at each
facility to determine whether to close, fix, or sell it.38 (Tr.
2655–2656.)
K. Employee Survey
In May 2013, Valenzuela, C. Martinez and Vasquez prepared
an employee sarisfaction survey. Valenzuela said he wanted to
let the employees know the Company cared about them and to
find out if there were any issues that needed to be addressed.39
Groups of employees were called together in a room to com-
plete the survey. Valenzuela instructed the first group that he
was new and wanted to make changes and have a good work
environment. He told employees they could fill out the surveys
anonymously. The survey was six pages long and asked em-
ployees multiple choice questions about their satisfaction in
four general categories: job satisfaction, supervisor’s perfor-
mance, safety, and administrative satisfaction. The survey then
allowed employees to comment on the best and worst things
about working for the Company, and to suggest how the GRS
could enhance their satisfaction. Valenzuela summarized the
results and provided a report to Stewart, Maxey, Maciel, and
Lave. (R. Exhs. 31–33; Tr. 666, 2167–2174.)

38 The record, in various places, refers to an attempt to take over
Greenbrier and attendant subsequent pressure from Wall Street for
Greenbrier to perform well. I take official notice of the well-publicized
attempted hostile takeover of Greenbrier in late 2012 by billionaire
investor Carl Icahn, who controls American Railcar Industries Inc.
See, e.g., http://www.bloomberg.com/news/2012-12-21/icahn-target-
greenbrier-falls-as-investors-doubt-deal.html;
http://www.oregonlive.com/business/index.ssf/2012/12/carl_icahn_mak
es_bid_to_purhca.html. Lave referred to this takeover in his June 28
speech to employees, discussed below, though Icahn’s name was inau-
dible in English, and the Spanish translation of “Carl Icahn” was “Car-
oline.” (GC Exhs. 151, 153.)
39 Silva testified it was probably March, but also said he was uncer-
tain about the dates. (Tr. 665–666.)
GUNDERSON RAIL SERVICES, LLC 23
Employees at the Tucson shop had not previously been given
a written satisfaction survey, and Valenzuela had never con-
ducted such a survey.40 (Tr. 51, 113, 2166.)
L. Safety Program
Employees were required to attend safety meetings each
Monday morning at the beginning of the shift, and the Tucson
shop had a safety committee that met monthly. (Tr. 1971–
1974.) GRS also had a monthly gain share program in its
wheel shops where safety was one component in the gain share
payout. (Tr. 550.)
The Union filed a complaint with the Industrial Commission
of Arizona on February 8, 2013, setting forth various alleged
safety violations. (GC Exh. 261.)
In May 2013, the Respondent implemented Operation Safety
2013 to address Tucson’s relatively poor safety record. (GC
Exh. 61; Tr. 1976–1977.) Torra had asked Valenzuela to fix
the safety situation because Tucson had the highest incident
rate in the country. Vasquez was concerned that the number of
small safety incidents was a harbinger of a larger catastrophic
incident, so he and Valenzuela met to address these concerns.
(Tr. 1996–1997; 2157.) On May 13, Valenzuela sent employ-
ees a 2013 safety action plan. It made some changes to the
format of the Monday safety meetings and set forth specific
training and hazard prioritization. It also announced a safety
incentive program, starting with “poker for safety.” (R. Exh.
7.) Each employee, over a 5-week period, would receive a card
each week he worked safely. At the end of the 5 weeks, who-
ever had the best hand won. Employees could win boot vouch-
ers, coupons, tools, days off, ipods, etc. The safety poker was
played twice, for a total of 10 weeks. There were fewer safety
incidents after the program was implemented. (Tr. 602–603,
626, 2003–2006.)
M. Notice of Representation Petition
On May 28, Valenzuela received the Notice of Representa-
tion Hearing petition. He notified Lave the following day.
Aslo on May 28, Union agents distributed flyers at the Tucson
facility. (GC Exh. 74; Tr. 1183.)
N. Juan Silva’s Termination
An EOCC unit is a cushion at the end of a car to help absorb
the impact of the connection of a locomotive to a car. Under
the standard operating procedures for lowering an EOCC unit,
the first step is to determine whether the unit has a thread on or
a flange retainer. The next step is to drain nitrogen cylinders
which can be charged with up to 600 pounds of pressure. After
this is completed, the unit is compressed and the shaft at the
end is marked. If the unit has a thread on retainer, the employ-
ee next must strap it, which entails applying a flat bar from the
casting on the end of the EOCC to the tip of the shaft. (Tr.
2020–2027; R. Exh. 2.) Lowering an EOCC unit is a two-
person procedure, with one person directing and another on the
forklift.
Vasquez conducted training on operating the EOCC unit on
October 8, 2012 and February 4, 2013, March 18, 2013, and

40 Silva recalled completing a survey from HR and the safety man-
ager in the summer of 2012. (Tr. 665.)
April 1, 2013. (R. Exh. 1; Tr. 2028–2034). On May 29, in re-
sponse to an incident involving employee Jorge Maldonado,
training was conducted to reiterate safety procedures for dis-
charging an EOCC unit. The trainings were all done in Eng-
lish.
According to Vasquez, right after the last meeting, Silva
stayed behind and expressed his disagreement with the proce-
dures. Specifically, he wanted to know why they weren’t
strapping the EOCC when it was being brought back up to the
unit because he believed the same risk was involved as when it
was being lowered. Vasquez explained the reasons to him and
reiterated that regardless of whether or not he agreed with the
reasons, the instructions were to be followed. He believed
Silva understood. (R. Exh. 6; Tr. 2036–2039, 2083.)
Maldonado received a written warning on May 30, 2013, for
failing to properly discharge an EOCC unit on May 29, with the
notation that he had received training on the proper procedure
on October 8, March 18, and April 1. The warning stated that
Vasquez and Valenzuela saw him failing to discharge an EOCC
unit, and that this could lead to imminent danger to life and
health. The warning cautioned that further occurrences could
lead to further discipline, up to and including termination. (GC
Exh. 159.)
On May 30, at around 9 a.m., Silva and Scaggs were lower-
ing an EOCC unit. (Tr. 677–682.) Scaggs had left a running
forklift unattended while he discharged nitrogen from the
EOCC unit, so Silva got on it because it was unsafe to leave it
running unattended. He asked if Scaggs needed help and
Scaggs told him to lower the unit. Assuming Scaggs had se-
cured the strap, Silva lowered the unit.41 (Tr. 684–685, 853,
860.) Leadman Ishmael Lopez asked if Silva lowered the unit
and he replied that he had. After Lopez left, Vasquez asked
Silva if he had put the strap on the unit, and Silva replied that
he had not. (Tr. 854–855, 2043.) Silva was called in to meet
with supervisor and HR around noon, and was told he was be-
ing terminated. (Tr. 677–689; GC 125.)
Vasquez said Maldonado was disciplined less harshly be-
cause he just missed the strapping whereas Silva disregarded
the entire procedure. (Tr. 2045.) Vasquez did not know
whether or not the unit Maldonado lowered was discharged.
Scaggs received a 3-day suspension for working on an EOCC
unit that he did not strap or discharge. (GC Exh. 129.) Vasquez
did not talk to Scaggs about the incident. (Tr. 2086–2090.)
Valenzuela spoke to Scaggs, and he apologized for the incident
and said he was just helping Silva. (Tr. 2190.) Valenzuela
thought Scaggs and Silva were pointing fingers at each other.
(Tr. 2238.) Valenzuela decided to terminate Silva because the
procedure had just been discussed at a safety stand down the
previous day and he deemed his refusal to follow the procedure
as insubordinate.42 (Tr. 2185–2186.)

41 Silva believed that the person who discharges the nitrogen secures
the strap. (Tr. 865.) Vasquez testified that the person who lowers the
unit secures the strap. (Tr. 2043.) According to Valenzuela, both
people on the team are equally responsible for ensuring that all safety
procedures are followed. (Tr. 2224.)
42 Silva received a score of 1 on safety in his performance review
April 27, 2013. (R. Exh. 36.) He received a 3 for his performance
reviews in March and October 2012. (GC Exhs. 127–128.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 24
O. Preparing for the Election and Negotiations with TTX
On the May 30 version of the GRS network rationalization,
Tucson was on the watch list slated as “Fix-TTX contract.”
San Antonio was still slated for closure, but on an execution
agenda table at the beginning of the plan it was categorized for
immediate action as “Fix-TTX contract.” (GC Exh. 163.)
A Stipulated Election Agreement was reached on June 3,
2013, calling for an election among production workers at the
Tucson facility on July 11, 2013. (GC Exh. 6.)
On June 7, 2013, Lave wrote an email to Valenzuela re-
counting a meeting they’d had to discuss the dos and don’ts
regarding the Union campaign. Lave summarized some key
items, including not to pick on internal union organizers and to
treat them the same as employees he perceived as “pro-GRS.”
He also instructed Valenzuela to pick up stray union materials
from the shop, grounds or bulletin board; have his management
team notify him if employees were campaigning during produc-
tion time; follow TIPS, meaning no threats, interrogation,
promises or surveillance; and to make sure his management
team was at the top of their game in terms of personnel matters
and employee requests. He asked Valenzuela if there were any
items on his “to-do list” that would benefit employees, such as
supplies or upgrades that could be quickly implemented with-
out “breaking the bank.” (GC Exh. 50.)
Lave met with leads, foremen and managers on June 13,
2013, to go over the do’s and don’ts of the Union campaign and
election. (GC Exhs. 51, 52, 75–76; Tr. 528.)
On June 14, there was a meeting at TTX with Torra, Fergu-
son and Stuckey, Harmsworth and Cutrone. They discussed a
revised plan to have Tucson and San Antonio as dedicated TTX
facilities. (R. Exh. 68; Tr. 2460.) GRS proposed having both
Tucson and San Antonio dedicated to TTX, with improved
inventory levels, faster tracks (referred to as OSOs), faster turn
times, and a labor rate reduction of $7 per hour. (Tr. 2460,
2514.) They still needed information from TTX about volume.
Cutrone and Lent asked GRS to prepare a chart with assump-
tions based on different hours of work TTX would potentially
be supplying. (Tr. 2514–2516.)
On June 14, Lave sent out the first of a series of antiunion
handouts to Hudgens, Stewart and Maciel, for distribution to
employees. (GC Exh. 52.) All the handouts were provided in
both English and Spanish.
The June 20 GRS network rationalization has Tucson was on
the watch list slated as “Fix-TTX contract.” San Antonio was
still slated for closure, but on an execution agenda table at the
beginning of the plan it was categorized for immediate action
as “Fix-TTX contract.” (GC Exh. 164.)
On June 24, Lave asked Valenzuela to distribute to all em-
ployees toward the end of their shifts the next day and post on
the bulletin board a handout entitled, “Greenbrier Gives You
the Facts ABOUT GOOD FAITH BARGAINING.” (GC
Exh. 57.) It describes good-faith bargaining and warns that
parties may negotiate for a long time without coming to an
agreement, and states that first contracts often take several
months to negotiate. The handout also notes that the terms of
the agreement are often determined by which party has the
most leverage, and that for the union, a strike is often the best
leverage. If a strike occurs, particularly in today’s economy,
employees may be replaced by bringing in workers from other
facilities or hiring replacements. They handout finally notes
that production may be shifted to other facilities during a strike.
On Wednesday, June 26, per Lave’s instructions, Valenzuela
distributed another handout entitled “Greenbrier Gives You
the Facts ABOUT WHAT MIGHT OR MIGHT NOT BE
IN A CONTRACT.” It warns that the Union is a business
with its own interests and therefore it may negotiate terms that
benefit it but not the employees. It states that the Union may
give away something of value to employees in exchange for the
employer agreeing to deduct union dues from employees’
paychecks. The flyer states that in the recession economy,
contracts have required economic give-backs and reductions in
wages and/or benefits, and that the union has misled them if
they think it could not happen at Greenbrier. Finally, the flyer
notes that unions generally negotiate a common rate for every-
one in the same job, likely resulting in some of the highest paid
workers being paid less or having their wages frozen until the
common rate catches up. (GC Exhs. 55, 57.)
The next day, Thursday, Lave instructed Valenzuela to hand
out a flyer entitled, KNOW THE FACTS ABOUT
STRIKES.” It states that if negotiations between Greenbrier
and the union deadlock, as they often do, the union can make
employees strike. It then lists the “FACTS” about strikes:
Greenbrier does not pay employees who are on strike; striking
employees may not be eligible for unemployment compensa-
tion; Greenbrier can legally discontinue benefits payments for
striking employees; Greenbrier can hire permanent replace-
ments for economic strikers; the Union can make members
walk the picket line, an employee who refuses or who returns to
work can be fined; and union members could be fined for refus-
ing to honor the picket lines of other members. The flyer also
points out that the union organizers and officials lose nothing
during a strike. It encourages employees not to risk a strike by
voting, “NO” on July 11. (GC Exhs. 54, 57.)
Lave distributed talking points to Torra and cc’d Hudgens,
Stewart, Maciel, Valenzuela, and Maxey on June 27. (GC
Exhs. 29, 57, Tr. 267.)
The first consolidated complaint was also issued on June 28.
Also on June 28, Lave and Torra met with employees to discuss
the upcoming union election. (Tr. 244–245, 524) There were
three or four separate meetings, one or two of which were
translated to Spanish. About 20–35 employees attended each
meeting. (Tr. 247–248, 319.) J. Martinez recorded the meet-
ing he attended. (GC Exhs. 151, 153; Tr. 1398–1400.)
At the meeting, Lave and Torra informed employees about
unions and stated the Company’s preference to remain non-
union. Torra said a union encourages unnecessary procedures,
eliminates the plant manager’s flexibility, and adds unnecessary
costs. He said the Tucson shop was in a “very precarious”
difficult time, and discussed the financial losses in 2012 and the
first 3 months of fiscal year 2013. He noted that they had be-
gun to make money recently, and discussed improvements they
had made in tools, equipment, and safety, and adding qualified
personnel such as Vasquez. Torra said that a union would be a
“step backwards” that would create a barrier between the em-
ployees and Valenzuela and “create unnecessary costs and in-
flexibility.”
GUNDERSON RAIL SERVICES, LLC 25
Lave recalled the layoffs the previous November, and the
bad economic situation that had existed. He said they had since
made money every month between January and May. He
shared that back in November, another company tried to take
them over, and that put a scare into the parent company. As a
result, the parent company ordered them to fix, close, or sell 8–
10 shops, one of which was Tucson. He discussed five facili-
ties he recently had to close, and stated he wanted to keep Tuc-
son open, noting efforts GRS had made to help Tucson. Lave
said that the Tucson facility had been making progress, and that
a union coming into the company could be disruptive. Specifi-
cally, he stated, “if the union comes in, that could possibly slow
down our progress we’re making . And this critical time for us,
we are needing to get more profitable here, so the parent com-
pany allows us to keep Tucson open.” (Tr. 249–252, 539; GC
Exhs. 151, 153.)
Torra then discussed how a union contract sets firm rules
from which employees and management cannot vary. He ex-
plained that he had overseen both union and non-union facili-
ties at the same time and thought the non-union facilities had
were better run, with better communication and better compen-
sation packages than the union facilities. (Tr. 320.) He also
recalled saying that TTX, which provided 80 percent of the
Tucson shop’s work, prefers not to deal with unions. (Tr. 321–
322.) What he specifically said was “Our number 1 customer,
who’s TTX, either rightfully or wrongfully is adverse to unions.
That’s why they shop cars with us because they recognize us as
a nonunion facility. So the risk I see, what will happen with our
number 1 customer?” (GC Exhs. 151, 153.)
Lave then discussed the changes they made in HR after
learning that GRS had not been responsive enough in terms of
performance evaluations and pay raises, and noted that they
were now being done timely, as were requests for time off. He
discussed the attendance point audit and rollback of attendance
points, noting that with a union he might lose the flexibility to
fix problems like the attendance point errors. He pointed out
his frustration over the Union filing a lawsuit about this and
told employees they were paying an attorney $400 per hour to
defend against that. He added that at a time when they were
trying to make the plant more profitable, he had to spend mon-
ey to defend against something he perceived GRS implemented
fairly. Lave also reminded employees about holiday gift cards
they had received, and the rehiring of some employees, attrib-
uting these perks to the flexibility they enjoyed by being non-
union. (Tr. 273.) He again expressed frustration because the
Union filed an unfair labor practice charge because of the gift
cards, so he had to pay $400 an hour to defend against it. He
then conveyed that the SMW filed another unfair labor practice
charge about pay raises employees received, expressing frustra-
tion over having to spend money to defend these lawsuits at a
time when they were trying to make the shop more profitable.
Lave and Torra ended the meeting by fielding questions from
employees.
On July 1, Greenbrier sent out a press release announcing fa-
cilities reductions and leadership changes in its wheels, repair,
and parts segment. Specifically, the release stated that in
Greenbrier’s multi-step plan to enhance margins and improve
capital efficiency, it planned to sell or close 8 of its 38 wheels,
repairs, and parts facilities. (R. Exh. 70.)
On July 2, Lave instructed Valenzuela to distribute to all
employees toward the end of their shift, and post on the bulletin
board, a handout entitled, “SMWU Financial Information.”
(GC Exh. 57.)
On July 3, Lave gave the same instruction to Valenzuela for
a handout entitled “Greenbrier Rail Services, FACTS
MATTER, TOP TEN WAYS THE SHEET METAL
WORKERS CAN COST YOU MONEY.” It points out the
Union would cost about $450 per year or more in union dues,
initiation and reinitiation fees, and union fines, noting that in
2012 Local 359 collected fines from members in excess of
$1,565,529. It also describes assessments to support a strike or
organize other companies, notes that strikes can result in loss of
benefits and fines for those who cross the picket line and lock-
outs preventing union employees from returning to work. It
also discusses reduced overtime, pointing out that unions have
incentive for companies hire more employees rather than have
current employees work overtime. The handout also discussed
contract concessions, the risks of collective bargaining, and
super seniority for stewards, resulting in employees with real
seniority potentially being laid off before a more junior em-
ployee who serves as union steward. (GC Exh. 53.)
Lave instructed Valenzuela to do the same for “6 Important
Facts You Should Know about Union Representation.” (GC
Exh. 57.) The handout notes that, as a right-to-work state, em-
ployees in Arizona cannot be compelled to pay union dues, but
the union would still be the employees’ representative for all
employment-related matters. It notes that if employees do not
join the union, they may be prevented from voting on important
matters, such as contract proposals or whether to go on strike.
The flyer tells employees they would no longer be able to deal
directly with management if the union won the election. It
further states that there is no contract between the union and its
employees, and that the union’s promises are not legally en-
forceable. With regard to the Union’s obligations to treat em-
ployees fairly, the flyer states:
The union can make its own decisions about how to represent
employees. Those decisions are lawful even if they seem un-
fair to you, as long as the union is not completely “arbitrary”
or acts in “bad faith.” Some courts have described this duty
as the weakest obligation known to the law.
Next, the handout informs employees that union dues can be
changed by majority vote without any individual employee’s
consent. Like other documents, this handout warns employees
that they can be fined for crossing picket lines to return to work
in the event of a strike, and notes that even though nonmembers
cannot be fined for working during a strike, some unions have
been found guilty of doing this anyway. (GC Exh. 60.)
Lave and Maciel conducted another set of mandatory meet-
ings at the Tucson facility on July 9, 2 days before the election.
One of the meetings was translated to Spanish. They created
and reviewed talking points and used them during them meet-
ings. (Tr. 276–278; GC Exh. 30.) J. Martinez recorded the
meeting. (GC Exhs. 154–155.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 26
Lave started by telling the employees that without the union,
employees can come directly to management with concerns,
and they want to continue to talk with employees one-on-one.
He mentioned that the union, by federal law, has the right to
choose which disputes and grievances to address with man-
agement, and offered his opinion that this was not fair or right.
Lave recounted his personal experience as an employment at-
torney getting calls from employees who were angry because
the union wasn’t attempting to help them with their grievances,
and he would explain to them that he could not help them at all.
He said he could not help them sue their employer or union
because the way the Federal law was written, the Union can
pick and choose what disputes it wants to bring to the compa-
ny’s attention. Lave talked again about GRS’s financial situa-
tion, and how Tucson was one of six shops on a watch list. He
mentioned that the Tucson facility was headed in the right di-
rection, and was concerned that if the union was voted in the
momentum would be “shattered” because “we’re going to have
to deal with contract negotiations and all the other disruptions a
union will bring in here.” Lave said that Bill Furman (the
CEO) announced to the shareholders that eight shops were
being closed down; Lave had already closed four, and was tired
of closing shops. He noted how hard all the employees had
worked to turn things around, and stated he did not want the
union to come and cause things to go the other way. He said
they all could vote on Thursday, in two days, and told them the
times they could vote. Lave said there would be an election
agent from the government who would check them and give
them a ballot. He told them they could vote either way, but
“we encourage you to vote no.” He also conveyed that even if
they signed an authorization card, they could still choose
whether they wanted to vote yes or no. He encouraged every-
one to vote, noting the results would be based on the majority
of who votes. He concluded by thanking them for their time
and fielding questions.
Also on July 9, Lave instructed Valenzuela to distribute to all
employees toward the end of their shifts, and post on the bulle-
tin board, handouts entitled, “Have the Sheet Metal Workers
told you about Article 17” and “Facts Matter – There are
Risks in Collective Bargaining.” (GC Exh. 58.) The article
17 handout describes article 17 of the Sheet Metal Workers’
Constitution, stating that it allows the union to put members on
“trial” and penalize members it finds guilty. Sample penalties
include reprimands, suspensions, expulsions, and fines which
can be in the thousands of dollars. The flyer tells employees
the Sheet Metal Workers can discipline members for failing to
pay union dues, seeking other representation if they become
dissatisfied with the Sheet Metal Workers, interfering with
union business, returning to work during a strike, and violating
union officials’ orders. (GC Exh. 60.)
Lave instructed Valenzuela to do the same for “Greenbrier
Gives You the Facts . . . About the Business Called the
Sheet Metal Workers Local 359.” (GC Exh. 60.) The
handout informs employees that the Sheet Metal Workers is a
business, stating that Local 359 charges up to $50/month in
dues alone. In 2012, the Local 359 collected more than $2.1
million in dues, fees and fines from members but spent only
$734,746 on representing employees in its bargaining units.
Over seven officers made more than $50,000 in 2012, five of
them made more than $85,000 and three made $100,000 or
more. It rhetorically asks why employees should spend money
on a union when the can guarantee nothing in return, and notes
that employees could instead save for college tuition, a vaca-
tion, retirement, or a house payment. It concludes by telling
employees not to throw their money down the drain and to vote
no in the election.
Another flyer states: “Q. Why is a union not like a new car?
A. Because you can’t test drive a union.” The flyer tells em-
ployees that it is very difficult to get rid of a union once it is
voted in, and impossible during the first year. It further states
that if Greenbrier and the union negotiate a three-year contract,
employees would be stuck with the union another three years
even if they were dissatisfied with the contract. It informs em-
ployees of the narrow window for decertification of a union and
notes that Greenbrier could not assist employees. Finally, it
warns employees that usually once a union is in, it is in “for the
long haul” and the decision to vote for the union cannot be
reversed easily. The concluding sentences state, “Don’t drive
down a one-way street. VOTE NO.” (GC Exh. 60.)
Employees also received, “Greenbrier Gives You the Facts
. . . ABOUT WHAT CHANGES IF THE UNION WINS
THE ELECTION.” It delineates the job positions the union
will represent, and states the union will speak for the employees
in those positions whether the employees want them to or not.
It tells employees their individual voices will often be
“drowned out by the voice of the Union.” The flyer tells em-
ployees they will be limited in their ability to deal directly with
managers and supervisors, and tells them much of their person-
al information and business with Greenbrier may no longer be
confidential. It states that what individual employees think is
important often will not be included in negotiations.
The next part of the handout states, Do you know . . .
THERE ARE RISKS IN COLLECTIVE BARGAINING.
The handout then tells employees what the law says, quoting
from various NLRB decisions. The handout emphasizes things
the union can give up during bargaining. The final citation
states
Are there guarantees in the collective bargaining process?
“Collective bargaining is potentially hazardous for employ-
ees, and as a result of such negotiations, employee could pos-
sibly wind up with less benefits after unionization than be-
fore.” Coach & Equipment Sales, 218 NLRB No. 51.43
The flyer ends by reminding employees they could wind up
with more, less, or the same that they have now, and tells them
to vote “no” union. (GC Exh. 60.)
The next section of the handout begins with: “CAN YOU
TRUST THE SHEET METAL WORKERS? THE UNION
CLAIMS IT’S “AN OPEN BOOK” THEY SHOULD
EXPLAIN WHY SO MANY UNION OFFICIALS CAN’T
KEEP THEIR HANDS OFF OTHER PEOPLE’S MONEY?”
The handout states that since 2002, at least 10 Sheet Metal

43 This citation contains an error, and should be 228 NLRB No. 51.
The case cited at 218 NLRB No. 51 is Globe Manufacturing Co., and it
contains no such quote.
GUNDERSON RAIL SERVICES, LLC 27
Workers have been found guilty of corruption or embezzle-
ment, and lists the offenses. It rhetorically asks employees why
they would risk putting their money in the hands of Sheet Metal
Workers officials and why they would trust what anyone asso-
ciated with the Sheet Metal Workers says. It concludes by
telling employees not to get fooled by the Sheet Metal Workers,
and to vote NO. (GC Exh. 60.)
The last part distributed was a repeat of the “Top Ten Ways”
handout, discussed above.
P. Decline in Employee Support for Union and the Election
The Union had been meeting with employees about once a
month, but as the election grew closer they tried to meet every
other week. Sudyam noticed that attendance started diminish-
ing, along with support. The individual who agreed to be the
secondary observer at the election withdrew and would not
communicate with the Union. The day before the election, the
employee who agreed to be the primary observer contacted the
Union and said he could not do it because he feared repercus-
sions. Ramos, who did not work for Greenbrier anymore,
agreed to observe. (Tr. 1850–1852; 1881–1882.)
Jesus Barajas was the observer for management. He still got
to cast a vote. (GC Exh. 77.) Of 72 eligible voters, 13 employ-
ees voted for the Union, 45 voted against the Union, and anoth-
er 14 votes were challenged. (GC Exh. 7.)
Q. Objections to Election
The Union filed objections to the election with the Board on
July 17. Objections 1–9 are encompassed in the unfair labor
practices complaint. In addition to the unfair labor practice
allegations, the Union made four other objections.
Objection 10 asserts that GRS provided an inaccurate Excel-
sior list that did not use dates from the stipulated agreement on
June 3, 2013. Objection 11 asserts that during the election,
management was approximately 70 feet away from the polling
location. Sudyam observed Valenzuela and another person
standing roughly 70 feet away from the polls and the employ-
ees had to walk past them to vote. (Tr. 1864–1865.) Objection
12 asserts that a known supervisor was permitted to vote after
polls had closed. Miguel Solomon cast his ballot subject to
challenge on the advice of the NLRB agent. (Tr. 1867–1868.)
Objection 13 contends that the Respondent, during the critical
period, intimidated union supporters in a manner so egregious
that an election observer could not be secured from the eligible
voter list.
R. Continued Meetings with TTX and Closure of Tucson Shop
On July 22, Torra, Ferguson, Glenn and maybe Stuckey met
with Harmsworth, Cutrone and TTX’s CFO Vickie Dudley.44
(Tr. 2648.) Glenn recounted the meeting in a July 23 email to
various individuals. He noted that GRS laid out a menu of
options which increased the price 25 percent if the workflow
was left as is, but decreased costs by consolidating all the work
at the Tucson shop. He also noted Harmsworth’s skeptical
reaction and her concern that they did not need all the capacity
at Tucson so they should not have to pay for it. He recounted

44 Harmsworth thought assistant vice president of maintenance and
planning Mike Kelly was also there.
feedback from Cutrone to Ferguson that they were insulted and
“hell will freeze over” before they agreed to pay for it. He ex-
pressed his belief that Tucson and San Antonio would be added
to the closure list, and asked Abel to prepare a budget with the
sale/shutdown of Tucson and San Antonio. (R Exh. 69.)
On July 24, Abel raised the possibility that they sell part of
Tucson’s land that was not being used for the repair shop. He
asked Torra what percentage of the land could possibly be sold
to maintain the shop size needed for TTX’s newly decreased
demands, noting the reduced volume TTX was interested in
changed the dynamics. Torra responded that the about 15% of
the land was not used for the repair shop, and asked if he
should obtain the services of a realtor. Ferguson responded to
the possibility of downsizing the Tucson shop by noting that
the capacity was originally built to meet TTX’s demands, and
expressing frustration that TTX had always said they have more
work available than GRS could possibly do. He suggested that
possibly an updated analysis TTX had recently performed
changed the forecast. (R Exh. 69.)
Under the proposed rate structure, the hourly rate at Tucson
was $13.03 higher if TTX sent 6000 hours of work per month,
$10.64 higher at 7,000 hours, and $8.09 higher at 8000 hours,
which was San Antonio’s capacity. If TTX sent 10,000 hours
of work, the hourly rate was slightly higher than 8000 hours at
San Antonio. At 11,000 hours and above, the hourly rate is less
than the hourly rate for 8000 hours in San Antonio. If they
could send 13,000 hours of work to Tucson, the hourly rate
would be $6.50 less than 8000 hours in San Antonio. (GC Exh.
257.) At the time, there was not more than about 9500 work
hours between the two shops. (Tr. 2539–2540.) Between Jan-
uary and July 2013, TTX was billing about 6000 hours a month
to Tucson. San Antonio averaged about 5000 hours per month.
(Tr. 2653.)
Prior to this, the hourly rates in Tucson and San Antonio
were the same, regardless of hours of work. (GC Exh. 277.)
The highest hourly rate in the new structure (for 6,000 hours)
had rates in Tucson $10.01 higher than they had been previous-
ly and rates in San Antonio $3.02 lower than they had been.
Tucson came out ahead of its old rate at 8000 hours. The Mira
Loma rate was significantly lower than even the lowest rates of
Tucson or San Antonio because TTX owns the facility, proper-
ty, and equipment at Mira Loma, and GRS leases it. (Tr. 2673–
2674; GC Exh. 278.)
The July 25 GRS network rationalization listed San Antonio
as a sell/close location and lists Tucson on the “Fix/Watch List”
with “Fix-TTX contract.” San Antonio and Tucson were both
denoted as “Dedicated TTX Shop or Closure.” For San Anto-
nio, the “Fix, Close or Sell Recommendation” was “Fix (as
TTX dedicated shop) or alternatively close (most likely).” The
comments stated:
As of most recent discussions with TTX on July 22nd, they
will likely not utilize SA under our proposed compensation
structure requirements so we will likely proceed in closing the
shop by December 31. Discussions with TTX on location op-
tions, primarily as a dedicated TTX shop (along with Tucson)
with significant change in compensation structure required,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 28
including TTX responsible for providing material and carry-
ing inventory. (GC Exh. 165.)
For Tucson, the “Fix, Close or Sell Recommendation” is
somewhat confusing, stating “Fix as TTX Dedicated Shop Clo-
sure.” There was a note that union campaign activities have
recently begun again following last year’s election to stay non-
union. The comments stated:
As of most recent discussions with TTX on July 22nd, they
will likely reject our proposed compensation structure re-
quirements. We are currently exploring other alternatives in-
cluding sale & leaseback to Indipendant (sic) party to de-
crease high capital structure. If not (sic) alternatives found we
will likely proceed in closing the shop by December 31. Dis-
cussions with TTX on location options, primarily as a dedi-
cated TTX shop (along with Tucson45) with significant
change in compensation structure required, including TTX re-
sponsible for providing material and carrying inventory. Pro-
posed TTX agreement “fix” capital reduction of net ̴ $300K-
$1.6M, primarily reduction of inventory (TTX responsible for
material) net of additional capital improvement.
(GC Exh. 165.)
After the meeting, TTX officials looked at where cars that
were bad-ordered, i.e. taken out of service due to physical con-
dition, originated from, and the majority were from California
and Oregon. The Los Angeles area is very congested, so TTX
prefers not to send them out of state for repair. They decided
routing them to Tucson did not make the most sense. (Tr.
2657–2658; GC Exh. 279.) TTX deemed San Antonio to be an
important facility because of its location in Texas, where its
largest customer, Union Pacific, routes many of their cars.
The GRS network rationalization plan on August 16, 2013,
described Tucson and San Antonio as “Dedicated TTX Shop or
Closure” with the same recommendations as the July 25 plan.
The same holds true for the September 11 plan. (GC Exhs.
166–167.)
On August 27, Harmsworth sent an email to various individ-
uals recounting a conference call with Glenn and Ferguson
where she informed them they would no longer be sending cars
to Tucson. Of the 6000 hours per month consumed in Tucson,
4500 were to go to the WRRC,46 and the rest to Chehalis and
San Antonio. She noted that no longer routing cars to Tucson
was positive for Fleet cars because cars bad ordered in Califor-
nia would be worked in California. She also noted that Glenn
appreciated them finding a solution that enabled GRS to close
Tucson.47 They then discussed San Antonio, and Harmsworth
conveyed that closing Tucson and potentially closing San An-
tonio would be a hardship to TTX. She told Glenn that in light
of them finding a solution to the Tucson problem, they wanted

45 This clearly should be “San Antonio” and most likely was cut and
pasted from San Antonio’s page.
46 This acronym was not defined at the hearing.
47 Harmsworth addressed this comment at the hearing, stating that
Glenn appreciated a solution, and had made it very clear GRS needed
to fix, sell, or close Tucson, San Antonio and other facilities due to
Wall Street pressure. He never indicated a preference to her. (Tr. 2668–
2675.)
San Antonio to stay open, and they only needed 5,000 to 6,000
hours per month there. She also requested a lower labor rate,
and noted that “allegedly” they would receive a lower rate.
Another meeting at TTX took place on August 29. Torra,
Ferguson, Glenn, and Bobby Hatfield, the assistant vice presi-
dent production, were present for GRS. Harmsworth, Cutrone,
and Lent, among others, were present for TTX. During the
meeting, TTX said GRS it would no longer send cars to Tucson
because they liked the rate, structure and geographical location
of San Antonio better. (R. Exh. 71; Tr. 2474.) They did not
have as much volume as GRS wanted, and they had lower vol-
ume than they had expected. This was due to a maintenance
reduction that TTX implemented on August 1. During a
maintenance reduction, the customer stops sending cars to re-
pair and maintenance facilities in order to save money. (Tr.
2520–2522.)
Once informed of TTX’s decision to no longer use the Tuc-
son facility, GRS officials, including Ferguson, determined it
would be closed. They did not consider keeping it open to
service other customers, such as Pacer, or to continue servicing
GRS’s own railcars.48 According to Ferguson, the Tucson shop
was built for TTX and could not service other railcars, such as
tank cars. Ferguson, Glenn, Torra, Abel and Hatfield assessed
their options, and decided there were no options other than to
close down the facility. (Tr. 2522–2524; 2528–2532.)
Federico recalled that Danny Dicochea, who negotiated con-
tracts with railcar companies, told him that Brandt would send
40 to 50 railcars to the Tucson facility for repairs, and could
also send all their vehicles needing basic service within a cou-
ple of weeks. According to Federico, Dicochea also spoke with
Pacer, who agreed to keep sending them cars to keep them
afloat until TTX was able to send more work. (Tr. 605–606.)
Torra was surprised by the decision to close the Tucson
shop. He thought it made more sense to close San Antonio and
leave Tucson open because Tucson had a lot more capacity and
more capital was invested there. Also, based on the expectation
of San Antonio closing, GRS had let the number of employees
there dwindle down by attrition. (Tr. 2477.)
Following the decision to close the Tucson facility, TTX
routed the cars to Mira Loma or San Antonio. This resulted in
about 2000 more cars being routed to San Antonio, for a total
of about 7000 cars. (Tr. 2663–2664.) An equivalent labor rate
in Tucson would require a volume of more than 9000 cars. (GC
Exh. 257.)
On September 5, employees were issued Worker Adjustment
and Retraining Notification Act (WARN) notices. (Tr. 628.)
The managers told them the Tucson plant would be closing
because TTX had pulled their contract. (Tr. 604.) All non-
management employees were offered transfers along with relo-
cation money to either Mira Loma, San Antonio, Cleburne,
Omaha, or Chehalis. (R. Exhs. 94–95.) Employees who chose
not to relocate were provided a severance and terminated.
The last TTX car to be repaired in Tucson left the facility in
January 2014. (Tr. 1111, 2661–2662.)

48 GRS offered to continue to service Pacer cars in San Antonio,
Chehalis, or any other location that worked for Pacer. (Tr. 2530.)
GUNDERSON RAIL SERVICES, LLC 29
At the time the shop closed, TTX accounted for roughly 70
percent of the total hours billed from the Tucson shop, and
about 58 percent of the total railcars repaired. Non-TTX work
would have supported 17 full-time employees. Work on the
Respondent’s own railcars generated an average of $157,240
per month in revenue and work on non-TTX cars generated an
average of $255,919 in monthly revenue. (GC Exh. 268; GC
Br. Exhs. A, B, C.)49
S. Closure of other Facilities
The Kansas City, Missouri and Canada repair facilities
closed in July 2013. The Mexico City repair facility and wheel
facility sold at end of 2013. The Corwith, Illinois facility
closed in January 2014 because GRS proposed to raise labor
rates close to 20 percent and its customer, Burlington Northern
Santa Fe, would not accept them. The repair facility in Beck-
man, Texas also closed, and the wheels facility in Elizabeth-
town, Kentucky, closed in 2012. (Tr. 327, 2718–2734.) There
were not union organizing drives at these facilities.
III. DECISION AND ANALYSIS
A. The Layoffs
The complaint, at paragraphs 6(a) and (b), alleges that the
November 12 and 13 layoffs violated Section 8(a)(3) and (1) of
the Act.
Under Section 8(a)(1) of the Act, it is an unfair labor practice
for an employer “to interfere with, restrain, or coerce employ-
ees in the exercise of the rights guaranteed in Section 7. Rights
guaranteed by Section 7 include the right to engage in union
activities and “concerted activities for the purpose . . . of mutu-
al aid or protection.” Section 8(a)(3) provides that it is an un-
fair labor practice for an employer “by discrimination in regard
to hire or tenure of employment or any term or condition of
employment to encourage or discourage membership in any
labor organization.”
In assessing whether an action has been taken against an em-
ployee for unlawful reasons, the Board applies the framework
set forth in Wright Line, 251 NLRB 1083, 1089 (1980), enfd.
on other grounds, 662 F.2d 899 (1st Cir. 1981), cert. denied 455
U.S. 989 (1982). Under Wright Line, the General Counsel must
first prove, by a preponderance of the evidence, that the em-
ployees’ protected conduct was a motivating factor for the
Company’s adverse action. Once the General Counsel makes a
showing of discriminatory motivation by proving the employ-
ees’ protected activity, the employer’s knowledge of that activi-
ty, and the Company’s animus against the protected conduct,
the burden of persuasion shifts to the employer to prove it
would have taken the same action even in the absence of the
protected conduct. See DirecTV U.S. DirecTV Holdings, LLC,
359 NLRB No. 54, slip op. at 4 fn. 18 (2013); Manno Electric,
321 NLRB 278, 280 fn. 12 (1996). The employer cannot carry
this burden merely by showing that it also had a legitimate

49 I rely on the underlying data admitted into evidence at the hearing
and note the exhibits the General Counsel submitted with its closing
brief are merely summaries of that data. They are not admitted to es-
tablish any evidence not already a matter of record at the close of the
hearing, but are utilized for ease of reference only.
reason for the action, but must persuade by a preponderance of
the evidence that the action would have taken place absent the
protected activity. Dentech Corp., 294 NLRB 924, 956 (1989).
The employees were clearly engaged in protected activity
when they began to organize in the fall of 2012. The Respond-
ent contends that GRS did not know about these efforts, point-
ing to evidence that the organizers and employee leaders were
trying to keep the organizing drive under wraps.
It is undisputed that employees did not wear union insignia
or, in other like fashion, display their support for the Union. It
is also undisputed that employees did not sign cards in man-
agement’s presence. However, the evidence is very clear that
several managers knew the employees were talking about un-
ionizing. As set forth in the statement of facts, in late October,
Foreman Torres heard rumors that the Union was coming
around again. During the October 31 meeting Lave conducted
with foremen and leadmen to discuss union organizing, he was
aware of “some discussion out there in the shop about trying to
bring the UTU or some other union back in,” and knew em-
ployees were “somewhat active.” Lave heard from two of the
supervisors at the meeting that a couple of employees were
meeting offsite with union organizers. In addition, as detailed
above, some employees shared information about the union
drive, including progress in getting cards signed, with supervi-
sors or leads. Leadman Acuna was aware employees were
trying to organize, and the evidence shows that Managers
Tarpley and Valdez and Foreman Torres also were aware of
union activity.50
In the face of this evidence, I find the blanket denials of
knowledge by the various management officials who testified
lack credence.51 Accordingly, I find the General Counsel has
met its burden to show the Respondent had knowledge that
employees were organizing, or at the very least planting the
seeds to do so.
The General Counsel need not prove the employer's
knowledge of any specific employee's opinion or sympathies in
the context of a mass layoff conducted with the unlawful pur-
pose of discouraging union membership. See Birch Run Weld-
ing & Fabricating Inc. v. NLRB, 761 F.2d 1175, 1179–1180
(6th Cir.1985). The mass discharge itself is unlawful rather and
the General Counsel therefore is “not required to show a corre-
lation between each employee's union activity and his or her
discharge.” Pyro Mining Co., 230 NLRB 782 fn. 2 (1977).52

50 Though Torres and Tarpley did not testify, I find the hearsay evi-
dence of their knowledge is reliable because it is corroborated by an
abundance of evidence that management knew there was talk of organ-
izing in the fall of 2012.
51 Specific credibility determinations are made in context throughout
this decision. I note, however, that some of the managers, particularly
Lave and Torra, couched a good deal of their testimony with various
hedging terms, such as “may have,” “would have,” “if I recall,” etc. . .,
as pointed out by the General Counsel. Though some of the events
took place as early as the fall of 2012 and some uncertainty in memory
would be exptected, there is a great deal of testimony about large im-
portant events, such as the layoff, as well as more recent events, that
should not legitimately be uncertain.
52 For this reason, the Respondent’s arguments that the layoffs did
not target union supporters fail.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 30
Instead, the General Counsel's burden is to establish that the
mass discharge was ordered to discourage union activity or in
retaliation for the protected activity of some. “A power display
in the form of a mass layoff, where it is demonstrated that a
significant motive and a desired effect were to ‘discourage
membership in any labor organization,’ satisfies the require-
ments of § 8(a)(3) to the letter even if some white sheep suffer
along with the black.” Majestic Molded Products v. NLRB, 330
F.2d 603, 606 (2d Cir. 1964). See also Delchamps, Inc., 330
NLRB 1310, 1317 (2000); Weldun International, 321 NLRB
733, 734 (1996) (violation where the employer did not select
employees for layoff based on their support for the Union, but
the layoff was part of an effort to discourage employees from
supporting the Union), enfd. mem. in part 165 F.3d 28 (6th Cir.
1998).
A discriminatory motive or animus may be established by:
(1) the timing of the employer’s adverse action in relationship
to the employee’s protected activity; (2) the presence of other
unfair labor practices, (3) statements and actions showing the
employer’s general and specific animus; (4) the disparate
treatment of the discriminatees; (5) departure from past prac-
tice; and (6) evidence that an employer’s proffered explanation
for the adverse action is a pretext. See Golden Day Schools v.
NLRB, 644 F.2d 834, 838 (9th Cir. 1981); NLRB v. Rain-Ware,
Inc., 732 F.2d 1349, 1354 (7th Cir. 1984) (timing); Mid-
Mountain Foods, Inc., 332 NLRB 251, 260 (2000), enfd. mem.
169 LRRM 2448 (4th Cir. 2001); Richardson Bros. South, 312
NLRB 534 (1993) (other unfair labor practices); NLRB v.
Vemco, Inc., 989 F.2d 1468, 1473–74 (6th Cir. 1993); Affiliated
Foods, Inc., 328 NLRB 1107 (1999)(statements); Naomi Knit-
ting Plant, 328 NLRB 1279, 1283 (1999) (disparate treatment);
JAMCO, 294 NLRB 896, 905 (1989), affd. mem. 927 F.2d 614
(11th Cir. 1991), cert. denied 502 U.S. 814 (1991) (departure
from past practice); Wright Line, 251 NLRB at 1089; Roadway
Express, 327 NLRB 25, 26 (1998) (disparate treatment). The
Board will infer an unlawful motive or animus where the em-
ployer’s action is “‘baseless, unreasonable, or so contrived as to
raise a presumption of unlawful motive.’” J. S. Troup Electric,
344 NLRB 1009 (2005) (citing Montgomery Ward, 316 NLRB
1248, 1253 (1995)); See also ADS Electric Co., 339 NLRB
1020, 1023 (2003); Shattuck Denn Mining Corp. v. NLRB, 362
F.2d 466, 470 (9th Cir. 1966).
Timing of the layoffs can, by itself, raise a strong inference
of both knowledge and animus. Best Plumbing Supply, 310
NLRB 143, 144 (1993). In the instant case, the timing of the
layoffs occurred just 4 days after the Union had collected cards
from a majority of the production employees. Even if the
decisionmakers did not have this specific knowledge, it is clear
they knew union organizing activity was occurring in the time
period immediately preceding the layoffs.
Maciel and Stewart’s conflicting reports of when they decid-
ed on the plan to close all but two shops and lay off workers to
scale, as well as their conflicting reports about the process for
choosing which employees to lay off, casts consideratble doubt
on the legitimacy of these actions. It is clear no action to lay
off the employees could take place until Torra approved the
plan, which did not occur until the plant manager’s meeting
November 5–7. Maciel did not begin working on the list of
production employees to be laid off until Thursday November
8. He claimed he and Stewart went through the list systemati-
cally, employee by employee, to determine who to retain, con-
sidering skill, performance, safety, and cross-training. By
Stewart’s account, he left it to Maciel to determine who would
be retained because he was not familiar enough with the direct
work force to know the employees’ skills. Moreover, both
Stewart and Maciel recalled that Maciel consulted with produc-
tion manager Valdez, yet Valdez’ testimony belies this. The
Respondent addresses this inconsistency in its brief, stating that
because Valdez did not know of the impending layoffs, “Natu-
rally, Mr. Maciel did not ask for recommendations about who
should be retained but, rather, had general conversations with
him.” (R. Br. p. 18, fn. 19.) This argument is a stretch on its
own, and is significantly weakened by the parallel inconsisten-
cies about Valdez’s input into who should be rehired, detailed
below, where no concern over spilling the beans about a layoff
was present. See Maywood, Inc., 251 NLRB 979, 993–994
(1980) (inconsistent testimony regarding as to who made dis-
charge decision and the reason for the discharge evidence of
pretext to hide the real reason, advocacy for the union).
One of the key reasons the Respondent cited for the layoffs
was poor labor rate efficiency due in part to a new and under-
trained work force. Yet, nobody looked at performance evalua-
tions or consulted the leadmen and foreman about which em-
ployees were the best and most efficient performers. I find it
particularly telling that it was possible to run production reports
in the Kronos system to track employee production, yet this did
not occur.53 Moreover, Jaime Hernandez, one of the Tucson
shop’s “strongest men” who had just received a raise, was not
retained. In addition, Maciel’s testimony about the factors he
considered did not include attendance, and he said he did not
look at any records. Yet Maxey testified Maciel and Stewart
considered attendance and she provided them with records.
The haste with which the layoffs were conducted is strong
evidence that the Respondent’s motivations were tainted. It is
clear there was particular urgency for the layoffs to occur on
November 12,54 as shown by the 11th hour HR analysis over
the weekend55 and the lack of any meaningful deliberation
geared to meet stated business objectives. The “general infor-
mation” relied upon to determine which of the employees to
retain and which to lay off is the only kind of information ame-
nable to such a quick turn-around. If the aim was to send a
message quickly before organizing efforts gained more traction,
this cursory form of decision-making makes sense. If the aim
was to retain the most productive employees in order to maxim-
ize labor efficiencies, it does not.
There was also inconsistent testimony among managers
about whether or not there was a lack of work, but the evidence
clearly demonstrates employees were working overtime and
additional employees were being hired at the time of the layoff.

53 Though it was not practice in the ordinary course of business to
run the reports by employee, it was possible to do so. (Tr. 92.)
54 I note that November 12, 2012, was Veteran’s Day, and as
Sudyam testified, the NLRB was closed.
55 Lave emphasized that his email sent at 12:35 on Saturday
night/Sunday morning must be reviewed by Monday.
GUNDERSON RAIL SERVICES, LLC 31
The evidence of tainted motivation must be viewed in con-
junction with strong evidence of animus toward unions. Of the
plethora of evidence of antiunion bias, Torra’s patent misstate-
ment that TTX does not like doing business with unionized
shops, and the accompanying threat that they could lose their
biggest customer if the Union came in, is the most striking.
Other misinformation and threats, discussed fully below, make
clear that avoiding unionization at the Tucson plant was an
extremely high priority.
Other evidence of animus includes the discipline the Mar-
tinez’ received for their attempts to organize for the UTU in
2011. Witnesses, including Maxey, however, testified that it
was common for employees to discuss nonwork topics such as
sports and family.
Based on the foregoing, I find the General Counsel has es-
tablished that the Respondent’s antiunion animus was a moti-
vating factor in the decision to lay off 30 employees on No-
vember 12. As such, the burden shifts to the Respondent to
prove it would have taken the same action even in the absence
of union activity.
GRS argues that the layoffs were economically motivated,
prompted by the directive to take swift and decisive action
following months of financial losses and a particularly poor
showing for October. As already stated, however, the manner
in which Stewart and Maciel decided which employees to lay
off, does not jibe with the stated desired end of increasing labor
efficiency. As Lave pointed out, the AAR writeup employees
Stewart and Maciel proposed to retain each had only 3 months’
experience, while they proposed to lay off Anderson, who had
6 years, and another employee who had 9 months. Anderson
had been slated to be the AAR billing supervisor in the summer
of 2012, and he in fact became the billing manager, so GRS
cannot legitimately argue that he was slated for layoff because
he did his job poorly. Moreover, among the employees re-
tained were three from a temp-agency, each of whom had been
working at the Tucson shop for less than 2 months, yet a strong
performer who had just received a raise based on his good work
was let go. The previously detailed inconsistencies in Maciel
and Stewart’s respective versions of how employees were cho-
sen casts further doubt on the layoffs’ legitimacy.
The financial argument is also weakened by the fact that the
financial statements in September and October did not accu-
rately reflect the true state of the financial situation at the Tuc-
son shop due to conversion to the Syspro system and some
unusual expenses, articulated in the statement of facts.56 More-
over, as the General Counsel points out, other shops experi-
enced comparable losses without resultant mass layoffs. Mont-
gomery Ward & Co., 234 NLRB 13, 15 (1978) (Less drastic
action taken at comparable facilities without union activity is
evidence of unlawful motivation.) The Respondent argues the
Tucson facility’s high capital structure meant that its perfor-
mance had a significant impact on return on investment capital
(ROIC), and therefore it was imperative that the Tucson shop
perform well. This evidence derives from an email Abel sent to
Torra in response to Torra’s request for information about the

56 There were also inexplicable discrepancies in the scorecards. (Tr.
2295; R. Exh. 49.)
cost of closing the Tucson facility. There is no evidence that
this information was conveyed to or relied upon by Stewart and
Maciel when they decided to downsize the facility.
The recall of most of the laid off employees to build the
work force back up to essentially the same size as it was before
for essentially the same reasons, despite employees having been
notified that the layoff was permanent, is another indication of
pretext. Resistance Technology, 280 NLRB 1004, 1005 (1986.)
I also find significant the departures from past practice. See
Montgomery Ward, supra. Morrison stated that when he con-
ducted layoffs in 2009, it was more measured, occurring over a
year, and was “a group effort from leadmen, supervisors,
managers who we wanted to keep.” (Tr. 101–103.) Lave
said GRS’ protocol was to look performance quality, safety
record, attendance, and whether the employee is cross-trained
in other jobs. Clearly, these factors were not considered in any
meaningful way.
The General Counsel asserts that the fact GRS was still hir-
ing for its Tucson shop as late as early November is evidence of
pretext. If this was the only evidence aimed at showing unlaw-
ful motivation for the layoffs, I would not find it persuasive.
The Respondent’s conduct as a whole, however, persuades me
that the layoffs were a power play intended to nip organizing
efforts in the bud, in violation of Section 8(a)(3) and (1). See
Carbonex Coal Co., 248 NLRB 779, 797, 798-799 (1980),
enfd. 79 F.2d 200 (10th Cir. 1982).
Objection 3 mirrors this complaint allegation and is sus-
tained based on the above analysis.
B. The Rehires
1. Failure to rehire
Paragraph 6(d) and (e) alleges that the Respondent violated
Section 8(a)(4), (3), and (1) of the Action by refusing to rehire
various employees in March 2013.57
The Board applies the framework set forth in FES, 331
NLRB 9 (2000), supplemented by 333 NLRB 66 (2001), enfd.
301 F.3d 83 (3d Cir. 2002), to analyze allegations of discrimi-
natory failures to hire. The General Counsel has the burden to
prove:
(1) that the respondent was hiring, or had concrete plans to
hire, at the time of the alleged unlawful conduct; (2) that the
applicants had experience or training relevant to the an-
nounced or generally known requirements of the positions for
hire, or in the alternative, that the employer has not adhered
uniformly to such requirements, or that the requirements were
themselves pretextual or were applied as a pretext for discrim-
ination; and (3) that antiunion animus contributed to the deci-
sion not to hire the applicants.
If the General Counsel establishes these criteria, the burden
shifts to the employer to prove it would not have hired the ap-
plicants even in the absence of their union activity.

57 The employees named in the complaint are Alex Amador,
Oswaldo Chavira, Ricardo Martinez, Jesus Ruiz Oscar, Guillermo
Gonzalez Pico, Guillermo Murguia, Jose Angel Ortega, and Oscar
Salinas.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 32
It is undisputed that the Respondent was hiring in March
2013, and the focus was to rehire former employees who knew
the job and did not need training. The former employees obvi-
ously had experience and training relevant to the positions. The
General Counsel has thus established the first two elements of
the FES test.
The only remaining question is whether antiunion animus
contributed to the decision not to rehire the applicants. I will
first discuss evidence of animus from the process of re-hiring
the employees generally and then discuss evidence as it applies
to individual employees. It is clear the process was geared to
rehire the employees who did not exhibit signs of being upset
about the layoffs and who did not question the rehire process.
As the General Counsel points out, while the goal was to in-
crease headcount and profitability by rehiring former employ-
ees with experience welding and working on rail cars, past
performance is absent from any documentation of the rehire
process. Indeed, there is no evidence of how any objective
criteria were applied. Valenzuela did not review performance
records of the former employees. Instead, the focus was on
how the former employees acted when they came to reapply.
C. Martinez was instructed to keep a detailed log, which Maxey
reviewed weekly, describing her interactions with the former
employees, including their demeanor when they came to the
shop. No similar log was kept for new applicants.
There was no written process for having employees reapply
and reinterview. The practice of keeping a log and having it
reviewed by higher level HR managers was clearly implement-
ed uniquely for the rehiring of the laid-off employees. Having
regional HR management review rehires was also a new prac-
tice. As Maxey testified, shortly after she started at GRS in
2012, she learned shops were rehiring people on their own with
the discretion of the plant manager. She could not recall other
specific employees rehired prior to the rehires at the Tucson
shop.
The Respondent contends that evidence concerning the per-
centage of employees rehired who signed authorization cards
refutes any claim of retaliation. I find this unpersuasive. First,
as the Respondent repeatedly notes, GRS managers did not
know the specifics of who signed cards. The layoffs had been a
power play meant to send a message to all employees. The
closely following rehires, necessitated by the large volume of
work at the Tucson facility, were extremely subjective and
geared toward trying to figure out which employees were upset
about the layoffs and likely to cause trouble or question the
terms of their employment. In other words, they were aimed at
determining which employees had gotten the message. Regard-
less, the Board has held that an employer’s failure to discrimi-
nate against all protected applicants does not bar a finding of a
violation. Zurn/NEPCO, 345 NLRB 12, 46 (2005); Fluor Dan-
iel, 333 NLRB 427, 440 (2001), enfd. in relevant part332 F.3d
961 (6th Cir. 2003) cert. denied 543 U.S. 1089 (2005).
Valenzuela’s purported lack of knowledge of the former em-
ployees’ union activity is likewise unpersuasive. The evidence
shows he was not ultimately in control of who was rehired, as
illustrated most tellingly by the Respondent’s treatment of
Omar Ramos.
a. Omar Ramos
Turning specifically to Omar Ramos, I find antiunion animus
clearly contributed to the decision not to rehire him. Ramos
completed an application on March 25 and interviewed with
Valenzuela. The only negative comments about Ramos during
the process came from C. Martinez, who noted that he ques-
tioned why he had to fill out a new application, stated he
thought employees who were laid off should be hired before
anyone new, and became angry about having to complete the
full application. When Ramos interviewed with Valenzuela
that same day, he was calm, showed no signs of hostility, and
the interview went without incident. Valenzuela recommended
Ramos for rehire. However, after Maxey, Stewart, and Maciel
read the email Valenzuela sent stating that Ramos was one of
the strong union supporters, “corporate” decided not to bring
him back. I find that this, coupled with evidence discussed
below with regard to the Respondent’s burden, shows that anti-
union animus contributed to GRS’ failure to rehire Ramos.
GRS must prove it would not have rehired Ramos in the ab-
sence of his union activity According to Lave, Ramos was not
rehired based on his conduct when he came to apply. Maxey
also recalled that he had a history of being argumentative with
Madrigal, in particular regarding attendance points, but said the
focus in deciding not to rehire him was on his most recent be-
havior. The problem, however, is that Valenzuela, who actual-
ly observed Ramos the day he interviewed, recommended him
for hire.
Valenzuela testified that he changed his mind because he lat-
er found out that Ramos had “a lot of conflict with employees
and supervisors” and the way he treated C. Martinez let him
know he was probably “very confrontation and conflict prone.”
58 I do not credit this testimony nor do I credit Valenzuela’s
testimony that he was one of the decision-makers for Ramos.
This testimony is belied by C. Martinez’ log, which shows she
and Valenzuela were informed Ramos was not being rehired.
Moreover, the supposed conflict Ramos had with his coworkers
and supervisors is squarely contradicted by his most recent
performance appraisal, which gives him the highest marks for
“mutual respect” and “teamwork and cooperation” with com-
ments like, “He gets along and respects everyone” and “He
works good with and around others and pulls out his part of this
work as asked upon.”
I also find it curious that, at a time when GRS was trying to
increase headcount to become more profitable, with a focus on
hiring experienced employees who were productive and cross-
trained, Ramos’ performance history seems to have been ig-
nored. In addition to high marks for getting along with other
employees, Ramos also received the highest rating in “Respon-
sibility and Initiative,” “Job Knowledge,” “Quality of Work,”
and he exceeded for “Productivity.” One of Ramos’ strengths
was that he “[p]uts out quality work and never says no to any-
thing asked of him” and his supervisor noted, “Omar is a very
good and hard worker!” Ramos received a total score of 28 on

58 Valenzuela testified that he, Maxey, and Stewart decided not to
rehire Ramos, but this does not appear to be the case, as C. Martinez’
log entry states that Maxey conveyed to Valenzuela “corporate’s” deci-
sion not to rehire him. (GC Exh. 67.)
GUNDERSON RAIL SERVICES, LLC 33
an appraisal signed off on by Maxey, among others. (GC Exh.
208.) Yet, despite all the positive comments in Ramos’ per-
formance appraisal, Maxey and Lave focused on one comment
from Madrigal that Ramos was angry about having to fill out
another application.
The record also shows that other workers with lower perfor-
mance ratings, who would seem less likely to help GRS meet
its stated productivity objectives, were hired over Ramos. For
example, Jesus Barnes, received a total score of 20 on his most
recent performance appraisal, and received the lowest rating, a
1–needs improvement, on “Productivity” with the comment,
“Would like to see work output in a more timely manner.” He
received a score of 1–needs improvement, in “Teamwork”,
with the comment that he had trouble working with another
employee due to a small conflict and he needed to separate
personal emotions from job. Carlos Contreras and Brian
Perona were also called back as welder repairmen with lower
scores than Ramos.
Finally, even though cross-training was generally a factor in
determining who should be hired, Ramos, who was cross-
trained to weld in the front shop, had worked in the materials
department, and had worked as a painter, was not rehired. I
find the evidence that Ramos was not rehired based on his un-
ion activity is extremely strong, and the General Counsel has
easily sustained its burden to prove the Respondent violated the
Act as alleged.
b. Guillermo Murguia
Murguia repeatedly expressed interest in coming back to
work but was not recalled. At the time he sought to be rehired,
management officials from GRS, including Maxey, knew he
was named on the Union’s unfair labor practice charge. Ramos
had over two years of experience as a welder in the Tucson
shop. I find the General Counsel has established that antiunion
animus contributed to the decision not to re-hire Murguia
The Respondent asserts that Murguia was not hired because
he failed to follow the re-hire process by not submitting an
application and showing up to the shop uninvited. He was also
“obstinate, belligerent with staff” on several occasions.
Murguia, by his own admission, did not complete an applica-
tion. The Respondent submitted evidence that all employees
who were rehired were required to submit an application. This
aspect of the rehiring was consistent with past practice. While I
find the other reasons for failing to hire Murguia do not with-
stand scrutiny under the circumstances, I find the Respondent
has shown that completing a new application for employment
was a legitimate prerequisite for rehire that was uniformly ap-
plied to all former employees.59 Accordingly, I find the Gen-
eral Counsel has failed to prove the Respondent’s failure to
rehire Murguia was discriminatory.60

59 The legitimacy of the application goes to the discrimination analy-
sis only, and not to whether there was a duty to bargain over the rehire
process.
60 Because I have found the layoffs to be retaliatory, the remedy of
reinstating Murguia is not affected. As the General Counsel notes,
Murguia’s behavior was in line with that of other employees who ex-
pressed anger and frustration over personnel actions they deemed unfair
yet were returned to work, so it cannot legitimately be considered after-
c. Oscar Salinas
Salinas, a switchman who was laid off in November, filled
out an application but was not rehired. Incorporating the evi-
dence of antiunion animus discussed elsewhere in this decision,
as well as the focus on Salinas’ demeanor when he came to the
Tucson shop, I find the General Counsel has met its initial bur-
den.
The Respondent asserts that Salinas did not complete an ap-
plication. This is contradicted by the evidence, however. He
picked up an application and brought it back on March 15, but
it was not complete. C. Martinez showed him what he needed
to do, and he agreed, with a calmer and more polite demeanor,
to bring back the completed application the following Monday,
March 18. He returned his returned his application on March
20.
C. Martinez testified that she gave Salinas back the applica-
tion because it was not complete and he never returned it. I find
this is contradicted by C. Martinez’ contemporaneous notes,
which say she gave him back the application on March 15, and
he did, in fact, return it on March 20. The log entry for March
20 shows he returned the application and there is no notation,
as there had been on March 15, that the application was incom-
plete or somehow deficient. Moreover, the failure to rehire
Salinas runs counter to the Respondent’s stated goals of rehir-
ing experienced former employees who could jump right in and
help productivity. There was no evidence presented that Salin-
as had been performing his previous position as a switchman
poorly. Yet, before even contacting Salinas, Federico, who had
never worked as a switchman, was hired into the position and
trained for it on the job. Accordingly, I find the Respondent’s
stated reason for failing to rehire Salinas is pretext and the Re-
spondent failed to meet its burden to prove it would not have
rehired Salinas absent unlawful motivation.
d. Oswaldo Chavira
After he was laid off, Chavira did the sensible thing by any
account and obtained a new job. He was among the first welder
repairmen called back to work. On February 4, when he came
to fill out an application, he was time-pressed and wanted to see
if he liked his new job before deciding whether to return to
GRS. C. Martinez said he could bring his application back in a
couple of weeks, but there was no guarantee the job would still
be open.
Chavira dropped off his application on February 15 and fol-
lowed up twice with C. Martinez. She obtained Chavira’s
phone number and emailed Maciel to let him know about his
interest in returning to work. Maciel did not recall follow up
with Chavira. Incorporating the evidence of antiunion animus
discussed elsewhere in this decision, as well as the focus on
Chavira’s demeanor when he came to the Tucson shop, I find
the General Counsel has met its initial burden.
According to Lave’s notes, Chavira was not rehired due to
bad interview attitude, refusal to complete application, and

acquired evidence that would have independently caused his termina-
tion. Moreover, the cited behavior, along with the failure to re-apply,
would not have occurred absent the unlawful layoff. (See GC Br. p. 88;
Tr. 1650–1651.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 34
delay in eventually completing application. Maciel denied
there was an interview, stating, “I don’t think I had a meeting
with him but he came into the office one day.” (Tr. 2389.)
Maciel recalled Chavira told him he had another job and need-
ed time to decide whether he wanted to come back.61 As far as
refusal to complete an application, the evidence shows other-
wise. The final stated reason is delay in completing an applica-
tion. The evidence shows, however, that Chavira returned a
completed application within 2 weeks of the date he was
scheduled to come in and go through the rehire process.
C. Martinez said she generally gave the former employees
about a week to turn in their applications. This was not a writ-
ten procedure, and I find it did not exist in any kind of uniform
fashion. For example, when Acuna, who was not on the
charge, called one of the foremen and expressed interest in
coming back, C. talked to Maxey accommodating Acuna’s
schedule as much as possible because he was working out at the
mines.
C. Martinez’ statement that there may not be work available
for Chavira if he waited 2 weeks is also squarely contradicted
by the evidence showing a plan to steadily, over the next few
months, rehire experienced welder repairmen. Chavira, with
two years’ experience at GRS as a welder repairman, was not
hired and less experienced employees were hired, even though
it was imperative to increase headcount with experienced em-
ployees who could help GRS meet its financial objectives.
Oddly, C. Martinez noted that Federico was called on February
4 because Chavira declined to come back to work. Federico,
however, had previously been a general laborer and was hired
back as a switchman, so it cannot be credibly argued that Fed-
erico somehow took Chavira’s slot. In any event, GRS contin-
ued to add welder repairmen, and the very day before Chavira
submitted his application, Stewart and Maciel told Lave they
needed to increase the headcount from 57 to 65 over the next
45 days. Under these circumstances, I find the Respondent’s
stated reasons for failing to rehire Chavira are false and the
General Counsel has sustained its burden to prove failure to
rehire him was unlawful.
e. Jose Angel Ortega
The evidence shows that in March, C. Martinez tried to con-
tact Ortega and told his wife to have him come apply. When he
came by in early May, he was told to pick up an application.
As there is no evidence Ortega completed the application pro-
cess, I find, for the same reasons set forth for Murguia above,
that the Respondent has met its burden to prove that that its
failure to rehire Ortega was for a legitimate reason.
2. Refusal to consider
While the former employees discussed above were consid-
ered and not hired, other employees were apparently not con-
sidered for rehire. Specifically, the evidence shows that Ricar-
do Martinez, Alex Amador, and Jesus Ruiz were not considered
for reemployment.
The Board in FES, supra, articulated the following test for
cases involving discriminatory refusal-to-consider violations.

61 Maciel also testified that Chavira never took an application, but
this is clearly erroneous.
The General Counsel must first show: (1) the respondent ex-
cluded applicants from a hiring process, and (2) antiunion ani-
mus contributed to the decision not to consider the applicants
for employment. If the General Counsel meets this burden, the
respondent must prove it would not have considered the appli-
cants even absent their union activity or affiliation.
Ricardo Martinez submitted an application but was not re-
hired. C. Martinez’ log lists him as a painter, but at the time of
the layoff his position title was general laborer. He was not
interviewed and there is no documentation concerning whether
or not he was considered for rehire.62 Alex Amador, a painter,
was never contacted for rehire, nor was Jesus Ruiz, a general
laborer. Other former employees who were laid off in No-
vember also were not contacted for re-hire.
I find these former employees were excluded from the rehire
process. The evidence shows that the plan was to recall experi-
enced former employees who could hit the ground running
before hiring from the outside. In fact, Torra believed GRS
tried to rehire all of the laid-off employees. (Tr. 334.)
With regard to the painters, the evidence shows that Morales,
who was not listed on the charge, had previously submitted an
unsolicited application on February 7 to be a painter. He was
re-hired on April 1 as a welder repairman. His previous wage
with GRS had been $13.01, and his new wages was $14 per
hour. However, the hiring of. Morales was used as a justifica-
tion not to hire Amador, who had worked as a painter longer
than Morales. Moreover, workers from the outside were hired
in May. Considering this evidence along with the evidence of
antiunion animus throughout this decision and the absence of a
legitimate explanation for failing to consider these former em-
ployees as well as other former employees, I find the General
Counsel has met its burden.
C. Termination of Juan Silva
The General Counsel asserts, in complaint paragraph 7(c),
that the Respondent unlawfully terminated welder repairman
Juan Silva.
The Wright Line analysis set forth above applies to Silva’s
termination. I incorporate my findings about regarding union
activity, employer knowledge, and antiunion animus. In addi-
tion, as to Silva specifically, the record shows he spoke regular-
ly with leadmen Ishmael Lopez and Luis Lopez about the Un-
ion and told Ishmael he hoped the Union would win the elec-
tion and bring about changes. It was Ishmael Lopez who ob-
served Silva lowering the EOCC unit and reported it to Valen-
zuela. Accordingly the General Counsel has established the
Respondent’s knowledge. The General Counsel also points to
the timing of Silva’s discharge, which was two after the Com-
pany received the NLRB’s Notice of Representation Hearing,
and 2 days after the Union engaged in handbilling. I find the
General Counsel has met its initial Wright Line burden.
The Respondent contends that Silva was fired because he
committed a serious safety violation when he failed to properly
discharge an EOCC unit. This violation, the Respondent as-
serts, was all the more egregious given that a similar violation

62 Lave’s comments on his rehire summary state “see below” but
there are no comments for Ricardo Martinez. (GC Exh. 63.)
GUNDERSON RAIL SERVICES, LLC 35
had occurred the day before and the employees had received
additional training as a result. Moreover, the Respondent
claims that Silva’s conduct was exacerbated by his insubordina-
tion to Vasquez by questioning the proper procedures for dis-
charging the EOCC unit.
The General Counsel claims the Respondent’s stated reasons
for terminating Silva are pretext to mask retaliation. First, the
General Counsel points out that Scaggs and Maldonado, who
committed the same infraction, were not fired. I agree the evi-
dence shows that these two comparative employees engaged in
similar conduct yet received less harsh treatment. With regard
to Scaggs, who was working with Silva, the Respondent admits
that EOCC units are removed using teams of two employees,
and both employees equally responsible to ensure all safety
procedures are followed. Yet Scaggs received a suspension,
and Silva was terminated. Indeed, there is evidence that Scaggs
had a greater role in the May 30 incident, as he had left a fork-
lift unattended. The Respondent contends that Scaggs and
Silva were in the same protected category in that both had
signed authorization cards, so the harsher treatment of Silva
could not be based on his union activity. There is no evidence,
however, that Scaggs discussed his support for the Union with
any supervisors, as Silva did. 63 The Respondent also points out
that Silva was not laid off and that this casts doubt on the verac-
ity of his testimony about his discussions with Lopez64 and
shows that Union activity did not play a role in his termination.
Admittedly, however, leadmen and other supervisors were not
consulted about the layoffs, and learned about them when eve-
ryone else did. In the case of Silva’s termination, Lopez was
directly involved in reporting the incident.
With regard to Maldonado, the Respondent contends he was
given a warning because he only failed to comply with one
aspect of the procedure, whereas Silva failed to perform all of
the required procedures. The documentation belies this, howev-
er, as Maldonado’s discipline states he “failed to discharge an
EEOC unit” and he also failed to strap the unit. Moreover, the
same potential safety hazards were noted for both Silva and
Maldonado’s violations.
In addition, the General Counsel contends the Respondent
offered shifting reasons for terminating Silva, noting that his
discharge documentation states he was fired for “safety”; the
box labeled “insubordination” is not checked and there is noth-
ing discussing insubordination in the narrative portion. At the
hearing, however, Valenzuela added that Silva was also termi-
nated for his insubordination because he stayed behind after a
safety training and expressed disagreement with the procedures
as Vasquez described them. According to Vasquez, however,
Silva wanted to know why they weren’t strapping the EOCC

63 The same explanation holds true for Maldonado, who also signed
a card.
64 The Respondent further contends that Silva falsely testified that
the safety procedure at issue was presented differently at each of the
training programs he attended, and that requiring a strap to be placed
over the piston before taking down the unit was new. (R. Br. p. 72 fn.
77.) The trainings were conducted in English, however, and while
Silva can understand some English, his first language is Spanish and it
was clear at the hearing that he needed the assistance of the interpreter
in order to testify.
when it was being brought back up to the unit because he be-
lieved the same risk was involved as when it was being low-
ered. When Vasquez explained the reasons to him and reiterat-
ed that regardless of whether or not he agreed with the reasons,
the instructions were to be followed, he was satisfied that Silva
understood. Given this factual scenario, any claim that insub-
ordination played a role in Silva’s termination is suspect, and
its after-the-fact appearance as a justification renders it more
so. I find it is evidence of pretext. See City Stationery, Inc.,
340 NLRB 523, 524 (2003) (nondiscriminatory reasons for
discharge offered at the hearing were found to be pretextual
where different from those set forth in the discharge letters);
GATX Logistics, Inc., 323 NLRB 328, 335 (1997) (“Where . . .
an employer provides inconsistent or shifting reasons for its
actions, a reasonable inference can be drawn that the reasons
proffered are mere pretexts designed to mask an unlawful mo-
tive.”).
The Respondent notes that Silva received a 1-needs im-
provement for safety on his most recent performance appraisal.
This is true, but it does not explain why progressive discipline
applied to other employees was not applied to Silva. Accord-
ingly, I find the termination of Silva violated Section 8(a)(3)
and (1) of the Act as alleged.
Objection 4 mirrors this complaint allegation and is hereby
sustained based on the reasoning above.
D. Alleged Coercive Conduct
The complaint, paragraph 5, contains multiple allegations
that the Respondent violated Section 8(a)(1) through its use of
threats, interrogation, surveillance, the promise and granting of
benefits, and other coercive conduct.
The Board's longstanding test to determine if there has been
a violation of Section 8(a)(1) of the Act is whether the employ-
er engaged in conduct which might reasonably tend to interfere
with the free exercise of employee rights under Section 7 of the
Act. American Freightways Co., 124 NLRB 146 (1959). Fur-
ther, “It is well settled that the test of interference, restraint, and
coercion under Section 8(a)(1) of the Act does not turn on the
employer’s motive or on whether the coercion succeeded or
failed.” American Tissue Corp., 336 NLRB 435, 441 (2001)
(citing NLRB v. Illinois Tool Works, 153 F.2d 811, 814 (7th
Cir. 1946). It is the General Counsel’s burden to prove that a
statement or conduct constitutes an unlawful threat, interroga-
tion or act of surveillance, or an unlawful promise or grant of
benefits.
1. Alleged October 2012 interrogation and impression of sur-
veillance–Martin Torres
Paragraph 5(a) alleges that Foreman Martin Torres interro-
gated employee Jorge Martinez and created the impression of
surveillance when, in October 2012 in the front shop, he asked
him if the union was coming around again and told him there
were rumors about it.
In assessing the lawfulness of an interrogation, the Board
applies the totality of circumstances test adopted in Rossmore
House, 269 NLRB 1176, 1178 fn. 20 (1984), affd. sub nom.
HERE Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985). This
test involves a case-by-case analysis of various factors, includ-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 36
ing those set out in Bourne v. NLRB, 332 F.2d 47, 48 (2d Cir.
1964): (1) the background, i.e., whether the employer has a
history of hostility toward or discrimination against union ac-
tivity; (2) the nature of the information sought, i.e., whether the
interrogator appears to have been seeking information on which
to base taking action against individual employees; (3) the iden-
tity of the interrogator, i.e., his or her placement in the Re-
spondent's hierarchy; (4) the place and method of the interroga-
tion; and (5) the truthfulness of the interrogated employee's
reply. The Board also considers whether the interrogated em-
ployees are open and active union supporters. See, e.g., Gard-
ner Engineering, 313 NLRB 755, 755 (1994), enfd. as modified
on other grounds 115 F.3d 636 (9th Cir. 1997). These factors
“are not to be mechanically applied”; they represent “some
areas of inquiry” for consideration in evaluating an interroga-
tion's legality. Rossmore House, supra, 269 NLRB at 1178 fn.
20.
Turning to the first factor, the Respondent has a history of
hostility toward union organizing, as shown by its campaign to
defeat the UTU in 2011, as well as evidence regarding the vio-
lations found herein. The second factor does not weigh in favor
of finding a violation, as there is no evidence Torres intended to
take any action against J. Martinez. The third factor weighs in
favor of finding a violation, as Torres was a Foreman with su-
pervisory authority over J. Martinez. The place and method of
interrogation also support a violation, given that the conversa-
tion took place in the front shop while J. Martinez was perform-
ing work, and was not part of a back-and-forth casual conversa-
tion . As to the fifth factor, employee attempts to conceal union
support weigh in favor of finding an interrogation unlawful.
See, e.g., Sproule Construction Co., 350 NLRB 774, 774 fn. 2
(2007); Grass Valley Grocery Outlet, 338 NLRB 877, 877 fn. 1
(2003), affd. mem. 121 Fed. Appx. 720 (9th Cir. 2005). J. Mar-
tinez’s statement that he did not know if the union was coming
back around, despite the fact that he was one of the lead em-
ployee organizers, support a finding of unlawful interrogation.
Based on the foregoing, I find the General Counsel has met its
burden to prove that Torres interrogated J. Martinez as alleged.
The test for whether an employer's statement creates an im-
pression of surveillance is whether the employee would reason-
ably assume from the statement that her union activities were
under surveillance. United Charter Service, 306 NLRB 150
(1992). The Board has held that a supervisor does not create an
impression of surveillance by a mere statement that he is aware
of a rumor about union activities “so long as there is no evi-
dence indicating that the respondent could only have learned of
the rumor through surveillance.” South Shore Hospital, 229
NLRB 363 (1977), citing G. C. Murphy Co., 217 NLRB 34, 36
(1975). “Since a rumor is, by definition, talk or opinion widely
disseminated with no discernible source, employees could not
reasonably assume from a respondent's knowledge of such a
rumor, without more, that their union activities had been placed
under surveillance.” Id.
The General Counsel cites to case law where the employer
conveys to the employee that he knows about, or suspects, the
employee’s specific union activity. Here, Torres’ isolated
comment does not convey such a message. He was not among
the orchestrators of the antiunion campaign, and it is unknown
whether he supported the Union, opposed it, or was neutral.
2. Alleged promise or grant of benefits
The Supreme Court, in Medo Photo Supply Corp. v. NLRB,
321 U.S. 678, 686 (1944), stated that the “action of employees
with respect to the choice of their bargaining agents may be
induced by favors bestowed by the employer as well as by his
threats or domination.” As the Court explained in NLRB v.
Exchange Parts Co., 375 U.S. 405, 409 (1964):
The danger inherent in well-timed increases in benefits is the
suggestion of a fist inside the velvet glove. Employees are not
likely to miss the inference that the source of benefits now
conferred is also the source from which future benefits must
flow and which may dry up if it is not obliged.
(Footnote omitted.) It held that that “the conferral of employee
benefits while a representation election is pending, for the pur-
pose of inducing employees to vote against the union,” inter-
feres with the employees' protected right to organize. The rule
applies both when an election is imminent as well as during an
organizational campaign before a representation petition has
been filed. See, e.g., Curwood Inc., 339 NLRB 1137, 1147–
1148 (2003) enfd. in pertinent part 397 F.3d 548, 553–554 (7th
Cir. 2005) (prepetition announcement and promise to improve
pension benefits in reaction to knowledge of union activity
among its employees violated Section 8(a)(1).
To avoid liability, an employer that grants wage increases or
other benefits during the pendency on an election petition must
prove that the increase or benefit was planned prior to the time
the union activity began, or that they were part of an estab-
lished past practice. NLRB v. Exchange Parts Co., supra; Bal-
timore Catering Co., 148 NLRB 970 (1964). If the announce-
ment of a benefit is timed to influence an election’s outcome,
the Board may find a violation of the Act even where the bene-
fit had previously been planned.
a. November 2012 erasure of attendance points
Paragraph 5(b) and (c) of the complaint alleges that the Re-
spondent unlawfully promised to erase accumulated attendance
points, and then acted on that promise by zeroing out employ-
ees’ attendance points in November 2012 in order to dissuade
support for the Union.
I find the timing of the attendance point rollback, on the
heels of the mass layoff and the day they Respondent was
served with the petition for election, is highly suspect. See
Vemco, Inc., 304 NLRB 911, 930 (1991). Maxey claimed she
performed the audit leading her to find problems with the at-
tendance points on November 12–14, after assuming Madri-
gal’s responsibilities following her termination. Madrigal re-
called Maxey performed an audit of the employees’ attendance
points shortly after Maxey began working for GRS in April
2012, and that, as a result, about five or six employees had their
attendance adjusted. (Tr. 393, 453.) This is consistent with
Stewart’s recollection that in the spring of 2012, he and Maxey
learned of attendance point discrepancies. Even if Maxey did a
second audit in November, there was no cogent explanation as
GUNDERSON RAIL SERVICES, LLC 37
to why the errors were not corrected for individual employees
as they were in the spring.65
The Respondent contends that the November audit occurred
without Ms. Maxey’s awareness of an organizing campaign. It
is clear, however, that employees during the November 12
layoff meeting spoke about the Union, and J. Martinez stated,
“You can have this down for sure. That this Monday, there's
going to be a petition for a Union vote.” Maxey and Maciel,
who speaks Spanish, and decided along with Maxey to erase
the attendance points, were at the layoff meeting when J. Mar-
tinez made these comments. Maciel’s testimony that he did not
know about any attempts to organize until about a week after
the layoffs, and Maxey’s testimony that she did not know about
any union activity until the election petition was served cannot
withstand scrutiny, and simply lack credence. The Respond-
ent’s argument on this point thus fails.
Accordingly, I find the erasure of attendance points for all
remaining employees following the mass layoff was intended to
coerce employees in violation of Section 8(a)(1).
b. December 2012 CEO bonus
The General Counsel offers no argument in support of its al-
legation, in complaint paragraph 5(d), that the Respondent
granted employees a CEO bonus in order to dissuade their sup-
port for the Union. As the CEO bonus was paid companywide
basis from GRS’ parent company, and there is no evidence it
was implemented in anything other than normal business fash-
ion, I agree with the Respondent that this allegation should be
dismissed. See Stanley Smith Security, 270 NLRB 225 (1984).
c. January 2013 pay increase
Paragraph 5(e) and (f) of the complaint asserts that the Re-
spondent announced, through a notice on its bulletin board, and
then implemented an increased maximum hourly rate for its
employees in or around February 2013.
The General Counsel presented no evidence that Valenzuela
posted a notice on a bulletin board informing employees about
a wage increase, and therefore I recommend dismissal of com-
plaint allegation 5(e).
The Respondent admitted it raised the maximum hourly cap
for employees in or around February 2013. The raise took
effect in January, which was consistent with past practice. The
change was that the Respondent decided to no longer make the
raise retroactive to September 1, the beginning of the fiscal
year, but instead have it begin effective January 1, to avoid the
requirement of making retroactive calculations. Thus, the pay
raise was not unusual, but its timing changed, and to pay em-
ployees the raise for September 1 through December 31, eligi-
ble employees received a one-time lump sum of $350. (R
Exhs. 90–92.)
The evidence shows that the bonus was paid each year.
Whether the change in timing with the lump-sum bridge repre-
sented a benefit or was a loss for the employees at the top of
their pay scale in Tucson is unknown. Moreover, the change

65 In the captive audience speech shortly before the election, Lave
reminded employees of the attendance point audit and rollback of at-
tendance points, noting that with a union he might lose the flexibility to
fix problems like the attendance point errors.
was implemented and the lump sum paid to roughly 200 em-
ployees at about 25 GRS facilities. See Town & Country Su-
permarkets, 244 NLRB 303, 309 (1979) (No violation where
wage increase included 13 other employees at five other stores
where there was no union activity.) Accordingly, I find the
General Counsel has failed to prove these actions were coer-
cive, and I recommend dismissal of complaint allegation 5(f).
Objection 5 mirrors this complaint allegation and is over-
ruled based on the reasoning above.
d. May 2013 safety program
Complaint allegation 5(g) alleges that in about February or
March 2013, the Respondent implemented a safety committee
and raffle for employees to dissuade them from supporting the
Union.
In May 2013, the Respondent implemented Operation Safety
2013 to address Tucson’s relatively poor safety record. Torra
had asked Valenzuela to fix the safety situation because Tucson
had the highest incident rate in the country. A May 13 safety
action plan made some changes to the format of the Monday
safety meetings and set forth specific training and hazard priori-
tization. It also announced “Poker for Safety,” described
above, where employees could win prizes.
The General Counsel asserts that the Respondent has offered
no legitimate reason for the timing of this program. I disagree,
and note that there had been a large number of safety incidents
that Vasquez was concerned about and charged with fixing.
This does not end the inquiry, however, because even with this
justification, the timing is nonetheless concerning. As the court
explained in NLRB v. Pandel-Bradford, 520 F.2d 275, 280 (1st
Cir. 1975):
The Board has long required employers to justify the timing
of benefits conferred while an election is actually pending.
Justifying the timing is different from merely justifying the
benefits generally. Wage increases and associated benefits
may be well warranted for business reasons; still the Board is
under no duty to permit them to be husbanded until right be-
fore an election and sprung on the employees in a manner cal-
culated to influence the employees’ choice.
Unlike the change to the timing of the increase to capped em-
ployees’ wages and the year-end bonus, safety poker was im-
plemented only at the Tucson shop. It was the first program of
its kind, was implemented less than 2 months before the elec-
tion, and despite its success it ended after the election and was
not replaced with a similar incentive program. Considering the
totality of the evidence, I find the General Counsel has met its
burden to prove the safety poker was implemented to dissuade
support for the Union.66
Objection 6 mirrors this complaint allegation and is sus-
tained based on the reasoning above.
e. May 2013 employee survey
Paragraph 5(h) of the complaint alleges that around March
2013, the Respondent solicited employee complaints and griev-
ances, and thereby promised increased benefits and improved

66 The General Counsel does not argue that other parts of the safety
program were coercive, and I specifically find the safety poker was the
only violation borne out of Operation Safety 2013.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 38
terms and condition of employment if the employees refrained
from organizational activity.67
Employer solicitation of employee grievances or complaints
during an organizing campaign may be considered as an im-
plied promise to resolve complaints elicited favorably for the
employees. See Alamo Rent-A-Car, 336 NLRB 1155 (2001).
In Majestic Star Casino, LLC, 335 NLRB 407, 407–408
(2001), the Board, quoting Maple Grove Health Care Center,
330 NLRB 775 (2000), stated:
Absent a previous practice of doing so . . . the solicitation of
grievances during an organizational campaign accompanied
by a promise, expressed or implied, to remedy such grievanc-
es violates the Act. . . .[I]t is the promise, expressed or im-
plied, to remedy the grievances that constitutes the essence of
the violation. . . . [T]he solicitation of grievances in the midst
of a union campaign inherently constitutes an implied prom-
ise to remedy the grievances. Furthermore, the fact [that] an
employer's representative does not make a commitment to
specifically take corrective action does not abrogate the antic-
ipation of improved conditions expectable for the employees
involved. [T]he inference that an employer is going to reme-
dy the same when it solicits grievances in a preelection setting
is [sic] rebuttable one.
An employer with a past practice of soliciting employee griev-
ances may continue to do so during an organizing campaign as
long as the practice remains essentially the same. Longview
Fibre Paper & Packaging, Inc., 356 NLRB 796 (2011).
The survey, which Valenzuela told employees was intended
to help him make changes and have a good work environment,
was conducted in May, just weeks before the election.
(Tr. 2168; R. Exh. 33.) Employees at the Tucson shop had not
previously been given a written satisfaction survey, and Valen-
zuela had never conducted such a survey. The General Counsel
has thus established that it was an implied promise to remedy
employee complaints.
Citing to Leland Stanford Jr. University, 240 NLRB 1138
(1979), the Respondent contends that the survey was lawful
because it was for a legitimate purpose, i.e. to help a new plant
manager improve his understanding of the shop and employees,
and it was undertaken at a time when an election was not im-
minent and the union campaign was relatively quiet. In Leland
Stanford, however, the Board noted, that “both prior and subse-
quent to the distribution of the survey, there was no active
campaigning on the part of either the Union or Respondents
and no election was scheduled or imminent.” Id. at fn. 1. In
the instant case, Valenzuela had responded to the Union’s
handbilling at the facility in late April, and it is uncontested that
the Union continued these efforts into May. Also in Leland
Stanford, the manager who conducted the survey had conducted
similar surveys as a management consultant at a number of
other medical facilities. Valenzuela had never conducted such

67 The complaint alleges that the survey was conducted by Vasquez
and C. Martinez. They both had input into the survey and helped ad-
minister it, but Valenzuela was also involved, and his involvement was
fully litigated so I therefore consider it. See Pergament United Sales,
296 NLRB 333, 334 (1989), enfd. 920 F.2d 130 (2d Cir. 1990).
a survey. Moreover, in Leland Stanford, the “elections had
been dormant for almost two years and could reasonably be
expected to remain so for at least another year.” I find, there-
fore, that reliance on that case is misplaced.
The Respondent also points to a “robust history of employee
communication” at the Monday safety meetings and at meet-
ings with the regional manager or general manager. The fact
remains, however, that employees had never been given a writ-
ten satisfaction survey, and therefore it was not essentially the
same as past practice because the “manner and method of solic-
iting grievances” was different. Longview Fibre Paper & Pack-
aging, supra.
Based on the foregoing, I find the survey constituted an im-
plied promise and violated Section 8(a)(1).
3. Alleged surveillance of April 2013 union activities
At paragraph 5(i), the complaint alleges that on or about
April 23, Valenzuela engaged in surveillance when he followed
Union representatives as they distributed flyers to employees
arriving to work.
As set forth above, the test for determining whether an em-
ployer engages in unlawful surveillance or whether it creates
the impression of surveillance is an objective one and involves
the determination of whether the employer's conduct, under the
circumstances, was such as would tend to interfere with, re-
strain, or coerce employees in the exercise of the rights guaran-
teed under Section 7 of the Act. See Broadway, 267 NLRB
385, 400 (1983) (citing United States Steel Corp. v. NLRB, 682
F.2d 98 (3d Cir. 1982)). The Board has consistently held that
an employer’s mere observation of open, public union activity
on or near its property does not constitute unlawful surveil-
lance. See Fred'k Wallace & Son, Inc., 331 NLRB 914, 915
(2000). For example, in Metal Industries, 251 NLRB 1523,
1523 (1980), the Board found no unlawful surveillance of em-
ployees where the employer had a longstanding practice of
going to the employee parking lot to say goodbye to its depart-
ing employees at the end of the workday because the employ-
er's observance of the employees' Section 7 activity was insepa-
rable from its regular and noncoercive practice. See also Wal-
Mart Stores, 340 NLRB 1216, 1223 (2003).
Employers may not, however, “do something ‘out of the or-
dinary’ to give employees the impression that it is engaging in
surveillance of their protected activities.” Loudon Steel, Inc.,
340 NLRB 307, 313 (2003); see also Partylite Worldwide, Inc.,
344 NLRB 1342 (2005); Arrow Automotive Industries, 258
NLRB 860 (1981), enfd. 679 F.2d 875 (4th Cir. 1982); Sprain
Brook Manor Nursing Home, 351 NLRB 1190 (2007). The
Board's analysis thus focuses on whether the observations were
ordinary or represented unusual behavior. Aladdin Gaming,
LLC, 345 NLRB 585 (2005), rev. denied 515 F.3d 942 (9th Cir.
2008). Even unusual observation or enhanced surveillance will
not violate the Act, however, where the employer shows it was
instituted for legitimate reasons, such as security. Lechmere,
Inc., 295 NLRB 92 (1989); enfd. 914 F.2d 313 (1st Cir. 1990),
revd. on other grounds 502 U.S. 527 (1992).
It is undisputed that Valenzuela went to the entrance of the
Tucson facility when he was alerted about the union activity
taking place there, that Valdez accompanied him, and that
GUNDERSON RAIL SERVICES, LLC 39
Vasquez joined them when he arrived for work. None of those
individuals was normally out greeting employees in the parking
lot. As the Respondent notes, however, Valenzuela was re-
sponding to an employee telling him there were people on the
property and he almost ran them over. Valenzuela’s testimony
in this regard is unrefuted.68
As the Respondent points out, an employer may lawfully bar
non-employee union organizers from its property. Lechmere,
Inc. v. NLRB, 502 U.S. 527 (1992). The evidence establishes
that Sudyam and Molina had parked their vehicle on GRS
property and were handing out the lunchboxes on the GRS
property. Valenzuela told them they were trespassing and told
them to leave GRS property, as was his right to do. Vasquez,
the safety manager, inquired about safety vests because it was
dark and hard to see. When Sudyam and Molina moved their
cars and moved off GRS property, Valenzuela, Valdez, and
Vasquez went back inside. The fact that Sudyam and Molina
moved their cars is strong evidence that they were initially on
GRS property. Though the record contains numerous photo-
graphs of the property and witnesses were asked to describe
where they stood, I did not find this evidence very helpful be-
cause the handbilling was not a stationary event and the van-
tage point of the property line demarcations is different looking
at a picture after the fact than it is standing on the ground in the
moment.
The Respondent points to Hoschton Garment Co., 279
NLRB 565, 567 (1986), where the Board held that an employer
acting lawfully in attempting to evict trespassers does not act
unlawfully by observing their trespassory activities. It is un-
disputed that once the organizers left the property, the manag-
ers went inside, and that future handbilling occurred without
incident. Because the only observation of handbilling by any
manager who was engaged in anything other than usual activity
took place while Sudyam and Molina were on GRS property, I
find it was not unlawful.69
Objection 7 mirrors this complaint allegation and is over-
ruled based on the above reasoning. Objection 8 asserts that
GRS created the impression employees’ activities were under
constant surveillance. Based on the analysis of surveillance in
this section and the allegation related to Torres and J. Martinez,
Objection 8 is likewise overruled.
4. Alleged threats and denigration
The complaint alleges, at paragraph 5(j)–(o), that through a
series of speeches and flyers, the Respondent threatened em-
ployees that selecting the Union would be futile and would
result in plant closure and loss of the right to bring complaints
directly to management.
In assessing whether a remark constitutes a threat, the appro-
priate test is “whether the remark can reasonably be interpreted
by the employee as a threat.” Smithers Tire & Auto. Testing of
Tex., 308 NLRB 72 (1992). The actual intent of the speaker or

68 I do not accept the hearsay testimony about what Hardenbrook
said as establishing the truth of the matter asserted, but instead consider
it for purposes of establishing Valenzuela’s state of mind.
69 I also find that there was, at least at the outset, a legitimate safety
concern, and Vasquez’ interactions with the organizers was focused on
that concern.
the effect on the listener is immaterial. Smithers Tire, 308
NLRB 72 (1992); see also Wyman-Gordon Co. v. NLRB, 654
F.2d 134, 145 (1st Cir. 1981) (inquiry under Sec. 8(a)(1) is an
objective one which examines whether the employer's actions
would tend to coerce a reasonable employee). The “threats in
question need not be explicit if the language used by the em-
ployer or his representative can reasonably by construed as
threatening.” NLRB v. Ayer Lar Sanitarium, 436 F.2d 45, 49
(9th Cir. 1970). The Board considers the totality of the circum-
stances in assessing the reasonable tendency of an ambiguous
statement or a veiled threat to coerce. KSM Industries, 336
NLRB 133, 133 (2001).
Determining whether a statement is an illegal threat of plant
closure or other harm as opposed to an opinion about the possi-
ble consequences of unionization has proven difficult. It must
be assessed in a fact-specific manner, taking into account the
employer’s right to freedom of speech under Section 8(c) of the
Act, balanced against the employees’ right to be free from co-
ercive threats under Section 7. The leading case on this subject
is NLRB v. Gissel Packing Co., 395 U.S. 575, 618 (1968),
where Supreme Court addressed this tension, stating:
It is well settled that an employer is free to communicate to
his employees any of his general views about unionism or any
of his specific views about a particular union so long as the
communications do not contain a “threat of reprisal or force
or promise of benefit.” He may even make a prediction as to
the precise effect he believes unionization will have on the
company. In such a case, however, the prediction must be
carefully phrased on the basis of objective fact to convey an
employer's belief as to demonstrably probable consequences
beyond his control.
See also National Propane Partners, L.P., 337 NLRB 1006,
1017 (2002). An employer need not remain neutral during a
union campaign, and Section 8(c) permits the employer to
campaign against the union and present an alternate view, en-
suring employees are fully informed about their choice. See,
e.g., Steam Press Holdings, Inc. v. Hawaii Teamsters, 302
F.3d 998 (9th Cir. 2002). However, employers must present
their view without threatening employees. As the Court noted
in Gissel, 395 U.S. at 619–620, “the Board has often found that
employees, who are particularly sensitive to rumors of plant
closings, take such hints as coercive threats rather than honest
forecasts.” (Footnotes omitted.)
The Respondent contends that its speeches and flyers were
protected by Section 8(c), while the General Counsel contends
that the Respondent crossed the line and intruded on employ-
ees’ Section 7 rights. I find some of the Respondent’s state-
ments were unlawful threats. In reaching this conclusion, I
consider the entirety of the statements, some of which were
clearly within the bounds of 8(c)’s protections, and others of
which were clearly not. The volume is not the focus. Instead, I
am looking at what the various messages, all of which were
delivered to employees in June and July, together conveyed to
employees.70

70 I have reviewed the various cases cited in the Respondent’s brief
addressing whether various statements, oral or written, cross the line
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 40
In a series of handouts described fully in the statement of
facts, GRS management gave employees a steady dose of its
antiunion sentiment. Some of the messages the flyers conveyed
were: Negotiations can take a long time and may not result in a
contract; The Union’s best leverage to gain favorable terms in
negotiating the contract is to strike; If there is a strike workers
can be replaced and production shifted to other facilities; Un-
ions act in their own self interests and may cause employees to
give up wages or benefits; Unions generally negotiate a com-
mon rate for everyone in the same job resulting in less pay for
higher paid workers; The SMW will cost employees a lot of
money in dues, fines and assessments; Employees should not
throw their money down the drain by bringing in a union; A
union will result in less overtime for employees; Employees are
basically without recourse if a union doesn’t treat them fairly;
Even though nonmembers cannot be fined for working during a
strike, unions do it anyway; The SMW can put its members on
trial and penalize them if they are found guilty; Once a contract
is negotiated, employees are stuck with the union until the con-
tract expires, and it is hard to get rid of the union; Employees’
individual voices will be “drowned out by the voice of the Un-
ion”; and SMW officials cannot be trusted.
At the meetings, both Lave and Torra emphasized that GRS
was in a very precarious financial situation, and a union adds
unnecessary costs. Lave discussed the closure of some other
GRS plants, and stated if “the union comes in, that could possi-
bly slow down our progress we’re making. And this critical
time for us, we are needing to get more profitable here, so the
parent company allows us to keep Tucson open.” He told em-
ployees Tucson was one of six shops on a watch list, that the
shop was headed in the right direction, and conveyed that the if
the union was voted in the momentum would be “shattered”
because “we’re going to have to deal with contract negotiations
and all the other disruptions a union will bring in here.” He
told employees the CEO announced to the shareholders that
eight shops were being closed down; Lave had already closed
four, and was tired of closing shops. He did not want the union
to come and cause things to go the other way after all the hard
work employees had put in to turn the shop around.
Torra and Lave discussed how a union contract sets firm
rules from which employees and management cannot vary and
it prevents employees from going directly to management.
Torra explained that he had overseen both union and nonunion
facilities at the same time and thought the nonunion facilities
were better run, with better communication and better compen-
sation packages than the union facilities. He also untruthfully
stated, “Our number 1 customer, who’s TTX, either rightfully
or wrongfully is adverse to unions. That’s why they shop cars
with us because they recognize us as a nonunion facility. So the
risk I see, what will happen with our number 1 customer?”
Lave expressed his frustration over the union filing a lawsuit
about the attendance audit, adding that GRS was paying an
attorney $400 per hour to defend against it. He expressed ex-
asperation that at a time when they were trying to make the

from protected speech to threat. I note that in those cases, as here, the
analysis is dependent on the context, including the presence or absence
of other statements or actions.
plant more profitable, he had to spend money to defend against
this even though he thought the attendance rollback was fair.
He separately expressed frustration about other unfair labor
practice charges, bemoaning the $400-an-hour attorney fees he
had to spend at a critical time when they were trying to make
the shop more profitable.
Lave mentioned that the union, by Federal law, has the right
to choose which disputes and grievances to address with man-
agement, offered his opinion that this was not fair or right, and
stating that in his prior law practice he could not help employ-
ees sue their employer or union if an employee thought the
union treated them unfairly.
Turning to whether the Respondent threatened employees
with closure of the plant, I find that it did. Here, as in Gissel,
the Respondent’s speeches and flyers conveyed the message
that the company’s financial position was precarious; a strike
was the best way for the Union to exercise its leverage and
obtain its contract demands; and bringing in the Union would
likely cause the plant to shut down. The message here was
compounded by Lave discussing all the money they were wast-
ing defending ridiculous unfair labor practice charges (some of
which I have found meritorious), at a critical time for the plant,
and expressing concerns that the Union would sabotage posi-
tive momentum around at a time when Tucson was on the
watch list for potential closure. Notably, and falsely, employ-
ees were threatened with loss of their biggest customer, and by
implication plant closure, by Torra’s comments that TTX does
not like to do business with unions and only shops cars at the
Tucson facility because it is non-union. TTX executive
Harmsworth expressly and soundly contradicted this, testifying
that TTX has a strong and positive relationship with the Broth-
erhood of Railroad Carmen, which represents over 600 of its
employees, and does not prefer to do business with nonunion
customers. (Tr. 2682.) Clearly this comment was not “carefully
phrased on the basis of objective fact” but instead, along with
other comments insinuating likely plant closure if the Union
was elected, was made to threaten employees with loss of their
jobs.71
In a similar case, Kolmar Laboratories, Inc., 159 NLRB 805
(1966), the Board found the employer violated Section 8(a)(1)
where, in a series of communications to employees, it conveyed
that the plant was in a financially precarious position, any fur-
ther restrictions the plant’s efficient operation would be detri-
mental, and selecting the Union would cause such restrictions
resulting in loss of job security. Here, as in Kolmar, the bar-
rage of messages was capped off by captive-audience speeches
from high-level officials who were not frequently on site.
The General Counsel points to language in “Greenbrier Rail
Services Facts Matter” flyer stating, in bold capital letters at the
bottom, “DON’T SUBJECT YOUR FAMILY AND YOUR
FUTURE TO THE RISKS OF COLLECTIVE BARGAINING.
VOTE NO!” as threatening harm. Citing to Hasbro Industries,
254 NLRB 587, 592 (1981), enfd. in pertinent par, NLRB v.
Hasbro Industries, 672 F.2d 978, 983 (1st Cir. 1982), the Gen-
eral Counsel argues that amidst a “barrage” of other coercive

71 Objections 1 and 2 mirror these complaint allegations and are sus-
tained.
GUNDERSON RAIL SERVICES, LLC 41
statements, this languages is a threat that they could only be
harmed if the Union and the Respondent negotiated. Standing
alone, I do not find this statement to be a threat. Considering it
along with statements about loss of customers and threats of
plant closure, however, I find it was threatening.
The Respondent contends that statements such as “unions
add extra costs toward business” are common in an election
campaign and have not been deemed unlawful. While this is
true, the Board has also found that tying these statements to
plant closure, as was done here, crosses the line. Kolmar, supra.
In a seeming attempt to justify Torra’s false statements about
TTX preferring to work with non-union customers, the Re-
spondent points to Curwood, Inc., 339 NLRB 1137 (2003),
enfd in pertinent part 397 F.3d 548, 553–554 (7th Cir. 2005), to
argue that statements about potential loss of customers are law-
ful. In Curwood, however, the company provided “objective
material reflecting its customers' concerns.” Such evidence is
not merely absent from the record here, its existence is belied
by Harmsworth’s testimony. The Respondent cites also to Tri-
Cast, Inc., 274 NLRB 377 (1985), finding no violation when
the employer made the reasonable possibility known to em-
ployees that “higher bids or customers feelings of dissatisfac-
tion due to problems caused by union strikes can lead to lost
business and lost jobs.” Be that as it may, what was conveyed
regarding potential loss was specifically about one customer,
TTX, and it was false.72 Accordingly, I find these arguments
unpersuasive.
The General Counsel also argues that language in the
handout “Greenbrier Gives You the Facts . . . ABOUT GOOD
FAITH BARGAINING” communicates the Union’s futility.
The specific language states:
Because negotiating a first contract between a newly elected
union and the employer means starting with a “fresh sheet of
paper” and negotiating every term of the contract, rather than
negotiating changes to an existing contract, a first contract of-
ten takes several months to negotiate even if the parties reach
agreement.
The Board has frequently considered similar statements in the
past, and found they are not a per se violation of the Act. In
Taylor-Dunn Mfg. Co., 252 NLRB 799, 800 (1980), enfd. mem.
679 F.2d 900 (9th Cir. 1982), stated:
It is well established that “bargaining from ground zero” or
“bargaining from scratch” statements by employer representa-
tives violate Section 8(a)(1) of the Act if, in context, they rea-
sonably could be understood by employees as a threat of loss
of existing benefits and leave employees with the impression
that what they may ultimately receive depends upon what the
union can induce the employer to restore. On the other hand,
such statements are not violative of the Act when other com-
munications make it clear that any reduction in wages or ben-
efits will occur only as a result of the normal give and take of
negotiations.

72 The Respondent’s reliance on TNT Logistics North America, Inc.,
345 NLRB 290 (2005), is misplaced under the same reasoning.
In Coach & Equipment Sales Corp., 228 NLRB 440, 440–441
(1977), the Board emphasized that such statements must be
read in context, noting that the “presence of contemporaneous
threats or unfair labor practices is often a critical factor in de-
termining whether there is a threatening color to the employer's
remarks.”
At the June 28 meeting, in response to an employee’s ques-
tion, Lave stated, “if a union comes in Mike, and Eric and I,
we're going to sit down with the Union at a table, and we're
going to bargain for the wages and the benefits. We will bar-
gain in good faith.” He followed it by stating, “But if the Un-
ion doesn’t like what’s happening with the bargaining, with the
negotiating, they can call a strike. And we can lock them out.”
Under the circumstances present here, I find the “fresh sheet of
paper” comment would reasonably “be understood by employ-
ees as a threat of loss of existing benefits and leave employees
with the impression that what they may ultimately receive de-
pends upon what the union can induce the employer to restore”
and therefore violates Section 8(a)(1). Taylor-Dunn, supra
The General Counsel also contends that the Respondent den-
igrated the Union. “Words of disparagement alone concerning
a union or its officials are insufficient for finding a violation of
Section 8(a)(1).” Sears, Roebuck & Co., 305 NLRB 193
(1991). An employer, however, may violate the Act when it
denigrates the Union in the eyes of employees. See Lehigh
Lumber Co., 230 NLRB 1122 (1977). The employer’s freedom
under Section 8(c) to disparage, criticize, or denigrate the Un-
ion stops when the comments threaten employees or otherwise
impinge upon Section 7 rights. Children's Center for Behav-
ioral Development, 347 NLRB 35 (2006). As already dis-
cussed, Lave repeatedly disparaged the Union by discussing the
large sums of money the Union was costing them to defend
against lawsuits he conveyed as baseless. Where, as here, den-
igrating comments were very clearly tied to the precarious fi-
nancial situation of the Tucson shop and threats of closure, I
find they violated the Act.
Turning to allegations that the Respondent threatened that
employees would no longer be able to bring complaints directly
to management if they selected a Union, the General Counsel
relies on Associated Roofing Co., 255 NLRB 1349 (1981). As
acknowledged, however, this decision was overruled. Tri-Cast,
Inc., 274 NLRB 377 (1985). See also Office Depot, 330 NLRB
640, 642 (2000). Accordingly I recommend dismissal of com-
plaint paragraph subsections 5(j)(2), (k)(3), and (m).
E. Objections to Elections
Objections 1–8 are addressed above in the respective sec-
tions discussing the complaint allegations with which they
align.
Objection 9 asserts that the GRS management, during the
critical period, disciplined and isolated prounion employees to
coerce other employees and to prevent the prounion employees
from participating in protected union solicitation activities. The
termination of Silva is discussed above and is the subject of
Objection 4. As no evidence of other discipline or isolation
was adduced at the hearing, this objection is overruled.
Objection 10 asserts that GRS provided an inaccurate Excel-
sior list that did not use dates from the stipulated agreement on
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 42
June 3, 2013. The record does not contain evidence sufficient
to substantiate this, so this objection is overruled.
Objection 11 asserts that during the election, management
was approximately 70 feet away from the polling location.
Sudyam observed Valenzuela and another person standing
roughly 70 feet away from the polls in a place where the em-
ployees would have to walk past them to vote. Sudyam did not
observe any employees walking past Valenzuela. (Tr. 1864–
1865.)
The Board has found that management’s presence at a poll-
ing cite may violate the Act by interfering with the employees’
free choice. In Belk's Department Store of Savannah, Ga., Inc.,
98 NLRB 280 (1952), polling occurred in a warehouse ac-
cessed by the store’s rear door. Employees waiting to vote
gathered near the rear door, which was about 35 feet from the
warehouse. The Board found that a manager who walked back
and forth between the rear door and the warehouse 70–80 per-
cent of the time polling was taking place, and at least twice
walked through the group of employees waiting to vote, inter-
fered with employees’ free choice. In Performance Measure-
ments Co., 148 NLRB 1657 (1964), the company’s president
stood by the door to the election area at each plant, requiring
employees to pass within two feet of him to gain access to the
polls, and for a period of time he was sitting at a table six feet
from the doorway to the polling place. The Board found this
interfered with employees’ free choice.
In the instant case, Sudyam testified that Valenzuela and an
unidentified man were roughly 70 feet from the polling place.
He did not see any employees in close proximity to them, and
did not see any employees walk past them. I find there is insuf-
ficient evidence that the presence of Valenzuela and the other
person roughly 70 feet away from the polling location inter-
fered with employees’ free choice, so this objection is therefore
overruled.
Objection 12 asserts that a known supervisor was permitted
to vote after polls had closed. Miguel Solomon73 cast his ballot
subject to challenge after the polls had closed on the advice of
the NLRB agent. (Tr. 1867–1868.) Sudyam thought he was a
supervisor based on what Ramos, who last worked at GRS in
November 2012, told him. The record does not contain evi-
dence sufficient to substantiate this objection, so it is therefore
overruled.
Objection 13 states that the Respondent, during the critical
period, intimidated union supporters in a manner so egregious
that an election observer could not be secured from the eligible
voter list. The hearing record contains uncontroverted testimo-
ny that the individuals who agreed to be the Union’s primary
and secondary observers at the election ultimately declined to
fulfill those roles. The record further establishes that one of the
employees who agreed to be an observer declined at the last
minute for fear of retribution. Although the testimony on this
point was hearsay, I find it reliable based on other evidence of
record, including the evidence of antiunion animus, and the fact

73 The objections state the known supervisor was Miguel Sepulveda,
but the testimony was Miguel Solomon.
that a non-employee, Ramos, stepped in to be the Union’s ob-
server.74 Accordingly, this objection is sustained.
F. Plant Closure
The complaint alleges, at paragraph 5(t)–(v), that the Re-
spondent decided to close the Tucson facility in August or early
September 2013, issued WARN Act notices to employees on
September 5, 2013, and closed the facility on November 4,
2013, in violation of Section 8(a)(1), (3) and (4) of the Act.75
The analytical framework set forth in Wright Line, articulat-
ed above in the section discussing the layoffs, applies in mixed-
motive cases involving closure of a facility and relocation of
work. See Central Transport, 306 NLRB 166 (1992), enfd. in
relevant part and modified 997 F.2d 1180 (7th Cir. 1993); Nu-
Skin International, 320 NLRB 385 (1995). I incorporate my
findings from that section regarding Union activity, the em-
ployer’s knowledge of it, and animus. By the time the decision
to close the plant occurred, there was additional Union activity,
additional unfair labor practice charges had been filed, the Re-
spondent had received the Notice of Representation Hearing
petition, the election had occurred, and objections had been
lodged. The evidence of union animus by this time was more
apparent and pronounced, as shown by the conduct, some of
which rose to the level of unfair labor practice violations, de-
scribed above. The General Counsel has easily met its initial
burden under Wright Line, and the burden of persuasion has
shifted to the Respondent to prove it would have taken the same
action even in the absence of the protected conduct.
The Respondent contends that the Tucson plant closure was
the result of an independent decision of its primary customer,
TTX, to stop sending cars to Tucson. Starting in mid-May,
following a meeting with TTX and a visit to TTX’s Acorn fa-
cility in Jacksonville, GRS executives began revising their
strategy to make Tucson, San Antonio, and some other under-
performing shops more profitable. During a mid-June meeting
with TTX and GRS executives, they discussed a revised plan to
have Tucson and San Antonio as dedicated TTX facilities. At
TTX’s request, they prepared a chart with assumptions based
on different hours of work TTX would be supplying. The
menu GRS laid out increased the hourly rate at Tucson by
about 18 percent if the workflow was left as it was, but de-
creased the rate by consolidating all the work at Tucson. TTX
did not have the volume to support the higher volume/lower
rate option, to GRS’ surprise.76
The meetings had prompted TTX to re-examine their logis-
tics, and TTX decided routing railcars to Tucson did not make
the most sense. TTX also deemed San Antonio to be an im-
portant facility because of its location in Texas, where its larg-
est customer, Union Pacific, routes many of their cars.

74 It is understandable that the same employee who declined to be the
observer for fear of retribution would not want to testify on this point.
75 Par. 5(w) alleges that unknown employees were laid off between
September 6 and November 7, 2013, but evidence was not presented to
prove this assertion. I therefore recommend dismissal of this allega-
tion.
76 Billed hours for TTX were roughly the same in 2011, 2012, and
2013. (Tr. 2538; GC Exh. 275.)
GUNDERSON RAIL SERVICES, LLC 43
The General Counsel argues this is pretext, as there was no
“discount” offered to TTX to keep cars in Tucson, just a dra-
matic price increase. While this is true if the volume of work in
Tucson remained the same, Tucson came out ahead of its prior
rate if TTX continued to send the current level of work there
and some of the work that had been sent to San Antonio. If San
Antonio was closed, this volume was reasonable based on re-
cent history, particularly considering it would cost TTX less to
send its bad-ordered cars from California to Tucson than San
Antonio.77 Moreover, similar rate increase was proposed to the
primary customer for the GRS facility in Corwith, Illinois,
where no union activity existed. In response to a 20 percent
proposed rate increase to the customer, which the customer
rejected, the Corwith facility was closed in January 2014.
Finally, the General Counsel’s contention that there was no
explanation offered for the rate increase is not accurate. The
evidence shows the proposed conversion of both San Antonio
and Tucson to TTX-dedicated plants would result in different
capacity utilization at each facility. (GC Exh. 257; R. Exh. 69.)
The General Counsel further contends that the Respondent’s
attempt to deflect the blame for the rate increase in Tucson onto
TTX does not withstand scrutiny in light of Harmsworth’s
statement that Glenn appreciated TTX finding a solution that
enabled GRS to close Tucson. Harmsworth addressed this
comment at the hearing, stating that Glenn appreciated a solu-
tion, as he had made it very clear GRS needed to fix, sell, or
close Tucson, San Antonio, and other facilities due to Wall
Street pressure. He never indicated a preference to her regard-
ing which shop(s) he wanted closed. I found Harmsworth to be
a credible based both on her forthright and matter-of-fact de-
meanor as well as the fact that she is a disinterested witness.
The timing of changing Tucson from a “fix” to a “close”
shop is also cited by the General Counsel to support an argu-
ment that the “Respondent was concerned about what might
occur if the July election was set aside, and another election
was ordered –or if employees simply continued to organize and
try for a third election next year.” The timing argument cuts
both ways. After the initial failed election in 2011, the Tucson
shop was not slated for closure based on fears of another elec-
tion or continued legal costs, nor was it slated for closure when
the Respondent learned organizing efforts had rekindled in the
fall of 2012. Moreover, the pricing menu for TTX work that
the General Counsel claims is evidence of unlawful motive was
not generated and given to TTX until after the election. As of
July 24, Abel was still trying to come up with ideas to lower the
costs of running the Tucson shop in order to facilitate TTX’s
business needs. (R. Exh. 69.)
Once TTX decided not to send cars to Tucson anymore, the
General Counsel argues that the Respondent’s decision to close
the shop was pretextual, as evidenced by its lack of efforts to
find other customers for the facility or increase the volume of
work from its existing customers. The evidence shows, howev-
er, that fixing, selling, or closing some shops was part of a
much larger plan to increase profits and meet Wall Street de-

77 Mileage costs average about 70 cents per mile, and Tucson is
closer to Southern California than San Antonio. (Tr. 2647.)
mands in the wake of a hostile takeover attempt.78 The plan-
ning never included continuing to run the Tucson shop without
its largest customer sending cars there for repair. I find, there-
fore, that the decision to close the shop, in light of the circum-
stances, was motivated by more global concerns rather than
fear of a rerun election or another organizing drive in Tucson.
G. Bargaining Order
The General Counsel has requested a remedial bargaining
order pursuant to Gissel, supra. Though such a remedy is ex-
traordinary, I find the General Counsel has met its burden to
prove it is appropriate under the circumstances present here.79
The purpose of a remedial bargaining order is “to remedy
past election damage [and] deter future misconduct.” NLRB v.
Gissel Packing Co., 395 U.S. 575 (1969). The Supreme Court
had sanctioned the issuance of such a bargaining order “where
an employer has committed independent unfair labor practices
which have made the holding of a fair election unlikely or
which have in fact undermined the union's majority. . . .”
Gissel, 395 U.S. at 610, 89 S.Ct. 1918; see NLRB v. Katz, 369
U.S. 736, 748, 82 S.Ct. 1107, 8 L.Ed.2d 230 (1962). The
Board thus has the authority to order an employer to recognize
and bargain with a union even if the employees have not voted
for union representation in an election.
The Ninth Circuit, in Scott ex rel. NLRB v. Stephen Dunn &
Associates, 241 F.3d 652 (9th Cir. 2001), described the limited
circumstances under which a bargaining order is appropriate:
First, when an employer has engaged in such outrageous and
pervasive unfair labor practices that a fair and reliable election
can't be held, the Board may order bargaining even absent a
showing of majority support for the Union
. . .
Second, the Board may order bargaining when the Union
shows that it once had a majority and that its support was un-
dermined by unfair practices that impede[d] the election pro-
cess
. . .
[The Board] must show both that the Union secured the sup-
port of a majority of [the] employees and that [the employer]
subsequently engaged in unfair labor practices that under-
mined the Union's majority and impeded the election process.
The former type of case is referred to as a “Category I” case
and the latter a “Category II” case. See Register Guard, 344
NLRB 1142, 1146 (2005).
As to Category I, the pervasiveness of the unfair labor prac-
tices is described fully above and need not be reiterated here.
The unfair labor practices included highly coercive hallmark
violations such as a mass layoff of roughly one-third of the
production workers, threats of job loss and plant closure, and an
unlawful termination. See NLRB v. Jamaica Towing, 632 F.2d
208, 212–213 (2d Cir. 1980); General Fabrications Corp., 328

78 The fact that the Tucson shop was making some money in the
summer of 2013 and could have had earnings even without TTX over-
simplifies matters for a publicly-traded company.
79 I find Objection 14 covers the same alleged conduct that supports
the bargaining order, and therefore I sustain it.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 44
NLRB 1114, 1116 fn. 17 (1999), enfd. 222 F.3d 218 (6th Cir.
2000). These threats and other actions came from very high
levels of management and resulted in a significant erosion of
union support, as discussed more fully below. The unfair labor
practices continued over several months, and were committed
both by high-level managers as well as lower level supervisors.
The threat of plant closure came from high level officials dur-
ing captive-audience meetings to each and every employee.
“Neither the threat nor the mass layoff is likely to be forgotten
by the employees. To the contrary, these are the types of dire
warnings and concrete measures certain to exert a substantial
and continuing coercive impact on any employee, whether cur-
rent or subsequently hired, contemplating a vote in favor of
unionization.” See Weldun International, 321 NLRB 733, 734,
and 748 (1996), enfd. mem. in relevant part 165 F.3d 28 (6th
Cir. 1998 . I find, therefore, that based on the severity and
pervasiveness of the unfair labor practice, a bargaining order is
warranted under Category I. Electro-Voice, Inc., 320 NLRB
1094 (1996).
This case also meets the standards for a bargaining order un-
der Category II. The General Counsel submitted evidence of
majority support for the Union in the form of at least 46 signed
authorization cards.80 The cards are unambiguous, and stated,
in both English and Spanish, that the signer authorizes the Un-
ion “to represent me for purposes of Collective Bargaining, and
in my behalf, to negotiate and conclude all agreements as to
hours of labor, wages, and other conditions of employment.”
The unfair labor practices undermined the Union’s support so
extensively that the individual who had once agreed to be the
primary observer quit at the last minute stating he feared reper-
cussions, and the individual who agreed to be the secondary
observer withdrew and ceased communicating with the Un-
ion.81 Where the Union once had majority support, only 13
employees voted for the Union in the July election. See Power
Inc. v. NLRB, 40 F.3d 409, 423 (D.C. Cir. 1995). Based on its
conduct, I find the Respondent has thoroughly undermined past
and future support for the Union.
The Respondent points to Hialeah Hospital, 343 NLRB 391
(2004), in support of its argument that traditional remedies
would be appropriate if GRS was found to have engaged in
threats. I have found GRS engaged in much more than threats,
however, and I note that the Board distinguished Hialeah Hos-
pital from cases involving mass layoffs and discharge of one-
third of the work force. Id. at 395. Reliance on Jewish Home
for the Elderly of Fairfield County, 343 NLRB I 069 (2004),
suffers from similar faults. The Respondent also cites to Be-Lo
Stores v. NLRB, 126 F.3d 268, 281 (4th Cir. 1982), to support
an argument that the General Counsel failed to prove unfair
labor practices contributed to an erosion of support. In Be-Lo,

80 This majority excludes leadmen, and as set forth in the statement
of facts, a majority exists whether or not the temporary workers are
included.
81 Though this testimony was provided by Sudyam, and is hearsay, I
find it is corroborated by other evidence of employees being warned to
stay away from the Union and is therefore reliable. See Midland Hilton
& Towers, 324 NLRB 1141, 1141 fn. 1 (1997), citing Alvin J. Bart &
Co., 236 NLRB 242, 242 (1978), enf. denied on other grounds 598 F.2d
1267 (2d Cir. 1979).
however, it was unclear whether there was ever majority sup-
port, and a new election was deemed appropriate because 6
years had passed since the previous election and there had been
substantial turnover in the work force. Clearly, the instant case
turns on very different facts.
H. Failure to Bargain Allegations
The Complaint, at paragraph 7, sets forth numerous allega-
tions of failure to bargain with the Union in violation of Section
8(a)(5) of the Act.
The National Labor Relations Act, at Section 8(a)(5), pro-
vides that it shall be an unfair labor practice for an employer
“to refuse to bargain collectively with the representatives of his
employees.” Collective bargaining is defined in Section 8(d) as
“the performance of the mutual obligation of the employer and
the representative of the employees to meet at reasonable times
and confer in good faith with respect to wages, hours, and other
terms and conditions of employment.” The Act does not define
“terms and conditions” of employment. Regarding topics other
than wages, hours, or other terms and conditions of employ-
ment, “each party is free to bargain or not to bargain, and to
agree or not to agree.” NLRB v. Borg-Warner, 356 US 342, 349
(1958).
First, I find the following employees of GRS are an appro-
priate bargaining unit (Unit) for purposes of Section 9(b) of the
Act82:
All full-time and regular part-time AAR write-up employees,
airmen, laborers, material handlers, maintenance mechanics,
painters, switchmen, and welder repairmen located at Re-
spondent’s Tucson, Arizona facility, excluding all other em-
ployees, including quality assurance inspectors, office cleri-
cals, guards, safety coordinators, plant managers, production
managers, foremen, quality assurance managers, material
managers, plant accounting managers, and supervisors as de-
fined in the Act.
Having determined that the Union represented the majority of
the employees in the appropriate unit as of November 8, 2012, I
find that the Respondent violated Section 8(a)(5) and (1) of the
Act by refusing the Union's demand for recognition. When the
Union has obtained signed authorization cards from a majority
of employees, as here, the obligation to bargain attaches when
the employer embarks on a campaign of unfair labor practices.
Parts Depot, Inc., 332 NLRB 670, 678 (2000), enfd. 24
Fed.Appx. 1 (D.C. Cir. 2001). I find, therefore, that the duty to
bargain attached no later than November 12, 2012, the date of
the layoffs.83 As such, the Respondent “is required to presently
bargain, upon request, concerning any terms and conditions of
employment, as to which it would have been required to bar-
gain had the Union been recognized” when the Respondent
launched its antiunion campaign. Donn Products, 229 NLRB
116, 117 (1977).
It is undisputed that Respondent did not bargain over the var-
ious issues presented in this case.

82 The General Counsel concedes the Unit does not include leadmen.
83 It arguably attached when Torres interrogated J. Martinez in Octo-
ber, though that action is somewhat attenuated from the high-level
campaign that began with the layoffs.
GUNDERSON RAIL SERVICES, LLC 45
1. The layoffs
An economic layoff decision is a mandatory bargaining top-
ic. See McClain E-Z Pack, Inc., 342 NLRB 337 (2004); Toma
Metals, Inc., 342 NLRB 787, 787 fn. 1 (2004). Accordingly, I
find the Respondent violated Section 8(a)(1) and (5) by failing
to bargain with the Union about the layoffs.84
2. Increase in maximum hourly rate
The complaint, at paragraph 7(e), asserts that around Febru-
ary 2013, the Respondent increased the maximum hourly rate.
As the evidence shows, on November 27, 2012, the Re-
spondent announced that the timing of when capped employees
would receive their raises was changing. I find the raises them-
selves were in line with the Respondent’s longstanding practice
of granting capped employees an increase annually, and there-
fore continuing them did not require bargaining. NLRB v. Katz,
369 US 736, 746 (1962). The timing for calculating the raises
and the payment of a one-time bridge to address the timing shift
were changes, however, which required bargaining. Accord-
ingly, I find the Respondent violated the Act by failing to bar-
gain over the change to when raises would be calculated and
implementation of the one-time bridge payment.
3. Safety committee and raffle
Complaint paragraph 7(f) alleges the Respondent violated
Section 8(a)(1) and (5) by implementing a safety committee
and instituting a safety raffle, and paragraph 7(g) alleges the
same violation for ending the safety raffle. There was no evi-
dence a new safety committee was implemented, and the Gen-
eral Counsel does not present argument on this allegation in its
brief. I therefore recommend dismissal of this allegation.
The evidence shows the Respondent implemented, and later
discontinued “Poker for Safety.” Implementation of safety
incentives and prizes is a mandatory bargaining topic. E.I. du
Pont de Nemours & Co., 311 NLRB 893 fn. 3 (1993). Accord-
ingly, I find failure to bargain over “Poker for Safety” violated
the Act as alleged.
4. Recalls and refusals to rehire
Paragraphs 7(h) and (i) of the complaint alleges that the Re-
spondent failed to bargain with the Union over the recalls of
certain employees85 (including the requirement to fill out an
application during the recall process)86, the failure to recall or
rehire certain employees, and the discharge of Juan Silva.
Termination of a unit employee is unquestionably a manda-
tory subject of bargaining, even if the parties have not yet nego-

84 Alternatively, inasmuch as the Union requested bargaining on No-
vember 20 (received by GRS on November 21), and the layoffs are
otherwise remedied, I conclude that the Company should be required to
recognize and bargain, upon request, with the Union as of that date.
Trading Port, Inc., 219 NLRB 298, 301 (1975); Missouri Pressed
Metals, Inc., 237 NLRB 1398 (1978).
85 Jesus Barnes, Jose Manuel Sepulveda, Jesus Lopez-Nuno, Jorge
Martinez, Brian Perona, Juan Morales, Brian Scaggs, and Rogelio
Martinez.
86 Jesus Omar Ramos, Alex Amador, Oswaldo Chavira, Ricardo
Martinez, Jesus Ruiz, Guillermo Gonzales Pico, Guillermo Murguia,
Jose Angel Ortega, and Oscar Salinas.
tiated a collective-bargaining agreement. See Ryder Distribu-
tion Resources, 302 NLRB 76, 90 (1991); N.K. Parker
Transport, Inc., 332 NLRB 547, 551 (2000). “The recall of
laid-off employees is . . . a bargainable matter.” Robertshaw
Controls Co., 161 NLRB 103, 108 (1966), enfd. 386 F.2d 377
(4th Cir. 1967). See also Clements Wire, 257 NLRB 1058,
1059 (1981) (obligation to bargain includes “manner in which
any recalls are to be effected.”) Accordingly, I find the Re-
spondent violated Section 8(a)(5) and (1) of the Act as alleged
by failing to bargain over the recalls, including the manner in
which the recalls were to be effected, as well as Silva’s dis-
charge.
5. Closure of the Tucson shop and relocation of employees
An employer must engage in bargaining before closing down
a plant and continuing the same work at a new location. Ow-
ens-Brockway Plastic Products, 311 NLRB 519 (1993). In
Dubuque Packing, 303 NLRB 386, 391 (1991), the Board ar-
ticulated the following test to determining whether an employ-
er's relocation decision is a mandatory subject of bargaining:
Initially, the burden is on the General Counsel to establish that
the employer's decision involved a relocation of unit work un-
accompanied by a basic change in the nature of the employ-
er's operation. If the General Counsel successfully carries his
burden in this regard, he will have established prima facie that
the employer's relocation decision is a mandatory subject of
bargaining. At this juncture, the employer may produce evi-
dence rebutting the prima facie case by establishing that the
work performed at the new location varies significantly from
the work performed at the former plant, establishing that the
work performed at the former plant is to be discontinued en-
tirely and not moved to the new location, or establishing that
the employer's decision involves a change in the scope and di-
rection of the enterprise. Alternatively, the employer may
proffer a defense to show by a preponderance of the evidence:
(1) that labor costs (direct and/or indirect) were not a factor in
the decision or (2) that even if labor costs were a factor in the
decision, the union could not have offered labor cost conces-
sions that could have changed the employer's decision to relo-
cate.
In the instant case, the General Counsel has met its prima facie
burden to establish there was no change in the basic nature of
GRS’ operations. GRS repaired and serviced railcars before
and after the Tucson plant closure. The Respondent has not
offered evidence that the work performed at the new locations
is significantly different than the work performed at the former
plant.
The Respondent can prevail by proving, by preponderant ev-
idence, that labor costs were not a factor, either directly or indi-
rectly. The evidence shows that labor rates were a primary
factor driving the decision to determine which shops should
close, and therefore this burden has not been met. Alternative-
ly, the Respondent may show that the Union could not have
offered labor concessions that would have changed its decision
to relocate work. This has not been established, however, and
any contention that the Union could have offered nothing
through collective bargaining is speculation. Respondent cannot
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 46
claim to know what proposals the Union would have made
regarding the changes, or what alternative solutions the give-
and-take of bargaining might have generated.
Relying on Textile Workers Union v. Darlington Mfg. Co.,
380 U.S. 263 (1965), the Respondent asserts that an employer
may terminate its business without first bargaining. Darling-
ton, however, concerns terminating an entire business, and GRS
clearly still exists. The Respondent also cites to First National
Maintenance Corp. v. NLRB, 452 U.S. 666 (1981), to argue that
a company does not need to bargain before deciding to close
part of its business for economic reasons. First National
Maintenance, however, applies to changes in the nature and
scope of an enterprise akin to whether to be in business at all,
and the Court emphasized that the decision did not apply to
other types of management decisions, such as plant relocations.
Id. at fn. 22. The closure of the plant here did not involve shut-
ting down part of GRS’s business or changing its scope or di-
rection, and therefore reliance on First National Maintenance is
misplaced. See, e.g., San Luis Trucking, Inc., 352 NLRB 211,
230 (2008), enfd. 479 Fed.Appx. 743 (9th Cir. 2012).
I. Employee Handbook Provisions
Paragraph 5(p)–(s) of the complaint alleges that various pro-
visions of the Respondent’s employee handbook violate Section
8(a)(1) of the Act.
The General Counsel has the burden to prove that a rule or
policy violates the Act. In determining whether a work rule
violates Section 8(a)(1), the appropriate inquiry is whether the
rule would reasonably tend to chill employees in the exercise of
their Section 7 rights. Lafayette Park Hotel, 326 NLRB 824,
825 (1998), enfd. 203 F.3d 52 (D.C. Cir. 1999). Under the test
enunciated in Lutheran Heritage Village-Livonia, 343 NLRB
646 (2004), if the rule explicitly restricts Section 7 rights, it is
unlawful. If it does not, “the violation is dependent upon a
showing of one of the following: (1) employees would reasona-
bly construe the language to prohibit Section 7 activity; (2) the
rule was promulgated in response to union activity; or (3) the
rule has been applied to restrict the exercise of Section 7
rights.” Id. at 647. A rule does not violate the Act if a reasona-
ble employee merely could conceivably read it as barring Sec-
tion 7 activity. Rather, the inquiry is whether a reasonable em-
ployee would read the rule as prohibiting Section 7 activity. Id.
The question of whether a rule or policy is on its face a viola-
tion of the Act requires a balancing between an employer's right
to implement certain legitimate rules of conduct in order to
maintain a level of productivity and discipline at work, with the
right of employees to engage in Section 7 activity. Firestone
Tire & Rubber, 238 NLRB 1323, 1324 (1978).
The Board must give the rule under consideration a reasona-
ble reading and ambiguities are construed against its promulga-
tor. Lutheran Heritage, supra at 647; Lafayette Park Hotel,
supra at 828; and Cintas Corp. v. NLRB, 482 F.3d 463, 467–
470 (D.C. Cir. 2007). Moreover, the Board must “refrain from
reading particular phrases in isolation, and it must not presume
improper interference with employee rights.” Lutheran Herit-
age supra at 646.
None of the rules discussed below expressly restrict Section
7 rights, and all are analyzed under the first Lutheran Heritage
prong, i.e., would employees reasonably construe the rule’s
language to restrict Section 7 activity.
1. Appearance and attire
The General Counsel alleges, at paragraph the following por-
tion of the handbook relating to appearance and attire violates
the Act:
Regardless of the work environment, provocative slogans or
images on clothing, hats, etc., and revealing or impractical at-
tire, is not appropriate.
(GC Exh. 150, p. 19.) The General Counsel relies on Medco
Health Solutions of Las Vegas, Inc., 357 NLRB 170, 179
(2011), where the Board affirmed an administrative law judge’s
finding that a rule prohibiting employees from wearing apparel
containing “degrading, confrontational, slanderous, insulting, or
provocative” statements was overly-broad.
The term “provocative” is not defined in the rule, nor is it
modified by an adverb such as “sexually,” “racially” or the like.
Construing the ambiguity of the term “provocative” against the
Respondent, and noting the absence of language permitting
employees to wear clothing or display images protected by
Section 7, such as a button expressing support for or opposition
to a union, I find the rule as written is overly-broad.
2. External communications
The Respondent’s policy regarding external communications
is set forth on page 33 of the employee handbook. It states in
full:
The manner in which GRS is perceived by its customers,
business associates, the media, legislators, regulatory agen-
cies, special interest groups and the general public is a direct
result of the external communications carried out by our man-
agement and employees. These external communications
have a significant impact on the Company's business and
should be handled with careful consideration.
GRS has appointed specific representatives to serve as infor-
mation channels for news media. These representatives are re-
sponsible for approval of all press releases, responding to me-
dia inquiries, and coordinating interviews with the media—
with the exception of marketing or employment related adver-
tising—other employees should refrain from communications
with the media.
Please be aware that in cases of accident or emergency in-
volving a specific employee, non management employees are
prohibited from contacting the employee's family, friends of
anyone involved in the emergency or accident, or the media,
as such contact can cause significant confusion and undue dis-
tress. Proper communication channels have been established
for designated trained employees to contact family members
in case of an accident or emergency.
I find that the section prohibiting employees from communi-
cating with the news media violates Section 8(a)(1). The Board
has consistently found such rules to be an unlawful impediment
on Section 7 rights. For example, in Flamingo Hilton-
Laughlin, 330 NLRB 287, 291–292 (1999), a policy that stated:
“Questions or calls from news media should be immediately
GUNDERSON RAIL SERVICES, LLC 47
transferred and responded to by the Marketing Department or
the President of the Hotel. At no time should you talk to the
media about Hotel operations” was found to be overly-broad.
See also Crowne Plaza Hotel, 352 NLRB 382, 386 fn. 21
(2008) (Communications with news media about labor disputes
are protected). The rule at issue here is similarly overly-broad,
as it does not carve out an exception for communications pro-
tected by Section 7, and I therefore find it violates Section
8(a)(1).
3. Solicitation and distribution policy
Page 34 of the employee handbook contains a section on so-
licitation and distribution which provides:
Solicitation and the distribution of literature or petitions by
any employee or any other individual with the exception of
GRS approved service providers is expressly prohibited. Un-
der no circumstances may any employee, whether on or off
duty, disturb the work of others to solicit or distribute litera-
ture to employees during their work time. Further, persons not
employed by or acting on behalf of GRS or Greenbrier may
not solicit GRS employees for any purpose on Company
premises.
The General Counsel asserts that the first sentence of this poli-
cy is overly-broad.
The Supreme Court has agreed with the Board that as long as
the employees are not on the clock, solicitations for the union
may occur anywhere, including in work areas. Republic Avia-
tion Corp. v. NLRB, 324 U.S. 793, 802–803 (1945); Our Way,
Inc., 268 NLRB 394 (1983). Because the rule would reasona-
bly be construed as prohibiting all solicitations except those by
GRS service providers, I find it is overly-broad in violation of
Section 8(a)(1).
4. Confidentiality provision
The employee handbook has a confidentiality provision on
page 38 which states:
Confidential information. Greenbrier's confidential and pro-
prietary information includes (among other items) business,
financial and marketing plans, personnel information, inven-
tions, research, and confidential information entrusted to the
Company by vendors, customers and others. Confidential in-
formation must be used only by authorized persons and only
in accordance with Greenbrier policies and procedures.
Because personnel information is included in this policy, and
it is not clear that employees may discuss personnel infor-
mation with each other anywhere in the handbook, I find the
rule is overly-broad. See U.S. DirecTV Holdings, LLC, 359
NLRB No. 54, slip op. at 3 (2013).
CONCLUSIONS OF LAW
1. By maintaining overly-broad employee handbook provi-
sions regarding confidential information, solicitation, appear-
ance and attire and external communications; interrogating
employees about union activities; promising to erase attendance
points and erasing attendance points; implementing a safety
incentive program; soliciting employee complaints and griev-
ances; promising increased benefits and improved terms and
conditions of employment for refraining from supporting the
Union; threatening plant closure for supporting the Union;
threatening employees and denigrating the Union by telling
them the Company is spending money to defend against the this
case at a time when other plants are shutting down; threatening
employees by making statements that electing the Union would
be futile; threatening employees with harm if they choose the
Union; laying off/firing employees because of their union
membership, activities, and sympathies; refusing to recall or
rehire employees because of their union membership, activities,
and sympathies; and unilaterally, without notice and an oppor-
tunity to bargain with the Union, making and implementing
changes to terms and conditions of employment, the Respond-
ent has engaged in unfair labor practices affecting commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. By the conduct described above, the Respondent has vio-
lated Section 8(a)(5), (4), (3), and (1) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall issue and order recommending it
cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Having unlawfully promulgated and maintained overly-
broad employee handbook provisions regarding confidential
information, solicitation, appearance and attire, and external
communications, that employees would reasonably construe as
infringing on their rights guaranteed under Section 7 of the Act,
the Respondent will be ordered to cease and desist from these
actions.
Having interrogated employees about Union activities and
threatened employees with adverse consequences, including
loss of work and plant closure, for engaging in Union activities,
the Respondent will be ordered to cease and desist from these
actions.
The Respondent, having discriminatorily discharged em-
ployees, must offer them reinstatement and make them whole
for any loss of earnings and other benefits. Backpay shall be
computed in accordance with F. W. Woolworth Co., 90 NLRB
289 (1950), with interest at the rate prescribed in New Hori-
zons, 283 NLRB 1173 (1987), compounded daily as prescribed
in Kentucky River Medical Center, 356 NLRB 6 (2010). The
Respondent shall file a report with the Social Security Admin-
istration allocating backpay to the appropriate calendar quar-
ters. Respondent shall also compensate the discriminatees for
the adverse tax consequences, if any, of receiving one or more
lump-sum backpay awards covering periods longer than 1 year.
Latino Express, Inc., 359 NLRB No. 44 (2012).
The most difficult aspect of this case to remedy is the failure
to bargain over the decision to relocate work away from the
Tucson facility and the effects of that decision. It is well estab-
lished that in fashioning an appropriate remedy, the Board
“must be guided by the principle that the wrongdoer, rather
than the victims . . . should bear the consequences of his unlaw-
ful conduct,” and that the remedy should be adapted to the situ-
ation that calls for redress. Transmarine Navigation Corp., 170
NLRB 389 (1968); Ozark Trailers, 161 NLRB 561 (1966).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 48
Restoration to the status quo ante is presumptively appropri-
ate to remedy unlawful unilateral changes. Southwest Forest
Industries, 278 NLRB 228–228 (1986), enfd. 841 F.2d 270 (9th
Cir. 1988). When bargaining unit work has unilaterally and
unlawfully been removed, restoration of the work to the bar-
gaining unit is the appropriate remedy, unless the employer
demonstrates that restoration would be unduly burdensome.
Fibreboard Corp. v. NLRB, 379 U.S. 203, 216 (1964). Here,
although the Respondent has “encumbered itself with moving
costs” and has begun to ship equipment to other facilities, “it
has not shown that the transfer of work was accompanied by
major shifts in capital investment.” Pertec Computer, 284
NLRB 810, 811 (1987). Instead, it moved existing work to
existing facilities. The Tucson plant has not been sold, and the
General Counsel submitted evidence of specific non-TTX work
that could still be performed there. The Respondent likewise
has not shown that bargaining over the decision or its effects
would have jeopardized its business in any way. By all ac-
counts, the Tucson shop was making money at the time of the
decision to close it. In 2013, the Greenbrier Companies, Inc.
had revenues of $1.7 billion. I agree with the District Court’s
analysis and conclusion that restoring operations at the Tucson
shop and requiring GRS to bargain with the Union in good faith
periodically to reach an agreement or a bona fide impasse is not
an undue burden, especially considering the Respondent has
already begun to take these steps.87 Any lesser remedy fails to
redress the significant harm inflicted on employees because it
renders the majority support they had for the Union prior to the
employer’s unlawful actions meaningless and sends the mes-
sage to employees that the Respondent can close shops and
disperse employees without regard to any bargaining obliga-
tion.
The General Counsel has requested a limited backpay reme-
dy under Transmarine Navigation Corp., 170 NLRB 389
(1968). Where a restoration and reinstatement order are issued,
such a remedy is normally not appropriate. See Plaza Proper-
ties of Michigan, Inc., 340 NLRB 983, fn. 12 (2003). Instead,
the restoration and reinstatement of employees shall take place
in the manner set forth above for the discriminatory discharges.
I will order that the employer post a notice in the usual man-
ner, including electronically to the extent mandated in J. Picini
Flooring, 356 NLRB 11, 15–16 (2010). Also in accordance
with that decision, the question as to whether a particular type
of electronic notice is appropriate should be resolved at the
compliance stage. Id., at 13. See, e.g., Teamsters Local 25, 358
NLRB 54 (2012).
The General Counsel has also requested a broad remedial or-
der. Because of the Respondent’s egregious misconduct,
demonstrating a general disregard for the employees’ funda-
mental rights, I find it necessary to issue a broad Order requir-
ing the Respondent to cease and desist from infringing in any

87 I understand that the District Court ordered the Respondent to un-
dertake these steps based on a likelihood of prevailaing on discrimina-
tion allegations in addition to failure-to-bargain allegations. Nonethe-
less, I find these same actions appropriate based on my findings of
Section 8(a)(5) and (1) violations.
other manner on rights guaranteed employees by Section 7 of
the Act. Hickmott Foods, 242 NLRB 1357 (1979).
The General Counsel has requested that the read aloud by a
responsible management official of the Respondent or by a
Board agent in the presence of a responsible management offi-
cial of the Respondent. The Board has required this remedy
where an employer's misconduct has been “sufficiently serious
and widespread that reading of the notice will be necessary to
enable employees to exercise their Section 7 rights free of coer-
cion.” Jason Lopez' Planet Earth Landscape, Inc., 358 NLRB
383, 383 (2012). In light of the severity and pervasiveness of
the violations detailed herein, I find the General Counsel has
established that this remedy is required to enable employees to
exercise their Section 7 rights free from coercion. See AC Spe-
cialists. Inc., 359 NLRB No. 159, slip op. at 4 (2013).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended88
ORDER
The Respondent, Gunderson Rail Services, LLC d/b/a
Greenbrier Rail Services, its officers, agents, successors, and
assigns, shall
1. Cease and desist from maintaining overly-broad employee
handbook provisions regarding confidential information, solici-
tation, appearance and attire, and external communications;
interrogating employees about Union activities; promising to
erase attendance points and erasing attendance points; imple-
menting a safety incentive program; soliciting employee com-
plaints and grievances; promising increased benefits and im-
proved terms and conditions of employment for refraining from
supporting the Union; threatening plant closure for supporting
the Union; threatening employees and denigrating the Union by
telling them the company is spending money to defend against
this case at a time when other plants are shutting down; threat-
ening employees by making statements that electing the Union
would be futile; threatening employees with harm if they
choose the Union; laying off/firing employees because of their
union membership, activities, and sympathies; refusing to recall
or rehire employees because of their Union membership, activi-
ties, and sympathies; and unilaterally, without notice and an
opportunity to bargain with the Union, making and implement-
ing changes to terms and conditions of employment.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Rescind the overly-broad employee handbook provisions
regarding confidential information, solicitation, appearance and
attire, and external communications and notify employees in
writing that this has been done.
(b) Within 14 days from the date of the Board’s Order, of-
fer:
Alex Amador Jose Angel Ortega
Jesus Fernando Barnes Carlos Contreras Ortiz

88 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
GUNDERSON RAIL SERVICES, LLC 49
David Bottinueu Gabriel Ortiz
Oswaldo Chavira Brian Perona
Karim Duqmaq Juan Silva Gutierrez
Hector Federico Guillermo Gonzalez Pico
Jaime Hernandez Jesus Omar Ramos
Jesus Armando Lopez-Nuno Jeff Raske
Jesus Martinez Jesus Ruiz
Jorge Martinez Oscar Salinas
Ricardo Martinez Brian Scaggs
Karl Mason Jose Manuel Sepulveda
Juan Morales Rogelio Martinez
Chad Morshback Frank Soto
Guillermo Murguia Martin Valdez
full reinstatement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without prejudice to
their seniority or any other rights or privileges previously en-
joyed and make these whole for any loss of earnings and other
benefits suffered as a result of the discrimination against them,
in the manner set forth in the remedy section of the decision.
(c) Within 14 days from the date of the Board’s Order, re-
move from its files any reference to the unlawful discharges
and within 3 days thereafter notify the employees in writing
that this has been done and that the discharges will not be used
against them in any way.
(d) On request, bargain with the Union as the exclusive rep-
resentative of the employees in the following appropriate unit
concerning terms and conditions of employment.
(e) Within 14 days from the date of the Board’s order, re-
store operations at the Tucson facility to the status quo ante,
including offering full reinstatement to employees who were
transferred, discharged, or quit due to our closure of the Tuc-
son, Arizona facility, to their former jobs at the Tucson, Arizo-
na facility, or if those jobs no longer exist, to substantially
equivalent positions of employment, without prejudice to their
seniority or any other rights or privileges previously enjoyed,
and make them whole for any loss of earnings and other bene-
fits suffered as a result of the Respondent’s unilateral actions of
closing the Tucson shop and failing to bargain over its effects
in the manner set forth in the remedy section of the decision.
(f) In the event there are insufficient openings to accommo-
date all the former Tucson unit employees who wish to return
to work at the Tucson facility, including those employees who
accepted transfers to the Respondent’s other facilities, the Re-
spondent is to bargain in good faith with the Sheet Metal
Workers’ International Association, Local 359, AFL—CIO
about the creation of a preferential recall list and return em-
ployees to work at the Tucson facility pursuant to that recall
list. Those employees who accepted employment at the Re-
spondent’s other facilities are free to remain there, and are un-
der no obligation to accept Respondent’s offers to return to
work in Tucson.
(g) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment rec-
ords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(h) Within 14 days after service by the Region, post at its
facilities in Tucson, Arizona, and in any facility to which for-
mer Tucson employees accepted transfers, copies of the at-
tached notice marked “Appendix.”89 Copies of the notice, on
forms provided by the Regional Director for Region 28, after
being signed by the Respondent’s authorized representative,
shall be posted by the Respondent and maintained for 60 con-
secutive days in conspicuous places including all places where
notices to employees are customarily posted. In addition to
physical posting of paper notices, the notices shall be distribut-
ed electronically, such as by email, posting on an intranet or an
internet site, and/or other electronic means, if the Respondent
customarily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these pro-
ceedings, 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 October 2012.
(i) Within 14 days after service by the Region, hold a meet-
ing or meetings, scheduled to ensure the widest possible attend-
ance, at which the attached notice marked “Appendix” is to be
publicly read by a responsible management official of the Re-
spondent or by a Board agent in the presence of a responsible
management official of the Respondent,
(j) 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.
As to Case 28–RC–093179, because a bargaining order is
warranted, the election should be set aside and the petition dis-
missed. Riviera Manor Nursing Home, Inc., 220 NLRB 124,
425 (1975).
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.
Dated, Washington, D.C. June 30, 2014
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
FEDERAL LAW GIVES YOU THE RIGHT TO
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union

89 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 50
Choose a representative to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
Accordingly, we give our employees the following assurances:
WE WILL NOT do anything to prevent you from exercising
these rights.
WE WILL NOT maintain the following Confidential Infor-
mation rule in our employee handbook:
Confidential Information
Confidential information. Greenbrier’s confidential and pro-
prietary information includes (among other items) . . . person-
nel information . . . Confidential information must be used on-
ly by authorized persons and only in accordance with Green-
brier policies and procedures.
WE WILL NOT maintain the following Solicitation Policy in our
employee handbook:
Solicitation Policy
Solicitation and the distribution of literature or petitions by
any employee or any other individuals with the exception of
GRS approved service providers is expressly prohibited.
WE WILL NOT maintain the following External Communica-
tions policy in our employee
handbook:
External Communications
GRS has appointed specific representatives to serve as infor-
mation channels for news media. These representatives are re-
sponsible for approval of all press releases, responding to me-
dia inquiries, and coordinating interviews with the media—
with the exception of marketing or employment related adver-
tising—other employees should refrain from communications
with the media.
Please be aware that in cases of accident or emergency in-
volving a specific employee, nonmanagement employees are
prohibited from contacting the employee's family, friends of
anyone involved in the emergency or accident, or the media,
as such contact can cause significant confusion and undue dis-
tress. Proper communication channels have been established
for designated trained employees to contact family members
in case of an accident or emergency.
WE WILL NOT maintain the following Appearance and At-
tendance policy in our employee handbook:
Appearance and Attire
“Regardless of the work environment, provocative slogans or
images on clothing, hats, etc., and revealing or impractical at-
tire, is not appropriate.”
WE WILL NOT ask questions about your union support or ac-
tivities.
WE WILL NOT promise to erase your attendance points, or
erase your attendance points, to dissuade you from supporting
the Sheet Metal Workers’ International Association, Local 359,
AFL–CIO, or any other union.
WE WILL NOT implement a safety incentive program to dis-
suade you from supporting the Sheet Metal Workers’ Interna-
tional Association, Local 359, AFL–CIO, or any other union.
WE WILL NOT solicit complaints and grievances from you,
thereby promising you increased benefits and working condi-
tions if you refrain from union activities.
WE WILL NOT promise you increased benefits and improved
terms and conditions of employment if you refrain from engag-
ing in any activities on behalf of the Sheet Metal Workers’
International Association, Local 359, AFL–CIO, or any other
union.
WE WILL NOT threaten you with plant closure if you support
the Sheet Metal Workers’ International Association, Local 359,
AFL–CIO, or any other union.
WE WILL NOT threaten you with plant closure because you
decide having the Sheet Metal Workers’ International Associa-
tion, Local 359, AFL–CIO, or any other union, as your bargain-
ing representative.
WE WILL NOT threaten you by telling you the Company is
spending money to defend against this case at a time when
other plants are shutting down.
WE WILL NOT denigrate the Sheet Metal Workers’ Interna-
tional Association, Local 359, AFL–CIO, or any other union, in
order to dissuade your support for the Union.
WE WILL NOT threaten you by making statements that elect-
ing the Sheet Metal Workers’ International Association, Local
359, AFL–CIO, or any other union, would be futile.
WE WILL NOT threaten you by telling you that you will be
harmed if you chose the Sheet Metal Workers’ International
Association, Local 359, AFL–CIO or any other union as your
bargaining representative.
WE WILL NOT tell you that engaging in union or protected ac-
tivities could result in job loss.
WE WILL NOT lay you off or fire you because of your union
membership, activities, and sympathies.
WE WILL NOT refuse to recall or rehire you because of your
union membership, activities, and sympathies.
WE WILL NOT unilaterally, without notice and an opportunity
to bargain with the Sheet Metal Workers’ International Associ-
ation, Local 359, AFL–CIO or any other union, make and im-
plement changes to your terms and conditions of employment.
WE WILL NOT fail and refuse to recognize and bargain with
the Sheet Metal Workers’ International Association, Local 359,
AFL–CIO as the exclusive collective-bargaining representative
of our employees in the unit.
WE WILL NOT refuse to meet and discuss in good faith with
the Sheet Metal Workers’ International Association, Local 359,
AFL–CIO any proposed changes in wages, hours and working
conditions before putting such changes into effect, including
firing unit employees, recalling or rehiring unit employees,
changing the timing of a raise for some unit employees, refus-
ing to rehire or recall some unit employees, and implementing
and ending a safety incentive program, or closing the Tucson
facility.
WE WILL NOT implement unilateral changes that affect your
wages, hours, and other terms and conditions of employment.
GUNDERSON RAIL SERVICES, LLC 51
WE WILL NOT in any like or related manner interfere with
your rights under Section 7 of the National Labor Relations
Act.
WE WILL, on request of the Union, bargain with the Union as
the exclusive representative of unit employees concerning
terms and conditions of employment and, if an understanding is
reached, embody the understanding in a signed agreement.
The unit is:
All full-time and regular part-time AAR write-up employees,
airmen, laborers, material handlers, maintenance mechanics,
painters, switchmen, and welder repairmen located at our
Tucson, Arizona facility, excluding all other employees, in-
cluding quality assurance inspectors, office clericals, guards,
safety coordinators, plant managers, production managers,
foremen, quality assurance managers, material managers,
plant accounting managers, and supervisors as defined in the
Act.
WE WILL, upon request of the Union, rescind our decision to
close the Tucson facility.
WE WILL restore and reopen the Tucson facility with your
employment that existed prior to September 5, 2012.
WE WILL notify and give the Union an opportunity to bargain
before making any changes to your terms and conditions of
employment, including: closing the Tucson facility, recalling
you, rehiring you, firing you, changing the terms of a wage
increase, implementing and rescinding a safety incentive pro-
gram, and the requiring that you fill out a new job application
for rehiring you.
WE WILL if requested by the Union, rescind any or all chang-
es to your terms and conditions of employment that we made
without bargaining with the Union.
WE WILL rescind the confidential information, solicitation,
external communications, and appearance and attire policies in
our employee handbook.
WE WILL furnish all current employees with inserts for the
current employee handbooks that (1) advise employees that the
unlawful rules have been rescinded, or (2) provide the language
of lawful rules; or publish and distribute revised employee
handbooks that (1) do not contain the unlawful rules, or (3)
provide the language of lawful rules and notify all employees
who were issued the our employee handbook containing the
unlawful confidential information, solicitation, external com-
munications, and appearance and attire that these rules have
been rescinded and will no longer be enforced.
WE WILL immediately offer, to the extent that we have not al-
ready done so, to reinstate the following individuals to their
former positions in Tucson, and if those jobs no longer exists,
to a substantially equivalent position, without any loss to their
seniority rights or any other privileges, and WE WILL immediate-
ly make them whole with interest, compounded on a daily ba-
sis, for the wages and benefits they lost because we laid them
off or discharged them, and WE WILL compensate them for the
adverse tax consequences, if any, of receiving one or more
lump-sum backpay awards covering periods longer than 1 year:
Alex Amador Jose Angel Ortega
Jesus Fernando Barnes Carlos Contreras Ortiz
David Bottinueu Gabriel Ortiz
Oswaldo Chavira Brian Perona
Karim Duqmaq Juan Silva Gutierrez
Hector Federico Guillermo Gonzalez Pico
Jaime Hernandez Jesus Omar Ramos
Jesus Armando Lopez-Nuno Jeff Raske
Jesus Martinez Jesus Ruiz
Jorge Martinez Oscar Salinas
Ricardo Martinez Brian Scaggs
Karl Mason Jose Manuel Sepulveda
Juan Morales Rogelio Martinez
Chad Morshback Frank Soto
Guillermo Murguia Martin Valdez
WE WILL within 14 days, remove from our files, any and all
records of the layoff and discharge of the individuals named
below and WE WILL within 3 days thereafter, notify them in
writing that we have taken this action, and that the materials
removed will not be used as a basis for any future personnel
action against them or referred to in response to any inquiry
from any employer, employment agency, unemployment insur-
ance office, or reference seeker, or otherwise used against
them:
Alex Amador Jose Angel Ortega
Jesus Fernando Barnes Carlos Contreras Ortiz
David Bottinueu Gabriel Ortiz
Oswaldo Chavira Brian Perona
Karim Duqmaq Juan Silva Gutierrez
Hector Federico Guillermo Gonzalez Pico
Jaime Hernandez Jesus Omar Ramos
Jesus Armando Lopez-Nuno Jeff Raske
Jesus Martinez Jesus Ruiz
Jorge Martinez Oscar Salinas
Ricardo Martinez Brian Scaggs
Karl Mason Jose Manuel Sepulveda
Juan Morales Rogelio Martinez
Chad Morshback Frank Soto
Guillermo Murguia Martin Valdez
WE WILL file a report with the Social Security Administration
allocating backpay to the appropriate quarters.
WE WILL within 14 days, offer full reinstatement to our em-
ployees who were transferred, discharged, or quit due to our
closure of the Tucson, Arizona facility, to their former jobs at
the Tucson, Arizona facility, or if those jobs no longer exist, to
substantially equivalent positions of employment, without prej-
udice to their seniority or any other rights or privileges previ-
ously enjoyed.
WE WILL immediately make employees who were trans-
ferred, discharged, or quit due to our closure of the Tucson,
Arizona whole, with interest, compounded on a daily basis, for
the wages and benefits they lost because we transferred them or
they quit, and WE WILL compensate them for the adverse tax
consequences, if any, of receiving one or more lump-sum
backpay awards covering periods longer than 1 year.
GUNDERSON RAIL SERVICES, LLC D/B/A GREENBRIER
RAIL SERVICES
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 52
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/28-CA-093183 or by using the QR code be-
low. Alternatively, you can obtain a copy of the decision from the
Executive Secretary, National Labor Relations Board, 1099 14th
Street, N.W., Washington, D.C. 20570, or by calling (202) 273–
1940.