Hanson Material Service Corporation

National Labor Relations Board - Administrative Judge Opinions

Jan 7, 2008

13-CA-044128 (N.L.R.B. Jan. 7, 2008)

JD–01-08
Thornton, IL
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
HANSON MATERIAL SERVICE
CORPORATION
Respondent and Employer
and Case 13–CA–44128
INTERNATIONAL UNION OF OPERATING
ENGINEERS, LOCAL 150, AFL-CIO
Charging Party and Petitioner
and Cases 13–RC–21618
13–RC–21622
LABORERS INTERNATIONAL UNION OF
NORTH AMERICA, LOCAL 681
Petitioner
Kevin McCormick and J. Edward Castillo, Esqs., of Chicago, IL,
for the General Counsel.
Alex V. Barbour and Jacob Rubinstein, Esqs.,
(Meckler, Bulger & Tilson, LLP),
of Chicago, IL, for the Respondent and Employer.
Robert E. Entin and Lauren Shapiro, Esqs., of Countryside, IL, for the Charging Party
and Petitioner, Local 150 Operating Engineers.
DECISION
Statement of the Case
ROBERT A. GIANNASI, Administrative Law Judge. This consolidated
representation and unfair labor practice case was tried in Chicago, Illinois, from November
13 to November 16, 2007. The unfair labor practice complaint, as amended, alleges that
the Respondent violated Section 8(a)(1) of the Act by interrogating employees, prohibiting
them from wearing union attire and from posting union items on its bulletin boards,
threatening employees with discipline and layoffs for engaging in union activities,
promising them benefits for rejecting a union and informing them that it would be futile to
select a union. The complaint also alleges that Respondent violated Section 8(a)(3) and (1)
of the Act by unlawfully discharging employees Greg Stroud and Ammar Modieh for
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engaging in union activities. The Charging Party Union (Local 150 Operating Engineers or
the Union) and another union (Laborers Local 681) both petitioned the Board for an
election in a 4-employee unit of Respondent’s quality control analysts at its Thornton,
Illinois facility. In that representation case, the Respondent challenged the votes of Stroud
and Modieh, who had, by the time of the Board election, been discharged, on the ground
they had been properly terminated for cause. Local 150 Operating Engineers contends
that Stroud and Modieh were unlawfully discharged, as alleged in the complaint, and
therefore should be entitled to vote. The election resulted in one vote for Local 150
Operating Engineers, no votes for Laborers Local 681, and one vote for no union, leaving
the two challenged ballots, which are outcome determinative.1
The Respondent filed an answer denying the essential allegations of the complaint.
It also asserts that the challenged ballots should be sustained and that a certification should
issue affirming that the unit employees rejected union representation in the election. After
the trial, the parties filed briefs, which I have read and considered.2
Based on the entire record in this case, including the testimony of the witnesses, and
my observation of their demeanor, I make the following:
Findings of Fact
Jurisdiction
Respondent, a corporation with an office and a place of business located in
Thornton, Illinois, is engaged in the business of mining, processing and selling stone, sand
and gravel aggregates in the construction industry. During a representative one-year
period, Respondent purchased and received, at its Thornton facility, goods and materials
valued in excess of $50,000 directly from points outside of the State of Illinois. Accordingly,
I find, as Respondent admits, that it is an employer engaged in commerce within the
meaning of Section 2(2), (6) and (7) of the Act.3
The Charging Party Union is a labor organization within the meaning of Section
2(5) of the Act.

1 Local 150 Operating Engineers filed objections to the election, which were subsequently
withdrawn. Laborers Local 681 did not participate in the consolidated hearing.
2 The General Counsel filed a petition in United States District Court for Section 10(j)
injunctive relief, asking the Court, inter alia, for the immediate reinstatement of Stroud and
Modieh. The parties agreed to submit the transcript and exhibits of this proceeding to the
District Court in connection with the injunction proceeding. They also agreed to submit
evidence in this case on the so-called “just and proper” issue in the injunction case, evidence
that is not relevant to the issues in this proceeding, but would be relevant in the injunction case.
3 In June 2006, Respondent purchased the stock of Material Service Corporation, a
subsidiary of General Dynamics Corp. and continued in business as Hanson Material Service
Corporation. Subsequently, and after the events herein, the Respondent’s stock was
purchased by an entity identified as Heidelberg Cement. Notwithstanding these changes in
stock ownership, the Respondent remains the entity involved in this case.
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The Alleged Unfair Labor Practices
Background
Respondent is a division of Hanson North America, which has facilities throughout
the United States. It has a corporate headquarters located in downtown Chicago, Illinois,
and operates a number of facilities in the Midwest, including several in Illinois. Its
operation at the Thornton facility, also known as the Thornton quarry, employs about 150
employees, under the general supervision of Superintendent Toby Breedlove. The
Thornton facility, which produces a crushed limestone product, covers approximately
1,300 acres and is one of the 5 largest crushed stone quarries in the nation. The production
process begins at the pit or quarry, where the stone is blasted from the face, loaded onto
trucks and carried to a primary crusher. Thereafter, the product goes to a processing
plant, which turns out some 40 different products that are shipped to different points in
Illinois, Indiana and Michigan. Much of the finished product is used on state road projects
and Respondent is regulated to some extent by the state departments of transportation for
Illinois, Indiana and Michigan.
Of the 150 employees working at the Thornton quarry, most are represented by
unions and those employees are identified as hourly employees. Among the represented
employees are some 30 to 40 heavy equipment workers, who are represented by a local of
the Operating Engineers; about 45 employees represented by Local 701 of the Machinists
Union; about 50 laborers represented by Local 681 of the Laborers Union; some 25
truckdrivers represented by a Teamsters union; and about 6 electricians represented by
Local 134 of the International Brotherhood of Electrical Workers. The non-represented
employees are identified as salaried employees, whether they are paid by salary or by the
hour; the latter are identified as salaried employees-exempt. There are about 30 non-
represented salaried-exempt employees at the Thornton quarry, including various clerical
employees and foremen supervisors. Also included among the non-represented salaried-
exempt employees are the 4 quality control analysts. Quality control analysts at two of
Respondent’s other facilities are represented by a local of the Laborers Union; the others
are unrepresented.
The 4 quality control analysts at the Thornton facility work in the quality control
lab, a separate building at the facility. Two, Greg Stroud and Ammar Modieh, worked on
the first shift from 6 a.m. to 3 p.m; and the other two, Ed Mecenas and Chuck Breslin,
worked on the second shift from 3:30 p.m. to 12:30 a.m. The analysts run two different
types of tests on the product—a production test, which involves material from one of the
plants; and a stockpile test, which involves material that is stockpiled at the facility after it
is produced and before it is shipped. The tests measure whether the product meets state
specifications. The analysts gather samples for their tests from the field in buckets and
bring them back to the lab where the tests are run. There are two kinds of tests, a full test,
which may take as long as two hours, and a quick test, which may take some 15 or 20
minutes, depending on the product. The test materials, or the samples, are split into
sections, weighed, and split, and weighed again and again, until the sample reaches the
weight set forth in the state specifications. Then the samples are run through sieves and
vibrating machines; thereafter, the samples are removed and weighed again. The different
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steps and weights are recorded in handwritten form in a daily log book. Those notations
are then entered into a computer, which turns out a so-called gradation report that
indicates whether the sample meets the required specification. The gradation report is
required by and provided to one of the three states that use the product tested. The states
also certify the quality control analysts.
During the relevant time period, the quality control analysts were supervised by
General Foreman Chris Pronoitis, who is located in the main office, some distance away
from the quality control lab. Although Pronoitis has day-to-day supervisory authority
over the quality control analysts, he only spends about 10% of his time in the quality
control lab. Two other employees, quality control engineers Randy Polaczek and John
Barthel, also spend time at the Thornton quality control lab. Polaczek, who has
responsibilities for the Thornton quarry, has an office at the lab; Barthel, who floats
between different facilities, but has no responsibilities for the Thornton quarry, also
occasionally uses a desk in Polaczek’s office. Polaczek and Barthel are employees, not
supervisors, and they have no direct authority over the quality control analysts. They
handle customer complaints about quality, but they are separately supervised under the
authority of Respondent’s director of product quality, Brian Rice. Sometime in March
2007, Superintendent Breedlove, through the then-supervisor of the quality control
analysts, Mill Foreman Bernie Townsend, directed that the quality control analysts record
the time at which each sample was gathered both in the log book and on the gradation
reports. This action was taken because of an unusual number of quality complaints about
the aggregate product shipped to suppliers; recording the time would enable Respondent to
more accurately identify any problems.
The Union Campaign and Respondent’s Response
The quality control analysts first sought to obtain union representation in the
summer of 2006. Stroud led that effort. He contacted the Union and obtained signed
authorization cards at that time, but his effort stalled because of the change in
Respondent’s ownership at about that same time. Interest in the Union revived in March
2007. On March 2, Stroud again contacted the Union and obtained new signed
authorization cards from all of the quality control analysts. Sometime thereafter, the Union
contacted the Respondent and attempted to obtain voluntary recognition, which the
Respondent declined to give. Subsequently, Superintendent Breedlove and Human
Resources Director George Henley, whose office is located at Respondent’s headquarters in
downtown Chicago, met with each of the four quality control analysts in individual
meetings or interviews in Breedlove’s office. The purpose of the interviews, according to
Henley, was to communicate to the employees the Respondent’s position against union
representation and to “gain information” from the employees so that Respondent would be
“successful” in having the employees reject the Union (Tr. 800-803, 848). A more detailed
discussion of those individual meetings follows later in this decision because the General
Counsel alleges that, in these interviews, Henley engaged in coercive and unlawful
interrogations.
After the individual meetings, the quality control analysts contacted Local 681,
which already represented some of the Thornton employees, as a possible alternative to the
Union, and they also signed cards authorizing Local 681 to represent them. In an apparent
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reference to previous visits by both unions to the quality control lab in attempts to enlist
employee support, on April 19, 2007, Henley wrote letters to representatives of both unions,
making clear that Respondent would not permit either union to have access to its property
in order to meet with the quality control analysts.
On April 30, 2007, Local 681 filed a petition with the Board’s Chicago regional
office seeking an election among the quality control analysts. One day later, on May 1,
2007, the Union filed a similar petition. A stipulated election agreement was approved on
May 31, 2007, and an election was scheduled to be held on June 29, 2007. Prior to the
election, the Respondent held three sets of meetings—one for each shift—with the quality
control analysts to set forth its position that the analysts should reject any union
representation in the election.4
The first set of meetings was held on June 6, 2007 in the conference center, a
building located a couple of hundred feet from the quality control lab. The management
representatives in attendance were Breedlove and Henley, as well as Mike Gaglione,
Respondent’s vice-president of operations, and Brian Rice. The second set of meetings was
held on June 13 (for the first shift) and 14 (for the second shift), 2007, again at the
conference center. Henley was not present for those meetings, but Breedlove and Bernie
Townsend were present for management. The last set of meetings, one for each shift, took
place on June 20, 2007, again at the conference center. At this meeting, Breedlove and
Henley were present, as were Director of Labor Relations Rob Reinhold and another
management official, Maureen Moore. There was one other set of meetings scheduled for
June 27, but it was cancelled and not held because of the discharges of Stroud and Modieh
surrounding the events of that day. A more detailed discussion of the content of the
meetings will follow later in this decision because the General Counsel alleges that some of
the remarks made by management officials at these meetings constituted violations of the
Act.
The Election
The election was held as scheduled on June 29, 2007. Stroud and Modieh, who had
been discharged the day before, came to the Thornton facility on the day of the election and
voted challenged ballots. Stroud was the observer for the Union and Modieh was the
observer for Local 681. As indicated above, one vote was cast for the Union and one vote
was cast for no union, thus making the challenged ballots outcome determinative. If the
discharges were unlawful, as the General Counsel alleges, their votes must be counted; if
the discharges were lawful, as Respondent contends, their votes will not be counted and no
union would have gained a majority. A more complete discussion of the discharges and the
circumstances surrounding the discharges is set forth below.

4 I believe that the June meetings were in sets of two, one for each shift, in accordance with
the testimony of the management representatives who arranged the meetings. I think the
employees who testified that at least one of the meetings involved all 4 quality control analysts
were mistaken.
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The Section 8(a)(1) Allegations5
Paragraph V(a)—“In about mid-March 2007, Respondent, by George Henley . . .
interrogated its employees about their union activities and sympathies.”
The Facts
At some point, after the Union contacted Respondent’s president and requested
recognition on the basis of the signed authorization cards from all 4 quality control
analysts in early March, Respondent called all of the analysts into Superintendent
Breedlove’s office for individual and separate interviews, where they were questioned by
Human Resources Manager Henley. Breedlove’s office was located at some distance from
the quality control lab. As indicated above, Henley testified that the purpose of these
interviews was to “gain information” to help Respondent convince the employees to reject
representation by the Union. Henley did most of the talking and Breedlove took notes.6
The employees were told that Respondent had received a demand for recognition
from Local 150, based on the cards they had signed.7 According to Henley, he initially
reviewed “the Hanson non union preference statement,” an apparent reference to language
in the Hanson North America Benefits, Policy and Procedures Summary that included a
statement that the company “will aggressively strive to retain our non-union status and
maintain a direct relationship at all times between management and the employees.” Tr.
801, C.P. Exh. 1. He then asked the employees a series of questions. According to
Breedlove, Henley asked the employees “numerous questions” such as “what they liked
about their jobs, what they disliked about their jobs, if they had heard of the organizing
campaign going on in the QC Lab, if they had any concerns about it. If they had heard of
the election going on internally within Local 150 that was going on at the time.” Tr. 406.
Henley testified he asked “probably five or six questions.” Tr. 801. Stroud was the first
employee called into Breedlove’s office; his interview took about 35-40 minutes, according
to Henley. Modieh was next, followed by the 2 second shift employees; their interviews
took about 20 minutes each, again according to Henley.
Among the questions asked, according to the uncontradicted and credible testimony
of Stroud and Modieh, was why the employees chose Local 150 to represent them. They
answered that they thought Local 150 could obtain better benefits for them, to which
Henley replied that Respondent already had good benefits.8

5 The subsections discussed herein are pegged to the relevant paragraphs in the amended
complaint.
6 Both Stroud and Modieh testified that Breedlove was taking notes. This testimony is
uncontradicted.
7 This finding is based on the specific testimony of Stroud and Modieh, which was not
contradicted by Breedlove and Henley, whose testimony about the questioning was more
general and not as detailed as that of Stroud and Modieh. It is also likely that the recognition
demand was mentioned at the outset of the questioning because, after all, that is what
prompted the interviews.
8 The above is based on the uncontradicted testimony of Stroud and Modieh. Both
Continued
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Stroud’s interview began with a statement by Henley about the Union’s request for
recognition. Henley first brought up Local 150. According to Breedlove, at some point
during the questioning of Stroud, but not before the interview began, Stroud expressed
concerns about possible discipline for attempting to organize the employees. Henley and
Breedlove told him that there would be no such discipline. There is no evidence that this
issue was raised in any of the other interviews or that similar assurances were given to
other employees. During the course of the questioning, Stroud and Modieh stated that they
had signed cards for Local 150 and Stroud stated that he had spearheaded the effort on
behalf of Local 150.9 Either Henley or Breedlove also gave the employees the Union’s
website address so that they could learn about a pending internal union election in Local
150.10
Analysis
The test of the lawfulness of an interrogation is whether, under all the
circumstances, the questioning reasonably tends to restrain, coerce or interfere with
_________________________
Breedlove and Henley denied that the employees were asked whether the employees had
signed union cards or supported union representation, but they were not asked whether Henley
asked why the employees chose the Union and thus they did not specifically deny the testimony
of Stroud and Modieh that Henley did ask that question. My findings in this respect are also
supported by the specificity of the testimony of Stroud and Modieh and the generality of the
testimony of Henley and Breedlove on these points.
9 I reject any contention that the employees “volunteered” their support of the Union or
anything else during the interviews. The notion that they volunteered anything during the
interviews was based on answers to leading questions. The context of the interviews,
particularly Henley’s purpose, that is, to “gain information” from the employees, makes it clear
that any response or information provided by the employees was in response to Henley’s
questions.
10 The above is based on the composite testimony of Stroud, Modieh, Breedlove and
Henley. Where appropriate I have made specific credibility determinations. Two other conflicts
are presented. One conflict is whether Henley suggested that the employees contact Local 68l
as an alternative to Local 150, as Modieh and Stroud testified. Henley denied even mentioning
Local 681. But his testimony in this respect was not corroborated by Breedlove, who testified
that Henley asked the employees if “Local 681 had approached them at all.” Tr. 468. I believe
the mutually corroborative testimony of Modieh and Stroud on this issue, not only because of
the inconsistency in the testimony of the management officials, but also because the employees
initially contacted only Local 150 and the interviews dealt only with Local 150. It is unlikely, in
my view, that the employees would have, on their own, contacted Local 681, without some
suggestion from the management officials, who, in the interviews, clearly argued for rejection of
Local 150, even to the point of telling employees about an internal election in that union. At the
very least, the employees left the interviews with the clear impression that sticking with Local
150 would be contrary to the Respondent’s wishes and it would be more palatable to the
Respondent if they went with Local 681. The other conflict is whether the interviews took place
in March, as Modieh and Stroud testified, or on April 11, as Breedlove and Henley testified. I do
not believe the specific date of the interviews is significant. It is obvious from the testimony and
its context that the interviews took place after the Respondent received the request from Local
150 for recognition in early March, and before the April 19 letters from Henley to Local 150 and
Local 681, which objectively established that both unions, not just Local 150, were involved.
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employees in the exercise of their Section 7 right to align themselves with a union. See
Donaldson Bros. Ready Mix, Inc., 341 NLRB 958, 959 (2004); and Holsum de Puerto Rico,
Inc., 344 NLRB 694, 708 (2005). Some of the relevant factors to be considered in evaluating
the lawfulness of an interrogation include the background of the questioning; the nature of
the information sought; the identity of the questioner; and the place and method of the
interrogation. Obviously, each case turns on its own facts and the factors set forth above
are not to be mechanically applied. Rossmore House, 269 NLRB 1176, 1178 n. 20 (1984),
aff’d sub. nom., Hotel Employees Union Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985),
citing Bourne v. NLRB, 332 F.2d 47 (2nd Cir. 1964). See also Multi-Ad Services v. NLRB,
255 F.3d 363, 372-373 (7th Cir. 2001), where the Seventh Circuit listed other relevant
factors in the analysis, including the duration of the questioning, whether it is repeated, the
number of workers involved, whether the interrogated worker feels constrained to lie or
give noncommittal answers and whether the questioning is accompanied by assurances
against reprisal. In that case, the Court, citing one of its earlier decisions, stated that “an
employer may not probe directly or indirectly into an employee’s reasons for supporting a
union,” and upheld as unlawful the interrogation of a single employee by two managers in
one of the manager’s offices as to “why he would want to bring a union into the company.”
Applying those principles to the facts in this case, I find that the questioning in the
interviews in this case reasonably tended to restrain, coerce or interfere with employees in
the exercise of their rights. The employees were questioned individually in the office of the
highest official at the Thornton facility, and in his presence, by the Respondent’s Human
Resources Manager, whose offices were in downtown Chicago and who only infrequently
came to the Thornton facility. The office was at some distance from the lab where the
employees worked. The setting was formal and intimidating, especially in view of Henley’s
recitation of Respondent’s anti-union preference statement. Nor was there a legitimate
reason for the interviews. Respondent already knew that all the employees had signed
authorization cards on behalf of Local 150 and that that union had asked for recognition.
But Henley admittedly sought to “gain information” that would be useful in persuading the
employees to reject the Union. He asked the employees five or six questions, including why
the employees chose the Union to represent them, whether they had any concerns about the
union campaign and what they liked or disliked about their jobs. Such questioning clearly
comes within the Seventh Circuit’s proscription against probing that “directly or
indirectly” seeks an “employee’s reasons for supporting a union.”
Moreover, in context, asking employees what they liked or disliked about their jobs,
in connection with questions as to why they chose a union to represent them, adds a
coercive element to the interviews. The responses of Stroud and Modieh as to why they
selected the Union brought into play employee benefits. The management officials present
certainly had the authority to grant or effectively recommend benefits so that the
employees would “like” their jobs better and perhaps reject the Union; indeed, one of them
took notes while the other did the questioning.
Another clear indication of the coercive nature of the interviews is that Stroud, the
first employee interviewed, expressed his concern that he would be disciplined for his union
activities. He was given an assurance that he would not be disciplined, although that
assurance was not given at the beginning of the interview, was only given in response to his
expression of concern, and did not also include an assurance against reprisal for what he
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said during the interview. Even if this assurance is considered a factor against finding the
questioning of Stroud unlawful, however, there is no evidence that similar assurances were
given to Modieh or the other employees interviewed.
That the interviews were systematic, extended in duration and involved the entire
unit also supports the finding of a violation. Employees, who are only rarely called to the
superintendent’s office, and, even more rarely, for interviews with the human resources
manager, could not, and, in this case, did not, miss the meaning of Respondent’s
interrogations. They were ordered to report to the locus of authority in order to “gain
information” about the depth of their union support. And, as a result of Respondent’s
questioning in those interviews, the employees undertook to contact another union, which
they thought would be more palatable to their employer.
In these circumstances, and considering all of the factors discussed above, I find that
the Respondent’s questioning during individual interviews of the employees was unlawful
and violative of Section 8(a)(1) of the Act. See Multi-Ad Services v. NLRB, supra.11
Paragraph V(b)—On June 6, 2007, George Henley orally promulgated and thereafter
Respondent maintained a rule prohibiting employees from wearing union attire to work,
threatened discipline for violating that rule, and threatened employees with layoffs if they
selected a union as their bargaining representative.
At the outset of the June 6 meetings, George Henley distributed an NLRB
publication about employee rights (A Guide to Basic Law and Procedures under the
National Labor Relations Act) and spoke to the employees about its contents. He made it
clear to the employees that the Respondent did not want them to vote for union
representation in the election. He also told the employees that he had sent letters to both
the Union and Local 681, telling their officials that they could not visit the employees at the
lab during the organizational campaign. In explaining why he mentioned the letter to the
employees, Henley testified that he “felt it was important for [the employees] to know that
we wanted their focus to be on doing their jobs. . . . And that we had made a decision that
the unions were not going to be allowed to come in and do campaigning during work time.”
Tr. 806-807.
Since early March, the quality control employees, particularly Stroud, but, to a
lesser extent, Modieh, had worn Union t-shirts and caps, carrying the Local 150 logo, at
work. Until June 6, no supervisor or manager had said anything about the union attire.
But, according to the testimony of Stroud and Modieh, at the June 6 meeting they attended,
Henley stated that the employees could not wear union clothing, t-shirts or caps to work
and they would be disciplined if they did so thereafter. According to Stroud, he was
wearing a union t-shirt at this very meeting. He also testified that he continued wearing at
least a Union cap at work after this meeting, until during the following week, when his
supervisor confiscated it. That incident is discussed more fully later in this decision, as it is

11 The systematic and pervasive questioning in this case is factually distinguishable from the
limited questioning in the cases cited by Respondent (R. Br. 8-9), in which no violation was
found.
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alleged as a separate unfair labor practice. Stroud and Modieh also testified that Henley
said that “unions lay people off,” and, if they voted for a union, the employees, who were
normally retained during the winter slow season, “could get laid off.” Tr. 38, 170.
Henley denied that he said anything at the June 6 meetings about any prohibition
against wearing union attire, including any discipline of employees for wearing such attire,
or anything at all about layoffs. Breedlove, who attended these meetings, corroborated
Henley in these denials. In fact, Henley testified, the Respondent had no rule or policy
prohibiting the wearing of union insignia at the Thornton facility and employees frequently
wore such insignia, testimony that was corroborated by Breedlove.
I cannot accept the testimony of Stroud and Modieh on either issue. As to the
alleged prohibition against wearing union attire, I note that Stroud continued to wear at
least his Union cap for another week after Henley’s alleged prohibition.12 Nor was he
disciplined for doing so, contrary to Henley’s alleged threat of disciplinary action, even
though his cap was confiscated by his supervisor. I believe that the confiscation of Stroud’s
Union cap—discussed below, in connection with paragraph V(e) of the complaint—was a
separate, isolated incident that does not support a finding that Henley orally promulgated
an anti-union apparel rule on June 6. Nothing in Stroud’s testimony about the confiscation
of his cap suggests that it was in any way connected with Henley’s alleged promulgation of
an anti-union apparel rule. Nor does any other evidence support the promulgation or
enforcement of such a rule. The fact that Respondent did nothing else to enforce such a
rule militates against a finding that such a rule was promulgated. Moreover, the General
Counsel did not unearth anything else, either in the cross-examination of Breedlove or
Henley or in any other respect, which would support the testimony of Stroud and Modieh
on this matter. In these circumstances, it seems implausible that the Respondent would
have permitted the wearing of union t-shirts and caps from March until early June, as it
did, and then, all of a sudden, in the June 6 meeting, prohibit the wearing of this attire.
Accordingly, I will dismiss all allegations in the complaint regarding the oral promulgation
and enforcement of a rule prohibiting the wearing of union attire in the lab.
Nor can I accept the testimony that accuses Henley of threatening layoffs of the
quality control analysts during the slow season, if they selected a union. It is possible that
someone at the June 6 meeting said something that led Stroud and Modieh to believe that
something was said about layoffs during the slow season. But, aside from the conclusory
testimony of Stroud and Modieh, the General Counsel failed to show an objective basis for
such belief. Nothing else in this record supports a finding that Henley, a knowledgeable
personnel manager, who had just read from an official NLRB publication about the rights
of employees and supervisors in a union campaign, would make such a blatant threat. I do
not believe he did. But, even considering the evidence in the best light for the General
Counsel, the testimony on this issue would be in equipoise and the General Counsel has the
burden of proving that his witnesses are more believable than the Respondent’s witnesses.
On this issue, the General Counsel has not met his burden. I therefore dismiss the

12 On direct examination, Stroud was asked if, after the June 6 meeting ended, he ever wore
any union shirts or hats to work again. He answered, “Yes, I did.” Tr. 170.
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complaint allegation that Henley threatened layoffs during the slow season if the quality
control analysts selected a union in the upcoming election.
Paragraph V(c)—In early to mid-June 2007, George Henley orally promulgated a rule
prohibiting employees from posting union material on its bulletin boards; thereafter,
Respondent maintained such a rule and selectively and disparately permitted non-union
literature to be posted on its bulletin boards.
Stroud testified that, previous to the June 6 meeting, he had posted union stickers
that stated “vote yes” for Local 150 on the bulletin board in the lab. At the June 6 meeting,
according to Stroud, Henley said that all union stickers had to come down. The reason
given was that, “this was company property.” Tr. 167. Stroud asked if other posters,
unrelated to unions, also had to be removed from the bulletin board; and Henley said that
the latter could remain posted. Stroud also asked Henley whether there would be any
disciplinary action taken if the union posters were not removed and Henley said, “yes.” Tr.
169. It is not clear from Stroud’s testimony whether he actually removed any union
stickers; he merely testified that, by virtue of Henley’s statement at the June 6 meeting,
Henley “made us take them down.” Tr. 167. Modieh testified that Henley told the
employees at the June 13 meeting that union stickers would have to be removed. He did
not testify that anything was said about discipline for continuing to keep the stickers
posted, but he did testify that he removed a Local 150 sticker “the next day.” Tr. 46-48, 87,
104. The major problem with Modieh’s testimony is that Henley was on vacation and did
not appear or speak at the June 13 meeting. Indeed, Stroud specifically denied that Henley
was present at the June 13 meeting. In these circumstances, I do not find Modieh’s
testimony reliable on this issue and I cannot rely on it in making findings of fact.
Henley testified that Respondent did not have a written policy regarding the use of
bulletin boards at the Thornton facility, but that there was a provision in the hourly
manual about placing or removing material from company bulletin boards without
permission. That manual applied only to union represented employees, but Henley
testified that even the manual rule on bulletin boards was not strictly enforced. He denied
that he said anything at the June 6 meeting or at any other meeting about the posting of
union related material on the bulletin board in the lab. Breedlove corroborated Henley on
these matters.
I cannot accept Stroud’s testimony that, at the June 6 meeting, Henley prohibited
union-related items from being posted on the bulletin board in the lab. He was not
supported in his testimony by Modieh, who testified the prohibition was promulgated at a
meeting Henley did not attend, and did not mention a threat to discipline offenders. This
conflict in testimony makes it difficult to make any reliable findings on the alleged
promulgation of such a rule. I credit instead Henley’s denial, corroborated by Breedlove,
that anything was said about employees placing union-related items on the bulletin board
in the lab at the June 6 meeting. This view is supported by Respondent’s failure to strictly
adhere to another policy against the posting of material on bulletin boards by other unions
who represented employees at the facility. I do not believe that Respondent really cared
about union posters or stickers on the lab’s bulletin boards. No other evidence indicates as
much. Stroud’s testimony also conflicts with Modieh’s as to when the stickers were taken
down. Modieh testified that he took them down after the June 13 meeting; Stroud testified
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that someone whom he did not name, not he, took the stickers down after the June 6
meeting. In these circumstances, I cannot make a finding that the alleged rule against the
posting of union stickers was actually enforced, making it unlikely that such a rule was
ever promulgated. Accordingly, I will dismiss the allegation in paragraph V(c) of the
complaint.
Paragraph V(d)—At the June 6, 2007 meeting, Vice-President Mike Gaglione promised
employees that they would receive promotions to management positions if the employees
rejected union representation and told them that it would be futile to select a union because
the facility “was going to stay non-union because it has always been that way.”
To support this aspect of the complaint, the General Counsel again relies on the
testimony of Stroud and Modieh. Although these witnesses testified more fully about other
remarks made at the June 6 meeting they attended, their testimony about what Gaglione
said was quite limited. Modieh testified that Gaglione said he “strongly advises” the
employees to vote non-union and that, if the employees selected a union, the relationship
between the quality control analysts and the foremen would be “jeopardized.” Tr. 39-40.
Stroud testified that Gaglione told the employees about his experiences at Respondent,
“work[ing] his way up through the ranks.” According to Stroud, Gaglione said that the lab
had always been non-union and “it’s going to remain a non-union shop.” Tr. 165.
According to Stroud, Gaglione also “gave a demonstration on how a quality control analyst
was promoted out of quality control and moved on to becoming a foreman.” Tr. 165.
Gaglione testified that he told the employees about his experiences over 47 years with
Respondent in working with the quality control people. He told them that, in his view, it
was better for those employees to remain non-union because their work would go more
smoothly that way. He also said that the quality control people were really an extension of
management, particularly in their contact with customers. He denied that he said anything
about quality control people being promoted to management positions if they voted non-
union or anything about the lab always being non-union and it would be futile to vote for a
union. His denials were supported by Breedlove and Henley, who also attended this
meeting. On cross-examination, however, Gaglione admitted that he told the employees
that the lab had always been non-union as long as he had been with Respondent and that
he said something to the effect that the quality control position is a good place from which
to advance to a management position.
Except for Stroud’s testimony that Gaglione said that the quality control lab was
“going to remain a non-union shop,” nothing in the testimony of any of the witnesses even
remotely supports the General Counsel’s complaint allegations that Gaglione stated that it
would be futile to select a union. The thrust of that other testimony was that Gaglione told
the employees that the lab had always been non-union and that he thought the jobs in the
lab were more appropriately non-union. This does not amount to a statement that it would
be futile to select a union or that the Respondent would never deal with a union. Even
Stroud conceded that Gaglione’s statement that the lab would always be non-union was
made in the context of Gaglione’s other statements that reflected his own experience and
his view that the lab employees would more appropriately fit as non-union personnel.
Nothing in Stroud’s testimony indicates that Gaglione said anything about Respondent
refusing to bargain in good faith if the employees chose a union. I cannot make the
inference—simply from Stroud’s testimony—that Gaglione’s statements in this respect
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violated the Act. Not only is there no evidence that the Respondent stated that it would do
anything unlawful to keep a union out, but the Respondent had dealt successfully with
unions both at the Thornton facility and with respect to other quality control employees at
other locations. Furthermore, Stroud testified that, earlier in this very meeting, Henley
had set forth general principles of NLRB law that included a statement that “the company
does not have to ever accept a union contract as long as they’re bargaining in good faith.”
Tr. 165. That, of course, is an accurate statement of the law. In these circumstances, I
cannot find that Gaglione violated the Act by telling employees that it would be futile to
select a union because Respondent would resist unionization by other than lawful means.
See Ready Mix, Inc., 337 NLRB 1189, 1190 (2002); and Winkle Bus Company, 347 NLRB
No. 108, slip op. at 3-4 (2006).
Nor does anything in the testimony of any of the witnesses on this aspect of the case
support a finding that Gaglione promised the employees promotions if they rejected the
Union. He made no specific connection between promotions and the outcome of the union
election. Such an inference is not sustainable simply from the testimony that he may have
mentioned that the quality control analyst position was, in his view, similar to a
management position and a good vehicle for movement into a management position, a point
that followed from his description of his own career. Nor is a violation established simply
because Gaglione may have mentioned the name of a particular employee who had moved
from a quality control position to a management position. In these circumstances, I find
that the General Counsel has not proved by a preponderance of the evidence that Gaglione
promised that the employees would be promoted to a management position if they rejected
a union. Accordingly, I shall dismiss all the allegations in paragraph V(d) of the complaint.
Paragraph V(e)—In early to mid-June 2007, Chris Pronoitis “made an effort to prevent . . .
employees from wearing union hats at work by physically removing and confiscating hats
in their possession.”
This complaint allegation involves an incident that is best described in the following
testimony of Greg Stroud, augmented in part by that of Modieh. Stroud had been wearing
a Union cap, with the Local 150 logo on it, to work from early March. He continued to
wear it until shortly before the June 13 meeting. On that day, his supervisor, Chris
Pronoitis, approached him in the lab and told him to remove the Union cap. When Stroud
did so, Pronoitis took the cap away from him. Pronoitis then went to the water cooler,
where another Union cap had been placed. Pronoitis took that cap as well. According to
Medieh, who was not present during the Stroud/Pronoitis encounter, he had worn this
second cap a “couple of times” before, and subsequently had placed it either on or behind
the water cooler. After Pronoitis took both Union caps, he left the lab with them. Neither
Stroud nor Modieh ever saw those caps again.
Pronoitis also testified about this incident, although he said it occurred on June 20
and that he took only one cap, the one at the water cooler. According to Pronoitis, Stroud
initiated the conversation about the Union cap. He testified that Stroud said that he had no
use for the cap and asked if Pronoitis wanted it. Pronoitis said he did not, but, after
Stroud mentioned that another supervisor might be interested in it, Pronoitis agreed to
take the cap and give it to the other supervisor. According to Pronoitis, he left the lab with
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that cap, only one cap, and gave it to the other supervisor later that day. He claimed that
he did not confiscate the cap, but rather Stroud gave it to him
I credit the testimony of Stroud over that of Pronoitis on this aspect of the case.
Stroud’s testimony was clear and direct and held together as a coherent story. Pronoitis’s
account strains credulity, particularly in view of Respondent’s opposition to the Union in
the campaign. I cannot believe that Stroud initiated the discussion about the apparently
discarded Union cap and offered it to Pronoitis. Also implausible is Pronoitis’s testimony
that Stroud then asked his supervisor, the second highest official at the quarry (Tr. 708), to
deliver the Union cap to another supervisor at another section of the facility. In these
circumstances, I reject Pronoitis’s testimony and believe instead that of Stroud.
In accordance with my credibility determination set forth above, I find that
Pronoitis confiscated the Union cap that Stroud was wearing, as well as another Union cap,
and never returned them. He did so without reason. Nor were special circumstances
pleaded to justify the actions of Pronoitis. Accordingly, I find that such conduct was
coercive and violative of Section 8(a)(1) of the Act. See NRC Corp., 313 NLRB 574, 577
(1993); Wal-Mart Stores, Inc., 350 NLRB No. 71, slip op. at 6 (2007); and Brandeis
Machinery & Supply Co., 342 NLRB 530 (2004).
Paragraph V(f)—Promises and Expressions That it Would be Futile to Select a Union by
Robert Reinhold
At the June 20 meetings, one for each of the two shifts, Hanson North America
Labor Relations Manager Robert Reinhold, who is stationed in New Jersey, spoke to the
quality control analysts. He set forth the Respondent’s position against union
representation. As part of his remarks, which were essentially the same in both meetings,
he distributed a handout to the employees, which was in the format of a power point
presentation. Although he deviated at times from the handout, he testified that he
generally followed the statements in the handout and had notes on his copy of the handout
to guide him. He denied that he promised a raise of $3 per hour to the employees for voting
against a union or that he informed the employees that it would be futile to select a union
because Respondent would stall contract negotiations, as alleged in the complaint. Indeed,
he testified that he told employees exactly the opposite. He told them that Respondent
could not lawfully promise that, for example, the employees would receive raises if they
rejected a union, but that a union could make promises that it could get them such raises.
He told employees that the law prohibited such promises because employers had the power
to carry them out and to permit such promises would effectively preclude the fair election
of a union. He also said he could not predict what would happen in collective bargaining,
which might quickly result in a bargaining agreement or might take a long time. He gave
the example of bargaining at a Hanson facility in Pennsylvania between the company and
an Operating Engineers local, which he knew about from personal experience and which
was documented in his handout. The parties had bargained to impasse, and, even though
unfair labor practice charges and a decertification petition had been filed, there was still no
contract three years after the employees selected the Operating Engineers to represent
them. Reinhold’s testimony is corroborated by the handout, including his notes, which was
admitted in evidence, as well as the testimony of Henley and Breedhove, who were present
at the meeting and denied that he made the statements alleged in the complaint.
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In support of the allegations in paragraph V(f) of the complaint, the General
Counsel relies primarily on the testimony of Stroud and Modieh. As to the allegation that
the Respondent would stall negotiations and render choice of a union futile, Modieh and
Stroud simply confirmed Reinhold’s more detailed and reliable testimony about the
Pennsylvania bargaining example mentioned in his handout. I do not believe their
testimony fairly suggests that Reinhold said that Respondent would stall negotiations if the
quality control employees chose a union to represent them. To the extent that their
accounts differ from that of Reinhold, however, I find that they may have read more into
Reinhold’s example as to what happened during previous negotiations at one of
Respondent’s operations in Pennsylvania than what was actually said. But that does not
mean that Reinhold made statements to the effect that the Respondent would stall
negotiations so as to render choice of a union futile. I find, in accordance with Reinhold’s
more reliable, detailed and corroborated testimony, that he did not. I do not believe that a
labor relations expert with Reinhold’s experience would have deviated so radically from
the example he used in the handout as to what happened during a previous negotiation at
one of Respondent’s operations in Pennsylvania.
As to the allegation that Reinhold promised the employees that they would receive a
$3 per hour raise if they rejected the Union, the General Counsel again relies on the
testimony of Modieh and Stroud, which, in my view, was conclusory and lacked the detail
and context of Reinhold’s account. I do not believe Reinhold promised the employees a $3
raise if they rejected the Union. I find instead, in accordance with Reinhold’s more reliable
testimony, that he told the employees that, unlike a union, Respondent could not lawfully
promise the employees a raise. Indeed, the handout distributed by Reinhold states that
Respondent “can not tell you what will happen to your wages . . . if you chose to
represented (sic) by the Union.” I cannot believe that Reinhold, an experienced labor
relations professional, would have deviated so radically from the handout as to have made
the bald promise set forth in the testimony of Stroud and Modieh. In these circumstances,
I find that the General Counsel has not established the violations alleged in paragraph V(f)
of the complaint and those allegations of the complaint are dismissed.
Paragraph V(g)—On June 20, 2007, Henley promised that employees “would receive
promotions to management positions if the Union lost the election.”
On this aspect of the complaint, the General Counsel relies only on the testimony of
Modieh, who testified that, in the June 20 meeting, Henley said that, in the past, a quality
control technician had moved up to a foreman’s position and that could happen to the
present quality control analysts if they voted against a union. Stroud, who testified about
Reinhold’s remarks at this meeting, did not testify that Henley said anything at all during
the June 20 meeting, except to introduce Reinhold. Henley testified that, at this meeting, he
simply made some introductory remarks to introduce the main speaker, Reinhold, who had
flown into Chicago from New Jersey specifically for the meeting. He denied that anything
was said by any management representative about employees being promoted to
management positions if they voted against a union. That denial was echoed by Breedlove,
who also attended the June 20 meeting.
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I find more reliable the testimony of Henley and Breedlove that Henley did not
make the remarks attributed to him by Modieh. Not only did Modieh’s conclusory
testimony lack context, but it was not corroborated by Stroud, who also attended the
meeting. It is possible that Modieh confused his testimony about Gaglione’s remarks at the
June 6 meeting with the remarks he attributed to Henley at the June 20 meeting. But that
confusion does not inspire confidence in the reliability of the testimony of Modieh about
either meeting. Nor is it plausible that Henley would have so explicitly tied the probable
promotion of all the quality control analysts to rejection of a union. Who would do the
quality control work if they were all promoted outside the unit? In these circumstances, I
find that the General Counsel has failed to establish the violation alleged in this part of the
complaint and I dismiss that allegation.
The Amendment—The Alleged Johnnie’s Poultry violation by Attorney Alex Barbour
On the last day of the hearing, the General Counsel moved to amend the complaint
by alleging a violation of Section 8(a)(1) of the Act because of the failure of Respondent’s
lead counsel, Alex Barbour, to adhere to the Johnnie’s Poultry requirements for the
interview of prospective witnesses.13 The amendment was sought as a result of the
testimony of employee Ed Mecenas concerning an affidavit he gave to Barbour in
connection with the preparation of his testimony in this case. Barbour objected to the
motion, as to which I reserved ruling, and made an offer of proof as to what he said to
Mecenas before he took the affidavit. I grant the motion to amend, but, as shown below, I
dismiss the allegation.
Second shift quality control analyst Ed Mecenas was called by Respondent to testify
mainly on the just and proper issue in the injunction proceeding. But he was also asked
questions about some of the Section 8(a)(1) allegations in the complaint. He was asked, for
example, whether, in the June meetings that he attended, management officials had ever
promised raises or promotions if the employees voted against a union, told them that
Respondent would stall union negotiations and never reach an agreement, told them that
employees would be laid off during the slow season or otherwise made promises or threats.
He denied that they had. It became clear to me, after his cross-examination, that Mecenas
had no clear recollection of what was said at these meetings, particularly when he was
asked to detail what was said, by whom and when. Moreover, contrary to the testimony of
Respondent’s management witnesses, Macenas testified that all the June meetings involved
all four of the quality control analysts. But it is clear from the overall testimony in this case
that at least two of the meetings, and probably all three, were split meetings, one for each
shift. Thus, Macenas could not have credibly testified about what was said in the meetings
with the first shift employees, which is what formed the basis of the General Counsel’s
allegations.
When I mentioned on the record that I found Mecenas’s testimony about the
meetings unreliable because of his repeated expressions of lack of recollection,
Respondent’s counsel sought to introduce Mecenas’s pre-trial affidavit into evidence. See
R. Exh. 13. The General Counsel objected, but I reserved ruling on its admissibility,

13 See Johnnie’s Poultry, 146 NLRB 770, 774-775 (1964), enforcement denied, 344 F. 2d
617 (8th Cir. 1965).
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permitting the parties to brief the matter, including what weight, if any, to give the
affidavit. I will admit the affidavit in evidence, in view of the attack on Macenas’s
credibility and his lack of recollection on the witness stand as to what took place at the
meetings. The document is at the very least an example of past recollection recorded. Rule
803(5) of the Federal Rules of Evidence; see also Rule 807.
Consideration of the affidavit, which supports Macenas’s denials that any of the
alleged unlawful statements were made during the meetings that he himself attended, does
not change my view that Macenas’s denials are unreliable. I have no reason to believe that
the affidavit overcomes Macenas’s testimony at the hearing, which, as I have stated, was
riddled with expressions of lack of recollection. It was taken in late October, months after
the June meetings. Moreover, I have to evaluate Macenas’s overall testimony, not just his
affidavit, which, as I have stated, could not address what was said in the meetings that
Stroud and Modieh attended and that Macenas did not attend. Not only did Macenas’s
testimony lack context, but his lack of recollection throughout his testimony does not
inspire confidence. Nor was I impressed with his demeanor, which led me to believe he did
not take his testimony seriously. Indeed, at the end of his stint on the witness stand, I asked
Macenas whether he could remember anything that was said at the June meetings. He
replied, “Not really. I took them with a grain of salt.” Tr. 779. Thus, I do not credit any of
his testimony about the June meetings with management officials; and, because of that
credibility determination, I doubt the reliability of any of his testimony, including that
discussed more fully below, which spawned the motion to amend the complaint.14
In the course of my questioning of Macenas about the taking of his affidavit,
Macenas initially testified that attorney Barbour did not say anything to him before asking
Macenas the questions that resulted in the taking of his affidavit. Because that testimony
apparently raised the issue of whether the Johnnie’s Poultry assurances had been given, I
permitted Respondent’s counsel to question Mecenas further on what was said to Macenas
before the questioning began and the affidavit was taken. As a result of that questioning,
Mecenas confirmed that he signed statements, prior to the questioning and the taking of
the affidavit, indicating that he had been given assurances by Barbour that no reprisals
would be taken against him for the answers given to his questions, that the questions were
to aid Barbour’s preparation for the trial and that Macenas’s participation in the
questioning was voluntary. See R. Exhs. 14 & 15. Although I reserved ruling on the
admissibility of those statements at the hearing, I now rule that they are admissible, for the
same reasons I gave for the admissibility of Mecenas’s affidavit. Not only was Macenas’s
testimony about the preliminaries to Barbour’s questioning subject to the same lack of
recollection as his other testimony, but he specifically stated that he could not “recall” what
was stated before the questioning began. Tr. 776. Unlike the situation presented with
respect to Mecenas’s affidavit, however, I tend to believe that the written statements signed
by Mecenas with respect to Barbour’s assurances are a better and more reliable indicator
of what happened than his testimony in response to my questioning. Mecenas’s testimony

14 The other second shift quality control analyst, Chuck Breslin, exhibited a similar lack of
recollection of the specifics as to what was said during the June meetings. Accordingly, I find
his testimony in this respect similarly unreliable.
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on this matter was, as mentioned below, confusing and showed a lack of understanding of
the questions asked.
Indeed, even without considering the written statements, I find that the relevant
evidence, based solely on Macenas’s testimony, does not establish a Johnnie’s Poultry
violation. Not only was Macenas a generally unreliable witness, but I believe he was
confused when I asked him whether Barbour said anything to him before he gave his
affidavit. I do not think Macenas really knew what he was saying—or, indeed, what was
being asked—when he answered my question by saying, “no.” Tr. 775. That exchange,
together with related testimony following that exchange, is too slender a reed upon which
to base any significant finding of fact, much less a finding of a violation of the Act.
Macenas was simply not credible or reliable when testifying about what Barbour told him
before Barbour took his affidavit. Nor was the matter elaborated upon further by the
General Counsel, who, after all, has the burden of proof on the issue. For those reasons, I
cannot find that the General Counsel proved by a preponderance of the evidence that
Barbour did not give Macenas the Johnnie’s Poultry assurances before taking Macenas’s
affidavit. In these circumstances, I shall dismiss the allegation that Respondent violated
the Act as alleged in the amendment to the complaint.
The Section 8(a)(3) Allegation that Respondent discharged employees Stroud and Modieh
for discriminatory reasons.
The Facts
On June 20, 2007, Quality Control Engineer John Barthel was filling in for his
associate, Randy Polaczek, at the Thornton lab because the latter was on vacation. Barthel,
who had once been a quality control technician at Thornton, was working in the office that
adjoins the lab where the testing is done. He was there from about 7 a.m. until about 12
noon or 12:15 p.m. Barthel testified that, at about 10:15 a.m., some Indiana inspectors
arrived at the lab. Stroud, Modieh and Barthel accompanied them as they toured the
quarry. After the inspectors left at about 11:15 or 11:30 a.m., Stroud, Modieh and Barthel
returned to the lab; shortly thereafter, Stroud and Modieh left in a truck and returned at
about noon with their lunch, which they then ate. At about this time, Barthel checked the
log book in the lab and noticed that the book reflected that ten samples had been tested
that morning, with no time noted as to when the test samples were collected. All were full
tests, which, in total, would have taken some six or eight hours to run, according to Barthel.
Yet, also according to Barthel, who was probably the most credible witness in this
proceeding and impressed me as totally honest and without guile, he observed and heard
no testing being performed in the lab that morning. Indeed, he testified that there is no
way that the tests recorded in the log book could have been performed that morning.15

15 There is no dispute that Modieh made the log entries for the first shift during the relevant
time period. They were also clearly identifiable because they were in Modieh’s handwriting. It
is also undisputed that Modieh and Stroud were jointly responsible for the entries in the log book
as well as all of the testing reflected in the log book and in other reports attendant to the testing.
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Barthel’s testimony is enhanced not only because he knew the technician’s job,
having performed it in the past, but because any testing in the lab would have been obvious
not only to the naked eye, but to the ear. I viewed a video-tape of the testing process, which
was admitted in evidence in this proceeding, and I can confirm that it is a noisy and time-
consuming process. I am satisfied that Barthel would have seen or heard something if
testing had indeed taken place. I am also satisfied that Barthel’s observations that morning
were not prompted by any supervisory instructions, as he testified, and were noted solely
because of his concern that testing was erroneously recorded as being performed when it
was not. Barthel credibly testified that it was part of his job at other facilities to check the
log book. He thought it was his job to do so at Thornton while he was filling in for his
vacationing associate, and he had done so before at Thornton.
Barthel did not report his observations to anyone that day. He decided to wait until
Polaczek returned the following Monday, June 25, and report the matter to him because
Thornton was Polaczek’s yard and Barthel had been substituting for him the week before.
He told Polaczek what he had observed the week before. Neither engineer observed or
heard any testing on the morning of June 25, although Barthel was not present
continuously that morning. Polaczek, who was present for several hours, credibly testified
that he did not see or hear any testing that morning. At about 9 a.m., Polaczek looked at
the log book and found that it contained notations that 12 tests had been run that morning,
including 10 full tests, something that, in his experience, would have been highly unusual. I
found Polaczek just as honest, knowledgeable and reliable as Barthel was. Measuring his
testimony against the demonstrated noisiness and thoroughness of the testing process, as
shown in the exhibit that I viewed, I conclude that he would have heard or observed any
testing if indeed it had taken place while he was present in the lab. Polaczek also credibly
testified that he was not prompted in any way by management officials to observe Stroud
and Modieh on that Monday. He was truthfully testifying as to what he did not see or
hear.16
In any event, sometime later in the day, on Monday, Polaczek reported his and
Barthel’s observations to Chris Pronoitis, the supervisor of the quality control analysts,
who in turn reported what he had heard to Superintendent Breedlove. On Tuesday, June
26, Breedlove had a meeting with Barthel and Polaczek, as well as Pronoitis and Product
Quality Director Brian Rice, and it was decided that the next day, Wednesday, June 27,
Respondent would station observers at the lab to monitor whether any testing was being
done by Stroud and Modieh. Barthel, Pronoitis and Polaczek were to be the observers, on
overlapping shifts, to provide continuous monitoring.
On June 27, the observers were present either in the lab itself or in the engineers’
office adjacent to the lab, from about 6 a.m. on. Each testified credibly that they did not
observe or hear any testing going on while they were present.17 Pronoitis arrived at about 6
a.m. and stayed until Barthel arrived; Modieh was already present when Pronoitis arrived

16 To the extent that Stroud and Modieh testified to the contrary—that they performed tests
on June 20 and 25 while Barthel and Polaczek were present—I discredit their testimony.
17 It is clear that no samples are left over from the second shift for the first shift employees to
test; they must gather new samples when they arrive at work at 6 a.m.
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and Stroud arrived shortly thereafter. Barthel arrived shortly before 7 a.m., while
Pronoitis was still at the lab, and remained until about 8 a.m. Polaczek, arrived at the lab
at about 8 a.m., while Barthel was still there. At one point during the morning Stroud left
the lab to collect samples. On his watch, Polaczek observed Stroud coming into the lab
from the field where he had collected buckets containing test samples and placing the
buckets on the floor of the lab. According to Polaczek, this was the first time he had
observed samples in the lab during his watch. Indeed, Polaczek took a photograph, on his
cell phone, of the samples, which remained in their buckets waiting to be tested. The
photograph was taken at exactly 9:48 a.m., as shown by the entry on his cell phone. The
buckets of samples—five of them—remained in the position reflected in the photograph,
without being disturbed, moved or tested as long as Polaczek remained at the lab.
Polaczek’s testimony is enhanced because he prepared contemporary notations of what
happened on his watch and e-mailed them at some point to Breedlove.
Stroud and Modieh left the lab at around 9 a.m. and returned about an hour later.
They had gone off the facility to Dunkin’ Donuts, for coffee, and afterwards they went to
the chip plant on the facility to pick up a sample. While they were gone, Polaczek noticed
two gradation reports in the printer connected to the computer in the lab office used by the
quality control analysts. The times written on the gradation reports, purportedly stating
the times that the tested samples had been collected, were 9:30 and 10 a.m., times that had
not yet occurred and times when Stroud and Modieh were away from the lab. At this
point, Polaczek called Breedlove, who was in the conference room at a nearby building.
Breedlove immediately came to the lab, accompanied by Pronoitis. After they studied the
gradation reports, Breedlove and Pronoitis left the lab with the reports or copies of the
reports. Polaczek was present at the lab when Stroud and Modieh returned and he
observed no further testing until he left at about 11:30 a.m.
At some point on the morning of June 27, after 11 a.m., while Polaczek was still
there, Pronoitis returned to the lab and directed Modieh to go out to the field to gather
samples of three products that were to be shipped by rail that day. After about 20 minutes,
Modieh left the lab to gather the samples; Stroud remained in the lab. When Modieh
returned, he began to “split the samples” to begin the testing process. Tr. 719. Pronoitis
was talking to Stroud about the upcoming meeting scheduled for that afternoon, which was
ultimately cancelled, when he received a call on his cell phone from Breedlove. In the
meantime, management had decided to interview Stroud and Modieh about what had
happened or not happened that morning, and Breedlove directed Pronoitis to bring Stroud
and Modieh to Breedlove’s office, which he did by truck. Stroud and Modieh were
transported to Breedlove’s office shortly after 12:30 p.m.
Stroud and Modieh denied that they had falsified test results or failed to perform
tests on the morning of June 27. They insisted they had performed some tests: Stroud
estimated that he and Modieh had performed 5 to 7 tests; Modieh testified that they had
done at least two, which took about an hour. The log book for June 27 reflects that 10 tests
were performed on the first shift (Tr. 734-746, R. Exh. 9a). Those tests had to have been
performed before noon because Stroud and Modieh took their lunch at noon and, shortly
after their lunch break ended at 12:30, they were escorted to Breedlove’s office for their
interviews. I reject the testimony of Stroud and Modieh that they performed any tests on
the morning of June 27. It is contrary to the credible testimony of the Respondent’s
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observers and Breedlove, as well as the documentary evidence that supports their
testimony, particularly the gradation reports prepared on June 27. Those reports listed
times when the samples could not have been collected because, when the reports were seen
and taken by management officials, the reports reflected times that had not yet occurred.
Moreover, based on all the testimony about the nature of the tests and the time needed to
perform them, I believe it would have been impossible for Stroud and Modieh to run 10
tests before noon, which is what the log book indicated. Even in their testimony Stroud
and Modieh did not state that they had performed anything close to 10 tests on the
morning of June 27. Thus, the notations in the log book on June 27 were also false. In any
event, I believe, in accordance with the weight of the evidence on this point, that Stroud
and Modieh ran no tests that morning and that Stroud and Modieh falsified test results in
the log book and in the gradation reports. Indeed, to the extent that they insisted they did
not falsify test results in the past, I reject any such testimony. I believe that they also
falsified results for tests that they did not perform on June 20 and June 25, in accordance
with the credible testimony of Barthel and Polaczek.
After Polaczek left the lab, he went to Breedlove’s office, where he met with
Breedlove and several other management officials. The individuals in Breedlove’s office
participated in a conference call with Respondent’s president and other management
officials at other locations. Barthel also participated in the conference call. Respondent’s
president stated that, based on what was reported to him, the employees should be
discharged. It was decided, however, to seek explanations from the employees. As a result,
Stroud and Modieh were directed to come to Breedlove’s office, where they were
questioned separately by Henley. They were asked to explain how they could have done
any testing during that morning in the face of the times indicated on the gradation reports,
as well as the evidence from the observers that no testing was done that morning. Their
answers did not exculpate them, in the view of the Respondent’s officials. After another
conference call with higher management, Stroud and Modieh were suspended and told to
return the next day. Henley credibly testified that, during his discussions with Stroud and
Modieh, he gave them the opportunity to resign instead of being discharged. They declined
the offer. After further investigation, which involved the interview of the second shift
quality control analysts, and further deliberation, Stroud and Modieh were discharged the
next day, June 28, for falsifying test results that they did not perform.
Both sides submitted evidence of allegedly comparable treatment of employees at
the Thornton facility. The Respondent submitted evidence that other employees who had
similarly falsified documents were discharged or permitted to resign in lieu of discharge.
Respondent’s examples involved two employees—scale clerks at the Thornton facility—
who colluded with truck drivers to falsify the base weight of the truck so that the weight of
the loaded truck would be greater, thus increasing the compensation of the trucker. One of
the incidents took place in May 2003 and the other in January 2006. After a complete
investigation of these matters, the employees were told that they would be discharged if
they did not resign and they did resign. Tr. 608-617. The General Counsel submitted
documentary evidence that showed several union-represented employees were disciplined
but not discharged for falsifying documents. On June 14, 2007, one employee was issued a
written warning for being late and documenting that 8 hours were worked, his second
offense of this nature (G.C. Exh. 8, Tr. 323-324). On October 4, 2006, another employee
was issued a suspension after an investigation showed that he left work “without
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performing service on your loader” and made a notation on a report “15 minutes past the
actual time you left work.” This may have been the result of a settlement between
Respondent and the union involved. Tr. 325-327, G.C. Exh. 9. Still another employee—an
electrician—was issued a suspension, on March 31, 2006, pending further investigation,
for, on numerous times, falsifying “time sheets for additional pay without time worked.”
That employee continued his employment and was later permitted to retire on July 3, 2006.
This too was the result of a last chance agreement and a settlement between Respondent
and the union involved. Tr. 328-330, G.C. Exhs. 10 & 11. The final document submitted
by the General Counsel on this issue involved the discharge of an employee in October of
2006, after a suspension pending investigation of violations of company rules, including 3
violations in a 12 month period. The rule infractions included failing to give advance
notice of absences or tardiness, loitering and making unauthorized stops and sleeping
during working hours. Tr. 330-333, G.C. Exh. 12. Whatever rules were involved in these
warnings and suspensions applied to hourly employees represented by unions and did not
specifically apply to the quality control analysts. Tr. 333-340.
Analysis
To sustain a finding of discrimination, the General Counsel must make an initial
showing that a substantial or motivating factor in the employer’s decision was the
employees’ union or other protected concerted activity. As part of that initial showing, the
General Counsel may show that the employer’s reasons were false or pretextual. If the
General Counsel has made such an initial showing, the burden of persuasion then shifts to
the employer to show that it would have made the same decision, even absent the union or
protected activity. See Pro-Spec Painting, Inc., 339 NLRB 946, 949 (2003); Alexandria NE
LLC, 342 NLRB 217, 219 (2004); and Syracuse Scenery and Stage Lighting Co., 342 NLRB
672, 673-674, 677 (2004). Applying those principles to the instant case, I find that the
General Counsel has not shown that a substantial or motivating factor for the discharges of
Stroud and Modieh was their union activities, but, even if such a showing were made, the
Respondent has persuasively established that it would have discharged them in any event.
Although Stroud and Modieh were known union adherents, the Respondent did not
harbor the kind of union animus against them that would lead to the inference that it
discharged them for their union activities. Respondent had dealt with unions not only at
the Thornton facility, but at its other facilities. Moreover, although it is clear that
Respondent opposed unionization of the quality control analysts, its campaign against
union representation in the lab was relatively free from serious unfair labor practices. It
engaged in unlawful interrogations before the union election petitions were filed and one of
its supervisors unlawfully seized union caps in the lab on one occasion. But nothing in
those unfair labor practices, or anything else in the record, suggests that Respondent was
gunning for Stroud and Modieh and was doing so because of their union activities.
It is also true that Stroud and Modieh were fired one day before the scheduled
Board election. Such timing ordinarily goes a long way to establishing the causal link
between employer action and discriminatory motive. See NLRB v. Rain-Ware, Inc., 732
F.2d 1349, 1354 (7th Cir. 1984). But, in this case, the timing of the employer’s action was
causally connected to a different circumstance—the discovery that Stroud and Modieh had
falsified test results they had not performed. Absent a showing of pretext—that the reason
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offered by the employer was false or not in fact relied on—that discovery would provide
the causal connection to, and thus the reason for, the discharges, notwithstanding the
immediacy of the Board election. Otherwise, pro-union employees who engage in
misconduct immediately before an election would be insulated from discipline on a per se
basis, something not contemplated by either the statute or Board authority. There is no
evidence that Respondent had a particular desire—that was rendered more acute several
days before the election than it was weeks or even months before—to remove long-time
known union supporters Stroud and Modieh from the rolls before election day. Nor does
anything in the record support a finding that Respondent learned anything in the last few
days before the election that would cause it, precipitously, to rid itself of Stroud and
Modieh for discriminatory reasons.18
On the contrary, the evidence is overwhelming that Stroud and Modieh falsified test
results that they did not perform on the morning of June 27, and that this was the reason
for Respondent’s action against them. Stroud and Modieh were observed continuously
while they were in the lab that morning by three witnesses, who credibly testified that no
tests were performed. That testimony was buttressed by documentary evidence, including
gradation reports that were discovered before the times listed on the reports. Neither in
their interviews with management officials later in the day, on June 27, or on the next day,
nor in their testimony before me did Stroud or Modieh satisfactorily show that they did
perform the tests indicated on the gradation reports or in the log book. Their testimony
that they did was completely unreliable. Indeed, I have also found that they falsified
results for tests they did not perform on June 20 and June 25, when they were observed by
quality control engineers, who were neither part of management nor directed by
management to observe Stroud and Modieh on those occasions. In the face of prior
complaints about quality in the products shipped to suppliers for use on state roads, and, in
view of the state regulation of standards and specifications for their products, it would have
been grossly negligent for the Respondent to have tolerated such falsification without
acting against those responsible. Commendably, it did not. In the face of the
overwhelming evidence set forth above, I cannot find that Respondent fired Stroud and
Modieh for their union activities or because Respondent feared that they would vote for
union representation in the Board election. Thus, I find, in accordance with the weight of
the evidence, that Respondent fired Stroud and Modieh for falsifying results of tests they
did not perform, not for engaging in union activities.
Nor has the General Counsel shown that the reason Respondent advanced for the
discharges was pretextual. Stroud and Modieh failed to perform tests and falsified test
results; and that is why the Respondent fired them. Contrary to the General Counsel, the
Respondent did not treat Stroud and Modieh differently from other employees who
engaged in similar conduct. The examples of allegedly comparable conduct offered by the

18 Surely, with the assistance of counsel, Respondent had to know that the simple discharge
of 2 union adherents immediately before a Board election would not mean that they could not
vote. Predictably, Stroud and Modieh were in fact permitted to vote and their votes were
challenged. It was thus obvious that the discharges would be a matter of litigation no matter
what, of which the Respondent’s president candidly testified he was aware, when he
participated in the deliberations leading to the discharges.
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General Counsel that did not result in immediate discharge are distinguishable. All
involved union-represented employees who were subject to different work rules, including
a progressive discipline policy; and they were covered by a union contract, which obviously
included a grievance procedure that led to settlement of some of the alleged misconduct.
Nor was the misconduct in those examples as serious as those involved in this case. That
misconduct mostly involved employees getting paid for time not worked; there is no detail
as to how much time was taken inappropriately. In contrast, here, Stroud and Modieh
falsified results of tests they did not perform; those tests were required to be performed by
state regulatory agencies. Indeed, their impropriety was also far worse than the examples
of immediate discharge provided by the Respondent, but those examples are closer to the
misconduct involved here than are the General Counsel’s examples. When, after
investigation, Respondent learned that its employees were complicit in falsifying weights
that increased truck driver compensation, it acted quickly and decisively. The employees
were discharged or given the opportunity to resign in lieu of discharge. That is exactly
what the Respondent did with Stroud and Modieh. Accordingly, a consideration of
comparable examples of discipline does not support a finding that the discharges were
pretextual, but rather supports a finding that they were consistent with Respondent’s
policy and previous examples of its handling of wrongdoing. In any event, I find that the
conduct involved in this case was so unique and so serious that it would have justified
immediate discharge, without regard to any previous disciplinary action by Respondent in
different circumstances.
In their briefs, the General Counsel and the Charging Party attempt to show that
the discharges were motivated by anti-union considerations and that the Respondent’s
reason for the discharges was a pretext. Those attempts are unavailing. Some of the
arguments made in the briefs are answered in my findings of fact, credibility resolutions
and discussion set forth above. Other arguments rely on factors that might suggest
discrimination or pretext in other circumstances, but do not, in the circumstances of this
case. For example, it is inconsequential that Stroud and Modieh had received good
evaluations in the past and were not previously issued disciplinary warnings. They had
not, so far as the record shows, previously falsified results for tests they did not perform,
the offense for which they were fired. Nor did Respondent know about and tolerate such
falsifications in the past.
The General Counsel’s contention that Respondent placed Stroud and Modieh
under “heavy surveillance” on June 20 and 25 (G.C. Br. 33) is unsupported by the record.
Nor, contrary to the Charging Party’s contention (C.P. Br. 23), was there a delay in
applying discipline. There is no record evidence that Barthel or Polaczek were supervisors
or agents of Respondent—indeed, the General Counsel did not allege as much in the
complaint. Nor was there any evidence that they were initially enlisted to spy on Stroud
and Modieh by management officials or that their observations of Stroud and Modieh were
prompted or motivated by anti-union considerations. They were whistleblowers in the
purest sense. Nor do I find anything sinister in Barthel’s waiting to notify Polaczek and the
latter’s delay for a few hours in notifying his superiors. It would be natural for an
employee to be careful before accusing fellow employees of such serious misconduct and to
have some confirmation before reporting the matter to management officials. Obviously,
when these observations were reported to management, Respondent directed further
observations on June 27. It was perfectly appropriate for Respondent to verify what
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Barthel and Polaczek had reported. In any event, such verification was not motivated by
anti-union considerations. It was motivated by a concern that test results were being
falsified. That verification extended to interviews of Stroud and Modieh, in which they
failed to satisfactorily exculpate themselves. Thus, contrary to the contentions of the
General Counsel and the Charging Party (G.C. Br. 33, C.P. Br. 26), Stroud and Modieh
were not fired simply for “mistakenly” recording an incorrect time on gradation reports
and they were given every opportunity to explain their positions. Moreover, contrary to
the Charging Party’s contention (C.P. Br. 27), there was no reason to observe the second
shift employees on June 27 because the initial reports of Barthel and Polaczek only focused
on the improprieties of Stroud and Modieh.
The General Counsel and the Charging Party do raise one point that gives me
pause—Respondent did not apparently blame Pronoitis for his lack of supervision of
employees who falsified results of tests they did not perform. See G.C. Br. 31; C.P. Br. 27-
28. I am convinced, however, that Pronoitis did not suspect that test results were being
falsified until Barthel and Polaczek brought the matter to his attention. He was, of course,
not involved in the falsification itself. Although Pronoitis fell down on his job of
supervising the first shift quality control analysts, that point alone does not establish either
a discriminatory motive or a pretext in the discharge of the employees who actually were
responsible for the falsification.
Finally, I cannot accept the Charging Party’s argument (C.P. Br. 32-35) that the
gradation reports and the log book entries support the notion that Stroud and Modieh did
not do anything wrong. My assessment of those documents is that they support the
credible testimony of the observers not only on June 27, but also on June 20 and 25, as I
have indicated above. I do not have to figure out how Stroud and Modieh entered bogus
numbers into the log book and the gradation reports; I only find, based on all the evidence,
that they did so, and that they did not do the testing that would have honestly supported
those numbers. The Charging Party also conveniently overlooks the testimony of Stroud
and Modieh that they did not perform anything like the number of tests listed in the log
book for June 27.
Even if somehow I could find that the General Counsel made an initial showing that
the discharges here were motivated by anti-union considerations, I would find, for the
reasons already stated above, that the Respondent has persuasively shown that it would
have fired Stroud and Modieh even in the absence of anti-union considerations.
Accordingly, I find that the Respondent did not violate Section 8(a)(3) and (1) of the Act
when it discharged employees Stroud and Modieh.
Conclusions of Law
1. By coercively interrogating employees and by confiscating union caps,
Respondent has violated Section 8(a)(1) of the Act.
2. The above violations are unfair labor practices within the meaning of the Act.
3. The Respondent has not otherwise violated the Act.
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4. The challenges to the votes of Greg Stroud and Ammar Modieh are sustained
since they were properly discharged for cause prior to the election.
On these findings of fact and conclusions of law, and on the entire record herein, I
issue the following recommended19
ORDER
The Respondent, its officers, agents, successors and assigns, shall
1. Cease and desist from
(a) Coercively interrogating employees about their union activities.
(b) Confiscating the union caps or similar union material of employees.
(c) In any like or related manner, interfering with, restraining, or coercing
employees in the exercise of their rights under Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the
Act
(a) Within 14 days after service by the Region, post at its office and place of
business in Thornton, Illinois, copies of the attached notice marked “Appendix.”20 Copies
of the notice on forms provided by the Regional Director for Region 13, after being signed
by Respondent’s authorized representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced or covered by any other
material. In the event that, during the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved herein, 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 July 11, 2007.
(b) 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.

19 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be waived for all
purposes.
20 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 National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
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IT IS ALSO ORDERED that Cases 13-RC-21618 and 21622 be severed and
remanded to the Regional Director to issue the appropriate certification of election results,
in accordance with this decision.
IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found herein.
Dated, Washington, D.C., January 7, 2008.
____________________
Robert A. Giannasi
Administrative Law Judge
JD–01-08
Thornton, IL
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 benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT coercively interrogate employees about their union activities.
WE WILL NOT confiscate the union caps or similar union material of employees.
WE WILL NOT in any like or related manner, interfere with, restrain, or coerce
employees in the exercise of their rights under Section 7 of the Act.
HANSON MATERIAL SERVICE
CORPORATION
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the
National Labor Relations Act. It conducts secret-ballot elections to determine whether employees want union
representation and it investigates and remedies unfair labor practices by employers and unions. To find out
more about your rights under the Act and how to file a charge or election petition, you may speak
confidentially to any agent with the Board’s Regional Office set forth below. You may also obtain information
from the Board’s website: www.nlrb.gov.
209 South LaSalle Street, 9th Floor
Chicago, Illinois 60604
Hours: 8:30 a.m. to 5 p.m.
312-353-7570.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF
POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS
PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S COMPLIANCE
OFFICER, 312-353-7170.