Hercules Drawn Steel Corp.

National Labor Relations Board - Administrative Judge Opinions

Dec 8, 2006

07-CA-048573 (N.L.R.B. Dec. 8, 2006)

JD-83-06
Livonia, MI
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES

HERCULES DRAWN STEEL CORP.

and Cases No. 7-CA-48573
7-CA-48785
LOCAL 174, INTERNATIONAL UNION, 7-CA-49221
UNITED AUTOMOBILE, AEROSPACE
AND AGRICULTURAL IMPLEMENT
WORKERS OF AMERICA (UAW), AFL-CIO

Donna M. Nixon & Jennifer Y. Brazeal, Esqs.,
for the General Counsel.
Lisa M. Smith, Esq., for the Charging Party.
David B. Gunsberg, Robert J. Finkel, & Michael L. Weissman, Esqs.,
for the Respondent.

DECISION

Statement of the Case

GEORGE ALEMÁN, Administrative Law Judge. Pursuant to a second consolidated
complaint issued on March 9, 2006, by the Regional Director for Region 7 of the National Labor
Relations Board (the Board), a trial in this matter was held from May 15-18, and on June 21,
2006, in Detroit, Michigan to hear and resolve allegations that Hercules Drawn Steel Corp., (the
Respondent), had violated Sections 8(a)(1), (3), and (5) of the National Labor Relations Act (the
Act).1

Specifically, the consolidated complaint alleges that the Respondent violated Section
8(a)(1) by threatening employees with loss of jobs if they went on strike; if they supported a
another employee who had been disciplined; threatened them with unspecified adverse action if
they filed a grievance or if they gave statements against it in support of other employees;
threatened employees with job loss if they did not accept its contract proposals; by engaging
through videotaping in the surveillance of employees engaged in picketing; by threatening
employees with discharge if they did not accept their selective recall from a lockout and return to
work, and by threatening employees by telling them that it did not want back those employees
who had not been selectively recalled from the lockout.

It further alleges that the Respondent violated Section 8(a)(3) and (1) by making
unfavorable and discriminatorily motivated work assignments to an employee, Lawrence Lewis,
by locking out employees on May 1, 2005;2 and by selectively recalling from lockout employees
in certain job classifications.

1 The unfair labor practice charges, and amendments thereto, which gave rise to the second
consolidated complaint were filed by Local 174, International Union, United Automobile,
Aerospace and Agricultural Implement Workers of America (UAW), AFL-CIO (herein the Union)
on various dates between January 3 and April 27, 2006. The first consolidated complaint was
issued on October 28, 2005.
2 Unless otherwise indicated, all dates herein are in 2005.

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Finally, the consolidated complaint alleges that the Respondent violated Section 8(a)(5)
and (1) when, in or around late May or early June, it bypassed the Union and dealt directly with
certain employees in selectively recalling them from the lockout; and by presenting the Union on
August 9, with regressive contract proposals, which conduct is further alleged to have been
“inherently destructive” of the rights guaranteed to employees by Section 7 of the Act.

By answer dated March 20, 2006, the Respondent denied engaging in any of the unfair
labor practices alleged in the consolidated complaint, asserting, inter alia, that it had legitimate,
nondiscriminatory and/or substantial business reasons for taking any and all action alleged as
unlawful in the complaint.

At the hearing in this matter, all parties were afforded a full and fair opportunity to be
heard, to present oral and written evidence, to examine and cross-examine witnesses, and to
argue orally on the record. On the entire record, including my observation of the demeanor of
the witnesses, and after considering the briefs filed by the General Counsel, the Charging Party,
and the Respondent, I make the following3

I. Findings of Fact

Jurisdiction

The Respondent is a corporation with an office and place of business in Livonia,
Michigan, where it is engaged in the manufacture of steel products. During the 2004 calendar
year, a representative period, the Respondent purchased and received at its Livonia facility
materials and supplies valued in excess of $50,000 directly from points and places outside the
State of Michigan. The Respondent admits, and I find, that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the Act, and that the Union is a
labor organization within the meaning of Section 2(5) of the Act.

II. Alleged Unfair Labor Practice

A. Factual Background

The Respondent, as noted, is in the business of manufacturing steel products.
Essentially, it produces steel bars which it sells to companies that use the steel bars to make
screws and other parts. Mark Goodman is the Company’s owner and president. Kenneth Lee
Pinion serves as plant manager, Jean Rincher is the Respondent’s plant superintendent and
reports to Pinion. Below Rincher in the supervisory/managerial hierarchy are all of the
supervisors at the Livonia plant, which include maintenance supervisor Kerry Morley, and shift
supervisors Perry Sanford, Jim Ritchie, Bob Giacherio, and Stanley Gulaszewski. All are
admitted supervisors within the meaning of Section 2(11) of the Act.

3 Various documents were offered into evidence by the parties. The General Counsel’s
exhibits are identified herein as “GCX”, the Respondent’s exhibits as “RX”, and the Union’s or
Charging Party’s exhibits as “CPX”, followed by the exhibit number. Testimonial evidence is
identified as “TR” (transcript) followed by the page number(s). Reference to arguments made in
the parties’ briefs are identified as “GCB” for the General Counsel’s brief, “RB” for the
Respondent’s brief, and “CPB” for the Charging Party’s brief, followed by the brief page
number(s).

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The Respondent and the Union have had a longstanding 30-40 year bargaining
relationship, during which period the Union has served as the exclusive collective bargaining
representative of all full-time and regular part-time production and maintenance employees
employed by the Respondent at its Livonia facility.4 The parties’ most recent collective
bargaining agreement covered a period from April 29, 2000 to April 28, 2005.5

In early April, the parties began negotiations for a new contract. The Union’s bargaining
committee consisted of Joseph Hayosh, its lead negotiator, employee and chief steward Mike
Goodreau, employee Herb Wilson, employee Lawrence Lewis, (L. Lewis), and employee and
Union recording secretary, Cliff Parmenter. The Respondent’s bargaining team included
attorney David Gunsburg, Pinion, Rincher, and Ron Ruitt, Respondent’s controller. Hayosh
testified that the parties met for bargaining eight times in April, twice in May, and once in June,
August, September, October, and November. (GCX-26).

Attorney Gunsburg, one of the Respondent’s negotiators, has represented the
Respondent in previous contract negotiations with the Union. He testified that early on in the
negotiations for the new contract, the Respondent presented the Union with economic and non-
economic proposals but that, with some exceptions, the parties were unable to reach agreement
on a number of issues.6 Among the changes sought by the Respondent and opposed by the
Union in the new contract was a blanket no-strike clause without the “health and safety,” and
“production” exceptions, “super seniority” for layoff and recall purposes for employees in the
skilled classifications, changes in certain work rules to reduce the number of steps needed
before discharge could be imposed, future increases in health care premiums to be paid by
employees, and changes in the wage and COLA structures. (Tr. 887; 944-945; 194).

On April 26, the parties agreed to extend the contract by one day, to April 29. On April
28, the Respondent presented the Union with its final proposal. (See, GCX-8). Hayosh testified
that when his bargaining committee was handed the proposal, as well as during a sidebar
conversation with him and a mediator, Gunsburg stated that if the employees turned down the
Company’s final proposal, there would be a lockout. Hayosh, however, told Gunsburg that the
employees would not strike and would continue working even if they were to reject the
Respondent’s final contract proposal. On April 29, Gunsburg faxed the Union a letter reiterating
that the April 28, proposal was the Company’s final proposal, and that it reflected what the
Respondent felt it needed to enter into a collective bargaining agreement. In his letter,
Gunsburg insisted that the Respondent would not agree to a contract with a “no strike” clause
with exceptions for health and safety and production standards, despite the position allegedly
taken by the Union during the April 27, negotiations that it intended to keep the exceptions to
the no-strike clause and that said position was set in concrete. The letter further advised that if
no agreement was reached by the start of the midnight shift on May 1, employees should not

4 The job classifications included in the production and maintenance unit are Maintenance,
Tool Crib, Wean Line/Roto-Schumag, Bar Blast & Coil End, Lift Truck, and Radio-Crane
Operator. Of these, the Schumag operators, wean operators, testers and maintenance are
considered skilled jobs. The several job classifications included in the production and
maintenance unit are Maintenance, Tool Crib, Wean Line; Crane, Lift Truck, Coil-end, Shumag,
Roto/Mag, and Blast. (See GCX-6, p. 48; GCX-38). There are roughly about 70 employees in
the unit.
5 GCX-6, the parties’ 2000-2005 contract, was entered into between the Respondent and
UAW Local 985. Midway through the contract term, Local 985 merged into Local 174.
6 The parties were able to agree on increases in life insurance, health and safety insurance,
and on installation of a buzzer for lunch and break periods.

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report for work. (CPX-12).

Hayosh responded with a letter of his own dated April 29, disputing Gunsburg’s
characterization of the Union’s position regarding the “no strike” clause, and noting that while it
preferred to maintain the current exceptions to the “no strike” clause, the Union was “willing to
consider the modifications you have proposed on this issue.” (CPX-13). Gunsburg faxed
Hayosh a letter that same day responding to certain assertions made by Hayosh during a phone
conversation between the two, and reiterating that the Company’s final proposal was indeed
final, that it viewed the final proposal as fair, that the restrictions previously placed on the
Company under the expired contract were untenable, and that it was not willing to enter into a
new contract with such restrictions. The letter stated that the Company was not willing to make
any further concessions. Gunsburg also denied in his letter a claim purportedly made by
Hayosh during their phone conversation that employees were told by supervisors that the
lockout was to be a selective one, that is, it would apply only to certain unit employees. He
pointed out that if no agreement was reached by 11 pm, Sunday, April 30, all unit employees
would be locked out. (CPX-14).

On April 30, the Union met with employees to vote on the Respondent’s contract
proposal. At that ratification meeting, Hayosh told employees that if the Respondent’s proposal
was not ratified, they would be locked out. (Tr. 621). The proposal was rejected by a vote of 62-
2, after which Hayosh notified Pinion of the vote.

1. The lockout and subsequent negotiations

Following the Union meeting, employees scheduled to work the 11 p.m. shift that day
appeared at the facility, accompanied by Hayosh and the bargaining committee, to report for
work. On arriving, they were met at the door by Pinion and Gunsburg, and some security
guards retained by the Respondent through Huffmaster Security. Pinion told Hayosh and the
employees that there would be no work without a contract. (Tr. 815). Pinion recalls that John
McIntosh, a millwright employee, had a video camera with him and videotaped this exchange
between him and the employees. Hayosh and the employees then went to their vehicles and
retrieved signs reading, “UAW locked out,” and began picketing in front of the Respondent’s
facility. Goodman explained that he alone made the decision to lock out the employees and that
he did so in order to pressure the Union into signing a contract.7 Pinion testified, and Hayosh
confirmed, that the Union was advised by attorney Gunsburg during negotiations that a lockout
would ensue if no contract was reached.

Hayosh and several other employees testified that when the lockout began, they
picketed several times a week between May 1 and July 1, and that, during that period, the
security guards were always present, at least one of whom had a video camera and allegedly
videotaped the employees’ activities. Hayosh, for example, recalls seeing a “couple” of guards
with video cameras “pointed at the picket line.” Wilson testified to seeing one, and on occasion,
two guards standing some ten to fifteen feet away with video cameras pointed directly at the
picketers as they walked back and forth. Employee Paul Nowicki recalls seeing guards, mostly
one at any single time, with video cameras filming from far away and from close-up positions the
picketers and the traffic entering and leaving the plant. He claims that one of the guards, in fact,
stood right in front of him about a foot away filming his face. L. Lewis recalled seeing one guard
standing some fifteen feet away taking panoramic type video of employees on the picket line.

7 During the 2000 contract negotiations, the Respondent also conducted a one-day lockout
which led to the agreement that expired in April.

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Employee Richard Sihler testified to seeing two guards with video cameras, that the guards
were standing about a foot away, and that “they were putting the cameras in our face and
videotaping us.” (Tr. 48; 203; 345-346; 395; 634).

Called as a witness by the Respondent, Huffman Security’s senior field coordinator,
Charles Young, confirmed that he used videographers at the Respondent’s facility during the
Union’s picketing, that he did so without any request from the Respondent, that the guards
videotaped vehicles entering and leaving the facility, and that its purpose was to protect against
the possibility of assault against him, his guards, or damage to vehicles. He denied that any
videographer ever got into the strikers’ faces. (Tr. 930-931). No videotapes were produced at
the hearing, and no claim was made by Young or the Respondent that the videotapes do not
exist or were not readily available for production. It would have been a simple matter for the
Respondent to request from Young, and to produce at the hearing, the videotapes taken by the
Huffman security guards during the time in question to ascertain just what the Huffman guards
had recorded. Accordingly, I credit the mutually corroborative accounts of the various employee
witnesses and am convinced that the videotaping by the Huffman guard(s) was not limited to the
recording of traffic entering and/or leaving the facility but rather extended to the picket line
activity engaged in by employees.

Between May 1, when the lockout began, and May 24, the parties’ next bargaining
session, the Respondent sought to continue production by hiring some ten temporary
replacement employees at $14.50/hr. to perform support functions such as banding up
bundles, writing tags, loading coils, tasks generally performed by unit employees classified
as hi-lo, bar blast, coil-end, and crane operators. The Respondent also attempted to run
four of its five production lines during one of its three shifts using management personnel
to operate the machinery.

Pinion testified that, prior to the lockout, the Respondent drew up contingency
plans to staff the plant in the event of a labor disruption that included placing help-wanted
ads in local newspapers seeking individuals for the skilled positions of Hi-Lo operators,
Schumag and machine operators, wean line machine operators, and overhead remote
control crane operators. The ads, he contends, ran during the last week in April and the
first week in May but were not very successful in drawing the skilled job candidates sought
by the Respondent.

On May 24, the parties, as noted, met for another bargaining session. Goodman,
Pinion, and Gunsburg were present for this meeting. Pinion recalls Goodman telling the Union
that he wanted to end the lockout and urged it to sign the contract containing the Respondent’s
April 28, final proposal. (Tr. 830). According to Pinion, while the Union did make some
proposals during this meeting, the parties nevertheless remained far apart on major issues.

Soon after the May 24, meeting, Respondent hired additional temporary employees, and
Goodman made a decision to recall some of its machine operators and some of its maintenance
employees back to work. Goodman testified, credibly and without contradiction, that he did so
because the Company was unable to meet its production demands with the temporary
personnel it had hired and the limited production lines it was running, and because it had been
unable to hire the skilled workers required to maintain full production and meet customer
demands.

Goodman’s description of the production problems the Respondent experienced
following the lockout was corroborated by Pinion. Thus, Pinion testified, credibly and without
contradiction, that during normal production prior to the lockout, the Respondent ran three shifts,

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that on two of those shifts all five of its production (Wean and Schumag) lines were in operation,
and that on the third shift, the Wean line and two Schumag lines were run. He explained that
during the first few weeks of the lockout, using, as previously discussed, management
personnel to run the machines and temporary hires as support personnel, the Respondent was
able to produce approximately 2500 tons of steel, or about one-fourth of its normal pre-lockout
monthly production level of 10,000 tons.8 Further, according to Pinion, the Respondent also
had in its inventory when the lockout began approximately 18,000 tons of steel that needed to
be processed within 90 days before it began to “pit” or deteriorate. He testified that due to
Respondent’s inability to continue normal production levels following the lockout, some 4000-
5000 tons of that inventory was lost. (Tr. 820-821).

Goodman instructed Pinion to recall the skilled employees back to work, and Pinion, in
turn, directed Rincher to begin recalling the maintenance (millwright) employees, and the wean
and Schumag operators. Rincher testified that the first person he notified of the recall was
Goodreau, the Union’s chief steward. He recalls phoning Goodreau at his home and leaving a
message on his answering machine asking him to report for work, and then sending him a letter
telling him to report for work at the next shift. (Tr. 754). Goodreau, he contends, never
responded to the recall letter. However, when asked if he had been recalled, Goodreau
answered, “Not that I know of.” He claimed to have no knowledge of being left a message on
his phone answering machine notifying him of the recall, or receiving any letter to that effect.
Yet, he admitted knowing that his name was on a list of people that had been recalled, and that,
while he did not return to work, he was free to do so at any time. (Tr. 346; 358). Goodreau
further admitted knowing before the recalls began that the Respondent was going to begin
recalling skilled employees back to work. He did not, however, recall how he learned of the
recall, when it was to begin, or who precisely was to be asked to return to work. (Tr. 375). I
believe Pinion, and find that he indeed called and left a message for Goodreau on the latter’s
answering machine instructing him to return to work, and that he followed up this phone call with
a letter to Goodreau, as was done with the other employees who received recall notices. In all,
approximately 30 employees were recalled to work, but only 14 of whom agreed to return. (Tr.
838). All recalled employees worked under the same terms and conditions of employment
contained in the parties’ expired agreement.

In addition to Goodreau, testimony was adduced from several other employees
regarding their recall notification. Employee Jason Porter was told by Rincher to report for work
on June 1. When he asked if all the locked out employees were being recalled, Rincher told
him only a “select few” were being recalled. Tony Duty received a call on May 28, asking him to
report for work on June 1, and likewise asked Rincher if everyone else was being recalled.
When Rincher answered only some employees were being recalled, he remarked, “You people
can’t be serious,” and hung up. David Yerex received a letter on June 2, advising him to report
for work on May 31. Yerex phoned Rincher that same day to obtain clarification, and was told to
report for work that day, June 2, instead of the May 31, date shown on the letter. Although he
told Rincher he would be at work, Yerex did not report, explaining that he felt that since all
employees were locked out at the same time, they should all return to work at the same time.
(Tr. 486).

Ron Jafolla testified Rincher left him a message on his home answering machine on or
around May 28, and also received a letter the same day, asking him to report for work on June
1, and that he called Rincher back and told him he would be there. Wilson received a call from

8 See, RX-8, a production chart prepared by the Respondent reflecting its monthly
production figures by tonnage for 2005.

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Rincher on his cell phone while walking the picket line on June 2, and told to report for work the
following Monday. Wilson did not respond and simply hung up. He also received a letter on or
about June 8, directing him to report for work.

Regarding Jafolla’s recall, the latter testified that on June 1, he and employees Hiep Van
Huynh and Yefim Gorivodsky, both of whom were also recalled, went to the facility with their
recall notices in hand and met with Rincher in his office. Ruit was also present at this meeting,
and was later joined by Pinion. Jafolla recalls starting the conversation by stating that “it was
good to hear” that Rincher was calling everybody back, and Rincher answering, “We’re not
calling everybody back,” that the Company did not want the crane operators or the hi-lo drivers
back. Rincher, he contends, further commented that the Union was lying to employees and that
it was the Union that kept rescheduling and canceling the meetings. Pinion, according to
Jafolla, added that he was sick of being bad-mouthed by Hayosh, that Hayosh was a liar and
was the reason why the parties did not yet have a contract. Pinion, he contends, went on to say
that he did not care if employees stood outside picketing until Christmas or whenever, that he
would be willing to rent an auditorium for all to watch the negotiations take place to prove he
was not the one stalling the negotiations. At one point during the meeting, Jafolla told Rincher
that he was being treated for stress and could not work, and provided a doctor’s note to that
effect. He recalls telling Rincher that while he was unable to work due to illness, he did not want
anyone taking his job. Jafolla then handed Rincher his recall notice and left. Jafolla did not
return to work.9 (Tr. 522).

Rincher had a different recollection of his June meeting with Jafolla. He recalls Jafolla,
accompanied by Huynh and Gorivodsky, came to see him on June 1, and that Ruit and Pinion
were also present at this meeting.10 He recalls Jafolla providing him with a doctor’s note
explaining his medical condition. Rincher also recalled Huynh being upset and complaining
about the lack of information being provided regarding events at the facility, and asked if the
Respondent had been postponing bargaining sessions, stating that Hayosh had made such a
statement and had blamed Pinion for the cancellations and for everything that was going wrong.
Pinion apparently became upset on hearing this. Rincher assured Huynh that the Company had
not been canceling any meetings. He denied, however, that either he or Pinion told Jafolla or

9 Jafolla’s explanation for why he did not return to work after being recalled was ambiguous
and contradictory. He initially testified that he did not go back because he was under
doctor’s orders not to return to work due to stress-related problems. He then changed his
story by asserting that he did not return to work because of alleged threats made by the
Respondent. Yet further on in his testimony, he claimed that he did not return to work
because he did not want to cross the Union’s picket line. Finally, Jafolla retracted his prior
explanations, stating, “I take that back,” and insisted that it was his disability, and no other
reason, that kept him from returning to work.
10 Although both Jafolla and Rincher testified that Pinion was at the meeting, Pinion claimed
he was not in attendance. (Tr. 852-853). He did recall speaking with Huynh in early June as he
(Pinion) was walking past Rincher’s office, and that Huynh asked him why he was canceling the
bargaining sessions, that Hayosh said he had done so and had accused Pinion of being a liar.
Pinion denied canceling any bargaining sessions and objected to being called a liar. Given
Jafolla’s and Rincher’s agreement that Pinion was in attendance at the June meeting, I am
inclined to believe that Pinion was mistaken as to where his conversation with Huynh took
place, and that his conversation with Huynh occurred at the meeting testified to by Jafolla and
Rincher. Pinion made no mention of, nor in fact was he asked about, the comment attributed to
Rincher by Jafolla about the Respondent not wanting to recall the crane operators or the hi-lo
drivers.

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any of the other employees at the meeting that the Company did not want the crane operators
or the hi-lo drivers back, but admits that had such a question been asked he, in all likelihood
would have responded “No” because the Respondent at the time had no plans to call them
back. (Tr. 767-768).

Other employees were apparently recalled in June and July. Wilson, for example,
received a call from Rincher either on June 2 or 3, asking him to report for work to his position of
“roto mag tester,” and a letter a few days later, with the same instructions. Employee Kenneth
Lewis (K. Lewis) received a call from Rincher on July 2, asking when he might be able to return
to work. K. Lewis asked if he would be returning as coil-end operator, the position he held
before the lockout, and Rincher said no, that K. Lewis would be working as a Schumag
operator. K. Lewis had apparently held the position of Schumag operator for a couple of years
some six years earlier. He then asked Rincher about other employees in the Schumag operator
classification who possessed greater seniority, and Rincher purportedly answered that said
employees had not been recalled, and that he (Rincher) needed someone to operate the “4D”
Schumag machine, which processes more tonnage than any of the other machines.11 Rincher
told K. Lewis that he could report for work on July 11. K. Lewis, however, told Rincher that a
Union meeting was scheduled for July 11, that he wanted to attend that meeting, and agreed to
return to work on July 12, instead. Rincher agreed and K. Lewis reported for work on July 12,
as a Schumag operator. (Tr. 584-585).

Regarding the recall, Hayosh testified that he first heard of it from committee member
Wilson, who reported receiving word from employees that they were being recalled. He
contends that the Respondent gave no such prior notice to the Union before it began recalling
locked out employees. Wilson testified to receiving several calls from employees advising that
they had been asked to return to work and what they should do about it. He claims he in turn
notified Wilson of the employee phone calls, and that the Union thereafter scheduled a meeting
with employees to decide to what do. According to Wilson, during prior layoffs, the Respondent
has notified the Union, usually through a committee member, of its intent to have a recall of laid
off employees. As to whether the Respondent gave prior notice of the recall during the 2000
lockout, Wilson was vague in his answer, testifying only that he and other employees were
instructed by the Union’s then chief steward, identified only as “Perry,” to report for work.
Wilson admits that he had no personal knowledge of how the Union learned of the recall during
the 2000 lockout. (Tr. 212). Under Article 8, Section 7 of the parties’ expired collective
bargaining agreement the Respondent was required to “notify the Bargaining Committee of
all employees hired, to be laid off, or recalled to work.” (GCX-6).

At a June 1, bargaining session, the Respondent notified the Union that it was recalling
the Schumag, wean, and maintenance employees, and, using a seniority list, identified
which employees had been recalled. The Respondent did not identify which, if any,
employees it intended to recall in the near future. Hayosh met with unit employees the
following day to discuss the recall and testified that those employees who were asked to
return to work requested that a letter be sent to the Respondent explaining that “until the
unfair treatment or the threats and hostility had stopped, they weren't going to report back
to work.” On June 2, Hayosh prepared and the employees signed such a letter which was
faxed to Goodman (Tr. 51; GCX-11). Hayosh’s letter does not describe, identify, or spell

11 K. Lewis identified two other locked employees. Michael Barth and Michael McElheran,
as schumag operators who were not recalled, but acknowledged on cross-examination
that, unlike him, neither of these two individuals had any experience operating the “4D”
schumag machine. (Tr. 594).

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out what the nature of the “unfair treatment,” “threats” or “hostile” activity was that
prompted the decision by the employees not to return to work.

In response to Hayosh’s June 2, letter to Goodman, Gunsburg sent Hayosh a letter,
dated June 3, setting forth his recollection of what transpired during their June 1, meeting, a list
of the employees who had been recalled for work, and a description of the recall procedure that
had been used. (See, GCX-12). In his letter, Gunsburg denied the claim in Hayosh’s June 2,
letter that the Company had unlawfully threatened employees or was trying to “bust” the Union.
He further averred that the Company had been bargaining fairly, honestly, and in good faith, but
that the Union apparently disagrees with “most of the company’s economic and non-economic
proposals.” Gunsburg went on to note that those recalled employees who declined to return to
work were doing so based on their disagreement “over terms and conditions of a new collective
bargaining agreement.” He explained that employees “who engage in a strike to enforce
bargaining demands in negotiations over a new collective bargaining agreement are considered
‘economic’ strikers” by the Board and “may be permanently replaced.” He further explained that
an employer may lawfully refuse to reinstate a striker who has been permanently replaced by
the time the strike is ended, and that the Company believes it has the right to permanently
replace economic strikers. Gunsburg closed the letter by requesting that the listed employees
who received recall notices return to work immediately.

The parties met on several occasions between May 24 and August 9. At the May 24,
meeting, the Union submitted a proposal (the 4th modified proposal) to the Respondent for
consideration (GCX-29), and at the June 1, meeting, submitted a 5th modified proposal (GCX-
31). In these proposals the Union purportedly withdrew, reduced, or modified certain of its prior
proposals in an effort to achieve agreement with the Respondent. At the June 1, meeting, the
Union proffered a 6th modified proposal (GCX-30) which included reductions in shift premium
pay, production bonuses, and COLA increases. On July 5, Gunsburg met with UAW official,
John Uram, and received a settlement package from Uram that encompassed all of the Union’s
prior proposals (GCX-32). The Respondent made no counter proposals and continued to
adhere to its April 28, final proposal as the basis for any agreement. While acknowledging that
the Union made some concessions in its various proposals, the Respondent viewed them as
nothing more than “slight adjustments… regarding several peripheral issues,” and that “no real
progress was made” during these negotiations and in the various Union proposals “regarding
the significant issues keeping the parties from reaching agreement.” For example, while Uram,
on behalf of the Union, was willing to discuss the issue of the no-strike clause, he was unwilling
to remove the exceptions to the clause, as sought by the Respondent. (Tr. 997; RB:13).
Further, although the Respondent had sought to eliminate mandatory overtime when the
seniority list fell below employees, the Union’s willingness to reduce the number from 70 to 50
fell short of the Respondent’s goal. Gunsburg recalled telling Uram at the end of their meeting
that the “nickel and dimeing” of the proposals made by the Union did not solve any of the
outstanding issues, and that when he (Uram) was ready to address them, to call him. The
Respondent’s April 28, final offer was still on the table at that time and, had it been accepted by
the Union, the lockout would have ended. (Tr. 901)

At some point between the start of the lockout and August 9, the Respondent realized
through its recruiting efforts that it could hire as many individuals at $14.50/hour as it needed as
support staff and train them in a relatively short period of time, e.g., from one day to a week. It
further realized from its inability to recruit temporary replacements for its skilled employees that
its skilled employees needed to be paid at a higher rate than that proposed in its April 28, final
contract proposal. With the temporary employees hired during the lockout and the 14 skilled
employees that returned to work pursuant to its recall, the Respondent, over a period of time
according to Gunsburg, was able to return production to near normal levels. In light of these

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changed circumstances which allowed it to function at near normal levels despite the lockout,
the Respondent decided to give the Union a new proposal, termed the “new paradigm”
proposal, reflecting what it claims were the “new realities of the marketplace.” (RB:15).

On August 9, the parties met at the Respondent’s request at which time the Respondent
presented the “new paradigm” proposal to the Union.12 The “new paradigm” proposal did not
alter any agreements reached by the parties prior to April 28. It did, however, alter the wage
scale proposed for the unskilled and skilled employees in the April 28, proposal. Under the
August 9, proposal, the Respondent combined several skilled job classifications with the non-
skilled positions under a general support staff classification, lowered the wage rate for
employees in this new classification to $14.50/hr, which is the rate at which it had been able to
hire the temporary replacement employees during the lockout, and increased the pay for its
skilled employees. (see, GCX-27).

The parties disagree as to what occurred or was said at this meeting regarding the
proposals. Gunsburg testified that after presenting the proposal to the Union, he spent some 15
minutes explaining, section-by-section, the differences between the “new paradigm” and the
Company’s April 28, proposals, and that he made clear to the Union that this was not a “final”
proposal. Pinion likewise recalled Gunsburg discussing with the Union the new changes in the
proposal. (Tr. 872; 962). According to Gunsburg, when he asked the Union to discuss the
proposal, McKnight told Gunsburg, “Shame on you.”

Hayosh and Wilson, however, claim that Gunsburg declined to discuss or explain the
new proposal to them despite their request that he do so. Hayosh recalled that after presenting
the Union with the proposal, Gunsburg stated, "This is the new paradigm, the new way we're
going to operate our plant," and that when he asked Gunsburg to explain it, the latter
replied, "It is what it is. You can look over it yourself." Wilson likewise recalled that
Gunsburg simply slid the proposal across the table, explaining that it was the new
direction that the Company wanted to go, a new “paradigm”, and that, when Uram asked
Gunsburg to explain the proposal, Gunsburg declined to do so and instructed him to read
it. Hayosh initially claimed that Gunsburg never remarked that the new paradigm proposal
was not a final proposal. However, he subsequently admitted being told this at the August
9, meeting when confronted with his own bargaining notes reflecting that Gunsburg did
convey that fact to the Union. (Tr. 130-131). I credit Gunsburg and Pinion over Hayosh
and Wilson and find that Gunsburg did discuss and go over with the Union representatives
the specifics of the Respondent’s August 9, “new paradigm” proposal. I also credit
Gunsburg and Pinion and find that the proposal was never described or referred to as the
Respondent’s final proposal. As noted elsewhere in this decision, neither Hayosh nor
Wilson were particularly credible witnesses regarding other matters. As evident from his
bargaining notes, Hayosh, as noted, was not being candid in asserting in his testimony
that Gunsburg did not state that the new paradigm proposal was not a final proposal. (Tr.
132; 161; 163)

The parties met three more times in 2005, e.g., on September 26, October 18, and
November 11. At the September 26, meeting, the Union presented a proposal reiterating that
its July 5, settlement proposal was still on the table, offered to provide the Respondent with a
written no-strike pledge in exchange for an end to the lockout, and proposed that all outstanding
issues be submitted to “binding mediation or arbitration.” (GCX-33). The Respondent rejected
the proposal and, according to Gunsburg, sought unsuccessfully to bargain with the Union over

12 Uram was also present at this meeting, as well as Union attorney Sam McKnight.

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the August 9, “new paradigm” proposal. Gunsburg claims that when the Union, at this
September 26, and subsequent meetings, began submitting proposals based on the
Respondent’s April 28, final proposal, he notified the Union that the April 28, proposal was no
longer on the table, that it was gone, and that they should be discussing and bargaining over the
August 9, proposal.

At the October 18, meeting, the Union resubmitted its September 26, proposal along
with proposals which moved closer it the Respondent’s position on other issues. (See, GCX-34).
Gunsburg testified that the Union’s October 18, proposal was again based the Respondent’s
April 28, proposal, and that he, consequently, told Hayosh at the meeting that the Union “was in
the wrong proposal, that’s not here,” and that they should be talking about the August 9,
proposal. (Tr. 967). The parties followed a similar script at their November 11, meeting, with the
Union submitting a proposal that largely incorporated and slightly modified past proposals. (See
GCX-35). According to Gunsburg, his response was the same, to wit, that the Union was in the
“wrong proposal.”

On January 18, 2006, the Union sent the Respondent another proposal agreeing to
accept the Company’s pre-lockout April 28, final proposal. (GCX-15). By letter to Uram and
Hayosh dated January 20, 2006, Gunsburg responded that he was “somewhat mystified” by the
proposal because “the Company’s April 28, 2005 final proposal was withdrawn and replaced by
the Company’s August 9, 2005 final proposal,” and that, because the April 28, offer was no
longer on the table, the Union’s proposal to accept it is rejected and/or denied. He went on to
advise the Union that the Company was “available to bargain for a new agreement at anytime
and the current lockout would be terminated upon acceptance of the Company’s August 9, 2005
proposal, or an agreement reached by the parties on a variation thereof.” (GCX-37). The
lockout was still in effect at the time of the hearing.

The General Counsel and the Charging Party argue that the lockout of employees on
May 1, was motivated by antiunion considerations and not for legitimate economic reasons,
rendering it unlawful under Section 8(a)(3) and (1) of the Act. In support of thereof, they point to
various threats, comments, and actions directed by Respondent’s supervisors towards
employees which they claim serve as evidence of Respondent’s antiunion animus and reflects
the true motivation for the lockout. Alternatively, it argues that even if found to be lawful when
implemented, the lockout was rendered unlawful when the Respondent, on August 9, presented
the Union with a regressive, bad faith proposal. (GCB:35).13

2. Alleged unlawful and other improper statements

a. By Pinion

The first incident cited by the General Counsel dates back to an alleged 2003
conversation Pinion purportedly had with Wilson. According to Wilson, in late summer 2003,
Pinion approached him at the Bay 3 work station, told him there was an important contract
coming up in 2005, and what he, Wilson, thought might happen. Wilson responded that the
Respondent had a good bunch of guys working there, that he did not see any problems, and
that life would go on. However, Pinion, he contends, stated that he was dissatisfied with the
workforce and that he would like to just clean house, get rid of everybody, and start over.

13 The positions taken and arguments made by the Charging Party on brief parallel those
made by General Counsel in her brief and, consequently, while duly considered, will not be
separately discussed here.

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(Tr. 184). Pinion purportedly went on to say that the employees were older and set in their
ways and that because of this, he wanted to “clean shop” so he could run the shop the
way he wanted. Pinion, according to Wilson, added that he had tried to get rid of
everyone during the 2000 lockout but was stopped by Respondent’s owner. Pinion ended
the conversation by telling Wilson that he would never admit to having this conversation
with him.14 (Tr. 184-189; 294).

Pinion denied having any such conversation with Wilson. (Tr. 799-800). I credit his
denial. I found Pinion to be a particularly credible witness. His demeanor was sincere,
and I am convinced he testified honestly and truthfully regarding this and other matters.
As to this alleged conversation, I find it improbable that Pinion, a management official,
would have come right out and threatened Wilson, a union representative, with the
discharge of unit employees. I find, instead, that this conversation is nothing more than a
fabrication by Wilson and that it never occurred.

Pinion is also alleged to have threatened to discharge employees if they went on
strike during a December 2004, conversation he and Rincher were having with union
steward Goodreau in Rincher’s office. Goodreau testified that about one week before
Christmas 2004, he went to Rincher’s office to discuss an absentee write-up that was
issued to another employee, Otto. He recalls that Pinion, who was present, mentioned
that the contract talks were coming up and asked Goodreau his view on what it would be
like. Goodreau answered he did not know, that it depended on management, and that if
the Respondent wanted it to be hard, it would be hard, if it wanted the negotiations to be
easy, they would be easy, but that the Union was not looking for much. Pinion purportedly
replied that he did not believe the Union had the support necessary for a strike. Goodreau
claims he became irate and told Pinion that he did not know who Pinion was talking to but
that he (Goodreau) was having a hard time keeping employees in the plant because of the
poor treatment employees were receiving from Respondent. Goodreau admits that he was
not being truthful in his assertion about employees being treated poorly, and made up the
statement only because he had to say something. He contends that Pinion became upset
at that point, slammed his fist on Rincher’s desk, and threatened that employees would
never again see the inside of the shop if they went out on strike. (Tr. 339-340).

Pinion denied discussing the upcoming contract negotiations in December 2004,
with any employees, or telling any employee, including Goodreau, that they would not be
allowed into the shop again if they went out on strike. (Tr. 801-802). Rincher denied being
at a meeting with Goodreau in late December 2004 during which the subject of the
upcoming contract talks was discussed, or where Pinion questioned Goodreau about the
support the union might have for a strike. Nor did he ever hear Pinion tell Goodreau
during any such meeting that employees would not see the inside of the plant again if they
went on strike. (Tr. 747-748).

I credit Pinion’s denial and find that he did not make the comments attributed to him
by Goodreau. Rincher, who according to Goodreau was present and would have
overheard any such remarks by Pinion, expressly denied Goodreau’s account. Pinion, as
noted, was a generally credible witness and his calm and soft-spoken demeanor on the
witness stand is inconsistent with someone who, as described by Goodreau, would have
slammed his fist on the desk in a fit of anger or rage. Conversely, Goodreau was not very
convincing.

14 These alleged 2003 statements by Pinion to Wilson are not alleged to be unlawful.

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Pinion is also alleged to have made a statement to supervisor Perry Sanford, which
the latter purportedly conveyed to locked out employee Richard Sihler at a June 28,
funeral service for Sihler’s wife who passed away earlier that month. Sihler testified that
he spoke with Sanford at the funeral and asked him if Pinion was going to bring any blast,
coil end, or crane operators back. Sanford, he contends, answered that Pinion said “he
ain't bringing no fucking blast operators or crane operators or coil end operators back, and
we were low-life people and we're never coming back.” (Tr. 636). Sihler claims that he did
not respond to Sanford’s comment and the conversation ended at that point.

Sanford testified he has known Sihler for some 20 years, and that when he learned
Sihler’s wife had passed away, he and other supervisors took up a collection for Sihler,
and that on June 28, he took the money and a condolence card he purchased and took it
to give to Sihler at the funeral. He recalled that after giving Sihler the card and money, he
and Sihler chatted for a few minutes about family and related matters, and that he then
left. Sanford denied ever making the remarks attributed to him by Sihler about what
Sanford may have said regarding the recall of coil end operators or crane operators, and
denied that Pinion ever made such a statement to him, or that he would have ever used
such language at a funeral.

I credit Sanford over Sihler. Sanford, who voluntarily went to pay his respects to
Sihler over the death of his wife, did not strike me as someone who would have been so
insensitive and callous as to have used such offensive language at the Sihler funeral.
Accordingly, I find that Sanford made no such remarks to Sihler during his funeral visit.

b. By Giacherio

Machine Operator David Yerex testified to having a conversation with his
immediate supervisor, Giacherio, in late April regarding the Respondent’s contract
proposal. According to Yerex, several days before April 28,15 the day the Union was first
presented with the Respondent’s final proposal, he found a copy of the proposal on a table
next to the time clock as he was on his way to lunch. As he was reading it, he
commented, presumably aloud, that he could not agree to its terms, to which Giacherio
replied, "If you don't take this proposal, you won't be coming back." (Tr. 480). Yerex was
vague and confusing regarding where and when this conversation took place. On direct
examination, Yerex stated that this conversation occurred during his lunch period which he
described as occurring from 3-3:30 a.m., and that he was eating lunch “directly” before this
conversation with Giacherio occurred. He contends that Giacherio proceeded to repeat
his statement, although it is unclear what, if anything, Yerex may have said in response to
Giacherio’s alleged first statement, or what may have prompted Giacherio to repeat his
statement. On cross-examination, Yerex claimed that his conversation occurred as he
was heading back to his work station following lunch, not, as suggested on direct
examination, as he was eating lunch, and that Giacherio approached him as he was
walking out of the cafeteria. He contends that Giacherio walked back with him to his
machine and they engaged in a 5-10 minute conversation about the proposal.

Giacherio testified he was unaware that a lockout was to take place prior to its
implementation. He recalls speaking with Yerex sometime before the lockout about the
Respondent’s contract proposal and being asked by Yerex what would happen if the Union

15 He could not be certain if it was a week or “a couple of days.”

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did not accept it. According to Giacherio, he responded to Yerex’s query by asking the
latter what he thought would happen. Yerex purportedly answered that if there was no
contract, “nobody would be there.” Giacherio explained that he had no idea what would
happen and that hopefully there would not be a strike. (Tr. 674). Giacherio denied telling
Yerex or any other employee that if he and the Union did not accept the Company’s
proposal, they would not be returning to work or would lose their jobs (Tr. 656).

I accept Giacherio’s version as true. Yerex was vague and unconvincing regarding
this alleged exchange with Giacherio. For example, despite claiming to have gotten and
read the proposal a week or “a couple of days” before April 28, when advised on cross-
examination that the proposal was first given to the Union on April 28, and asked how he
could have had a copy of the proposal beforehand, Yerex fumbled for an answer, stating,
“I read it at the end of May, or at the end of April. I guess it was on the 28th, then.” His
vague and uncertain testimony in this regard, coupled with other inconsistencies in his
account, lead me to doubt the its reliability. Accordingly, Giacherio’s account of this
encounter is credited.

c. By Rincher

Jafolla testified to several conversations he had with Rincher when first hired in
March 2004, several months later in August or September 2004, and on June 1, and July
18, 2005. As to the 2004, conversations, Jafolla contends that during his initial hiring
interview in March 2004, Rincher said to him, “Don’t ever cross me. I’m a vindictive
motherfucker.” He contends that several months later, in August or September 2004, he
and Rincher were discussing the discharge of employee Goodreau. When he asked
Rincher, “You finally got him?” Rincher answered, “Yeah, remember what I told you in the
interview.” Rincher recalled interviewing Jafolla, but denied making the statement
attributed to him by Jafolla during that interview, or ever discussing Goodreau’s discharge
with Jafolla or saying that he had gotten Goodreau. (Tr. 763-764)16

The June 1, conversation was previously discussed, and occurred when Jafolla
returned to work, accompanied by fellow employees Huynh and Gorivodsky, and met with
Rincher. Jafolla contends that Rincher, in response to Jafolla’s remark about being glad
that Rincher was calling back all the employees, commented that not everyone was being
recalled, and that the Company did not want the crane operators or hi-lo drivers back.
Rincher, as noted, denies making any such statement.

The July 18, conversation, which both Rincher and Jafolla agree occurred, took
place in the parking lot of a health facility, the Powerhouse Gym. Jafolla contends that as
he and his workout partner were leaving, he heard Rincher, who was nearby, calling him.
When he went over to Rincher, the latter asked him what he was doing. Jafolla inquired
as to what Rincher was referring to, and Rincher asked why he had not returned to work,
that he, Jafolla, was going to lose his job. Jafolla purportedly replied, that he just couldn’t
bring himself to cross the picket line, to which Rincher allegedly replied, "You're all going
to lose your jobs." Rincher, he contends, added that the doors wouldn’t be open much
longer, and that everyone who received phone messages and been recalled would, like
the hi-lo drivers and crane operators, lose their jobs. Rincher went on to say that his only
concern was his family, and that “we don’t need a union around here.” Jafolla contends
that Rincher also made reference to the Respondent’s proposal, saying that if “we didn't

16 Neither of the 2004 statements attributed to Rincher by Jafolla is alleged to be unlawful.

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like the first proposal, wait until you see the second one. It's going to get worse.” At the
end of the conversation, which Jafolla estimates lasted some 5-10 minutes, Rincher told
him that if he told anyone about their conversation, he would flatly deny it. (Tr. 526).

Rincher provided a much different account of the July 18, conversation. He
recalled that as he was getting out of his car in the parking lot, he saw Jafolla with his
friend, and called out to Jafolla, “What’s up?” Jafolla then left his friend and came over to
Rincher. When Rincher asked how he was doing, Jafolla replied that he was doing all
right but was “really stressed out” and didn’t know what to believe, and felt that the Union
was “fucking him.” He went on to say that “he was not getting straight answers from
anybody, and that he and his wife were having some issues because he won't come back
to work.” Jafolla then asked Rincher if he could return to work, and was told he could
return anytime he wanted. When Jafolla asked how long he had, Rincher said, “I don't
know how long, the door is open for you right now. Just come back.” Rincher denied
saying to Jafolla that a union was not needed, or that if the union did not like the
Company’s first contract proposal, wait till it sees the second one. (Tr. 771-772).

I credit Rincher over Jafolla. Jafolla was not a credible witness. Jafolla, for
example, contradicted himself in explaining why he did not return to work after being
recalled (see fn. 9, supra). His changing testimony as to why he did not return to work,
and his overall poor demeanor on the witness stand, leads me to reject his version of the
conversations he purportedly had with Rincher. Thus, I find that Rincher never told Jafolla
on June 1, that the Company did not want the crane operators or hi-lo drivers back, or
stated, during their July 18, encounter at the Powerhouse gym, that those employees who
were recalled but did not return to work would be losing their jobs.

Another statement attributed to Rincher allegedly occurred in January 2005, soon
after employee and schumag operator Jason Porter submitted a vacation slip requesting
time off for the first week in May. Porter contends that after turning in his vacation slip, he
asked Rincher if the request would be approved, and Rincher purportedly answered, “You
don't need a vacation. You'll already be out that week anyways.” Porter claims that
Rincher was laughing and joking around when he purportedly made his remark. The
lockout, as noted, went into effect May 1. Porter claims that when he asked Rincher for an
explanation, Rincher just walked out without answering.

Rincher recalled having a brief discussion with Porter in January 2005, at his
machine, regarding the latter’s vacation. His recollection is that Porter asked if his
vacation request was going to be approved and Rincher, unaware or having forgotten
about the request, told Porter to submit his request and it would be put through the proper
channels. After returning to his office, Rincher found Porter’s request, checked to see if
anyone else had requested vacation for the week in question, and then approved and
returned the approved request to Porter. He denies telling Porter that he did not need to
take vacation because he would not be working that week anyway, and testified that
Porter did in fact receive his vacation. (Tr. 762).

I credit Rincher over Porter. Although polite and soft-spoken on the witness stand,
Porter nevertheless seemed unsure and insecure in answering questions put to him. From
a demeanor standpoint, Rincher came across as the more reliable and credible of the two.
Accordingly, I accept Rincher’s testimony over Porter’s regarding the discussion they had
about Porter’s May vacation.

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d. By Morley

Porter further testified that on April 29, before employees voted on the
Respondent’s proposal, Morley approached him at his machine and, out of the blue, asked
if Porter could keep a secret. When Porter asked what type of secret, Morley purportedly
told him, “You will be back.” Porter asked if he Morley was referring to the new contract,
and Morley allegedly replied, "Well, not under the type of contract you're under now but it's
a type of a contract." Porter then asked if everybody was coming back, but Morley did not
elaborate further. Morley, he contends, went on to comment that he was concerned about
discussing this before the employee vote on the Company’s proposal, and went on to
remark how impressed he had been with the Company’s new layout for the facility. Porter
asked Morley what it was that impressed him, and Morley guardedly quipped, “Well, I said
too much.” When Porter asked him to explain what he meant, Morley replied, “Well, if you
mention my name, I will deny it,” referring to his prior comments. As he walked away,
Morley allegedly remarked that if his comments changed Porter’s upcoming vote regarding
the Respondent’s proposal, “so be it.” (Tr. 442).

Morley denied having any such conversation with Porter, or making the comments
attributed to him by Porter. He also denied knowing of any new layout plan for the facility,
or seeing any plan. Morley recalls speaking twice with Porter over the phone after the
lockout, one of which involved a request by Porter to use Morley as a job reference. He
was not asked about the substance of the second phone conversation with Porter. (Tr.
681-683; 696).

Crane operator Mike Campeau also gave testimony regarding statements allegedly
made to him by Morley. According to Campeau, in early April, some three weeks before
the employee vote on the Company’s proposal, and as he was in his work area, Morley
walked by him with a funny look on his face and remarked, "You know, boy, I'm really
going to miss you, Mike." Campeau simply looked at Morley but did not respond, and
Morley continued on his way. Morley denied making such a statement to Campeau. (Tr.
Tr. 598; 683).

The statements attributed to Morley by Porter and Campeau are not alleged in the
complaint to be unlawful. Nevertheless, I credit Morley and find that he never made such
statements to them. From a demeanor standpoint, Morley was a convincing and credible
witness, while Porter and Campeau were not. Their assertions that Morley made the
alleged statements to them out of the blue simply lacks the ring of truth. Porter’s assertion
that he followed Morley’s “You’ll be back” statement with an inquiry about the new contract
makes little sense to me. Further, Morley’s alleged statement to Campeau, to wit, that
Morley was going to “miss” Campeau, even if found to have been made, is vague and
subject to any number of meanings. Accordingly, I find that Morley never made the
statements attributed to him by Porter and Campeau.

e. By Sanford

Tom Jewell is employed as a coil end operator with the Respondent. Sometime in
February, Jewel was suspended, apparently for intentionally damaging the bar blast
machine on which he was working. Regarding this matter, both Wilson and Goodreau
testified that they, along with Jewell, were summoned to Rincher’s office and met with
Sanford who advised them that Jewell was being suspended for three days for
intentionally damaging a machine. (Tr. 181-182; 333-334). After some discussion, Wilson
proposed that, instead of suspending Jewell, he be assigned to a nonproduction area.

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Sanford, he contends, indicated he did not have a problem with the suggestion but would
have to consult with his superiors. Some ten or fifteen minutes later, Sanford returned
from discussing the matter with Pinion and, according to both Wilson and Rincher,
remarked, “write your fucking grievance, he’s going home.”

Goodreau claims that, later that same day, he spoke with several millwrights who
told him that the machine Jewell was accused of damaging “was worn out and needed to
be replaced anyway, “the parts were taken away the night before.” He contends that he
and Wilson then went back to Rincher’s office shortly before 3 p.m., in an effort to change
Respondent’s decision about Jewell’s suspension, and spoke to Pinion. He purportedly
told Pinion what he had learned from the millwrights, stating that he could obtain written
statements from the millwrights to that effect. Wilson claims Pinion told them that if they
did that, “You know what will happen.” Wilson contends that Pinion subsequently
explained his remark by commenting that he would fire any millwright who signed a letter
saying that Jewell was not to blame for the damage to the machine. Goodreau’s version is
that Pinion remarked that if he obtained statements from millwrights, he (Pinion) would fire
every one of the SOB’s because he had a preventative maintenance sheet showing that
the machine in question had been checked out the month before and was working fine.
He contends that Rincher was also present during this conversation and that Wilson
showed up a bit later and caught the tail end of the discussion. Goodreau claims that he
then asked Pinion to return to him a grievance he had submitted on Jewell’s behalf,
explaining that he had forgotten to include additional matters in the grievance. Pinion
purportedly told him that if he filed the grievance, he (Goodreau) knew what was going to
happen and that Goodreau would not like it. (Tr. 335-338). Although Pinion did not explain
what he meant by his remark, Goodreau claims he understood what Pinion meant.

Goodreau testified that the next day, he observed Sanford talking to various
millwrights in the shop, and, on one occasion, noticed Sanford engaged in a heated
argument with employee Paul Nowicki. He contends that at one point, Nowicki threw
down his gloves, approached him and complained, “This SOB just told me Ken Pinion is
going to fire me if I give you a statement.” After calming down Nowicki, Goodreau tried to
get statements from the millwrights who had offered to provide them to him in connection
with Jewell’s grievance but the millwrights declined to do so, explaining that they needed
their jobs and offering other excuses. Believing that he really did not need their
statements to prevail on the grievance, Goodreau dropped his efforts to obtain the
employee statements. (Tr. 334-339).

Nowicki recalled speaking with Goodreau about the Respondent’s claim that Jewell
had damaged a machine. He claims he told Goodreau that the sandblasting machine
Jewell allegedly damaged was by its nature, self-destructing and constantly needed
rebuilding. Nowicki purportedly agreed to, but never did, provide Goodreau with a written
statement to that effect. He contends that about a week or two after Jewell was
suspended, he had what he described as a “low-keyed” conversation with Sanford over
the Jewell matter, and that Sanford told him at the time that if he or any other employee
took Jewell’s side they would be in trouble. (Tr. 315). Sanford purportedly went on to say
that it was not in Nowicki’s best interest to provide a written statement to Goodreau. On
further examination, Nowicki admitted he could not recall or be sure if Sanford made
reference to a written statement. However, on direct examination by Charging Party
counsel, Nowicki, somewhat inconsistently, testified that Sanford told him it would not be
in his or any millwright’s best interest to say or write anything against the Company on
behalf of Tom Jewell. Nowicki claims he never got to give a written statement on Jewell’s
behalf because by the time he was ready to do so, Jewell had been reinstated. Nowicki

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concluded that he just “blew the whole thing off,” explaining again that the whole
conversation was pretty low-key.

Sanford, who supervised Jewell, gave the following account of the Jewell incident
and of his conversation with Union representatives regarding the matter. Jewel, he
contends, was disciplined for damaging a blast machine, and was suspended pending an
investigation. He recalls meeting with Wilson, and possibly Goodreau, to discuss the
matter, and claims that, during the meeting, Rincher offered to transfer Jewell to another
work area of the facility known as “the Hole.” (Tr. 727). Jewell, however, purportedly
rejected the offer and was then sent home. A grievance was thereafter filed on Jewell’s
behalf. Sanford denies ever telling Jewell to go ahead and file his “fucking” grievance
before sending him home, or telling any employee not to file statements on Jewell’s behalf
or in support of his grievance, or that it would not be in their best interest to do so. He
also denied threatening employees with discharge if they supported Jewell’s grievance or
if they gave statements in support thereof.

Sanford recalls having a casual conversation with Nowicki, during which he asked
the latter if he knew of a rumor going around that several millwrights had signed a
statement saying that the machine Jewell is alleged to have damaged had been in state of
disrepair. Nowicki claimed to be unaware of any such statement. According to Sanford,
Nowicki called out to another employee, Ted Rollins, who was nearby and asked if he was
aware of any such statement, and Rollins answered he was not. Sanford denies telling
Nowicki that it was not in his best interest to provide a written statement, or that his
exchange with Nowicki was a heated one. (Tr. 729).

I credit Sanford over Goodreau and Nowicki. Inconsistencies and discrepancies in
Goodreau’s and Nowicki’s testimony regarding the Jewel matter lead me to doubt the
reliability of their accounts. Nowicki, as noted, had difficulty getting his story straight as to
what Sanford may have said to him about providing a statement on the Jewel matter,
stating at one point that Sanford cautioned him against providing a written statement, but
then adding that he was not sure if Sanford mentioned written statements to him. At
another point, Nowicki related only that Sanford told him that if he or any other millwright
took Jewel’s side, they would be in trouble, but made no mention of a written statement.
As to Goodreau, he was, as previously discussed and found, not particularly credible and
not wholly consistent with Nowicki’s version of events. For example, Goodreau’s claim
that the conversation he observed between Sanford and Nowicki took place the day after
Jewel was suspended does not square with Nowicki’s claim that his conversation with
Sanford about the Jewel matter occurred about a week or two after the suspension. Nor
did Goodreau’s description of the conversation between Sanford and Nowicki being a
heated one square with Nowicki’s claim that the conversation was low-keyed.
Accordingly, I find that Sanford never threatened Nowicki and/or Goodreau with
termination or other repercussions if they or any other employee gave statements in
support of the Jewel or any other grievance.

3. The alleged discrimatory work reassignment
of Lawrence Lewis (L. Lewis)

L. Lewis is a crane operator at Bay 1 on the midnight shift whose duties included
unloading material and loading the blast machine. He has worked for the Respondent
since 1978. During his tenure, he served as Union steward for several years, was on the
Union’s bargaining committee during the 2000 negotiations, and was on the bargaining
committee during the most recent negotiations. L. Lewis testified that during a bargaining

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session held on or around April 19, he complained to management about “oily floors” in
Bays 2 and 4 of the facility and that additional manpower was needed to keep them clean
on a regular basis. Pinion, who was present at that session, replied that he would take
care of the problem.

Pinion confirmed being present at the April bargaining session, although he
testified that it took place around April 12, not April 19, as claimed by L. Lewis. He
recalled L. Lewis stating that the floors in Bay 4 were oily and slippery and dangerous.
Pinion agreed to look into the matter and testified that, either later that same day or the
next afternoon, he sent an e-mail to all “Livonia foremen” alerting them to the dangerous
oily floors in the Bay 4 area. The e-mail states that given the reduced truck traffic and
movement of material on the midnight shift, that shift would be the best time to conduct a
clean up of the area, and that the supervisors should use employees with free time to do
the cleanup, proposing that they either rotate all employees or have all employees do the
cleanup.17

L. Lewis testified that, on reporting for work later that evening, he was approached
by his supervisor, Gulaszewski, and told that he had received an e-mail from Pinion
directing him (Gulaszewski) to tell L. Lewis that if he was not unloading trucks or loading
the blast machines, Pinion “wants your ass up in Bay 4 cleaning the floors.” L. Lewis
purportedly expressed the view that it was against the law to assign him such work
because this had been discussed during the negotiations earlier that day. Gulaszewski
replied that that was the way Pinion was and that Pinion would be watching him. L. Lewis
explained in this regard that several months earlier, the Respondent had installed closed
circuit cameras in the facility and could observe via computers what was going on at the
facility. L. Lewis contends that he also asked Gulaszewski if anyone else had been
assigned to clean up Bay 4 that night and that the latter replied “No, just you.” The
conversation pretty much ended at that point, according to L. Lewis. According to L.
Lewis, on occasions that he worked overtime moving steel from Bay 2 to Bay 4, he would,
if he had enough time, clean up Bay 4.

The following night, L. Lewis contends, Gulaszewski approached him and said, “I
haven’t seen you up in Bay 4.” L. Lewis replied that he had had things to do, to which
Gulaszewski purportedly responded, “Just to let you know Pinion is watching us, he wants
to see your ass up there cleaning in Bay 4.” After loading the blast machine, L. Lewis did
perform some cleanup in Bay 4. He contends that no one else was cleaning up in Bay 4,
but that two other employees, Lenford Lyons and Mike Gotts, were doing cleanup work in

17 A copy of the e-mail was received into evidence as RX-4. In their respective posttrial
briefs, both the General Counsel and the Charging Party question its legitimacy and suggest
that it is fraudulent and prepared after-the-fact for litigation purposes. At the hearing, however,
neither raised any objection to its admission into evidence. The Charging Party’s assertion on
brief, that the e-mail should be considered suspect because the bargaining session at which the
issue of the oily floor was raised did not occur until April 18, several days after the e-mail was
prepared, is rejected as without merit. Its claim in this regard appears to be based on L. Lewis’
assertion that the bargaining session occurred on or around April 19. However, L. Lewis’
testimony in this regard is contradicted by Pinion, and by the Union’s own representative,
Goodreau, both of whom placed the meeting as having taken place on or around April 13. L.
Lewis’ claim that the bargaining session took place on or around April 19,. is rejected as without
merit. I find, in agreement with the mutually consistent assertions made by Pinion and
Goodreau, that the bargaining session occurred on or about April 13.

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Bay 5. L. Lewis believes he was assigned to do cleanup in Bay 4 for a third day.

Gulaszewski testified that when he arrived for work around 11 p.m. sometime in
early April, he received a group e-mail from Pinion addressed to “all Livonia foremen”
stating that the “shop was in need of a cleanup.” The e-mail, he contends, did not identify
any particular employee as being assigned to do the cleanup work. In response to the e-
mail, Gulaszewski assigned L. Lewis and employee Gotts to do cleanup work. Gotts, he
contends, was selected because he was an extra man in Bay 1, and had nothing to do that
evening. L. Lewis, he further explained, was selected because there were no truck
deliveries that night for him to unload, and the blast machine was already fully loaded,
leaving L. Lewis with little to do. The following day, employees Richard Nader and
Lenford Lyons were picked by Gulaszewski to do cleanup work. He contends, however,
contrary to L. Lewis’ assertion, that he did not assign L. Lewis to do cleanup work that
evening because there was sufficient work to do unloading trucks. Gulaszewski denies
being told by Pinion to put L. Lewis’ “ass in Bay 4 cleaning floors,” telling L. Lewis that he
had been so instructed by Pinion, or telling L. Lewis that he needed to get his ass in Bay 4
cleaning floors. He also denied telling L. Lewis that Pinion was watching him. (Tr. 704-
707; 713).

Supervisor Giacherio also identified RX-4 as an e-mail he received from Pinion
sometime during contract negotiations in April. Like Gulaszewski, Giacherio denied ever
receiving an e-mail from Pinion directing him to assign L. Lewis to floor-cleaning duties.18
Goodreau gave some contrary testimony to Giacherio’s above assertion.

Goodreau claims he was present at the April bargaining session, which he
contends took place on or around April 13, and heard L. Lewis complain about the oily
floors in the facility and how the Company only went on a cleaning campaign when it was
faced with an outside inspection, such as from OSHA. According to Goodreau, on
reporting for work later that evening, Giacherio approached and asked him what L. Lewis
had done to make Pinion so mad. He contends that Giacherio then showed him an e-mail
he had received from Pinion directing him to have L. Lewis clean up Bay 4, a claim
expressly denied by Giacherio Goodreau claims he read the e-mail and that it was
addressed to “the midnight foreman” and specifically directed him to assign L. Lewis to the
cleanup work in Bay 4. On cross-examination, however, Goodreau testified that the e-mail
he saw directed “the foremen,” not simply the “midnight foreman” as he asserted on direct
examination, to have L. Lewis clean Bay 4. (Tr.347; 354). Goodreau took no action
regarding the assignment of L. Lewis to do cleanup work.

Goodreau’s testimony that Giacherio showed him an e-mail from Pinion specifically

18 The General Counsel, on brief, misrepresents Giacherio’s testimony by asserting that
Giacherio “testified that he may have seen another email, drafted by Pinion, that specifically
mentioned L. Lewis’ name in mid-April regarding cleaning oily floors.” (GCB:13). Giacherio
gave no such testimony. Rather, Giacherio’s testimony was that he received numerous e-mails
from Pinion during the months of March and April and could not, while on the witness stand,
possibly remember all of them, a rather plausible assertion in my view. Thus, when asked by
General Counsel if there was a possibility that he might have received “another email regarding
Mr. Lewis in March and April 2005,” Giacherio admitted it was possible. Giacherio, however,
never admitted seeing another e-mail that specifically addressed the assignment of cleanup
duties to L. Lewis. In fact, Giacherio expressly denied receiving any e-mail from Pinion directing
him to assign L. Lewis to clean-up duties. (Tr. 675; 661).

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directing that L. Lewis be assigned cleanup duties in Bay 4 is rejected as a pure
fabrication and without merit. Giacherio, as noted, denied having done so, and no
document or other witness was produced to corroborate Goodreau’s testimony. Further,
Goodreau’s description of the contents of this alleged e-mail was anything but clear. As
noted, he gave conflicting descriptions as to whom the e-mail had been addressed, e.g.,
stating on direct examination that it was directed to the “midnight foreman,” but claiming
on cross-examination that it had been addressed to all “the foremen.” Goodreau, I am
convinced, made up this account as a way of bolstering the government’s claim that L.
Lewis was discriminatorily reassigned to perform cleanup duties.

Nor do I believe L. Lewis’ account of what Gulaszewski said to him on assigning
him to do cleanup work in Bay 4. L. Lewis could not say for sure when this work
assignment occurred, claiming it occurred on or about April 19, but then stating that it
occurred on whatever date he mentioned in his affidavit to the Board. L. Lewis was also
vague on when during his shift he performed such cleaning duties, or how long he spent
doing the cleaning work. Nor was he clear on whether he did cleanup or some other type
of work on the second night he allegedly was assigned cleanup duties. (Tr. 407). L. Lewis
also seemed to be guessing on whether he actually was assigned to do cleanup work on a
third night for when asked, on cross-examination, if he cleaned up a third night as he
initially testified to on direct examination, L. Lewis responded, “I probably did.”

I have no doubt that L. Lewis was assigned to clean up Bay 4 on the evening
following the bargaining session of April 13, for Gulaszewski admitted assigning him to do
such work that evening. However, as between L. Lewis and Gulaszweski, I credit the
latter’s account of how and why the assignment occurred. Thus, I find that following the
April 13, contract talks between the parties, and the discussion therein regarding the oily
floors in Bay 4, Pinion sent an e-mail to all his foremen advising of the problem and
proposing that the midnight shift employees be assigned to clean up Bay 4 on a rotating
basis or all together. The e-mail did not specifically designate L. Lewis as the individual
who was to do the work. I further find that on receipt of RX-4, Gulaszewski, as testified to
by him and for the reasons he gave, assigned L. Lewis and Gotts to cleanup Bay 4. I
further find, consistent with Gulaszewski’s account, that L. Lewis was not assigned to
clean up Bay on the following evening.

B. Discussion and findings

1. The Section 8(a)(1) allegation

a. The alleged supervisory/managerial remarks

The complaint alleges that the Respondent violated Section 8(a)(1) when Pinion
allegedly told Goodreau in December 2004, that if the Union ever goes on strike,
employees would never again see the inside of the shop. Having credited Pinion’s denial
that he made such statement, the allegation is found to be without merit.

It is further alleged that the Respondent violated Section 8(a)(1) when Pinion
purportedly threatened to fire any millwright who gave a statement in support of the Jewell
grievance. I have, as noted, credited Pinion and found that no such threat was made by
him. Accordingly, the allegation is found to be without merit.

The complaint also alleges that the Respondent, through Giacherio, violated
Section 8(a)(1) when Giacherio purportedly threatened Yerex and other employees with

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job loss if they did not accept the Respondent’s April 28, contract proposal. As found
above, no such threat was made by Giacherio. Consequently, this allegation is without
merit.

It is also alleged in the complaint that the Respondent, through Rincher, violated
Section 8(a)(1) when on June 1, he purportedly told Jafolla that the Company did not want
to recall the crane operators and hi-lo drivers, and when, on July 18, he purportedly
remarked to Jafolla during a conversation outside the Powerhouse gym that those
employees who were recalled but refused to return to work would be terminated. As found
above, Rincher made no such statements to Jafolla. Nor do I credit Jafolla’s further
assertion that Rincher also commented that the Respondent did not need a union around
anymore. Accordingly, the allegations are without merit and shall be dismissed.

Another complaint allegation involves Sihler’s claim that Sanford told him while
attending a funeral for Sihler’s wife the Company was not bringing the “fucking blast
operators or crane operators back.” I have, as noted, credited Sanford’s assertion that he
never made any such remark to Sihler. This allegation shall also be dismissed.

The Respondent is further alleged to have violated Section 8(a)(1) when Sanford
purportedly threatened Nowicki and/or Goodreau with termination or other reprisal if they
provided statements in support of the Jewel grievance. Having credited Sanford and
found that no such threat was made, dismissal of this allegation is also warranted.

b. The videotaping of picketers

The complaint alleges, and the Respondent denies, that the videotaping of
employees engaged in picket line activity following their lockout on May 1, amounted to
the unlawful surveillance of employees.19 The Board has held that, absent proper

19 The complaint alleges, and the Respondent in its answer denied, that the Huffmaster
security guards were its agents under Section 2(13) of the Act. However, neither at the trial nor
in its posthearing brief did the Respondent assert the absence of an agency relationship as a
defense to the surveillance allegation. Rather, the Respondent’s defense is that the security
guards did not videotape the picketing activity but rather focused on the guards themselves and
on the traffic in and out of the facility, and that any recording of the picketing employees was
incidental, occurring only if they happened to enter into the path of traffic that was being cleared.
Its failure to assert the “lack of agency” defense at the hearing or in its posthearing brief leads
me to believe that the Respondent is no longer denying that the Huffmaster security guards
were its agents while the picketing was taking place. I am, in any event, satisfied that the
security guards were serving as agents of the Respondent under Section 2(13) of the Act at the
time in question. The Board applies common law principles when examining whether an
employee is an agent of the employer. Apparent authority results from a manifestation by the
principal to a third party that creates a reasonable basis for the latter to believe that the principal
has authorized the alleged agent to perform the acts in question. GM Electrics, 323 NLRB 125
(1997). In making such a determination under Section 2(13), "the question of whether the
specific acts performed were actually authorized or subsequently ratified shall not be
controlling." Here, the employees who reported for work on May 1, only to learn that they had
been locked out, could reasonably have believed, on seeing the Huffman security guards
standing alongside Pinion and Respondent’s attorney Gunsburg, and on subsequent days
thereafter videotaping them as they walked the picket line, that the guards were representing
the Respondent and acting on its orders and at its behest. Accordingly, I am convinced, and so
Continued

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ljustification, it is unlawful to photograph or videotape employees engaged in Section 7
activity because such conduct has a tendency to intimidate employees and plant a fear of
reprisal. Engelhard Corporation, 342 NLRB 46 (2004); Town & Country Supermarkets,
340 NLRB 1410, 1414 (2004); Kentucky River Medical Center, 340 NLRB 536, 553 (2003).
The mere belief that something might happen does not justify the employer's conduct
when balanced against the tendency of that conduct to interfere with employees' right to
engage in concerted activity. Id. The credited testimony of various employees, as found
above, makes clear that the Huffman guards contracted by the Respondent during the
lockout did, in fact, openly record the picketing activities of employees using video
cameras. The evidence also makes clear that the picketing by employees was conducted
in an orderly and peaceful manner, offering thereby no justification for the videotaping of
the picketing employees’ activities. In these circumstances, I find, in agreement with
General Counsel, that the videotaping of the picketers amounted to an unlawful
surveillance of their activity and violated Section 8(a)(1) of the Act.

c. Attorney Gunsburg’s June 3, letter

The General Counsel further contends, and the Respondent denies, that
Gunsburg’s June 3, letter to Hayosh, stating that employees who refused to return to work
after being recalled could be permanently replaced, amounted to an unlawful threat to
permanently replace locked out employees in violation of Section 8(a)(1) of the Act, citing
Harter Equipment, 293 NLRB 647 (1989) and U.S. Service Industries, 319 NLRB 231
(1995). The General Counsel’s contention is without merit.

While an employer may hire temporary employees during a lockout to replace the
locked out employees, Harter Equipment, 280 NLRB 597 (1986); see also, Bud Antle, Inc.,
347 NLRB No. 9 (2006), Bunting Bearings Corp., 343 NLRB No. 64 (2004), the Board, in a
subsequent but related Harter Equipment, Inc. decision, see 293 NLRB 647 (1989), held
that locked out employees may not be permanently replaced. The General Counsel
contends that, given the Board’s latter holding, it logically follows that “any statement
made to locked out employees threatening that they can be permanently replaced must be
found unlawful as well.” (GCB:30). I need not decide whether such a statement is or is not
unlawful, for when the circumstances surrounding Gunsburg’s pronouncement are fully
considered, it becomes readily apparent that Gunsburg was not threatening to
permanently replace all of the locked out employees.

Gunsburg’s statement, as noted, was made in response to Hayosh’s June 2, letter
advising the Respondent that those locked out employees who were being recalled had
decided not to return to work to protest what they perceived to be their “unfair treatment”
by the Respondent, and until the Respondent ceased its unspecified “threats and hostility.”
Thus, Gunsburg’s statement was directed at those employees who had been recalled but
who signed the Hayosh letter signaling their intent not to return to work. Having been
recalled, these employees must have known that they were no longer locked out and were
expected and required to report for work. By deciding to withhold their services, these
employees could very well be classified as economic strikers who, as Gunsburg accurately
pointed out to them in his letter, could be permanently replaced. Laidlaw Corporation, 171
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find, that the Huffman security guards were indeed agents of the Respondent within the
meaning of Section 2(13) when they videotaped employees on the picket line.

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NLRB 1366 (1968), enfd. 414 F.2d 99 (7th Cir. 1969), cert. denied 397 U.S. 920 (1969).
Gunsburg’s letter, therefore, did nothing more than advise these employees of their rights
as economic strikers under Laidlaw, supra. An employer does not violate the Act by
truthfully informing employees that they are subject to permanent replacement in the event
of an economic strike. See, George L. Mee Memorial Hospital, 348 NLRB No. 15 (2006),
citing Eagle Comtronics, 263 NLRB 515 (1983). Gunsburg’s letter did precisely that, and,
while Gunsburg urged those employees who had been recalled to return to work, he did
not threaten to deprive them of any rights to which they were entitled under Laidlaw.20

The General Counsel proffers yet another argument, somewhat inconsistent with
her above claim that the recalled employees were not strikers, to support her claim that
Gunsburg’s statement constituted an unlawful threat. Thus, in her post trial brief, the
General Counsel concedes that the employees did indeed authorize Hayosh to notify the
Respondent that they would not be returning to work because “the Respondent was
committing unfair labor practices.” (GCB:20). This argument is equally without merit.

First, while Hayosh in his letter refers to the Respondent’s alleged “unfair treatment” of
employees, and to alleged “threats and hostility” made or directed by Respondent towards
employees, as the reason why employees were not returning to work, he does not describe or
give any indication of what the alleged “unfair treatment,” “threats,” or “hostility” consisted of.
Hayosh’s assertion, therefore, is too vague and ambiguous to support a finding that the
employees who declined to return to work were engaged in an unfair labor practice strike, as
claimed by the General Counsel. Nor can the General Counsel rely on the numerous unfair
labor practices alleged to have been committed by the Respondent to substantiate her claim
that the employees were unfair labor practice strikers, for, as discussed and found elsewhere in
this decision, with the exception of the videotaping incident found to be unlawful, said
allegations of misconduct by the Respondent are wholly without merit. As to the videotaping
misconduct engaged in by the Respondent, I seriously doubt that this conduct played any role in
the recalled employees’ decision not to return to work. To reiterate, Hayosh in his letter does
not identify this or any other specific acts of misconduct by the Respondent as the reason why
employees chose not to return to work.

The General Counsel’s claim that the employees were unfair labor practice strikers is
further undermined by an article written by Goodreau for the June edition of the Union
newspaper in which he discussed the lockout. (See RX-3) In the article, Goodreau states,
inter alia, that the employees who went on strike “can be permanently replaced,” implicitly
acknowledging thereby that the employees were economic, and not unfair labor practice,
strikers. Goodreau sought to disavow the comment by suggesting that he was only reiterating
what Gunsburg had said in his June 3, letter, and by claiming not to know the difference

20 The General Counsel’s assertion on brief (GCB:21), that the employees never actually
declared themselves to be on strike, is somewhat disingenuous, and ignores the plain language
of Hayosh’s letter. Hayosh’s letter makes patently clear that those employees who had been
recalled, and who identified themselves in the letter, would not be returning to work, e.g.,
withholding their services, until certain conditions were met. The failure by Hayosh to use the
magic words, “on strike” to describe the employees’ decision not to return to work does not
render the withholding of their services any less a strike. Indeed, the General Counsel, on brief,
appears to contradict her above claim that the recalled employees were not on strike by
admitting that said employees did indeed authorize Hayosh to notify the Respondent that they
would not be returning to work because “the Respondent was committing unfair labor practices.”

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between a locked out employee and an economic striker, or of the reinstatement rights
applicable to these employee categories. Goodreau, however, never mentioned Gunsburg in
the article, nor did he attribute his remark to Gunsburg. His claim that he was simply quoting
Gunsburg is found to be without merit. I also do not believe that Goodreau, who was on the
Union’s bargaining committee and had served two years as the Union’s Chief Steward, did not
know the difference between a locked out employee, an economic striker, or an unfair labor
practice striker. In sum, I reject his claim in this regard, as well as the General Counsel’s claim
that the employees who refused to return to work after being recalled were unfair labor practice
strikers. Rather, I find that the employees who refused to return to work were economic strikers,
and that their decision to remain out on strike was motivated not by any alleged unfair labor
practices the Respondent may have committed, but rather to maintain solidarity with those
remaining locked out employees who did not receive recall notices, presumably in the hope that
their conduct would pressure the Respondent into ending the lockout and recalling the
remaining locked out employees back to work. Indeed, the General Counsel in her opening
remarks appears to have conceded as much when she averred that “Some [employees]
decided not to return unless all employees were returned.” (Tr. 17). Accordingly, for the
above-stated reasons, I find that Gunsburg’s statement in his June 3, letter to employees
who refused to return work after being recalled, that as economic strikers they could be
permanently replaced, did not violate Section 8(a)(1) of the Act.21

2. The Section 8(a)(3) and (1) allegations

a. The assignment of clean-up duties to L. Lewis

The complaint further alleges, and the Respondent denies, that the assignment of
cleanup work to L. Lewis on April 13, was discriminatorily motivated and a violation of
Section 8(a)(3) and (1) of the Act. In Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the Board set forth established a
causation test to be applied in cases alleging a violation of Section 8(a)(3) or Section
8(a)(1) that turn on employer motivation. Under that test, the General Counsel must first
make a prima facie showing sufficient to support the inference that protected conduct was
a "motivating factor" in the employer's decision to discharge or otherwise discipline an
employee. The General Counsel makes out a prima facie case by showing that the
affected employee had engaged in union or other protected activity, that the Respondent
was aware of such activity, that it harbored antiunion animus, and that the decision taken
against the employee was motivated if not wholly at least in part by said animus. Once
the General Counsel makes such a showing, the burden shifts to the employer to
demonstrate that the same action would have taken place even in the absence of the
protected conduct.

There is no disputing that L. Lewis was an open and active Union supporter, and
that the Respondent knew of his Union involvement, for L. Lewis, as noted, was part of the
Union’s bargaining committee and took part in the April 13, negotiations with the
Respondent’s management team during which he apparently complained to the latter
about the oily floors in Bay 4. On the animus question, the General Counsel claims that
Pinion demonstrated its hostility towards L. Lewis by issuing an e-mail, which Goodreau

21 In U.S. Service Industries, supra, cited by the General Counsel, the Board, inter alia,
found unlawful an employer’s statement to unfair labor practice strikers that they could be
permanently replaced. Unlike that case, the strikers here are economic, not unfair labor
practice, strikers, making U.S. Service Industries inapposite to the present situation.

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claims was shown to him by Giacherio, directing that L. Lewis be assigned to clean the
floors in Bay 4. However, the e-mail alluded to by General Counsel is one which
Goodreau claims was shown to him by Gulaszewski, a claim which, as noted, I have
rejected as not credible. The e-mail in question was never produced, and Giacherio
credibly denied ever showing Goodreau such a document. Also rejected as not credible is
L. Lewis’ claim that Gulaszewski told him he had been instructed by Pinion in an e-mail to
assign L. Lewis to the clean up of Bay 4. In short, the testimonial evidence cited by
General Counsel in support of her claim of antiunion animus by the Respondent against L.
Lewis is simply not credible. General Counsel has, consequently, failed to make a prima
facie showing that the assignment of L. Lewis to do cleanup work in Bay 4 was motivated
by antiunion considerations. Accordingly, this allegation is found to be without merit.

b. The May 1, lockout and partial recall of employees

I also find no merit to the complaint allegation that the Respondent’s May 1,
lockout, and subsequent partial recall of employees, was discriminatorily motivated and
unlawful under Section 8(a)(3) and (1) of the Act. It is well-settled that an employer’s
decision to lock out employees for the sole purpose of pressuring them to accept its
bargaining proposals does not, without more, violate Section 8(a)(1) or (3) of the Act.
American Ship Building Co. v. NLRB, 380 U.S. 300 (1965). A lockout motivated by
antiunion considerations is, however, unlawful. In deciding whether an employer's lockout
is motivated by antiunion animus, the Board applies the standards developed by the
Supreme Court in NLRB v. Great Dane Trailers, Inc., 388 U.S. 26 (1967). Under Great
Dane, if an employer's alleged discriminatory conduct is found to be "inherently
destructive" of employee rights, then proof that the alleged misconduct was motivated by
antiunion considerations is not required, and the Board may find an unfair labor practice
even if there is evidence to show that the employer was motivated by business
considerations. However, proof of an antiunion motive is required where the effect of an
employer's discriminatory conduct is only "comparatively slight," and the employer has
demonstrated a legitimate and substantial business justification for its actions. In either
case, once it has been shown that the employer engaged in discriminatory conduct which
could have adversely affected employee rights to some extent, the burden is on the
employer to establish that it was motivated by legitimate objectives. Id at 34.

The General Counsel contends that the Respondent’s decision to initiate a lockout
was motivated by antiunion animus, its purpose being, she argues, to undermine or
eliminate the Union as its employees’ bargaining representative, and not, as the
Respondent asserts, to pressure the Union and employees into accepting its April 28,
contract proposal. The General Counsel, however, has presented no credible evidence to
show that the Respondent harbored animus towards the Union. The only evidence cited
by the General Counsel in support of her position consists of the above rejected claims by
various employees that they were threatened, overtly or otherwise, by anti-union remarks
and other subtle statements purportedly made to them by certain supervisors and/or
managers of the Respondent beginning sometime in 2003 and continuing beyond the
onset of the lockout. As found above, with the exception of the videotaping of picketers,
the Respondent did not engage in any of the Section 8(a)(1) or (3) conduct alleged in the
complaint. Accordingly, I find no credible evidence to support the General Counsel’s claim
that the Respondent engaged in the type of misconduct that would qualify as “inherently
destructive” of employee rights under Great Dane, supra. The sole Section 8(a)(1)
violation found, e.g., the videotaping of picketers, does not constitute, nor was it alleged
by the General Counsel to be, conduct of the type that would frustrate or hinder the
collective bargaining process as is required to satisfy the Great Dane “inherently

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destructive” standard.22

Contrary to the General Counsel, I find that the Respondent’s sole intent in locking
out employees was to pressure them and the Union into accepting its April 28, contract
proposal. The Respondent, in the past, had successfully used the lockout as a means of
obtaining an agreement with the Union. Thus, during the parties’ 2000 contract
negotiations, the Respondent conducted a one-day lockout that culminated in an
agreement being reached by the parties. I am convinced that Goodman, having
successfully employed the lockout during the prior negotiations to achieve his bargaining
goals, decided again to resort to this permissible tactic after employees rejected his April
28, contract proposal. There is no evidence to show, nor has any claim been made here,
that the Respondent had not been bargaining in good faith or was attempting to avoid
reaching agreement before implementing the lockout. To the contrary, the evidence
shows that the parties engaged in numerous bargaining sessions prior the lockout, and
were able to reach agreement on certain issues. In the absence of evidence showing that
the lockout had some other unlawful objective, and as there is no evidence to refute the
Respondent’s claim that it was simply trying to force the Union into accepting its contract
offer, a legitimate objective under American Shipbuilding, I find that the lockout was, at its
inception on May 1, a lawful one, and did not violate Section 8(a)(3) and (1) of the Act, as
alleged.

The General Counsel also contends that the Respondent’s decision to recall only
employees in the skilled classifications (schumag, wean line, maintenance, roto-mag
tester, millwright), and not employees in its support job classifications (Radio Crane, Lift
truck/Hi-Lo operators, Coil End operators, bar blast operators, Tool Crib operators), was
discriminatorily motivated and violated Section 8(a)(3) and (1) of the Act. (GCB:45). I
disagree.

An employer’s decision to lock out some unit employees, but not others, is not
unlawful if the employer has a valid business justification for doing so. Midwest
Generation, 343 NLRB No. 12 (2004); also, Bunting Bearings Corp., 343 NLRB No. 64
(2004). When first implemented on May 1, the lockout, as noted, affected all unit
employees. In an effort to continue its operations following the lockout, the Respondent
hired some temporary replacement employees as support staff and utilized management
personnel to run its various machines, while seeking through help wanted ads to obtain
skilled employees. While it was able to hire a sufficient number of temporary employees
as support staff, the Respondent had little or no success in finding the skilled employees
needed to operate its various machines and equipment. Some three weeks into the
lockout, the Respondent was having difficulty maintaining pre-lockout production levels
and began suffering losses in production and material. It was these factors, according to
both Goodman and Pinion, that led to the decision sometime after May 24, to begin
recalling the skilled employees back to work. The Respondent’s ability to hire a sufficient
number of temporary replacements to handle the support functions reduced pressure on it
to recall the unskilled workers from lockout, while its inability to fully staff and operate its
machinery using only management personnel proved more than it could handle,

22 The Great Dane “inherently destructive” standard applies only to those actions “that
exhibit hostility to the process of collective bargaining,” and refers to conduct that has “far
reaching effects which could hinder future bargaining; i.e., conduct that creates visible and
continuing obstacles to the future exercise of employee rights.” See, Roosevelt Memorial
Medical Center, 348 NLRB No. 64 (2006); Also, Bud Antle, Inc., 347 NLRB No. 9 (2006).

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compelling the Respondent to recall the skilled employees to perform such functions. In
these circumstances, the Respondent’s stated decision for recalling only the skilled
employees back to work made perfect sense.

The motivation for recalling only the skilled employees was therefore an economic
one, prompted purely by business, not antiunion, reasons. No credible evidence was
presented by the General Counsel to refute Goodman’s and Pinion’s stated reason for the
recall of some, but not all, of the unit employees. As with the Section 8(a)(3) allegation
regarding the lawfulness of the lockout itself, the General Counsel here again relies on the
various rejected Section 8(a)(1) allegations of misconduct by the Respondent to support
her claim that the partial recall of unit employees was motivated by antiunion animus and
thus unlawful. Having found those Section 8(a)(1) allegations to be without merit, I find
that the General Counsel, as with the lockout, has not presented any credible evidence to
support her further claim that the partial recall of unit employees by the Respondent was
discriminatorily motivated by antiunion animus. The General Counsel has consequently
failed to meet her Wright Line burden of showing that the recall of some, but not all, of the
unit employees was motivated by antiunion reasons. Accordingly, the allegation that the
partial recall was unlawful under Section 8(a)(3) and (1) is found to be without merit.

3. The Section 8(a)(5) and 1) allegations

a. The direct dealing allegation

The General Counsel contends that the Respondent’s failure to notify the Union
before recalling the skilled employees back to work was inconsistent with its past practice
and with the notice requirements of the expired collective bargaining agreement, and
constituted unlawful direct dealing with employees. I disagree.

Initially, as previously discussed, all recalled employees, with the exception of K.
Lewis who was asked to return as a Schumag operator on the “4D” machine rather than as
a coil end operator, the position he held just before the lockout, returned to their former
positions at the same rate of pay, benefits, and other terms and conditions of employment.
The Respondent did not negotiate with any of the recalled employees and simply
instructed them by phone calls and letters that they were to return to their former positions
on certain specified dates.

Regarding the past practice, there is no evidence that the Respondent had
established a practice of giving the Union prior notice of a recall during a lockout. Aside
from the current lockout, the only other lockout referenced in the record is one that
occurred during the parties’ 2000 contract negotiations. That lockout, as noted, lasted just
one day. No credible evidence, however, was produced to show how the recall from that
lockout was conducted, or whether the Union was ever notified in advance as to when or
how the locked out employees were to be recalled. The only testimony adduced regarding
that lockout came from Wilson, whose knowledge as to what transpired during that lockout
was shaky at best and based not on any direct knowledge of those events, but rather on
hearsay information he purportedly received from someone he identified only as “Perry,”
presumably the Union’s chief steward at the time. Perry did not testify. I give no weight to
Wilson’s testimony regarding how the recall was conducted during the 2000 lockout, or
whether the Union received prior notice of said recall. In sum, the General Counsel has
produced no reliable or credible evidence to show that the Respondent had an established
practice of providing the Union advance notice when recalling employees from a lockout.

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As to Art. VIII, Sec. 7 of the parties’ expired agreement requiring the Respondent
notify “the Bargaining Committee of all employees hired, to be laid off, or recalled to work,”
I am not convinced that this provision applied to lockouts and, if so, that it was indeed
violated by the Respondent. There is, for example, nothing in the language of the
provision itself to indicate that the recall notification was intended to apply not just to
layoffs but also to lockouts. More importantly, however, the wording of the provision
speaks only of providing notification to the Union without expressly stating when such
notification was to be made. Thus, it is not clear that the Respondent was required to give
the Union advance notice of the recall; rather, on its face, the provision speaks only of
notification to the Union of all employees who have been hired, to be laid off, or recalled to
work. As the term “recalled” is used in the past tense, it may reasonably be argued that
what was required of the Respondent under this provision was notification to the Union
that a recall had taken place, not necessarily prior notice that a recall was to occur. If so,
then the Respondent did comply, since, during the June 1, bargaining session, soon after
recalls began in late May, it notified the Union of the recall and identified which employees
were being recalled. At best, the language of Article VIII, Sec. 7 is too vague and
ambiguous to support a finding that the Respondent was required to give the Union prior
notice of its decision to recall certain of its locked out skilled employees. Accordingly, I
find that the Respondent’s failure to give the Union advance notice of its decision to begin
recalling locked out employees, and its conduct in directly contacting employees who were
being recalled, did not violate Section 8(a)(5) and (1) of the Act, as alleged.

b. The August 9, new paradigm proposal

Finally, the General Counsel, as previously stated, contends that even if the lockout
is found to have been lawful when implemented on May 1, it was rendered unlawful as of
August 9, when the Respondent presented its “new paradigm” proposal to the Union. The
“new paradigm” proposal, she explains, was regressive in nature in that, unlike the
Respondent’s April 28, proposal, it called for, inter alia, substantial pay cuts and the
elimination the seniority rights for bargaining unit employee. She argues that the
presentment of the regressive “new paradigm” proposal, when viewed in light of other
circumstances, including Gunsburg’s alleged refusal to describe or discuss its contents
which she contends was suggestive of a “take it or leave it” attitude, and the other alleged
unfair labor practices purportedly committed by the Respondent, demonstrates that the
Respondent was not bargaining in good faith and was bent on frustrating the bargaining
process and avoid reaching agreement. She therefore contends that the Respondent’s
conduct in presenting a bad faith regressive proposal to the Union violated Section 8(a)(5)
and (1), and transformed the lockout from a lawful, to an unlawful, one as of August 9.

The Respondent, not surprisingly, denies the allegation that it engaged in bad faith
bargaining by presenting the Union with its “new paradigm” proposal. While admitting that
its August 9, proposal deviated from its April 28, proposal, the Respondent argues that the
changes proposed in its new August 9, proposal, including placement of all non-skilled
employees into a new general support staff classification, and reducing the wages for all
employees in that classification to match the wage rate at which it was able to hire the
temporary employees during the lockout, reflected its decision to adopt a new method of
operation consistent with the realities of the marketplace of which it became cognizant
during the lockout. It contends that, having weathered its labor dispute with the Union, it
was free to use its new-found strength to obtain contractual terms it deemed more
favorable through a reduction or withdrawal of its April 28, proposal.
I agree with the Respondent. Section 8(d) of the Act sets forth the bargaining

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requirements for parties engaged in a collective bargaining relationship. Thus, under
Section 8(d), an employer is required to "meet at reasonable times and confer in good
faith with respect to wages, hours, and other terms and conditions of employment, or the
negotiation of an agreement, or any question arising there under.” This “meet and confer”
requirement, however, “does not compel either party to agree to a proposal or require the
making of a concession." In determining whether an employer has bargained in good
faith, the Board evaluates the entire course of bargaining and all the relevant
circumstances and, based on that evaluation, decides whether the employer was lawfully
engaging in hard bargaining to achieve a contract that it considers desirable, or was
unlawfully endeavoring to frustrate the possibility of arriving at any agreement.
Here, no evidence has been presented, nor claim or allegation made by the
General Counsel, that the Respondent at any time before or after presenting its April 28,
proposal (but before its August 9, proposal), failed to bargain in good faith or was seeking
to avoid a contract with the Union. Indeed, the fact that the Respondent kept its April 28,
proposal on the table for more than three months, e.g., until August 9, after being rejected
by the Union, and that it continued meeting and bargaining with the Union over its
proposal after the lockout began, clearly indicates that the Respondent was trying to
reach, not avoid, agreement with the Union.
Soon after the May 24, bargaining session, the Respondent, believing that the labor
dispute might last longer than anticipated, and hoping to avoid further production and
inventory losses resulting from its decision to continue operations using temporary
employees and management personnel only, felt compelled to recall its locked out skilled
employees to work. However, of the 31 skilled employees recalled, only 14, or less than
half, agreed to return to work. The other 17 skilled employees, as evident from Hayosh’s
June 2, letter and as found above, chose instead to remain out on strike until all unit
employees were recalled to work.
With the 14 skilled employees who returned to work, and its ability to train the
temporary replacements hired to run its machines in a relatively short period of time, the
Respondent, by August 9, was able to restore production to near normal levels and
thereby meet its customers’ needs and demands. So testified Goodman and Pinion. Their
testimony in this regard is bolstered by RX-8, which shows that while the Respondent’s
production of steel in May, right before it began the recall, was approximately 25% of what
it had been in April, its steel production in June, after the recall began, increased to 50%
of what it had been before the lockout, increased some more in July, and by August, when
the Respondent presented its “new paradigm” proposal, had reached a little over 80% of
its pre-lockout steel production rate.
Having weathered the strike called by employees following their recall, and having
discovered from its recruitment of temporary employees that it was able to hire employees
into support positions at the $14.50/hour rate with relative ease, the Respondent decided
to replace its April 28, proposal with its August 9, “new paradigm” proposal. The August 9,
proposal, as noted, did not alter any prior agreements that had been reached by the
parties during negotiations. However, and as the Respondent readily admits (RB:15),
under the new proposal, certain job classifications that were previously classified as
skilled but which were readily available in the marketplace would, along with other
unskilled classifications, be combined into a new “support” classification and paid at the
$14.50/hr rate, reflecting the market rate. On the other hand, under the August 9,
proposal, skilled employees, would receive pay raises. Unlike the August 9, proposal, the
withdrawn April 28, proposal would have provided pay raises for all employees, skilled and

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unskilled.
I agree with the General Counsel that the August 9, proposal which, inter alia,
reduced wages for employees in the support classification, was somewhat regressive
when compared to the Respondent’s April 28, proposal. The Board, however, has held
that absent other evidence of bad-faith, regressive contract proposals are not violative of
the Act. Telescope Casual Furniture, Inc., 326 NLRB 588 (1998); National Steel and
Shipbuilding Company, 324 NLRB 1031, 1041 (1997); Frontier Hotel & Casino, 323 NLRB
815, 836 at fn. 15 (1997) (regressive proposals are not per se indicia of surface
bargaining), citing Reichhold Chemicals, 288 NLRB 69 (1988); Hendrick Manufacturing
Company, 287 NLRB 310 (1987). Other than pointing to the Respondent’s withdrawal of
its April 28, proposal and to the regressive nature of the August 9, proposal, the General
Counsel has produced no credible evidence to show that the Respondent had been
engaging in bad faith bargaining at any time prior to August 9, or that it did so after
presenting the latter proposal. Further, the Respondent’s withdrawal of its April 28,
proposal does not per se establish the absence of good faith and is only one factor that is
considered in the totality of circumstances test. White Cap, Inc., 325 NLRB 1166, 1168
(1998). As pointed out in White Cap, supra, the Board examines the respondent's
explanation for its change in position to determine whether it was undertaken in bad faith
and designed to impede agreement.

As found above, when presented to the Union on August 9, the “new paradigm”
proposal was fully explained, and it was made clear to the Union that this was not a final
proposal but one which was open to negotiations. Thus, there was no “take it or leave it”
position taken by the Respondent, as claimed by the General Counsel. In sum, I find that
the Respondent has provided a good-faith explanation for its change in bargaining position
on August 9, and that its presentment of its “new paradigm” proposal on that date was not
a product of, or constituted, bad faith bargaining. The complaint allegation that the August
9, proposal violated Section 8(a)(5) and (1) of the Act is, therefore, found to be without
merit and shall be dismissed. The General Counsel’s further claim, that the lockout was
rendered unlawful as of August 9, is likewise rejected as without merit.

Conclusions of Law

By engaging in the surveillance, through videotaping, of employees participating in lawful
picketing activity outside its facility, the Respondent engaged in an unfair labor practice affecting
commerce within the meaning of Section 8(a)(1) and (5), and Section 2(6) and (7) of the Act.
The Respondent has not violated the Act in any other manner.

Remedy

Having found that the Respondent has engaged in an unfair labor practice, I find that it
must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act. The Respondent shall be required to post an notice to
employees.

On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended23

23 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.
Continued

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ORDER

The Respondent, Hercules Drawn Steel Corporation, Livonia, Michigan, its officers,
agents, successors, and assigns, shall

1. Cease and desist from

(a) Engaging in surveillance of employees engaged in union activities and protected
concerted activities.

(b) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.

2. Take the following affirmative action necessary to effectuate the policies of the Act.

(a) Within 14 days after service by the Region, post at its facility in Livonia, Michigan,
copies of the attached notice marked “Appendix.”24 Copies of the notice, on forms provided by
the Regional Director for Region 7, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed by the Respondent at any time since
May 1, 2005.

(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.

IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.

Dated, Washington, D.C., December 8, 2006.

____________________
George Alemán
Administrative Law Judge
_________________________
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
24 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.”
JD-83-06

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 engage in surveillance of our employees' union activities by videotaping their
activities.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.

HERCULES DRAWN STEEL 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.
477 Michigan Avenue, Federal Building, Room 300
Detroit, Michigan 48226-2569
Hours: 8:15 a.m. to 4:45 p.m.
313-226-3200.
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, 313-226-3244.