Industrial Hard Chrome, LTD.

National Labor Relations Board - Board Decisions

May 1, 2008

352 N.L.R.B. 298 (N.L.R.B. 2008)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
352 NLRB No. 47
298
Industrial Hard Chrome, Ltd., Bar Technologies
LLC, Fluid Power Manufacturing and United
Steelworkers of America, AFL–CIO, CLC. Case
13–CA–43487
March 31, 2008
DECISION AND ORDER
BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN
On February 27, 2007, Administrative Law Judge
George Alemán issued the attached decision. The Re-
spondent filed exceptions and a supporting brief; the
General Counsel filed an answering brief. The General
Counsel filed cross-exceptions and a supporting brief;
the Respondent filed an answering brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,1 and conclusions as amended,2 and to adopt the
recommended Order as modified.3
We have amended Conclusion of Law 2 and the rem-
edy section of the judge’s decision, and modified the
judge’s recommended Order, as set forth below, to delete

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
In adopting the judge’s factual findings, we note that, contrary to the
Respondent’s claim that the judge did not “even mention” its June 30,
2006 letter to employees purportedly “dispelling” a rumor that they had
been fired, the judge, in sec. II,A,2,. of his decision, both addressed the
letter and rejected the Respondent’s argument.
2 No exceptions have been filed to the judge’s conclusions that the
Respondent violated Sec. 8(a)(5) by unilaterally implementing an EAP
program and Sec. 8(a)(1) by engaging in unlawful surveillance.
In adopting the judge’s conclusion that the Respondent, through
General Manager Parker, violated Sec. 8(a)(1) by telling employees
represented by the Union that they had no union representation, we find
it unnecessary to pass on whether the Respondent also violated Sec.
8(a)(1) through Production Manager Peterson’s statement to employee
Salgado that the Union was not allowed on company property.
In adopting the judge’s conclusion that the Respondent violated Sec.
8(a)(1) by discharging employees for engaging in a lawful work stop-
page, we find it unnecessary to pass on whether the Respondent also
violated Sec. 8(a)(3) by the discharges. Finding the 8(a)(3) violation
would not materially affect the relief (i.e., reinstatement and make-
whole remedy) for violating Sec. 8(a)(1).
3 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Schaumber and Member Liebman constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
Quality Control Inspector Phanvilay (Hit) Sundara from
the judge’s list of unlawfully discharged employees enti-
tled to reinstatement and backpay.4 We have substituted
a new notice to conform to the modified Order.
AMENDED CONCLUSION OF LAW
We substitute the following for Conclusion of Law 2.
“2. By discharging employees Paris Figueroa, Hera-
clio Arizaga, Adan Guerra, Leonel Hernandez, Eduardo
Nava, David Nuñez, Silverio Corona, Juan Peña, Porfirio
Huerta, Ramon Gonzalez, Juan Nieves Jr., Jesus Salgado,
Boualoth Hansana, Agustin Morales, Saybandith K.
Sundara, Oudavone Hansana, David Soto, Southone
Cavan, and Ruben Romero for engaging in a lawful work
stoppage, the Respondent violated Section 8(a)(1) of the
Act.”
AMENDED REMEDY
We substitute the following for the second paragraph
of the remedy section of the judge’s decision.
“To remedy its unlawful discharge of Paris Figueroa,
Heraclio Arizaga, Adan Guerra, Leonel Hernandez, Edu-
ardo Nava, David Nuñez, Silverio Corona, Juan Peña,
Porfirio Huerta, Ramon Gonzalez, Juan Nieves Jr., Jesus
Salgado, Boualoth Hansana, Agustin Morales, Sayban-
dith K. Sundara, Oudavone Hansana, David Soto,
Southone Cavan, and Ruben Romero, the Respondent
shall be required to, within 14 days from the date of the
Order, offer them reinstatement to their former positions,
or, if their positions no longer exist, to substantially
equivalent positions, without prejudice to the rights and
privileges they previously enjoyed.”
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Indus-
trial Hard Chrome, Ltd., Bar Technologies LLC, and
Fluid Power Manufacturing, Geneva, Illinois, its officers,
agents, successors, and assigns, shall take the action set
forth in the Order as modified.
1. Substitute the following for paragraph 2(a).
“(a) Within 14 days from the date of the Board’s Or-
der, offer Paris Figueroa, Heraclio Arizaga, Adan Guerra,
Leonel Hernandez, Eduardo Nava, David Nuñez, Silverio
Corona, Juan Peña, Porfirio Huerta, Ramon Gonzalez,
Juan Nieves Jr., Jesus Salgado, Boualoth Hansana,

4 The record established that Hit did not join the work stoppage, but
was instead released from work a few hours later because, with the
work stoppage, there was no production for him to inspect. He called
in sick over the next 2 days and then joined his coworkers on the picket
line. There is no evidence that Hit was ever discharged. Because the
General Counsel has not established that Hit was treated unlawfully,
Hit is not entitled to any remedy.
INDUSTRIAL HARD CHROME, LTD. 299
Agustin Morales, Saybandith K. Sundara, Oudavone
Hansana, David Soto, Southone Cavan, and Ruben Ro-
mero full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights or
privileges previously enjoyed.”
2. Substitute the following for paragraph 2(b).
“(b) Make Paris Figueroa, Heraclio Arizaga, Adan
Guerra, Leonel Hernandez, Eduardo Nava, David Nuñez,
Silverio Corona, Juan Peña, Porfirio Huerta, Ramon
Gonzalez, Juan Nieves Jr., Jesus Salgado, Boualoth Han-
sana, Agustin Morales, Saybandith K. Sundara, Ou-
davone Hansana, David Soto, Southone Cavan, and
Ruben Romero whole for any loss of earnings and other
benefits resulting from their unlawful terminations in the
manner set forth in the remedy section of the decision.”
3. Substitute the attached notice for that of the admin-
istrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT threaten you with discharge for engaging
in protected concerted activity.
WE WILL NOT seek to undermine your support for the
United Steelworkers of America, AFL–CIO, CLC, which
is your duly certified collective-bargaining representa-
tive, by telling you that you do not have union represen-
tation; and WE WILL NOT, without justification, take pho-
tographs of your lawful picketing activities or engage in
any other surveillance of your protected concerted activi-
ties.
WE WILL NOT discharge or otherwise discriminate
against you for engaging in a protected work stoppage to
protest supervisory mistreatment of employees, or for
engaging in any other protected concerted activity.
WE WILL NOT institute and implement an employee as-
sistance plan (EAP) without first giving the United
Steelworkers of America, AFL–CIO, CLC, which is your
exclusive bargaining representative, prior notice and an
opportunity to bargain over such a plan.
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.
WE WILL, on request from the Union, rescind the EAP
program we instituted on June 13, 2006, and bargain in
good faith with the Union regarding the institution of any
such program.
WE WILL, within 14 days from the date of this Order,
offer Paris Figueroa, Heraclio Arizaga, Adan Guerra,
Leonel Hernandez, Eduardo Nava, David Nuñez, Silverio
Corona, Juan Peña, Porfirio Huerta, Ramon Gonzalez,
Juan Nieves Jr., Jesus Salgado, Boualoth Hansana,
Agustin Morales, Saybandith K. Sundara, Oudavone
Hansana, David Soto, Southone Cavan, and Ruben Ro-
mero full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent positions,
without prejudice to the seniority or any other rights or
privileges they previously enjoyed.
WE WILL make Paris Figueroa, Heraclio Arizaga, Adan
Guerra, Leonel Hernandez, Eduardo Nava, David Nuñez,
Silverio Corona, Juan Peña, Porfirio Huerta, Ramon
Gonzalez, Juan Nieves Jr., Jesus Salgado, Boualoth Han-
sana, Agustin Morales, Saybandith K. Sundara, Ou-
davone Hansana, David Soto, Southone Cavan, and
Ruben Romero whole for any loss of earnings and other
benefits resulting from their discharges, less any net in-
terim earnings, plus interest.
WE WILL, within 14 days from the date of this Order,
remove from our files any reference to the unlawful dis-
charges of Paris Figueroa, Heraclio Arizaga, Adan
Guerra, Leonel Hernandez, Eduardo Nava, David Nuñez,
Silverio Corona, Juan Peña, Porfirio Huerta, Ramon
Gonzalez, Juan Nieves Jr., Jesus Salgado, Boualoth Han-
sana, Agustin Morales, Saybandith K. Sundara, Ou-
davone Hansana, David Soto, Southone Cavan, and
Ruben Romero, and WE WILL, within 3 days thereafter,
notify each of them in writing that this has been done,
and that the discharges will not be used against them in
any way.
INDUSTRIAL HARD CHROME, LTD., BAR
TECHNOLOGIES LLC, FLUID POWER
MANUFACTURING
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD300
Ed Castillo and Elizabeth Cortez, Esqs., for the General Coun-
sel.
Bruce Mills and Julia Proscia, Esqs., for the Respondent.
Anthony Alfano, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
GEORGE ALEMÁN, Administrative Law Judge. This case was
tried in Chicago, Illinois, on October 13–6, 2006.1 The unfair
labor practice charge was filed by United Steelworkers of
America, AFL–CIO, CLC (the Union) on July 7, and amended
on August 15. A complaint was thereafter issued on August 18,
by the Acting Regional Director for Region 13 of the National
Labor Relations Board (the Board) alleging that Industrial Hard
Chrome, Ltd., Bar Technologies LLC (Bar Tech), Fluid Power
Manufacturing, a single employer (herein the Respondent), had
violated Section 8(a)(1), (3), and (5) of the National Labor
Relations Act (the Act).
Specifically, the complaint alleges that the Respondent vio-
lated Section 8(a)(1) of the Act by threatening employees with
discharge because they engaged in union or other protected
concerted activity; by telling them they did not have union
representation, and by engaging in unlawful surveillance of
their union activities. It further alleges that the Respondent
violated Section 8(a)(3) and (1) by verbally, and thereafter in
writing, terminating several employees who walked off the job
to protest their mistreatment by Daniel Bustamante, an admitted
supervisor and agent of the Respondent. Finally, the complaint
alleges that the Respondent violated Section 8(a)(5) and (1) of
the Act by unilaterally, and without prior notice to the Union,
implementing an Employee Assistance Program.2 In a timely-
filed answer, the Respondent has denied the above-complaint
allegations.
All parties at the hearing were afforded a full and fair oppor-
tunity to be heard, to present oral and written evidence, to ex-
amine and cross-examine witnesses, and to argue orally on the
record.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Respondent, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
The Respondent is an Illinois corporation with an office and
place of business in Geneva, Illinois, where it is engaged in the
business of manufacturing of industrial products for use in hy-
draulic systems. During the past calendar year, a representative

1 All dates are in 2006, unless otherwise indicated.
2 The Union was certified on April 21, 2005, as the exclusive collec-
tive-bargaining representative of the following employees of the Re-
spondent:
All full-time and regular part-time production and maintenance em-
ployees employed by the Employer (Industrial Hard Chrome Ltd., Bar
Technologies, LLC, and Fluid Power Manufacturing) at its facilities
currently located at 501 Fluid Power Drive, Geneva, Illinois; but ex-
cluding all other employees, office clerical employees, and guards,
professional employees, and supervisors as defined by the Act.
period, the Respondent purchased and received at its Geneva
facility goods and services valued in excess of $50,000 from
points located outside the State of Illinois. The Respondent
admits, and I find, that it is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act, and
that the Union is a labor organization within the meaning of
Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Factual Background
1. The Employee Assistance Program (EAP)
The Respondent has three operational divisions at its Geneva
facility—Industrial Hard Chrome (IHC) and Fluid Power
Manufacturing, both of which are situated in the same building,
and Bar Technologies, located in an adjoining facility. Bar
Technologies’ function is to acquire the raw material needed
for its production process from steel mills and grind and con-
vert it into round steel shafts. The steel shafts are then sent to
IHC where it is hardened and plated or polished, and sold in
such fashion to clients of Respondent, or sent to Fluid Power
where it is cut or machined to meet a customer’s particular
specifications.
Fred Parker is the Respondent’s superintendent and general
manager and has overall responsibility for its operation. Rich-
ard Peterson is vice president of production in charge of opera-
tions and manufacturing; James Segerson is vice president of
sales and marketing; Bruce Busse is Respondent’s plant man-
ager; and Daniel Bustamante a first-shift supervisor. Betty
Axelsen is employed in human resources, although the record
does make clear what her position is in that department.
The Respondent and the Union began contract talks follow-
ing the Union’s certification in April 2005. At the outset, the
Union’s bargaining committee consisted of Union Representa-
tives Mark Trone and Alfredo Martinez, and included employ-
ees Paris Figueroa, a second-shift machine operator with IHC,
Jesus Salgado, a Bar Tech employee, and Luigi Saballa. When
Saballa was terminated in June 2005, he was replaced on the
committee by Steve Swanson, a Bar Tech maintenance em-
ployee.
At some point during the negotiations, sometime in early
March according to Trone, the parties began addressing the
various company policies in effect, one of which was its drug
and alcohol policy. On March 3, Parker sent Trone an e-mail
containing a copy of the Respondent’s policy statements and
plant rules as attachments. On receipt of the documents, Trone
reviewed the drug and alcohol policy that came as an attach-
ment, and found that the Respondent did not have an “em-
ployee assistance plan” (EAP) for employees. During a March
13 bargaining session, Trone asked Parker if the Respondent
had an EAP program for employees, and described to him the
benefits of such a program. Parker answered that the Com-
pany’s health insurance program addressed such employee
issues and indicated that he did not favor instituting an EAP
program.
Trone testified that the next time the EAP program was
raised as an issue occurred following a fatal employee accident
at the facility on May 31. Trone recalls that on May 31, he was
INDUSTRIAL HARD CHROME, LTD. 301
involved in contract talks with another company when he re-
ceived a phone call from Parker informing him of the accident.
As negotiations were scheduled for June 1, Trone asked for a
postponement of the negotiations in light of the accident, and
Trone agreed. The next bargaining session was scheduled for
June 8, but a few days before June 8, Trone received a call from
Parker again asking for a postponement because the accident
was still fresh in the minds of employees. In the days following
the accident, the Respondent called in crisis counselors from
TriCity Family Services, a county agency, to help employees
cope with the death of their fellow coworker.
On June 13, Trone received an e-mail from Parker reminding
Trone about a proposed meeting scheduled for June 23. In his
e-mail, Parker told Trone that as a result of the accident, the
Respondent realized it did not have a “formal” EAP program in
place, and that it had, consequently, discussed and agreed to
have TriCity Family Services launch an EAP program for em-
ployees that same week. A copy of the agreement entered into
between the Respondent and TriCity Family Services that same
day, June 13, was received into evidence as General Counsel’s
Exhibit-14. In his memo, Parker admits being advised by legal
counsel that the EAP program was a matter that needed to be
negotiated with the Union, but that because of the Company’s
“need for the program and the critical timeliness, we are confi-
dent the Union will not have an issue.” (GC Exh.-2). Trone
testified that at no time before implementing the EAP program
did the Respondent ever inform him or the Union of the Kane
County agency referred to by Parker in his memo, nor had it
notified the Union of the services that would be available to
employees under the program. Trone replied to Parker’s e-mail,
and sent Martinez a copy, advising that either he or Martinez
would be available to meet on June 23. (Tr. 377–378; GC Exh.-
2.) On June 14, employees were informed of the EAP program
via a memo from Parker (GC Exh.-16), and orientation sessions
were held that day.
A bargaining session was held on June 23, which Martinez,
but not Trone, attended. At this meeting, Parker gave Martinez
a brochure and related information about the EAP program, and
told Martinez that the Respondent had instituted the program as
result of the industrial accident. Martinez did not comment on
the EAP program, and simply told Parker that he and his com-
mittee members would look it over and furnish a copy to Trone.
Further, in response to a prior proposal from the Union, Parker
provided Martinez at this meeting with a counterproposal that,
inter alia, called for the establishment of an EAP for employ-
ees, this despite the fact that the Respondent had already con-
tracted with TriCity for the implementation of such a program
more than a week earlier, on June 13. (Tr. 337–339; see GC
Exh.-18 at p. 28.) The parties agreed to meet again on June 26.
Later that day, Martinez called Trone to update him on what
had occurred, informed him of the EAP literature, and men-
tioned that Parker had stated that the EAP program had been
implemented. Trone recalled speaking with Martinez, and
feeling shocked on hearing that the Respondent had gone ahead
and implemented the EAP program because the Respondent
had not bargained with the Union over it. Trone received the
EAP literature from Martinez on the morning of June 26, before
the scheduled bargaining session. At the June 26 meeting,
Parker asked Trone, who was in attendance, if he had had a
chance to read the EAP literature he had given Martinez. Trone
answered he had not as he had just gotten it that morning. As
of the hearing date, the parties had not yet reached agreement
on an initial contract. Trone admits that the Union has not of-
fered a counterproposal to the EAP language in the Respon-
dent’s proposal contained in General Counsel’s Exhibit 18.
2. The work stoppage
The record reflects that the Respondent maintained two work
shifts, from 6 a.m.–6 p.m., and from 6 p.m.–6 a.m. Employees
in each shift received four 15–minute break periods, the start
and end of which were signaled by the sound of a bell. (See R.
Exh.-7.) Several employees testified as to the practice regard-
ing the break periods. Figueroa, a machine operator on the
second shift at IHC, testified that employees usually began
heading toward the break area some 2 to 3 minutes before the
break bell rang in order to wash up. (Tr. 26). Heraclio Arizaga,
also a machine operator on the second shift at IHC, similarly
testified to leaving for break a few minutes before the bell rang
in order to use the washroom, but that he did not do so that
often. He further testified that at no time before June 23, was
he spoken to or told to stop his occasional practice of leaving
for break before the break bell rang. (Tr. 108.) IHC machine
operator, Eduardo Nava, testified that he and others had been
leaving for break to wash up five minutes before the break bell
rang ever since November 2004, when he first began working
for Respondent. (Tr. 278).
Bustamante became a supervisor on the second shift in May
2005. During his tenure, Bustamante was reassigned from
second shift to the first shift, and then back to the second shift
on Monday, June 19. On returning to the second shift, Busta-
mante supervised some 14 employees. He contends that from
the first day back to the second shift, he noticed that employees
were returning from their breaks after the bell had sounded for
them to return. He explained that the policy regarding breaks
was that employees were to take no more than 15 minutes for
their break periods. However, he also testified that during his 1
year as supervisor on the second shift, he frequently observed
employees leaving for break “a couple of minutes” before the
break bell rang, but never disciplined any employee for these
alleged infractions of the rule. Bustamante claims that at no
time during his 1 year as supervisor did he ever observe any
first-shift employees leaving early for, or returning late from,
their scheduled 15-minute breaks, and that it was the second-
shift employees who engaged in the conduct (Tr. 397–398,
425).
Bustamante claims he told the second-shift employees that
first day back on second shift that they were taking too long on
breaks and that they were not to take anything more than 15
minutes for their breaks. He testified that while he had not
made much of the fact that employees had, in the past, left a
few minutes early and returned a few minutes late from their
breaks, it was only after these few minutes were lengthened to
about 5 minutes that he decided to begin a stricter enforcement
of the 15-minute break period. (Tr. 427, 429.) The employees,
however, continued the practice of going on break a few min-
utes early and returning a few minutes later from breaks for
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD302
several more days. On Thursday, June 22, Bustamante claims
he again spoke to the employees and cautioned that he would
issue written warnings to them if they continued with the prac-
tice. On Friday, June 23, presumably after noticing that em-
ployees had not heeded his warning, Bustamante prepared writ-
ten warnings to be issued to all second-shift employees. Before
doing so, he discussed the matter with Busse on the following
Monday, June 26, who agreed that Bustamante should proceed
with the warnings. (Tr. 399.) Busse signed off on the warnings
(See R. Exh.-8). Attached to the warnings was a memo pre-
pared by Busse on June 26, and posted next to the employee
timeclock, explaining the break policy, advising that it had
come to his attention that employees were not adhering to the
policy, that they should consider the memo to them as a warn-
ing, and cautioning that they could face “further disciplinary
action, up and including termination” if they disregarded the
warning and continued with their practice. In all, some 12 em-
ployees had written warnings prepared on them.
Bustamante contends that when he tried to distribute them to
the affected employees, the latter refused to sign or accept the
warnings. For example, he explained that when he tried to give
employee Paulo Lazarini the warning, Lazarini declined to
accept it, claiming that it was unfair. Lazarini, according to
Bustamante, then called other employees who gathered around
Bustamante’s workstation. Bustamante then told the other
employees that since they were already present he would give
them their warnings also. The employees, however, declined to
accept them and asked to speak with Busse. The employees
accused Bustamante of trying to intimidate them and of being
unfair, and insisted on speaking with Busse. Bustamante then
called for Busse, and learned that he was in Axelsen’s office.
When he contacted Axelsen, he asked her to send Busse, along
with Parker, down to speak with the employees. (Tr. 405.)
Busse arrived some 5 minutes later, accompanied by Parker.
On meeting with the employees, Busse reminded employees
of the 15-minute break policy. According to Bustamante, sev-
eral employees complained that he (Bustamante) was not being
fair, and was simply trying to intimidate and pick on them by
issuing them warnings. Busse purportedly replied that rules are
rules and must be followed. The employees also told Busse
that Bustamante was disrespectful to them, and when Busse
asked how the latter was being disrespectful, one employee
replied that Bustamante regularly told them he was the boss and
could do whatever he wanted. Busse purportedly told employ-
ees they had elected a union to represent them, and that if they
had a problem they should have the Union discuss their con-
cerns with him and Parker. Busse then agreed not to issue the
warnings, but instructed employees that they were not to abuse
the break privilege by exceeding their 15-minute break period.
The employees agreed they would honor the policy and re-
turned to work. (Tr. 406–407.)
Parker gave a similar account. He recalls being present
when Busse spoke to the employees. Busse, he explained, told
employees during that encounter about the 15-minute break
policy and that warnings had indeed been prepared for them.
He contends that employees began complaining that Busta-
mante was treating them unfairly regarding the break periods,
but Busse reminded them that this was the rule, and that if they
had a problem with it, they should take it to the Union that they
selected to represent them. At that point, Busse looked at his
watch and remarked that the employees had already taken up
45 minutes of his time and that they should now return to work.
The employees complied.
The following day, June 27, an incident occurred between
Bustamante and Arizaga. Arizaga was supervised by Busta-
mante from the start of his shift at 6 p.m. until midnight, and by
Supervisor Ben Campos from midnight to 6 a.m. Arizaga testi-
fied that on June 27, he arrived for work at 5:45 p.m. and went
directly to his locker to retrieve his steel-toed shoes and waited
for the bell to ring announcing the start of the shift. When the
bell sounded, Arizaga, as was the practice, walked to Supervi-
sor Bustamante’s station, accompanied by another employee,
Oscar, to get his earplugs and gloves. Arizaga claims that as he
and Oscar walked by Bustamante, the latter remarked aloud in
Spanish, “There’s a bunch of crybabies, Who is the worst cry-
baby of all?” Arizaga took personal offense at Bustamante’s
remark, believing it was being directed at him, and asked
Bustamante if he intended the remark to be for him, and that if
Bustamante had a problem with him, the latter should let Ari-
zaga know and discuss the matter with him directly without
calling him names. Bustamante, according to Arizaga, replied
that Arizaga knew why Bustamante was calling him a “cry
baby,” to which Arizaga replied that he did not know. Arizaga
claims that Bustamante was, by now, becoming loud and went
on to say that Arizaga should “be a man” and not be “a little
girl,” and that Arizaga should tell the truth and admit that he
knew what Bustamante was referring to. Arizaga claims that he
too began raising his voice and then began walking away,
mumbling under his breath as he did so. Bustamante, believing
that Arizaga had said something about him, angrily approached
Arizaga and asked what he had said. Arizaga responded that he
had not said anything and was simply going to his work station.
Bustamante, he contends, apparently did not believe Arizaga
and, as the latter continued heading towards his workstation,
Bustamante followed him and, in a loud voice, insisted on
knowing what Arizaga had said. When Arizaga answered that
he was going back to his workstation, Bustamante told him,
“You know what, just go home, you’re fired because with your
little attitude, I can’t take it.”
At one point during their exchange, Bustamante, according
to Arizaga, bumped his chest into Arizaga’s chest, which Ari-
zaga took as a threat and prompted him to back away from
Bustamante. Arizaga then turned to several employees who
were nearby and commented that Bustamante was firing him
for no reason. Bustamante responded by saying that he could
fire any “dumb asses” that he wanted to. Arizaga took offense
at Bustamante’s description of him as a “dumb ass,” and
headed towards the timeclock. He contends that as he was
heading to the timeclock, employee Nava and other employees
approached and asked him not to clock out, that they had had
enough and wanted to speak with someone higher up in man-
agement than Bustamante. At some point, Bustamante alleg-
edly approached Arizaga again near the timeclock, and got real
close to him, enough so that, according to Arizaga, he could
feel Bustamante spraying him with saliva as he told Arizaga
that the latter would remember Bustamante as he was going to
INDUSTRIAL HARD CHROME, LTD. 303
make sure Arizaga got fired. (Tr. 118–120.) Arizaga claims
that employee Nava was nearby and would have heard Busta-
mante’s remark. Arizaga claims he did not respond, and that, a
short while later, quality control employee Phanvilay Sundara,
known to employees simply as Hit and apparently a friend of
Bustamante,3 came over and pulled Bustamante aside to speak
with him. Arizaga claims that following “Hit’s” conversation
with Bustamante, the latter returned a short while later and
appeared calm. According to Arizaga, Bustamante, in a calm
voice, told employees he was giving them 5 minutes to return
to work. Arizaga assumed it meant he too was to return to
work, although he still believed he had been fired. Figueroa,
however, purportedly told Bustamante that they were not re-
turning to work until they spoke with someone with more au-
thority than Bustamante.
Arizaga contends that not long afterwards, as Bustamante
passed by him presumably on his way to the restroom, he again
called Arizaga a “cry-baby” or “cry-girl” or something to that
effect, and that, while he did not respond for fear of further
provoking Bustamante, Hit, who apparently overheard Busta-
mante, commented to another employee named Gino Velasquez
that this was not how a supervisor should react to an employee.
(Tr. 125.) After that exchange, he and the other second-shift
employees went outside the facility and sat around some
benches in the break area to wait for some higher-management
official to come and speak with them.
Figueroa claims he witnessed some of what occurred be-
tween Arizaga and Bustamante that day. Thus, he testified that
he was walking behind Arizaga and overheard the two arguing
loudly. He contends that at one point during their exchange,
Arizaga told Bustamante, “If you have the balls, tell it to my
face if you are talking about me,” and Bustamante replied,
“Yes, I’m talking about you, and you know what I am talking
about.” (Tr. 30.) This exchange continued until Arizaga told
him he was going to his workstation and began walking away.
As he did so, Bustamante, believing that Arizaga had said
something about him, approached Arizaga and asked what he
had said under his breath. Arizaga answered that he had only
commented that he was returning to work, but Bustamante
refused to accept his answer and insisted on knowing what, if
anything else, Arizaga might have said. Figueroa claims that at
this point, Bustamante got up close to Arizaga, about 1 inch
away, and told the latter that he would fire him during the
weekend and threatened that Arizaga would not be there tomor-
row. When Arizaga asked why he wanted to fire him, Busta-
mante answered only, “You know why.” According to Figue-
roa, this latter exchange was provoked by Bustamante. Figue-
roa claims he tried to convince Bustamante to discuss the mat-
ter with Busse the following day and not to fire Arizaga.
Bustamante, however, did not respond to Figueroa’s sugges-
tion.
In the interim, employees began gathering around and one
employee, Porfirio Huerta, told Figueroa in Spanish, which the
latter translated to Bustamante in English, that the employees

3 Hit, an inspector at the facility, testified that he and Bustamante of-
ten had lunch together and that he considered himself Bustamante’s
friend (Tr. 240–241).
wanted to speak with the owner, and that if they were not al-
lowed to speak with the owner, the employees would walk out.
Bustamante purportedly told employees that no one was going
to come or would listen to them, and that, if they walked out,
they would all lose their jobs. Figueroa explained that, in
threatening to walk out, employees were reacting to Busta-
mante’s treatment of Arizaga and to what they perceived to be
Bustamante’s general mistreatment of employees. He re-
counted how employees disapproved of Bustamante’s regular
practice of threatening them with discharge if they did not do as
he asked. (Tr. 34–35, 39.) On hearing Bustamante’s threat, the
employees, totaling about 18 in number, walked away and con-
gregated around the timeclock for some 15 minutes. Busta-
mante then came over and told employees that Parker would be
coming to speak with them. Employees at that point exited the
building and went over to the break or picnic area to wait for
Parker. Figueroa, like Arizaga, recalls seeing Hit on several
occasions trying to calm down Bustamante.
Hit confirmed Arizaga’s and Figueroa’s testimony. Thus, he
testified to witnessing an exchange between Bustamante and
Arizaga as the latter was walking to his work station, saw
Bustamante get real close to Arizaga to the point where Busta-
mante’s chest touched Arizaga’s shoulder, and heard Busta-
mante tell Arizaga in a loud voice, “Be a man, don’t be a
woman, tell me the truth.” Hit pulled Bustamante aside, asked
him what was doing, and then tried to calm him down. Busta-
mante, he contends, told him that Arizaga had said something
and he wanted to know what it was. When Bustamante tried to
go back to Arizaga, Hit pulled him back and, in the presence of
employee Gino Velasquez, told Bustamante, “Relax, okay, your
temper is [getting] higher and higher.” Bustamante again ex-
plained that Arizaga had said something to his coworker, Oscar,
but that he, Bustamante, believed it was really directed at him
and he wanted to know what it was Arizaga had said. Busta-
mante, according to Hit, admitted that Arizaga had not said
anything to him directly. Hit then offered to go talk to the em-
ployees to encourage them to return to work, but Bustamante
stated that they were waiting for Parker or Petersen to come and
talk to them, but that he did not believe either would come as it
was too late in the day. According to Hit, Bustamante’s temper
again flared up and he told Hit to go tell the employees, who
Bustamante described as a “bunch of fucking crying baby and
one fucking woman,” to return to work and he would forget
what happened. Hit again tried to calm Bustamante, and asked
Velasquez if he had heard what Bustamante had said about the
employees, and the latter replied he had. Hit then left to ask
Arizaga what had transpired. Bustamante, however, ap-
proached Hit and instructed him to return to work because
Parker and Petersen were coming, and if they found Hit with
the group, they would fire him. Hit agreed and returned to
work. At one point during this entire exchange, Hit recalled
Bustamante telling Arizaga that he should return to work or he
will be fired. He further recalled another incident Bustamante
had with another employee, Luigi, about a year earlier (the
“Luigi incident”), during which Bustamante began yelling at
Luigi to return to his workstation or he would be fired. Hit
contends that during that earlier incident, he again had to calm
down Bustamante. (Tr. 242–244, 247–248, 250.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD304
Bustamante, not surprisingly, gave a somewhat different ver-
sion of the incident with Arizaga. He testified that as Arizaga
and his coworker Oscar passed by his supervisory workstation,
Arizaga commented aloud to Oscar, “Those damn tattle-tale,
crying women, they always got to do it.” On hearing this,
Bustamante remarked, “Yeah, yeah, you’re right, you know,
those damn, tattle-tale women, they always got to do it.” Ari-
zaga, he contends, turned to him and said, “[I]f you have some-
thing to say, go ahead and say it,” to which Bustamante replied,
“You know what you are saying.” Arizaga then asked Busta-
mante, “Did I say your name?,” and Bustamante replied, “No,
but I know you are talking about me, so cool it.” Bustamante
claims that Arizaga began arguing with him at that point, and
that he too began to argue with Arizaga, but that he soon there-
after told Arizaga to go back to work, and the latter complied.
Bustamante, however, contends that as he was returning to
work, Arizaga, called him a “fucking dude.” When he asked
Arizaga to repeat what he had said, Arizaga answered he had
said something else, and did not mean it, at which time Busta-
mante allowed him to return to work.
Bustamante claims that after Arizaga left for his workstation,
other employees gathered around him and began complaining
that he was picking on Arizaga. Arizaga, he contends, returned
seconds later and Bustamante told him, “I thought I just sent
you to your work station.” Arizaga answered that he wanted to
be part of the meeting, and Bustamante replied that he had not
called any meeting and that none was taking place. Arizaga
purportedly replied that he was going to stick around anyway.
Bustamante then directed Arizaga to return to work and if he
didn’t, he was going to send Arizaga home. Arizaga asked,
“Oh, are you firing me?,” and Bustamante answered he was
not, but that he would send Arizaga home if he refused to return
to work. Bustamante claims that while he has authority to sus-
pend an employee for a day for breaking company rules, he
lacks authority to fire anyone. (Tr. 409.) There is, however, no
evidence to suggest that employees knew that Bustamante
lacked such authority.
Bustamante contends that Arizaga then began, and thereafter
continued, arguing with him, at which point he directed Arizaga
to go home and to return the following day and speak with
Busse. Arizaga purportedly turned to the other employees and
told them, “You guys saw it, he fired me, you guys are my
witnesses.” (Tr. 411.) Arizaga then began heading towards the
timeclock, followed by Bustamante. As they did so, other em-
ployees followed them, explaining to Bustamante that they too
were going along because Bustamante had been picking on
Arizaga and that, tomorrow or some other day, it might be one
of them that gets picked on by Bustamante (Tr. 411). Busta-
mante purportedly told the employees to return to work, that
this was between him and Arizaga, but the employees re-
sponded, “No, this has to do with all of us, we’re not moving
[or] going back to work until you call Parker or Busse.”
Bustamante told employees he was not going to call either of
them because employees had already spoken to Busse the day
before, that there was nothing more for either Parker or Busse
to say to them, that they should return to work, and that they
risked losing their jobs if they did not do so. (Tr.434–435.)
Instead of returning to work, the employees left the facility and
congregated outside in the break or picnic area situated between
IHC and the Bar Tech facility. Bustamante admits becoming a
little angry or irritated during this incident, but denies that he
became very angry or explosive. He does, however, admit that
Hit tried to calm him down by telling him to “cool it” as em-
ployees began heading towards the timeclock with Arizaga.
(Tr. 412.)
I credit Arizaga and Figueroa over Bustamante and find that
it was the latter who provoked an argument with Arizaga by
calling him a “cry-baby” as the latter went to Bustamante’s
workstation to obtain his equipment and supplies. By either
Arizaga’s or Bustamante’s account, it is clear that it was
Bustamante who interjected himself into a conversation Ari-
zaga was having with a fellow employee. Bustamante, accord-
ing to his own account, simply assumed Arizaga was referring
to him when the latter purportedly made the “crying women”
comment to a coworker, and initiated the argument that ensued
by accusing Arizaga of talking about him. Thus, Bustamante’s
own testimony makes clear that he did not know, and simply
assumed, that he was the subject of the personal conversation
Arizaga was having with his coworker. I do not, in any event,
place any credence in Bustamante’s testimony regarding his
exchange with Arizaga. Bustamante came across as unreliable
and insincere. His claim, for example, that he only became “a
little bit irritated,” or “a little bit aggravated but not angry”
during his exchange with Arizaga, is simply not credible, and is
at odds with Hit’s description of Bustamante as being very loud
and whose temper continued to rise and became very high dur-
ing the incident. Hit, as noted, had to pull Bustamante away on
at least two occasions to try and calm him down. In sum,
Bustamante’s testimony regarding his exchange with Arizaga is
rejected. Bustamante’s depiction of himself as being only a
“bit irritated” is also disputed by employee Nava who credibly
described Bustamante as being “very, very upset,” “very an-
gry,” and “yelling real loud” that he wanted to fire Arizaga. (Tr.
291, 296.) I find, instead, that it was Bustamante who initiated
and provoked the exchange by interjecting himself in Arizaga’s
conversation with his coworker and calling Arizaga a “cry-
baby” or some other inappropriate name. I am also convinced
that, as credibly testified to by Arizaga and Hit, Bustamante, at
one point during his exchange with Arizaga, made physical
contact with Arizaga. The record does not make clear what, if
anything, might have provoked Bustamante to confront Ari-
zaga, but it would not be too far-fetched to surmise that Busta-
mante might have been unhappy with the fact that the warnings
he wanted to issue to the second-shift employees the day before
had been rescinded by Busse. Regardless of the reason for
Bustamante’s provocation of Arizaga, it is clear that it was this
particular incident, which the second-shift employees viewed as
abusive behavior by Bustamante, which prompted employees to
stop working, and to congregate outside in the break area, until
they had a chance to address their concerns about Bustamante
with higher-management officials.
Bustamante claims that, once outside, he told employees that
if they refused to return to work, they would have to clock out
and leave. The employees, however, declined to punch out,
insisting instead that they were staying put until they spoke
with Parker or Busse. Bustamante then went inside to try and
INDUSTRIAL HARD CHROME, LTD. 305
figure out what to do next. He got hold of employee Gino
Velasquez to serve as a witness in the event something else
transpired with the employees. He contends that when he re-
turned to the timeclock area, Arizaga complained that Busta-
mante had pushed him and that he had witnesses to the event.
Other employees present, according to Bustamante, also
claimed to have seen it and that Bustamante could call the po-
lice if he wanted to because he, not them, would get into trou-
ble. Bustamante denied ever touching or hitting Arizaga, but
admits becoming angry and, at one point, standing only about 6
inches from Arizaga. (Tr. 408–409, 414.)
After he and other employees left the facility and gathered in
the break area, Figueroa called Union Representative Martinez
to report what had occurred between Arizaga and Bustamante
and on what employees were doing. Martinez instructed him to
call the police and report the incident, and agreed to go to the
facility. Martinez confirmed receiving a call from Figueroa
complaining that things were heating up rapidly at the facility,
and that Bustamante was harassing employees and had as-
saulted an employee. Martinez told Figueroa he would be at
the facility in about 45 minutes. Martinez received a second
call from Figueroa while on his way to the facility during which
Figueroa identified Arizaga as the employee who had allegedly
been assaulted and mentioned that employees were milling
around in the company parking lot. While waiting for Martinez
to arrive, Figueroa went to the Bar Tech facility and notified
Jesus Salgado, another union representative, of what was tran-
spiring. Salgado agreed to join him and the other employees in
protesting Bustamante’s conduct. According to Salgado, when
Figueroa told him how Bustamante had purportedly pushed or
bumped Arizaga in the chest, he immediately thought back to
the “Luigi incident” which also involved what he and other
employees viewed as their alleged mistreatment by Busta-
mante. Martinez arrived a short while later and observed two
local police officers—officers Burton and Olson—at the facility
and Figueroa being escorted out of the facility by Parker and
Busse.
In the meantime, Bustamante, following his encounter with
Arizaga and the employee walkout, notified Busse at home and
informed him of what was going on. Busse told Bustamante to
hold everything at bay if he could, that he was on his way to the
facility, and to notify Parker and call him back after doing so.
Bustamante then called Parker as instructed and, after doing so,
called Busse again. Busse, Parker, and Peterson, who was
called by Parker, arrived some 30 minutes later. On their arri-
val, Bustamante told the managers about the incident between
himself and Arizaga. He told them that Arizaga had returned to
work after being instructed to do so, that employees neverthe-
less remained and began gathering around his workstation, and
that Arizaga then joined the employee group and refused to
return to work when instructed to do so.
Parker recalls Bustamante telling him that Arizaga had been
told that he would have to clock out if he did not intend to re-
turn to work. Matters apparently escalated at that point, ac-
cording to Parker’s version of what Bustamante told him, and
employees then walked out. Bustamante purportedly told
Parker that it was after the walkout that Arizaga began to ac-
cuse Bustamante of pushing or shoving him. Bustamante de-
nied to Parker, Busse, and Peterson ever pushing Arizaga.
Neither Parker, Busse, or Peterson, however, questioned Ari-
zaga about the incident or bothered to ascertain his side of
story. Busse recalls Bustamante saying that the incident began
when Arizaga called Bustamante a “dirty name or something,”
as he walked by Bustamante on his way to his workstation.
Bustamante could not recall what purportedly was said by Ari-
zaga to Bustamante. Bustamante allegedly told Busse that after
some words were exchanged, Arizaga returned to work as in-
structed, but that employees then gathered around his (Busta-
mante’s) workstation, told Bustamante that if Arizaga was be-
ing sent home then they too would be leaving, and then went
outside and gathered around the break area. (Tr. 598.)
Parker then went out to meet with the employees and ob-
served officers Burton and Olson were already present. Be-
cause of his lack of proficiency in Spanish, and to avoid any
possible misunderstanding, Parker brought another employee,
Jorge Ortega, to serve as his interpreter when he addressed
employees, many of whom spoke little English. On seeing the
police officers, Parker approached them and asked why they
were there. One of them replied that they had received a com-
plaint about a “battery” having been committed. Parker told the
police officers that the employees were engaged in a work
stoppage, and asked if he needed to speak to the group. The
police officer replied he only wanted to speak to the two indi-
viduals involved. Bustamante and Arizaga were then taken
aside by the police officers, and Parker proceeded to address
the employees who were some 10–12 feet away. Using his
interpreter, Parker claims he told employees that they were
engaged in an unauthorized work stoppage,4 and that if they did
not return to work they would be in danger of losing their “po-
sitions and benefits.” Receiving no response from the employ-
ees, Parker contends he repeated his admonition to employees
to return to work or risk being fired. When employees failed to
respond, Parker then turned to Figueroa and asked if he in-
tended to return to work. Figueroa, he contends, replied that he
would be returning to work, but not at that moment. Peterson
recalls that Figueroa answered, “Yes,” when asked if he was
returning to work, but did not move. Not satisfied with Figue-
roa’s response, Parker asked him again and Figueroa replied
that he was not returning to work. (Tr. 521–522.) According to

4 Parker initially testified to telling employees that they were en-
gaged in an “unlawful” work stoppage. He then corrected himself and
claimed he actually told employees the walkout was “unauthorized”
rather than “unlawful.” His testimony in this regard is contradicted by
Ortega who, as noted, served as Parker’s interpreter during the June 27
incident. Thus, called as a witness by the Respondent, Ortega claims
that Parker actually told employees that they were “participating in an
unlawful work stoppage.” (Tr. 574.) I credit Ortega and find that
Parker, for whatever reason, possibly to make what he told employees
seem more palatable at the hearing, altered his account of what he in
fact said to employees that evening. Parker contends that some months
prior to this incident, he had heard rumors about a possible walkout by
employees, and that he had decided that if such a walkout did occur, he
would tell employees that they were engaged in an “unauthorized”
work stoppage and risked termination if they did not immediately re-
turn to work. Parker explained that he considered any work stoppage,
including one involving a protest over a protected activity, to be “unau-
thorized.” (Tr. 521, 546–547.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD306
Peterson, Figueroa replied, “No, not yet,” when asked by
Parker the second time to return to work. Busse claims that
when Parker asked Figueroa if he was returning to work, Figue-
roa replied, “No, I’m not going back to work.” (Tr. 604.)
Busse’s assertion in this regard contradicts both Parker’s and
Peterson’s testimony, as well as Figueroa’s own claim, that the
latter stated his intent to return to work but not right away as he
was waiting for Martinez to arrive. Busse’s contrary descrip-
tion of what Figueroa said is rejected as fully contrived and not
credible.
Busse testified that he fired Figueroa when the latter said he
was not returning to work, and that, when Figueroa declined to
leave, he (Busse) notified the police officers that Figueroa was
no longer employed at the facility and was refusing to leave.
The police officer then instructed Figueroa that he would have
to leave or he could be charged with trespassing. Figueroa got
up and left, followed, with some exceptions, by the employees
who were gathered around. Parker and Peterson both admit
that, unlike Bustamante, who was allowed to give his version of
what led up to the work stoppage, employees, including Ari-
zaga, were not afforded that opportunity. (Tr. 494, 545–546.)
Busse further admitted that after Figueroa was told he was
fired, neither he nor any of the other managers present told
employees that they could still return to work. (Tr. 616.)
Figueroa claims that Parker then addressed the employees
gathered in the break area and instructed them to listen because
he only wanted to say this one time. Parker asked employees if
they were going to return to work. Receiving no responses,
Parker turned to Figueroa and asked the latter if he was going
back to work. Figueroa replied that he was waiting for Union
Representative Martinez to show up. Parker again asked Figue-
roa if he was returning to work, and Figueroa replied that he
was but that he was going to wait for Martinez. Figueroa con-
tends that Parker asked him a third time if he was returning to
work, and that he again answered that he was but that he was
first going to wait for Representative Martinez. Parker then
told Figueroa, “You have no Union representative” and, point-
ing to the street, instructed Figueroa that he was fired. Figueroa
claims that Peterson and Busse likewise informed him he was
fired. (Tr. 49–51.) Hit likewise recalled Parker telling Figue-
roa, when the latter said he was waiting for his union represen-
tative to arrive, that Figueroa had no union representative. (Tr.
253.)
Salgado similarly recalled Parker addressing employees, tell-
ing them that he was only going to say this once, and that if
employees did not return to work, they would be fired. He
further recalled Parker telling Figueroa, in response to the lat-
ter’s insistence that he was going to wait for his union represen-
tative, Martinez, to arrive, that “[y]ou don’t have a union repre-
sentative,” and firing Figueroa when the latter refused to return
to work immediately. (Tr. 183.) Salgado claims that a short
while later, Peterson turned to him and likewise warned
Salgado that he too would be fired if he did not return to work.
(Tr. 184.) When Salgado replied that he and the others were
waiting for Martinez to arrive and solve the problem, Peterson
smiled and said that Martinez was not allowed on company
property, and reiterated that Salgado would be fired if he did
not return to work. Salgado claims that a short while later, the
police officers approached the group of employees and told
them they were no longer allowed on Respondent’s property
and would have to leave. (Tr. 184, 187.) Peterson claims not to
have said anything to the employees that night, denying implic-
itly Salgado’s assertion that he told Salgado he would be fired
if he did not return to work and that Martinez was not permitted
on company property. (Tr. 478–479.) Peterson, however, did
claim that the Union was not allowed on company property, a
claim Parker disagreed with (Tr. 496, 548).
I credit Figueroa and Salgado over Parker and Peterson.
Parker, it should be noted, was never asked to admit or deny
Figueroa’s claim of being told by Parker that he had no union
representation. Thus, I find that Parker indeed told Figueroa,
when the latter said he was waiting for his union representative
to arrive, that he, Figueroa, had no union representation.
Unlike Parker, Peterson, as indicated, implicitly denied the
statements attributed to him by Salgado by claiming that he
never spoke to any employees, including presumably Salgado,
during the encounter that evening. Peterson’s overall testi-
mony, including his denial of Salgado’s claim, was not very
convincing. Peterson’s testimony on whether union representa-
tives were allowed on company property was, as noted, directly
challenged by Parker who, when told about Parker’s claim,
averred that Peterson’s testimony on this matter was “not cor-
rect.” I found Salgado’s testimony more reliable and trustwor-
thy, and believe that Peterson did in fact speak to Salgado that
evening by telling him he would be fired if he did not return to
work, and, when told by Salgado that he and others were wait-
ing for Union Representative Martinez to arrive, replied that the
Union was not allowed to come onto the Respondent’s prop-
erty.
As noted, after being discharged, Figueroa told Parker and
the other management representatives that he was nevertheless
going to wait at the facility for Martinez to arrive. Parker, how-
ever, walked over to the police officers and informed them that
Figueroa had been fired and could not remain on the premises.
One of the officers, Figueroa did not recall which, then notified
him that he could not remain as he had been fired, and would
have to leave. Figueroa at that time went to the facility, re-
trieved his belongings, and left. Martinez arrived soon after
Figueroa dropped off his personal belongings in his vehicle.
Figueroa explained to Martinez that he had been fired. Both
then situated themselves across the street, off the Respondent’s
property. They were joined soon thereafter by the other sec-
ond-shift employees.
Bustamante claims that after Busse and Parker arrived, all
three, along with Petersen, headed towards where the employ-
ees were and, on arriving, observed officers Burton and Olson
present. Officer Burton approached Bustamante and told him
Arizaga was accusing him of battery. Bustamante denied doing
so. Officer Burton, he contends, then asked Arizaga if he
wished to press charges against Bustamante, but Arizaga said
he did not, and simply wanted Bustamante to refrain from do-
ing so in the future. The policeman informed Bustamante that
Arizaga was not pressing charges, and that Bustamante was not
to push Arizaga. Bustamante replied, “Okay.” (Tr. 418.)
Bustamante contends that soon after this discussion with of-
ficer Burton, Petersen approached Arizaga and asked what he
INDUSTRIAL HARD CHROME, LTD. 307
intended to do. Arizaga, according to Bustamante, turned to
officer Burton and stated that he was being threatened by Peter-
sen and Bustamante. Officer Burton purportedly told Arizaga
that this was not a threat, that Arizaga was simply being told
that he was to be spoken to regarding the incident. Following
this last exchange, Bustamante went inside the facility and
observed employees removing things from their lockers and
preparing to leave the facility. Only two employees—Mark
Batista and a temp employee—remained working in Busta-
mante’s department after the employees walked out.
Arizaga testified as follows regarding his conversation with
officer Burton. When the officers arrived, Arizaga identified
himself as the one who had allegedly been battered. Arizaga
told officer Burton that the incident occurred inside the facility
and proceeded to explain what had occurred and how Busta-
mante had bumped him in the chest. He contends that Parker
approached at one point and had a brief conversation with Bur-
ton which he could not overhear. Parker then went over to talk
to the employees and, at one point, he contends, screamed at
Figueroa, asking if the latter wanted to go back to work. Figue-
roa replied that he did. Parker then instructed Figueroa to re-
turn to his workstation, but Figueroa declined to do so right
away, stating that he was waiting for his union representative to
arrive. Parker again asked Figueroa to return to his workstation
if he wanted to work, but Figueroa again declined to do so until
Martinez arrived. According to Arizaga, both Parker and Busse
at that point pointed to the street and told Figueroa he was fired.
Figueroa purportedly protested to the police officers that he did
not want to leave the premises, but one of them, officer Olson
according to Arizaga, told him he had to leave the premises as
he had been fired. Figueroa left the premises at that point.
The police officers then asked Bustamante for his version of
the incident and, after hearing it, asked Arizaga if he wanted to
press charges against Bustamante. Arizaga claims that Parker,
who apparently was nearby, cautioned Arizaga to think about
what he was going to do. (Tr. 134.) Arizaga did not respond to
Bustamante. He contends that officer Burton then asked if he
intended to stay or to join his coworkers who had walked off
the job. Arizaga replied that he was joining his coworkers. At
that point, Arizaga went to the facility to retrieve his personal
belongings, placed them in his car which was in the company
parking lot, and then returned to the Bar Tech parking lot where
the employees had gathered to decide what to do next. Union
Representative Martinez apparently arrived a short time later.
Arizaga contends that a Bar Tech manager whom he could not
identify approached the group and told him they had to leave
the Bar Tech parking lot as it was company property. Arizaga
and the other employees then left the parking lot and gathered
out to Averil Street, which adjoins company property.
Called as a witness by the General Counsel, officer Burton
explained that he went to IHC to investigate a “battery” com-
plaint. When he arrived, and after identifying Arizaga as the
alleged victim, he was told by Arizaga, through an employee
interpreter, that Bustamante had bumped him in the chest while
he, Arizaga, was speaking with another employee. According
to Burton, the “bumping” occurred while Bustamante and Ari-
zaga were exchanging words and after Bustamante referred to
Arizaga as a baby. Employees, according to what Burton was
told, walked out of the facility in response to the incident. Bur-
ton also spoke with Bustamante, who told him he had ex-
changed words with Arizaga, had called him a baby because he
was out of his work area, but denied ever bumping into Ari-
zaga. At one point during his conversation with Bustamante,
three individuals wearing suits, one of whom Burton identified
as Parker, approached and asked Burton what was going on.
Burton replied that he was investigating a complaint of battery
and would get back to them when he was finished. When
Parker asked if he could address the employees while the inves-
tigation was going on, Burton told him he was free to do so as
they were his employees. Parker and the other two suited indi-
viduals walked towards the employees and Burton overheard
him say to the employees several times that they were engaged
in a walkout and would be fired if they did not return to work.
Burton then observed some of the employees head back to-
wards the “main building.” Parker approached Burton a few
minutes later and told him that those employees who had not
returned to work were no longer employed and had to leave the
premises. (Tr. 266–268.) This latter claim by Officer Burton is
corroborated by Salgado who testified to hearing Parker tell
Burton to kick the employees off the property, which Salgado
interpreted to mean that he and the other employees had been
fired. (Tr. 230.)
Officers Burton and Olson then informed the employees who
remained outside that as they no longer worked there, they
would have to leave the premises, and to take the issue up with
their Union. (Tr. 268.) The employees then left after retrieving
their personal belongings from the facility. Burton was unable
to say whether any employee sought to speak with Parker dur-
ing his exchange with the employees, but did recall hearing
Parker tell employees, “It’s too late, you’ve been fired, you’re
done,” or words to that effect. Burton believes that Parker’s
remark was directed at an employee who might have been try-
ing to return to work. No battery charge was ever filed by Ari-
zaga. According to Burton, at one point after his translator left,
Arizaga told him that there had been no physical contact be-
tween him and Bustamante and that he simply wanted Busta-
mante spoken to about his treatment of employees. On further
examination, and after being shown a sworn affidavit he gave
to the Board, Burton recalled that Arizaga did tell him that
Bustamante had brushed up against his chest. Burton also told
Bustamante before leaving that he could not make physical
contact with an employee, that it was a crime, that he could be
arrested for such behavior, and that he needed to treat his em-
ployees better. (Tr. 260, 270, 273–274.)
On the morning of June 28, the day following the Busta-
mante-Arizaga incident and walkout by employees, the first-
shift employees did not report for work but instead took part in
the picketing engaged in by the second-shift employees outside
the Respondent’s facility. Parker testified that he spoke with
Trone on June 28, regarding the walkout and was told by Trone
that the employees were engaged in a protected concerted activ-
ity to protest what they perceived to be the hostile work envi-
ronment created by Bustamante. That same morning, Peterson,
accompanied by Busse, posted a help-wanted sign outside the
Respondent’s facility. (Tr. 489.) According to Peterson, the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD308
Respondent also placed a help-wanted ad in a local newspaper
at around the same time. (Tr. 504.)
Martinez recalls arriving at the facility around 6 a.m. that
day and noticing that the employees were already there milling
around in a corn field across the street from the Respondent’s
facility. Employees began asking Martinez what their status
was and he replied that he did not yet know. The day before,
when the incident first occurred, employees had told Martinez
on his arrival that Parker had fired all of them. As he was chat-
ting with employees, Martinez noticed Busse and Peterson exit
the facility and place a help-wanted sign on the Respondent’s
front lawn. Martinez then approached Busse and Peterson and
asked both of them what was going on, to which Peterson coun-
tered, “You tell us,” explaining that, so far, the first shift had
not shown up. Martinez told Peterson that the first-shift em-
ployees were across the street together with the second-shift
employees protesting over the events of the previous night.
Martinez claims that Peterson then stated that the second shift
had been fired and that the first shift was extremely late and
would be assessed points for being late or absent. As to the
second-shift employees, Peterson, according to Martinez, ex-
plained that they had been fired for “acting as a mob” and for
“trying to dictate to the company who they were going to have
as a supervisor on the second shift.” (Tr. 353.) He told Marti-
nez that employees were jealous of Bustamante and that the
entire event of the night before had been orchestrated by em-
ployees. Martinez responded that if the Company rescinded its
actions of the previous night and reinstated the employees, he
could try to persuade them to return to work. Peterson, Marti-
nez contends, simply answered that the first shift was extremely
late and would be assessed points, but that the second shift had
been fired.
Peterson recalls speaking with Martinez soon after posting
the help-wanted sign. He recalls Martinez mentioning that
Parker had fired “everyone” the night before, and that he told
Martinez that only one employee had been fired and that the
other employees had walked off the job. When Martinez of-
fered to persuade employees to return to work if the Company
rescinded the firings and made employees whole, Peterson
reiterated that only one employee had been fired and that the
rest had walked off their jobs. Petersen testified that, as far as
he knew, the first-shift employees were only late in reporting
for work and could have returned to work if they wanted to.
Asked if the second-shift employees could have done so, Peter-
son answered that they too could have returned to work at that
point in time. However, when asked why the help-wanted sign
was posted if no employee, with the exception of Figueroa, had
not been terminated, Peterson replied, unconvincingly, that the
sign was posted because the Respondent did not know what
was going on. He explained that with the first-shift employees
not showing up for work on June 28, and the second-shift em-
ployees walking out the night before, the Respondent had no
idea what was going on but nevertheless needed to continue
operations.
Busse gave similar testimony regarding the exchange he and
Peterson had with Martinez on the morning of June 28 as the
help-wanted sign was being posted. Thus, he testified that
Martinez approached them and asked what was going on, and
that Peterson answered he did not know. Martinez, he con-
tends, told Peterson that the Respondent had fired all the em-
ployees the night before, and Peterson purportedly replied that
it wasn’t true, that only one employee, Figueroa, had been
fired. Martinez replied that the Respondent had a hostile work
environment at the plant, to which Busse purportedly replied
that it was the employees who had created the hostile work
environment by not following the rules, that it was the supervi-
sors’ job to manage the employees and enforce the rules. (Tr.
608.) Neither Peterson nor Martinez made any mention in their
respective versions of their June 28, exchange about Busse
making any such comments or remarks.
I credit Martinez over Peterson and Busse and find, as testi-
fied to by Martinez, that Peterson told him the second-shift
employees had been fired the night before for refusing to end
their protest of Bustamante’s conduct and not returning to work
after being ordered to do so by Parker. As previously dis-
cussed, officer Burton, a nonpartisan witness with no interest
whatsoever in the outcome of this proceeding, testified, credi-
bly I find, and consistent with Salgado’s recollection, to being
told by Parker on the evening of June 27, that the second-shift
employees who had refused to return to work were no longer
employed and would have to leave the facility grounds. Marti-
nez’ claim, therefore, as to what Peterson and Busse said to him
on the morning of June 28, about the second-shift employees
being fired, is fully consistent with officer Burton’s and
Salgado’s testimony of what occurred the night before. Fur-
ther, neither Peterson nor Busse were particularly convincing
witnesses from a demeanor standpoint. Peterson was somewhat
nervous on the witness stand, behavior which I attribute to his
discomfort in having to shade the truth to conform to the Re-
spondent’s defense, rather than to the experience of being a
witness. Busse’s testimony was likewise suspect. His explana-
tion, for example, as to why the Respondent posted the help-
wanted poster on the morning of June 28, made little sense
given his and Peterson’s claim that only one employee, not the
entire shift, had been fired the night before, and was, moreover,
somewhat evasive. Thus, asked to explain why the help-
wanted sign was posted, Busse could only “guess” that the
Respondent was going to “need employees . . . to fulfill our
requirements to our customers.” (Tr. 607.) Further, while
claiming that the Respondent had been planning on hiring addi-
tional employees “anyway” and that the posting of the help-
wanted sign on that morning was no more than a mere coinci-
dence, Busse nevertheless conceded that the sign was posted in
reaction to what had occurred the night before. (Tr. 618.) I
find, based on Martinez’, officer Burton’s, and Salgado’s mutu-
ally corroborative testimony, that the second-shift employees
who, like Figueroa, declined to return to work on June 27, were
in fact terminated that same evening for doing so.5

5 The second-shift employees terminated on June 27, included Paris
Figueroa, Heraclio Arizaga, Adan Guerra, Leonel Hernandez, Eduardo
Nava, David Nuñez, Silverio Corona, Juan Peña, Porfirio Huerta,
Ramon Gonzalez, Juan Nieves Jr., Jesus Salgado, Boualoth Hansana,
Agustin Morales, Saybandith K. Sundara, Phanvilay Sundara, Ou-
davone Hansana, David Soto, Sourhone Cavan, and Ruben Moreno.
INDUSTRIAL HARD CHROME, LTD. 309
On the morning of June 28, following their termination the
night before, the second-shift employees began picketing the
Respondent, some carrying signs describing their activity as an
unfair labor practice strike. The record reflects that most of the
first-shift employees did not report for work that day and in-
stead joined the second-shift employees in the picketing. (See
GC Exh.-9.) It is undisputed, and the Respondent readily ad-
mitted at the hearing and on brief, that the picketing employees
were photographed by Respondent’s sales vice president, Jim
Segerson. (Tr. 529; R. Br. 29.) The photographs, copies of
which are in evidence as General Copunsel’s Exhibit-9, were
taken from Segerson’s vehicle as it drove by the striking em-
ployees. Parker, Peterson, and Busse were identified by em-
ployees as being in the vehicle with Segerson when the pictures
were taken. Parker claims that Segerson was simply testing out
a new camera he purportedly had purchased on the day the
photos were taken. He could not, however, explain why Seger-
son decided to photograph the picketing employees. There is
no indication that Segerson took pictures of any other subject.
Segerson was not called as a witness to explain his behavior.
Parker admitted that employees who were photographed were
never told why the pictures were taken, nor given assurances
that the photographs would not be used against them in any
way.
On or around June 30, Peterson sent each second-shift em-
ployee a letter, copies of which are in evidence as Respondent’s
Exhibit-40, dispelling what he contends was a rumor that sev-
eral of them had been fired on June 27. The letter advised em-
ployees that only one employee, who was not identified therein
allegedly for privacy reasons, had been terminated and that the
other employees had voluntarily left their positions. It went on
to say that those employees who voluntarily left their positions
were either on strike or absent without notice. Peterson claims
that he had learned of the rumor during the evening of June 27,
and that he prepared and sent the letter to explain what had
actually occurred. As found above, the credible evidence of
record makes clear that the those second-shift employees who
declined to return to work after being instructed to do so on
June 27, were, along with Figueroa, terminated and ordered by
officer Burton, on instructions from Parker, to leave the prem-
ises.
The picketing by first- and second-shift employees was still
ongoing as of July 31. On July 31, Parker sent letters to the
second-shift employees notifying them that they were being
terminated as of that date due to either “. . . your voluntary
resignation as shown by your continuing absence from the
workplace or your participation in an illegal strike, or if not
engaged in that strike, for violation of the company’s absentee-
ism policy.” (GC Exh.-10.) While a handful of the first-shift
employees had returned to work by July 31, most remained out
until August 21, when, according to Parker, they suddenly and
inexplicably appeared at the facility ready to work. After con-
sulting with Respondent’s attorney, Parker allowed the em-
ployees to return to work.6 Parker, seeking to distinguish the

6 The first-shift employees allowed to return to work on August 21,
included Abundio Arroyo, Jose Guillen, Jose Sanchez, Jan Fee, Jorge
different treatment accorded the first-shift employees vis-à-vis
the second-shift employees, explained that only those employ-
ees who had walked out or “abandoned” their positions on the
evening of June 27, were sent termination letters. (Tr. 533.) He
noted that on June 27, when the incident first occurred, the
second-shift employees were twice asked to return to work or
risk being terminated. He went on to explain that when em-
ployees refused to do so after the two warnings, “we elected
that they would be terminated.” In response to a leading ques-
tion from Respondent’s counsel, Parker backtracked from his
termination statement and asserted instead that employees had
not been terminated but rather had simply walked off the job
after being warned that they would be fired. (Tr. 537.) His
vacillating testimony in this regard is found not to be credible.
Parker was also asked if he knew why the first-shift employ-
ees did not report for work on June 28, and stayed out through
August 21. He responded, “We didn’t know why they were out
there. They had not refused any direct report to come back to
work.” Parker’s claim in this regard is also not credible since,
by his own admission, Trone advised him on the morning of
June 28, that the employees who were picketing outside the
Respondent’s facility during that period, which included both
the first- and second-shift employees, were protesting what they
believe to be a hostile work environment created by Busta-
mante.
Having found, contrary to the Respondent’s assertion, that
most, if not all, second-shift employees, in addition to Figueroa,
were indeed terminated on June 27, I am convinced that the
July 31 letter sent to the second-shift employees notifying them
of their terminations as the latter date, is nothing more than a
sham, concocted after the fact to create the impression that
employees were not fired on June 27, but rather began a strike
that day that continued through July 31. The credited evidence
makes patently clear that the work stoppage was of short dura-
tion, lasting only from when Arizaga was told by Bustamante to
go home on June 27, to the point in time that same evening
when Parker notified officer Burton that the second-shift em-
ployees who had not returned to work were fired and should be
removed from the premises.
B. Discussion
1. The protected nature of the work stoppage
The General Counsel contends, and I agree, that the work
stoppage on June 27, was protected activity under Section 7 of
the Act. The Board has long held that group complaints regard-
ing the quality of supervision are directly related to working
conditions and fall within the “rubric” of protected concerted
activities. Hacienda Hotel, Inc., 348 NLRB 854 (2006); Rhee
Bros., 343 NLRB 695 fn. 3 (2004); Trompler, Inc., 335 NLRB
478, 479 (2001); Astro Tool & Die Corp., 320 NLRB 1157,
1161 (1996); Brother Industries (U.S.A.), Inc., 314 NLRB
1218, 1227 (1994); Cambro Mfg. Co., 312 NLRB 634, 645
(1993); Calvin D. Johnson Nursing Home, 261 NLRB 289 fn. 2
(1982); Avalon-Carver Community Center, 255 NLRB 1064,

Sanchez, Jorge Herrera, Jesus Herrera, Benjamin Marquez, Elieser
Jaramillo, Jose Ramirez, Gustavo Zuniga, and Luis Herrera.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD310
1070 (1981); and Leslie Metal Arts Co., 208 NLRB 323, 325
(1974).
The record here makes patently clear that it was Busta-
mante’s verbal and physical mistreatment of Arizaga that pre-
cipitated the work stoppage by Figueroa and the other second-
shift employees on June 27.7 Thus, as previously discussed, on
June 27, Bustamante initiated and provoked an argument with
Arizaga, without apparent justification, by calling Arizaga a
“cry-baby” or some other similar but undesirable name, as the
latter was preparing to begin his shift. As noted, the record
does not make clear what, if anything, may have prompted
Bustamante’s behavior towards Arizaga. When Arizaga ex-
pressed indignation at Bustamante’s remark and then sought to
return to his workstation, Bustamante, again without apparent
provocation from Arizaga, and believing that Arizaga might
have muttered something under his breath about him, con-
fronted Arizaga once again and asked the latter to repeat what
he had purportedly said about him. I am persuaded that Busta-
mante at this point deliberately bumped Arizaga with his chest.
Declining to believe Arizaga’s claim that he had not said any-
thing about him, Bustamante angrily told Arizaga that he was
tired of the latter’s attitude, that he was fired, and that he should
go home.8 The work stoppage that ensued was conducted by
the second-shift employees in direct response to, and in protest
over, Bustamante’s treatment, including his purported firing, of
Arizaga.
The disciplinary action taken by Bustamante against Ari-
zaga, whether it was a termination as believed by Arizaga, or a
suspension as claimed by Bustamante, resulting from the lat-
ter’s unprovoked verbal and physical assault and harassment of
Arizaga on June 27, adversely affected Arizaga’s terms and
conditions of employment as it led, at a minimum, to his dis-
missal from work that day presumably with a loss in pay. Ari-
zaga’s treatment by Bustamante could reasonably have con-
vinced employees that, if allowed to continue, they too might
be subjected to similar unprovoked harassment by Bustamante,
with the likelihood that the latter might be prompted to take
disciplinary action against employees for daring to speak out
and defend themselves against Bustamante’s misconduct. In-
deed, Bustamante, as noted, admits being told by employees
that they were supporting Arizaga out of concern that they too
might be the recipients of such treatment from Bustamante in
the future. In this respect, the second-shift employees’ work

7 I do not agree with the Respondent’s intimation on brief that the
walkout was also motivated by the warnings that Bustamante wanted to
issue to second-shift employees on June 26, over their alleged misuse
of the break period. (R. Br. 33.) Those warnings, as noted, were never
issued, and the matter was successfully resolved when Busse agreed to
withdraw the warnings and the employees returned to work without
incident.
8 Bustamante’s claim that he lacked the authority to fire anyone but
could send an employee home does not render implausible Arizaga’s
claim that Bustamante told him he was fired. Rather, Bustamante’s
somewhat arrogant demeanor on the witness stand convinces me that
Bustamante seemed to relish his position as supervisor over the second-
shift employees, and that he would have made such a remark as a way
of demonstrating his authority over them. As noted, there is no indica-
tion that employees knew that Bustamante lacked firing authority.
stoppage to protest Bustamante’s mistreatment of Arizaga in-
volved a matter which directly affected their terms and condi-
tions of employment. Accordingly, I conclude that the June 27
work stoppage fell within the protective ambit of Section 7.9
In so concluding, I reject as without merit the Respondent’s
assertion that the work stoppage was unprotected under the
holding of Emporium Capwell Co. v. Community Organization,
420 U.S. 50 (1975). In Emporium-Capwell, a minority group
of employees, dissatisfied with their union’s reliance upon the
existing collective-bargaining agreement’s grievance proce-
dure, refused to participate in it and, acting contrary to the un-
ion’s advice, picketed their employer’s store in an attempt to
circumvent the union and bargain separately with the company
over the terms and conditions of employment with respect to
racial minorities. The Court found such conduct to be unpro-
tected under Section 7 because it undercut the statutory princi-
ple of exclusive representation embodied in Section 9(a) of the
Act. Here, there is no evidence that the work stoppage engaged
in by second-shift employees on June 27, was somehow at odds
with, or an attempt by employees to bypass, the Union, or, as
argued by the Respondent, to engage in direct bargaining with
it. Rather, the credited evidence makes patently clear that all
the employees were seeking when they began their work stop-
page was to call management’s attention to Supervisor Busta-
mante’s mistreatment of Arizaga and of his behavior in general
towards them. As readily conceded by Parker and Peterson, the
employees were never afforded that opportunity. Nor was Mar-
tinez, on behalf of the Union, given a chance to resolve the
matter with employees. Rather, by the time Martinez arrived
on the scene, Figueroa and the other second-shift employees
had, as further discussed below, already been terminated and
directed to leave the premises. Nothing in Martinez’ testimony,
or elsewhere in the record for that matter, suggests that the
Union disapproved of, or was opposed to, the work stoppage.
If anything, Trone’s June 28 statement to Parker, that the sec-
ond-shift employees were engaged in protected concerted activ-
ity, suggests that the Union viewed, and implicitly condoned,
the work stoppage as a lawful exercise by employees of their
Section 7 right, rather than as an attempt by these employees to

9 Notice is taken of a Memorandum Opinion and Order issued on
January 17, 2007, by Seventh Circuit District Court Judge Virginia
Kendall denying the General Counsel’s petition for injunctive relief in
this matter. See 2007 WL 163204 (N.D.Ill.), 181 LRRM (BNA) 2313.
In denying injunctive relief, Judge Kendall reasoned that there was
little likelihood that the General Counsel could prevail on whether the
June 27 work stoppage was protected because, in her view, “there is
little or no connection between the June walk-out and work conditions
for the employees at the plant.” For the reasons already discussed, I
respectfully disagree with Judge Kendall’s analysis and opinion on this
issue. Rather, I find, based on my credibility resolutions, and consis-
tent with current Board law cited above, that Bustamante’s supervisory
misconduct affected Arizaga’s terms and conditions of employment,
and that the June 27 work stoppage by the second-shift employees was
a reasonable and protected response to that conduct.
INDUSTRIAL HARD CHROME, LTD. 311
usurp or otherwise undermine the Union’s right as their exclu-
sive bargaining agent.10 In sum, I find the Emporium-Capwell
holding not to be applicable here.11
2. The 8(a)(1) allegations
(a) Threats of discharge
The complaint alleges that the Respondent violated Section
8(a)(1) when its supervisors and/or managers, on various occa-
sions during the June 27 incident, threatened employees with
discharge if they did not return to work. I find merit in the
allegations. The record makes clear that soon after the employ-
ees notified Bustamante that they would not return to work
until they spoke with higher management about his alleged
abusive behavior towards Arizaga, Bustamante threatened that
they would be fired if they did not return to work immediately.
Bustamante, as noted, readily admitted telling employees that
they risked losing their jobs if they did not return to work.
Parker, as further noted, made a similar statement to employees

10 The Union’s failure to sanction the work stoppage would not have
necessarily rendered it unprotected. See East Chicago Rehabilitation
Center, Inc. v. NLRB, 710 F.2d 397, 401 (7th Cir. 1983). As pointed
out by the court in East Chicago Rehabilitation Center, the selection by
employees of a union to represent them does not result in an absolute
waiver by employees of rights afforded them by Sec. 7 to protect them-
selves against an employer’s unlawful actions, particularly when any
action taken by employees in the exercise of those rights does not un-
dermine or circumvent the union’s representative status.
11 Nor do I agree with the Respondent’s further assertion that
Trone’s promise during negotiations, that the Union would give it ad-
vance notice of a strike, somehow precluded or waived the employees’
Sec. 7 right to engage in a protected work stoppage. First, it should be
pointed out that the parties, as of the date of the hearing, were still in
negotiations and did not have a collective-bargaining agreement in
effect. Consequently, Trone’s assurance to the Employer was not part
of any collective-bargaining agreement and hardly carried the weight of
an enforceable “no-strike” clause applicable to unit employees. More
importantly, however, is the well-established principle that waivers of
statutory rights “are not to be lightly inferred, but instead must be ‘clear
and unmistakable.’” Metropolitan Edison Co. v. NLRB, 460 U.S. 693
(1983); and Georgia Power Co., 325 NLRB 420 (1998). The burden of
proving that a waiver has occurred is on the party making the assertion,
in this case the Respondent. TCI of New York, Inc., 301 NLRB 822,
824 (1991). The Respondent here has presented no evidence whatso-
ever that the assurance given by Trone regarding prior notice by the
Union in the event a strike was called, was intended to apply to other
types of protected activity, including the right of employees to engage
in concerted activity to protest supervisory misconduct. Thus, even if
Trone’s assurance of prestrike notification could somehow be construed
as a binding prohibition on employees not to strike without prior notice,
there is simply no evidence that such a prohibition was intended as a
waiver of the employees’ Sec. 7 right to engage other protected con-
certed activity for their mutual aid and protection.
Fineburg Packing Co., 349 NLRB 294, a decision recently issued by
the Board on January 31, 2007, and which the Respondent in a post-
trial submission asks that I take judicial notice of, is factually distin-
guishable and of no relevance here. In Fineburg, the Board did not
address the merits of a work stoppage because the General Counsel had
conceded in the complaint that the work stoppage was unprotected.
Here, unlike in Fineburg, the protected nature of the work stoppage has
been alleged and litigated. The only issue addressed by the Board in
Fineburg, not raised here, is whether the work stoppage was condoned
by the employer.
when he arrived and found them gathered outside in the break
area. Thus, he too admitted telling employees that if they did
not return to work they would be in danger of losing their “po-
sitions and benefits.” Similar threats of discharge unless they
returned to work were made directly to Figueroa by Busse, and
by Peterson to Salgado that same evening.
As found above, the work stoppage by employees on June
27, in protest over Bustamante’s alleged mistreatment of Ari-
zaga, was a protected activity under Section 7 of the Act. Em-
ployer threats to discharge employees for engaging in such
protected activity, like those made by Bustamante, Parker,
Busse, and Peterson, to the second-shift employees and specifi-
cally to Figueroa, Salgado, and Arizaga, have been found to be
coercive and unlawful as they tend to discourage employees
from continuing to exercise their Section 7 right to engage in
such protests. See Iowa Packing Co., 338 NLRB 1140, 1143
(2003); Benesight, Inc., 337 NLRB 282 (2001); and Accurate
Wire Harness, 335 NLRB 1096 (2001). Accordingly, I find
that the above threats made by Bustamante, Parker, Busse, and
Peterson violated Section 8(a)(1) of the Act, as alleged.
(b) Unlawful surveillance allegation
The complaint also alleges, and I agree, that the Respon-
dent’s photographing of employees as they picketed its facility
constituted unlawful surveillance. The Respondent, as noted,
admits that photographs of employees on the picket line were
taken by its Vice President Segerson. It did not, however, offer
any lawful justification for having taken the pictures. Rather,
the only explanation proffered by Parker on cross-examination,
which I reject as utter nonsense and as lacking, in any event,
any corroboration from Segerson himself, is that Segerson was
simply trying out his new camera. “Absent proper justification,
photographing employees engaged in protected concerted ac-
tivities constitutes unlawful surveillance because it has a ten-
dency to intimidate employees, implant the fear of future repri-
sals, and interfere with the exercise of Section 7 rights.” Center
Service System Division, 345 NLRB 729, 754 (2005); Engel-
hard Corp., 342 NLRB 46 (2004); Town & Country Su-
permarkets, 340 NLRB 1410, 1414 (2004); and Kentucky
River Medical Center, 340 NLRB 536, 553 (2003). The
Respondent having failed to provide a proper justification for
the photographing, I find that the conduct amounted to an
unlawful surveillance of its employees protected activities, and
violated Section 8(a)(1) of the Act, as alleged.
(c) The “no union representation” remarks
The complaint further alleges as unlawful Parker’s remark to
Figueroa that the latter had no union representative, and Peter-
son’s comment to Salgado that the Union was not allowed on
company property. I have, as noted, credited Figueroa and
Salgado that such statements were made to them.12 Both

12 The Respondent, on brief (pp. 27–28), claims that neither Busta-
mante or Peterson made any such remark either to Figueroa or to
Salgado, and that there is no evidence to support any such allegation.
As to Bustamante, the complaint does not allege that he told any em-
ployee that they did not have union representation. Rather, the com-
plaint allegations charge that Parker and Peterson made such com-
ments. Thus, no finding is being made here that Bustamante engaged
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD312
Parker’s and Peterson’s remark to Figueroa and Salgado re-
spectively were made in response to statements by the latter
that they were waiting for their Union Representative Martinez
to arrive to discuss the incident. Parker’s statement to Figueroa
was patently false, for the Union did indeed represent Figueroa
and other unit employees, a fact known to Parker. As to Peter-
son’s remark to Salgado that the Union was not allowed on
company property, Peterson and Parker gave conflicting state-
ments regarding this prohibition, with Peterson asserting this
was indeed company policy and Parker disputing that claim. In
telling Figueroa that he had no union representation when in
fact he was represented by the Union, and Salgado that the
Union would not be permitted to come onto Respondent’s
property to hear the employees’ concerns regarding Busta-
mante, the Respondent, I find, sought to convey to employees
the impression that union representation was meaningless, and
that it was futile for the employees to rely on the Union to
speak for them. This rather dismissive attitude by the Respon-
dent towards the employees’ chosen representative could rea-
sonably have caused employees to question, and thereby un-
dermine, their continued support for the Union. In these cir-
cumstances, I find Parker’s and Peterson’s remarks to Figueroa
and Salgado, respectively, were coercive and violated Section
8(a)(1) of the Act. See Becker Group, Inc., 329 NLRB 103,
104 (1999).
3. The 8(a)(1) and (3) allegations
The complaint alleges, and I agree, that Figueroa and other
second-shift employees were unlawfully discharged for partici-
pating in a lawful work stoppage. As previously discussed and
found, the walkout by Figueroa and other second-shift employ-
ees to protest Bustamante’s mistreatment of Arizaga was pro-
tected concerted activity under Section 8(a)(1) of the Act. An
employer further violates Section 8(a)(1) of the Act by dis-
charging employees who engage in a work stoppage over such
matters. Rhee Bros., supra at fn. 3. The Respondent contends
that, except for Figueroa who admittedly was fired on June 27,
for taking part in the work stoppage, no other employee was
fired that evening. Rather, it insists that employees could have
returned to work but voluntarily chose instead to walk off the
job following Figueroa’s termination. Its contention is without
merit, for, as found above, officer Burton and Salgado both
credibly testified that Parker instructed Burton to remove from
its property the employees who had refused to return to work as
they were no longer in the Respondent’s employ. That the
Respondent may not have used the words “You’re fired” to
terminate the second-shift employees, as it did with Figueroa,
does not warrant a different conclusion, for the fact of dis-
charge does not depend on the use of formal words of firing.
Rather, it is sufficient if the words or actions of the employer
“would logically lead a prudent person to believe his [her] ten-
ure has been terminated.” Benesight, Inc., supra at 283 fn. 6;
and Swardson Painting Co., 340 NLRB 179 (2003). The de-
termination of whether there was a discharge is judged from the

in such conduct. Rather, only Parker and Peterson are charged with
making the remarks, and, contrary to the Respondent’s assertion, both
Figueroa and Salgado credibly attributed the remarks to Parker and
Peterson, respectively.
perspective of the employees, and is based on whether the em-
ployer’s statements or conduct “would reasonably lead the
employees to believe that they had been discharged.” Kolkka
Tables, 335 NLRB 844, 846 (2001); also Swardson Painting,
supra.
As previously discussed, on arriving at the scene on the eve-
ning of June 27, and seeing the employees gathered in the break
area rather than working, Parker presented them with the ulti-
matum of returning to work or being fired.13 When they re-
fused to budge, the Respondent, using, I am convinced, Figue-
roa as an example, fired Figueroa when the latter refused
Parker’s directive to return to work. After officer Burton in-
structed Figueroa to leave because he had been fired for refus-
ing to return to work, the remaining employees, who likewise
declined to return to work, could reasonably have believed, and
indeed were expressly told by officer Burton, that they too
would have to leave the premises as they were no longer con-
sidered employed by the Respondent. Neither Parker, Peterson,
or Busse sought, at that point, to clarify the employment status
of those employees who declined to return to work after Figue-
roa’s termination, or to dispel any belief the employees might
have gotten from Figueroa’s termination, or from officer Bur-
ton’s instructions to them, that they had been fired. As credibly
testified to by Martinez, on his arrival at the scene on June 27,
the employees who were engaged in the work stoppage told
him they believed they had been fired. Their belief in this re-
gard would have been confirmed by the help-wanted sign the
Respondent posted on its front lawn the very next day. Further,
Martinez, as found above, also credibly testified that Peterson
told him, as the help-wanted sign was being posted, that the
second-shift employees were fired the previous night for taking
part in the work stoppage. On these facts, I am convinced, and
so find, that the second-shift employees who participated in the
walkout on June 27, were, along with Figueroa, indeed termi-
nated that evening for engaging in protected concerted activity,
and that the terminations were unlawful and violated Section
8(a)(1) of the Act.
I do not, however, agree with the General Counsel that the
discharges were motivated by antiunion considerations and thus
unlawful under Section 8(a)(3) and (1) of the Act. To establish
that the discharges violated Section 8(a)(3), the General Coun-
sel must make a prima facie showing sufficient to support the
inference that the discharges were motivated, if not wholly, at

13 The Respondent, on brief, contends that the employees, neither on
June 27, or at any time thereafter, “gave any reason why they were not
reporting for work.” (R. Br.13.) Its argument in this regard is disin-
genuous at best, as well as patently wrong. Bustamante, as noted,
informed Parker, Busse, and Peterson on their arrival that the employ-
ees had walked out following his confrontation with Arizaga. The
Respondent therefore knew before going out to speak with employees
that the walkout was sparked by the Bustamante-Arizaga incident.
Further, both Parker and Peterson readily admitted that, while they
asked Bustamante what had triggered the work stoppage, they never
sought an explanation for the work stoppage from Figueroa or any of
the other employees, this despite the fact that the police were on the
scene investigating the incident. I am satisfied that the Respondent was
fully aware that employees engaged in the work stoppage to protest
what they believed to be Bustamante’s alleged June 27 mistreatment of
Arizaga.
INDUSTRIAL HARD CHROME, LTD. 313
least in part, by the employees’ union activity. Wright Line,
251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982), approved in NLRB v. Trans-
portation Management Corp., 462 U.S. 393, 399–403 (1983).
While employees, as correctly noted by the General Counsel,
did call their union representative, Martinez, to come to the
facility presumably to help resolve the matter, it was their par-
ticipation in the protected work stoppage, not the fact that they
called Martinez to the facility, that prompted the Respondent to
discharge them. The evidence of record thus fails to show any
linkage between the summoning of Martinez to the facility and
the termination of Figueroa and the second-shift employees.
Accordingly, I find that the General Counsel has not made a
prima facie showing that discharges were motivated by anti-
union considerations and shall, consequently, recommend dis-
missal of the 8(a)(3) allegation.
4. The 8(a)(5) and (1) allegations
The complaint, as noted, alleges, and the General Counsel
contends, that the Respondent’s unilateral decision to imple-
ment the EAP program was unlawful. The Respondent, at the
hearing and again on brief, admits having instituted the EAP
program unilaterally without giving the Union prior notice. It
contends, however, that its actions were motivated solely by the
employees’ best interest, e.g., to provide them with immediate
grief counseling in light of the death of one of their fellow em-
ployees. It argues that despite failing to notify and bargain with
the Union before entering into the EAP agreement with TriCity
Family Services, it did notify the Union that it was willing to
discuss and negotiate the program during their ongoing contract
talks, and that the Union neither responded, nor offered any
counterproposal, to its EAP program. I find merit in the com-
plaint allegation.
It is well established that an employer must notify and bar-
gain with its employees’ collective-bargaining representative
before changes are implemented in mandatory subjects of bar-
gaining. NLRB v. Katz, 369 U.S. 736 (1962). In its answer to
the complaint, the Respondent admits that creation and imple-
mentation of the EAP program is a mandatory bargaining sub-
ject. (GC Exh.-1(g), at par. VII(e)), and further admits, on brief,
that it “acted peremptorily” in instituting the program without
first bargaining with the Union. (R. Br. 43.) It nevertheless
argues that because its heart was in the right place in unilater-
ally instituting and implementing the EAP program, e.g., to
help employees cope with the tragic death of a fellow em-
ployee, no violation should be found. However, the fact that
the Respondent may have had good intentions and was acting
in good faith when it unilaterally implemented the EAP pro-
gram does not render its conduct lawful, for the Board has held
that good faith is no defense for unilateral conduct. See Crystal
Springs Shirt Corp., 229 NLRB 4, 6 (1977), citing NLRB v.
Katz, 369 U.S. 736 (1962). In other words, a showing of sub-
jective bad faith on the employer’s part is unnecessary to estab-
lish a violation. Register-Guard, 339 NLRB 353, 359 (2003).
The Respondent’s implicit suggestion on brief that the Union
somehow waived its right to bargain over the institution of the
EAP plan by failing to offer any counterproposals of its own is
simply without merit. Clearly, the Union never had an oppor-
tunity to offer a counterproposal to the TriCity EAP plan, for,
as evident from the Respondent’s own admission, the Union
did not learn of the TriCity EAP program until after it had been
instituted and implemented by the Respondent. In effect, there-
fore, the Union was presented with a fait accompli regarding
the EAP plan, and any counterproposal it might have been will-
ing to offer would, consequently, have amounted to nothing
more than a futile gesture. Friendly Ford, 343 NLRB 1058,
1068 fn. 12 (2004); Ciba-Geigy Pharmaceuticals Division, 264
NLRB 1013, 1017 (1982); and NLRB v. Roll & Hold Ware-
house & Distribution Corp., 162 F.3d 513, 518 (7th Cir. 1998).
To render meaningful any bargaining over the EAP plan, the
Respondent was obligated to notify the Union of its proposed
actions under circumstances that would have allowed it a rea-
sonable opportunity to offer counter arguments or proposals.
When notice is given too short a time before implementation,
the Board finds such notice to be nothing more than a fait ac-
compli. Friendly Ford, supra; also Bath Iron Works Corp., 302
NLRB 898, 912 (1991). The Respondent here, as noted, gave
the Union no notice whatsoever before implementing the EAP
plan on June 13.14 Having failed to offer any proper justifica-
tion for its unilateral conduct, I find, as alleged in the com-
plaint, that the Respondent’s unilateral implementation of the
EAP plan on June 13, violated Section 8(a)(5) and (1) of the
Act.
CONCLUSIONS OF LAW
1. By threatening employees with discharge for engaging in
protected concerted activity, photographing picketing employ-
ees without justification, and telling employees represented by
the Union that they have no representation, the Respondent
violated Section 8(a)(1) of the Act.
2. By discharging employees Paris Figueroa, Heraclio Ari-
zaga, Adan Guerra, Leonel Hernandez, Eduardo Nava, David
Nuñez, Silverio Corona, Juan Peña, Porfirio Huerta, Ramon
Gonzalez, Juan Nieves Jr., Jesus Salgado, Boualoth Hansana,
Agustin Morales, Saybandith K. Sundara, Phanvilay Sundara,
Oudavone Hansana, David Soto, Southone Cavan, and Ruben
Romero for engaging in a lawful work stoppage, the Respon-
dent violated Section 8(a)(1) of the Act.
3. By establishing and implementing an EAP program with-
out giving the Union prior notice and an opportunity to bargain
over the program, the Respondent has violated Section 8(a)(5)
and (1) of the Act.
4. The above unlawful conduct engaged in by the Respon-
dent are unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.

14 The Respondent here neither contends nor has produced evidence
to show that economic exigencies compelled it to act unilaterally re-
garding implementation of the EAP program, or that the Union had
continually delayed and avoided bargaining over this subject matter. In
fact, the evidence, as previously discussed, shows that the Union had,
just 2 months before the Respondent unilaterally instituted its EAP,
proposed such a plan to the Respondent during negotiations. The Re-
spondent at the time rejected the Union’s proposal as being unneces-
sary. The Respondent’s unilateral action, therefore, is not excusable
under any of the limited exceptions discussed in Register-Guard, supra.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD314
5. Except as set forth above, the Respondent has not engaged
in any other unfair labor practice.
REMEDY
Having found that the Respondent engaged in certain unfair
labor practices, 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.
To remedy its unlawful discharge of Paris Figueroa, Heraclio
Arizaga, Adan Guerra, Leonel Hernandez, Eduardo Nava,
David Nuñez, Silverio Corona, Juan Peña, Porfirio Huerta,
Ramon Gonzalez, Juan Nieves Jr., Jesus Salgado, Boualoth
Hansana, Agustin Morales, Saybandith K. Sundara, Phanvilay
Sundara, Oudavone Hansana, David Soto, Southone Cavan, and
Ruben Romero, the Respondent shall be required to, within 14
days from the date of the Order, offer them reinstatement to
their former positions, or, if their positions no longer exist, to
substantially equivalent positions, without prejudice to the
rights and privileges they previously enjoyed.
The Respondent will also be required to make the above-
named employees whole for any loss of earnings and other
benefits, computed on a quarterly basis from date of discharge
to date of a proper offer of reinstatement, less any net interim
earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest as computed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).
The Respondent shall further be required to, within 14 days
from the date of the Board’s Order, remove from its files any
reference to the unlawful discharges, and within 3 days thereaf-
ter to notify the above employees in writing that this has been
done and that the discharges will not be used against them in
any way.
To remedy its unlawful implementation of the EAP plan, the
Respondent shall, if requested to do so by the Union, rescind
the EAP program and bargain with the Union over the plan.
Finally, the Respondent shall be ordered to post an appropri-
ate notice to employees.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended15
ORDER
The Respondent, Industrial Hard Chrome, Ltd., Bar Tech-
nologies LLC, Fluid Power Manufacturing, Geneva, Illinois, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening employees with discharge for engaging in
protected concerted activity, engaging in the surveillance of our
employees by photographing without justification their lawful
picketing activities, and telling employees represented by the
Union, United Steelworkers of America, AFL–CIO, CLC, or
any other labor organization, that they have no union represen-
tation.

15 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
(b) Terminating or otherwise discriminating against employ-
ees for engaging in a lawful work stoppage to protest supervi-
sory mistreatment of employees, or for engaging in any other
protected concerted activity.
(c) Instituting and implementing an employee assistance plan
(EAP) for employees represented by United Steelworkers of
America, AFL–CIO, CLC, without first giving the Union notice
and an opportunity to bargain over the plan. The appropriate
bargaining unit of employees represented by the Union include:
All full-time and regular part-time production and mainte-
nance employees employed by the Employer (Industrial Hard
Chrome Ltd., Bar Technologies, LLC, and Fluid Power
Manufacturing) at its facilities currently located at 501 Fluid
Power Drive, Geneva, Illinois; but excluding all other em-
ployees, office clerical employees, and guards, professional
employees, and supervisors as defined by the Act.
(d) 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 effec-
tuate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order, offer
Paris Figueroa, Heraclio Arizaga, Adan Guerra, Leonel Her-
nandez, Eduardo Nava, David Nuñez, Silverio Corona, Juan
Peña, Porfirio Huerta, Ramon Gonzalez, Juan Nieves Jr., Jesus
Salgado, Boualoth Hansana, Agustin Morales, Saybandith K.
Sundara, Phanvilay Sundara, Oudavone Hansana, David Soto,
Southone Cavan, and Ruben Romero full reinstatement to their
former jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed.
(b) Make Paris Figueroa, Heraclio Arizaga, Adan Guerra,
Leonel Hernandez, Eduardo Nava, David Nuñez, Silverio Co-
rona, Juan Peña, Porfirio Huerta, Ramon Gonzalez, Juan
Nieves Jr., Jesus Salgado, Boualoth Hansana, Agustin Morales,
Saybandith K. Sundara, Phanvilay Sundara, Oudavone Han-
sana, David Soto, Southone Cavan, and Ruben Romero whole
for any loss of earnings and other benefits resulting from their
unlawful terminations in the manner set forth in the remedy
section of the decision.
(c) Within 14 days from the date of the Board’s Order, re-
move from its files any reference to the unlawful discharges of
the above employees, and within 3 days thereafter notify the
employees in writing that this has been done, and that the dis-
charges will not be used against them in any way.
(d) Upon request from the Union, rescind the EAP program
and bargain in good faith with the Union over the institution or
implementation of such a program for the unit employees rep-
resented by the Union.
(e) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
INDUSTRIAL HARD CHROME, LTD. 315
(f) Within 14 days after service by the Region, post at its fa-
cility in Geneva, Illinois, copies of the attached notice marked
“Appendix.”16 Copies of the notice, on forms provided by the
Regional Director for Region 13, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the

16 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
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 employ-
ees employed by the Respondent at any time since June 13,
2006.
(g) 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.