Ivy Steel & Wire, Inc.

National Labor Relations Board - Administrative Judge Opinions

May 9, 2005

04-CA-032812 (N.L.R.B. May. 9, 2005)

JD-29-05
Hazleton, PA

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES

IVY STEEL & WIRE, INC.

and Case Nos. 4-CA-32812
4-CA-32859
UNITED STEELWORKERS OF AMERICA, 4-CA-33096
AFL-CIO-CLC, LOCAL UNION 8567-14

Randy M. Girer, Esq., for the General Counsel.
Illia M. Schwarz, Esq., for the Charging Party.
Vincent J. Pentima & Brian Casal, Esqs.,
for the Respondent.

DECISION

Statement of the Case
GEORGE ALEMÁN, Administrative Law Judge. A hearing in this matter was held in
Hazleton, Pennsylvania from September 28 through October 1, 2004, based on a consolidated
complaint issued on August 26, 2004 by the Regional Director for Region 4 of the National
Labor Relations Board (the Board), alleging that Ivy Steel & Wire, Inc. (the Respondent) had
violated Section 8(a)(1), (3), and (5) of the National Labor Relations Act (the Act).1

Specifically, the complaint alleges that the Respondent violated Section 8(a)(1) by
creating the impression that its employees’ activities were being kept under surveillance;
threatening to, and in fact engaging in, such surveillance activities; maintaining an overly-broad
no-solicitation rule; unlawfully applying two work rules against employee Mauro Molinaro; and
by refusing to grant Molinaro’s request for union representation before issuing him a three-day
suspension on February 11.2 The Section 8(a)(3) allegations raised in the complaint include the
February 11, 2004, suspension of Molinaro, and his subsequent discharge on February 16,
2004. Finally, the complaint alleges that the Respondent violated Section 8(a)(5) by unilaterally
reducing the wage rate of employee Timothy Hinkle without giving the Union prior notice or an
opportunity to bargain over said reduction. In a timely-filed answer to the complaint, the
Respondent denies having engaged in any unlawful conduct.

On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel, the Charging Party,3 and the
1 The unfair labor practice charges which gave rise to the allegations in the consolidated
complaint were filed by United Steel Workers of America, AFL-CIO-CLC, Local 8567-14 (herein
the Union).
2 Over the Respondent’s objection, the General Counsel was allowed to amend the
complaint to include the allegation involving the refusal to allow Molinaro union representation at
the February 11, suspension meeting.
3 While addressing itself on brief only to the Section 8(a)(5) allegation involving Hinkle, the
Charging Party adopts the arguments contained in General Counsel’s brief in all other respects.

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Respondent, I make the following

Findings of Fact
I. Jurisdiction
The Respondent, a Delaware corporation with a facility in Hazleton, Pennsylvania, is
engaged in the manufacture and sale of reinforced steel products. During the year preceding
issuance of the complaint, the Respondent, in the course and conduct of its business
operations, sold and shipped goods valued in excess of $50,000 directly to points outside the
Commonwealth of Pennsylvania. 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. Respondent’s acquisition of the Hazleton facility
and related matters

Prior to 2002, the Respondent’s facility in Hazleton, PA was owned by Structural
Reinforcement Products, Inc. (SRP). In May 2000, the Union was certified as the exclusive
collective bargaining representative of SRP’s “full-time and regular part-time production and
maintenance employees” employed at the Hazleton plant (GCX-2). Sometime thereafter, in
2002, the Union and SRP began negotiations for an initial collective bargaining agreement to
cover the unit employees. On or about December 31, 2002, MMI Products, Inc.(MMI)4
purchased SRP, and continued operating SRP’s Hazleton facility under Ivy Steel & Wire, an
incorporated subsidiary of MMI.

The Respondent began operations in early January 2003,5 with the same unit
employees, numbering around 45, and supervisors formerly employed by SRP. It also
continued in effect SRP’s employee wage ranges,6 and other terms and conditions of
employment, including its employee handbook.7 Among the various policies and procedures set
forth in the employee handbook is a progressive disciplinary system which categorizes certain
employee misconduct as either a “Group I Violation,” a “Group II Major Violation,” or a Group III
Intolerable Violation.” There are nine types of misconduct listed under Group I violations, the
4 Headquartered in Texas, MMI manufactures products from steel rods at numerous
facilities in Texas, Florida, North Carolina, Indiana, and Pennsylvania.
5 All dates are in 2003, unless otherwise stated.
6 The wage range for employees differed depending on their job description (See, RX-8).
7 It is patently clear from the record evidence, and the Respondent does not claim
otherwise, that Ivy Steel & Wire is a successor employer to SRP under the holdings of NLRB v.
Burns International Security Services, 406 U.S. 272 (1972) and Fall River Dyeing Corp. v.
NLRB, 482 U.S. 27, 41-43 (1987). An employer is deemed to be a successor and generally
succeeds to the collective-bargaining obligation of a predecessor if a majority of its employees,
consisting of a "substantial and representative complement," in an appropriate bargaining unit,
are former employees of the predecessor, and if the similarities between the two operations
manifest a "'substantial continuity' between the enterprises." See, Ready Mix USA, Inc., 340
NLRB No. 107 (2003), quoting Fall River Dyeing Corp, supra at 41-43.

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penalty for which is a verbal warning for a first offense, a written warning for a second offense, a
3-day suspension without pay for a third offense, and termination of employment for a fourth
offense. Group II Major Violations identify six acts of misconduct for which the penalty is a
written warning for first offense, a 3-day suspension without pay for a second offense, and
termination for a third offense. Two of the six acts of misconduct listed as Group II Major
Violations, and which are at issue here, include Rule No. 5, which prohibits employees from
soliciting for any purpose in the Respondent’s plant without first obtaining its permission, and
Rule No. 6, which prohibits employees from engaging in malicious mischief, horseplay, or
fighting endangering the safety of others. Finally, Group III Intolerable Violations identify 14 acts
of employee misconduct the penalty for which is an immediate termination.

The employee handbook also contains the following “SOLICITATION AND
DISTRIBUTION POLICY”:8

In order to prevent disruptions in the work place as well as protect employees
from harassment and interference with their work, the following rules
regarding solicitation and distribution of literature on the Company’s property
must be observed. Violation of these rules will be cause for appropriate
discipline under Group II conduct rules.

During working time, no employees shall solicit or distribute literature to
another employee for any purpose.

No employee who is on non-working time shall solicit or distribute literature to
another employee who is on working time.

The Respondent’s current managerial/supervisory team includes General Manager of
Operations Marco Wyss; Assistant Plant Manager Tim Dunlap; Operations General Manager
Kyle Urban, Human Resources Director Gary Hoffpauir, Production, Shipping and Scheduling
supervisor Anthony DeBalko; and first shift supervisor John Lichty.

On taking over SRP’s operations, the Respondent continued to recognize the Union as
the exclusive bargaining representative of the unit employees and, in late January, 2003, began
negotiating with Union for an initial contract. The Respondent’s bargaining team at these
negotiations included attorney J. (Jerry) Anthony Messina and Hoffpauir, who served as its
principal spokespersons, along with Wyss, Dunlap and MMI Regional Manager Stephen
Carson. Former SRP General Manager, Bill Duffy, took part in the negotiations on behalf of the
Respondent until about mid-February 2003. The Union was represented at the bargaining table
by Steelworkers Sub-District Director, Joseph Pozza,9 and Union president David Fiore. In July
Continued
8 A copy of the employee handbook was received into evidence as GCX-10. Hoffpauir’s
testimony on whether the employee handbook was adopted by the Respondent was
ambiguous. Thus, when asked by Counsel for the General Counsel if the Respondent had
adopted the employee handbook formerly used by SRP, Hoffpauir replied, “We just have
continued it.” However, when questioned about the “solicitation and distribution” policy
contained in the handbook at page 19, Hoffpauir seemed to backtrack from his earlier answer
by stating that “The handbook, to my knowledge this handbook is, may not even be used
anymore except it is in place.” (Tr. 641-642).
9 Pozza replaced Steelworkers Staff Representative, Lew Dopson, as bargaining
representative in February 2003. He did not, however, begin attending bargaining sessions until
April 6 (Tr. 543-544). Dopson had been involved in the negotiations between SRP and the

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_________________________
2003, Fiore quit his employment and was replaced by the Union’s new president, Michael
Stinsky. The Union’s recording secretary, Dennis Conti, also attended the negotiations until
resigning in June 2004.10

In the latter part of 2002, before Respondent took over SRP’s operations, SRP
conducted a layoff that affected numerous employees, including Hinkle and Fiore. Hinkle had
worked for SRP since at least April, 2001 as an outside crane operator at a wage rate of
$12.35/hour.11 The wage range for outside crane operators was $9.95-$12.75 (RX-8). In
October 2001, Hinkle was reassigned to a utility or custodial (janitor) position inside the facility
but kept at the same wage rate of $12.35/hour, a position he held for some 8-9 months, after
which he was reassigned to the position of inside material handler at the same $12.35/hour rate.
The top wage rate for material handlers was $11.95/hour (RX-8). On October 7, 2002, Hinkle
was laid off by SRP from his material handler position.

2. The facts surrounding Hinkle’s pay reduction

On January 15, 2003, Hinkle was recalled by the Respondent and assigned the position
of material handler on the second shift. Although his pay rate as a material handler, according
to RX-8, should have been no more than $11.95/hour, Hinkle was brought on by the
Respondent at the $12.35/hour rate he had been earning prior to his layoff, notwithstanding
Hoffpauir’s testimony at the hearing that it was not the Respondent’s practice to keep an
employee at a higher rate when placed into a lower rated job. (Tr. 616) Fiore, who had also
been laid off by SRP in late 2002, was also recalled by the Respondent in January 2003, and
assigned to an LPT-2 (rolling machine) operator’s position.

The record, in particular the parties’ bargaining notes and testimonial evidence, reflects
that Hinkle was the subject of some discussion by the parties during their negotiations, although
there is disagreement between the parties as to the purpose or reason for such discussions.
Attorney Messina served as the Respondent’s primary spokesperson during these negotiations,
and Hoffpauir, the other spokesperson, was its official note taker.

Messina testified as follows regarding the negotiations and the Hinkle matter. One of the
main concerns both parties had during the negotiations was the fact that employee wages had
not changed in three years, and that both the Respondent and the Union were concerned that
many employees were frozen at the top of their wage range. While both sides agreed to
negotiate the issue, they disagreed on the approach that should be taken, with the Respondent
taking the position that any increases should be merit-based and the Union wanting any
increase to be automatic. Messina recalls the Respondent offering to provide an immediate 2%
increase to the top of the wage range, which Pozza rejected because the latter wanted any
Union. He did, however, sit in for Pozza at the bargaining sessions held by the parties in
August. (Tr. 227).
10 The record shows that the parties held numerous bargaining sessions throughout 2003,
including three in July (July 8, 9, 10) and two in August (August 19 and 20). Hoffpauir testified
to having attended all but possibly one of the bargaining sessions; Messina, as reflected by
bargaining notes received into evidence, attended several sessions between February and
June, the July 8 session, the August 19 and 20 sessions, and several other sessions between
September and November.
11 A copy of a payroll status change form received into evidence as GCX-40 shows Hinkle
received an annual review on April 16, 2001, and had his pay increased from $11.95 to
$12.35/hour.

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increase in wages to be an across the board raise for all employees, not just to those at the top
of their wage range.

Messina claims that the Union complained about Hinkle in the same context that it
complained about the merit system for wages, accusing the Respondent of playing favorites
with Hinkle. He recalled that at one meeting, after the Union was handed a document listing all
employees by name, job title, wage rate, and date of hire, the Union remarked that the
Respondent was playing favorites with three individuals, one of whom was Hinkle, because
these three individuals were being paid above the top of their wage range. Messina explained
that the two unidentified individuals who received the higher wage rate were being paid extra
because they were leadpersons who were generally paid a lead rate over and above the top of
their wage range. Hinkle, he contends, was simply kept at the same rate he was receiving
before being laid off by SRP, explaining that the Respondent simply did not want to reduce
Hinkle’s pay (Tr. 656). Messina recalls Fiore complaining that Hinkle was being paid more, and
that he (Fiore) should be paid the same as Hinkle. He contends that on numerous occasions,
the Union complained that it was unfair for Hinkle to be paid over the wage range for his position
(Tr. 658). Asked if a discussion occurred with the Union over Hinkle’s rate, Messina answered,
“Sure, we didn’t just put it up out of the sky.” He explained that the discussion about Hinkle
being overpaid was prompted by seniority sheets provided to the Union showing, inter alia, that
Hinkle was being paid above the range for his job title (Tr. 658). According to Messina, the
Union repeatedly asked to have Hinkle’s pay reduced during the negotiations.

Yet, when asked on cross-examination how often such a request was made by the
Union, Messina could recall only two occasions on which he purportedly discussed the matter
with Pozza, asserting that both occasions occurred sometime after Fiore’s departure. Pressed
by the General Counsel to describe what Pozza actually said to him about reducing Hinkle’s
pay, Messina reluctantly admitted that Pozza never actually came out and asked for a reduction
in Hinkle’s pay, but rather did so implicitly by repeatedly insisting that the Respondent was
playing favorites with Hinkle. Messina contends that on the first of the two occasions in which
Hinkle’s pay was purportedly discussed, he specifically asked Pozza if he (Pozza) wanted the
Respondent to reduce Hinkle’s pay, and that Pozza declined to answer and, instead, repeated
that the Respondent was playing favoritism. (661; 664-665). He claims that he then notified the
Respondent that no favoritism should be shown and agreed that Hinkle was overpaid for his
position. He purportedly returned to further discuss the matter with the Union, explained that
the Union was making a big fuss, and that the Respondent was not playing favorites. He then
told the Union that the Respondent intended to adhere to the status quo and would be moving
Hinkle back to his normal rate, e.g., the existing rate for his job. Messina could not point to any
specific bargaining notes or other writing to show that the Union had, in fact requested and
agreed to have Hinkle’s pay reduced (Tr. 672). Nor, for that matter, did Messina ever claim that
the parties had reached an agreement to lower Hinkle’s pay. Rather, he testified only that
Hinkle’s pay was reduced because he believed, from the alleged repeated complaints by the
Union that Hinkle was receiving favorable treatment, that this implicitly was what the Union was
actually seeking.

Hoffpauir testified that from the very first bargaining session, Hinkle’s name was brought
up repeatedly by the Union. He claims that at some of these meetings, Fiore accused the
Respondent of favoring Hinkle, and complained that despite having a more difficult job to
perform, and that Hinkle served as his assistant, he was being paid less than Hinkle. He
recalled that at an April 8, bargaining session, there was some discussion about Hinkle and
another employee, Keselica, receiving the “wrong pay,” but could not recall if this particular
subject was raised by the Respondent or the Union. He did recall recording in his bargaining
notes that Hinkle’s or Keselica’s pay would remain the same and not be lowered. Hoffpauir

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contends that the Respondent decided not to lower their pay because there was no agreement
between the parties to do so. (Tr. 591-592; RX-40). Asked if the Respondent had intended to
take action with respect to Hinkle’s “wrong pay,” Hoffpauir responded, “No, it did not that day,”
referring to this particular meeting in April. Hoffpauir contends that at subsequent meetings,
including one held the following day, April 9, the Union, and in particular Pozza, continued to
insist that Hinkle was being favored by the Respondent and was overpaid, and sought a
reduction in Hinkle’s pay.12

Hoffpauir contends that at the very outset of the negotiations, he and the other members
of the management team did not really understand what it was the Union was seeking regarding
Hinkle’s wage rate, and that it was not until sometime around July 10, that he and other
members of Respondent’s bargaining team finally understood the Union’s position about Hinkle
being overpaid. He explained this inability to grasp the Union’s purported argument on the fact
that, prior to July 10, he and the other members of the bargaining team were preoccupied with
learning how best to operate the facility and, consequently, had difficulty understanding the
claims allegedly being made by Fiore and other Union representatives about Hinkle being
overpaid or receiving favored treatment. In a nutshell, Hoffpauir insisted that “it was difficult for
us to put all of that together “(Tr. 600). Hoffpauir recalls that at an August 19, bargaining
session, the parties discussed wage increases for employees, with the Respondent proposing
granting a pay increase to employees at the top of the wage scale because said employees had
not received a wage increase in five years. He contends that at this meeting, Pozza and the
Union opposed the proposal because it did not go far enough, preferring instead a wage
increase for all employees.13

Hoffpauir testified that at a bargaining session held sometime in August, he and Pozza
spent about 1½ hours discussing Hinkle’s situation.14 However, when told by the General
Counsel that Pozza had not attended any bargaining sessions in August, Hoffpauir proffered,
somewhat unconvincingly, that the 1½ hour-long discussion he referred to in his affidavit “may
not have been with Pozza” after all, and could have been with Dopson or, alternatively, that the
conversation may have been with Pozza but occurred sometime in July, rather than in August.

Hoffpauir also recalled giving the Union a copy of a seniority list containing the names of
employees, their hire date, job title, salary range, and current rate of pay (RX-26). Relying on a
handwritten notation found in the upper right hand corner of RX-26, stating that the Company
gave the Union a copy on “8/10/03,” Hoffpauir testified that the Union was handed a copy of RX-
12 Hoffpauir’s April 9, bargaining notes contain an entry that reads, “Hinkle is overpaid” (RX-
39). When asked who made the remark that led him to make this particular entry, Hoffpauir
could not say for sure, stating first that it was Fiore, but subsequently adding that “it may have
been someone else on the Union side.” (Tr. 595).
13 Although Hoffpauir claims that Pozza was at the August 19, meeting, Pozza denied
attending any bargaining sessions in the month of August. He testified that he was working on
another assignment during the month of August and that Dopson sat in for him during the
August negotiations. A review of Hoffpauir’s own August 19, bargaining notes shows that
Hoffpauir recorded the names of Union representatives Dopson, Conti, and Stinsky, but not
Pozza, as being present at that session. While Hoffpauir’s notes for that day make reference to
Pozza saying “No” to the Respondent’s wage proposal, I am, convinced, on the basis of Pozza’s
testimony, and the fact that Hoffpauir did not include Pozza’s name as being in attendance, that
Pozza was not present at the August 19, bargaining session.
14 Hoffpauir’s testimony regarding this 1½ hour discussion with Pozza came after Hoffpauir
was shown a sworn affidavit he gave to the Board containing said assertion.

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26 at an August 10, bargaining session. As RX-26 is undated, it cannot be ascertained from the
face of the document when it might have been prepared. However, Hoffpauir’s testimony, that
he handed a copy of RX-26 to the Union during an August 10, bargaining session, if true,
suggests that the document was prepared sometime prior to that date and, consequently, that
Hinkle’s reduction in pay went into effect prior to August 10, since RX-26 shows Hinkle’s pay
rate at $11.15/hour.

There are, however, reasons to doubt Hoffpauir’s testimony regarding RX-26. Thus,
Hoffpauir, as noted, initially testified, without equivocation, that the document was “passed
across the bargaining table” to the Union at the August 10, session. When asked if the
document was personally handed or sent to the Union, Hoffpauir responded, with a hint of
indignation, that he would not place a notation on a document saying it was given across the
table if he, in fact, had not done so. He elaborated that “typically, at the table I make the note
and hand it across the table to them,” e.g., the Union representatives, (Tr. 602) implicitly
suggesting thereby that this is what occurred in this case. Yet, when told that the parties had
not met on August 10, Hoffpauir distanced himself from his previous claim about having
personally handed RX-26 to a Union representative at the negotiations and suggested, instead,
that RX-26 may have been mailed to the Union. Given the inconsistencies in his testimony,
Hoffpauir’s claim of having provided the Union with a copy of RX-26 is found not to be credible.

Nor am I convinced that RX-26 was in existence on or around August 10, as suggested
by Hoffpauir’s testimony, for other payroll documents offered into evidence show that Hinkle’s
pay must have been reduced on or around September 1. For example, Hinkle’s earnings
statement for the pay period ending August 31, shows that, as of the latter date, Hinkle was still
being paid at the $12.35/hour rate. His next earnings statement for the period ending
September 7, however, reflects a reduction in Hinkle’s hourly rate to $11.15/hour (See GCX-6,
GCX-7). A notation written on GCX-7 by Hinkle, stating that he had had his pay reduced during
this pay period but did not know why, together with the fact that he was still as his $12.35/hour
rate as of the preceding pay period, strongly suggests that the reduction in Hinkle’s pay went
into effect at the beginning of the pay period ending September 7. Further, RX-14, which
contains a breakdown of Hinkle’s wages for 2003, shows Hinkle’s pay being reduced from
$494.00 to $446.00 per week following the pay period ending August 31, again supporting a
finding that Hinkle’s pay was reduced on or around September 1. In light of these facts, it is
highly unlikely that RX-26, showing Hinkle’s pay at $11.15/hour, was in existence prior to
September 1. Rather, I find it more likely than not that RX-26, which, as noted, is undated, was
in fact created sometime after Hinkle’s pay reduction went into effect on or about September 1,
and that the handwritten notation therein showing that it was given to the Union presumably by
Hoffpauir on August 10, is a pure fabrication.

Hoffpauir further claimed that at a bargaining session conducted sometime after Fiore’s
departure in July, he specifically asked Pozza, “Are you saying [that] we have to lower Mr.
Hinkle’s pay?”, and that Pozza replied, “Yes.” (Tr. 606). According to Hoffpauir, he and Pozza
agreed that Hinkle would be placed in the appropriate pay range for the material handler
position based on his skills. Soon thereafter, the Respondent, according to Hoffpauir, reduced
Hinkle’s pay to $11.15/hour without any objection from the Union. (Tr. 611). He contends that at
some point after Hinkle’s pay was lowered, he was asked by someone from the Union if Hinkle’s
pay had been reduced, to which he answered, “Yes.” (Tr. 611).

Pozza, as noted, became actively involved in the negotiations on April 6. Pozza denied
Hoffpauir’s claim that he or any other member of the Union’s bargaining team requested or

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agreed to have Hinkle’s pay reduced during the negotiations, and denied hearing Fiore
complain about Hinkle.15 He further denied Hoffpauir’s claim that the two engaged in a 1½ hour
discussion over Hinkle’s pay. Pozza, however, did recall the Respondent mentioning on or
around July 10, that Hinkle was being paid above his wage scale, but testified that he first
learned sometime after August or September from either Stinsky or Conti that Hinkle’s pay had
been abruptly reduced. (Tr. 542; 546). As to RX-26, the seniority list Hoffpauir claims was given
to the Union on August 10, showing Hinkle’s pay at $11.15/hour, Pozza did not recall ever
seeing or receiving it.

Nor did Pozza recall discussing during the negotiations a Company proposal to raise the
wage rates of employees at the top of their wage range, but did remember the Union taking the
position at the bargaining table that under the Company’s merit wage system, some employees
were receiving wage increases while others were not. He further testified that he understood
the Company’s policy regarding the wage rate of an employee who is moved from one job
classification to a lower classification to be that the employee was kept at the higher wage rate.

Dopson, as noted, attended bargaining sessions in February before being replaced by
Pozza, and sat in for Pozza during the two August bargaining sessions. He recalls Hinkle’s
name being brought up but in connection with the latter’s alleged inability to perform certain
work. He denied that any mention was made or discussion had about reducing Hinkle’s wage
rate by the parties during the meetings he attended, and denied that, during the August
meetings he sat in for Pozza, the Union asked for Hinkle’s wage to reduced. His testimony in
this regard thus contradicts Hoffpauir’s vague assertion that the 1½ hour conversation he
claimed to have had in August regarding Hinkle may have been with Dopson, rather than
Pozza.16

Fiore testified that he never asked the Respondent during the negotiations to reduce
Hinkle’s pay or complained about Hinkle being overpaid. (Tr. 165) Nor did he recall anyone
from the Union ever stating during the negotiations that Hinkle was overpaid. He did recall
bringing up the fact that his work as an LPT-2 operator was more difficult and demanding than
that being performed by Hinkle, and asking the Respondent to reevaluate his work and adjust
his pay upward.17 He further recalled Hinkle’s name being discussed in connection with another
individual, Mike White, who was scheduled to be laid off from a welding position but who,
instead, was transferred to a position in the fabrication shop and given a $2.00/ hour pay cut.18
15 Pozza does admit that as he did not become involved in the negotiations until April 6, he
would not have known whether any such complaint by Fiore regarding Hinkle occurred prior to
his arrival.
16 Regarding this alleged 1½ hour long conversation Hoffpauir claims he may have had with
either Pozza or Dopson, I find it never occurred. This alleged conversation could not have
taken place with Pozza in August since the testimony of both Pozza and Dopson, supported by
the August bargaining notes, make patently clear that Pozza did not attend any bargaining
sessions in August. Dopson similarly denied, credibly in my view, having had any such
discussion with Hoffpauir. Further, Messina, who attended both August bargaining sessions,
made no reference in his testimony to having witnessed any such conversation between
Hoffpauir and Pozza. In short, Hoffpauir’s claim of having discussed Hinkle with Pozza for
about 1½ hours is, in my view, a pure fabrication.
17 Fiore purportedly quit his job in July after failing to receive an evaluation.
18 White, according to Fiore, was subsequently transferred back to the welding shop but not
given the two dollar increase he lost when he was initially transferred to the fabrication shop (Tr.
183).

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He contends that to the extent any mention may have been made about Hinkle being overpaid,
it was done to show a discrepancy between the top rate Hinkle was receiving as a crane
operator, and the White situation. (Tr. 173). Fiore was not certain if the Respondent had a
practice of reducing the wage rate of employees who were transferred from a higher rated job to
a lower rated one. He did, however, recall that the Union, during negotiations, took the position
that when employees are moved from a higher to a lower rated job, they should be able to retain
the higher pay rate.

As the Union’s recording secretary, Conti took notes at every bargaining session until
June 2004, when he left the Respondent’s employ. He testified that at no time during the
negotiations he attended did the Union complain about Hinkle being overpaid or ask that the
latter’s pay be reduced (Tr. 198). Conti claims that he first learned of Hinkle’s pay reduction
from Hinkle himself. The latter, he contends, approached him soon after receiving a pay cut
and asked Conti why it had been done. Conti responded that he did not know but would find
out. Conti claims he brought the matter to Pozza’s attention soon thereafter, and that Pozza
assured Conti he would seek an explanation from the Respondent at the next bargaining
session scheduled for October 1. At the October 1, session, Pozza, according to Conti, did ask
the Respondent about Hinkle’s pay cut and threatened to file charges regarding the matter (Tr.
196). Conti’s bargaining notes for that day appear to corroborate his testimony in this regard
(GCX-5). Conti did not recall if the subject of Hinkle’s wage cut was ever again brought up in
subsequent negotiations.

Stinsky took over for Fiore as Union president sometime in August and attended and
took notes at all bargaining sessions since that time. Like Pozza, Fiore, and Conti, and,
contrary to Hoffpauir, Stinsky testified that at no time during the negotiations he attended did
anyone from the Union ask to have Hinkle’s pay reduced. He claims that the first he heard of
Hinkle’s reduction in pay was when Hinkle approached him sometime on or around September
13, and told him about the cut in pay, and asked Stinsky to look into it. Stinsky jotted down the
information about Hinkle’s pay cut in a small pocket-sized notebook he carried around to record
items needing attention.19 Stinsky believes he may have told Conti about Hinkle’s situation, and
also discussed the matter with Wyss before they began their next bargaining session. Stinsky
claims Wyss told him that Hinkle’s rate had been changed because Hinkle had not been
performing up to the Respondent’s expectations.20 As Wyss did not testify, Stinsky’s claim as to
what Wyss said was the reason for Hinkle’s pay cut, is uncontested and accepted as true.
Stinsky recalls Pozza raising the issue of Hinkle’s pay cut at the October 1, bargaining session,
and threatening to file a charge over the pay reduction. The Respondent purportedly agreed to
look into the matter.

3. The facts surrounding Molinaro’s suspension/discharge

Molinaro, a Union member since 1981, was employed as a forklift operator at the
Hazleton facility from April 1996 until February 16, 2004.21 He contends that he was often
outspoken on union and other matters affecting employees. By way of example, Molinaro
19 The page in the notebook on which Stinsky recorded his discussion with Hinkle was
received into evidence as GCX-3.
20 While initially testifying that Wyss did not respond to his inquiry, Stinsky subsequently
recalled, with the aid of a sworn affidavit he gave to the Board, that Wyss told him it that it was
Hinkle’s lack of performance that led to the pay cut (Tr. 124-125).
21 All dates relating to the allegations pertaining to Molinaro and to alleged acts of
surveillance by the Respondent (discussed infra) are in 2004, unless otherwise indicated.

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testified about a meeting that took place in late January, at which Wyss discussed, inter alia, a
change in Department of Transportation (DOT) rules that would affect how employees did their
work. Wyss, he contends, mentioned that DOT rules now required trucks coming into the plant
to pick up Respondent’s finished product to leave within one hour, or the Respondent would be
subject to paying “waiting” time fee. Wyss told employees that due to the change in DOT rules,
employees would have to work faster. Molinaro responded that if the Respondent expected
employees to work faster, it seemed only proper that employees shoud be re-evaluated and
given raises. Wyss suggested that Molinaro discuss the matter with the Union, to which
Molinaro replied that he, Wyss, had the right to manage with or without the Union. Molinaro’s
testimony in this regard is undisputed as Wyss did not testify.

In his capacity as forklift operator, Molinaro was one of six individuals on two separate
shifts supervised by DeBalko. Each shift has a forklift operator, a crane operator, and a rigger.
Molinaro worked on the second shift and another forklift operator, Chris Zelenak, worked the
first shift. Their duties included unloading steel rods delivered to the plant, transferring the raw
material to storage areas in the plant’s yard, “staging” the raw material for processing into steel
wire and mesh inside the plant, and transporting the finished product, e.g., wire mesh, from the
plant to storage areas in the yard and onto trucks for shipment.

Although the Respondent does not utilize forklift operators or other yard employees on
its third shift, the production of wire mesh from raw material continues on that shift, and the
responsibility for moving the wire mesh produced on the third shift, along with all that produced
on the first shift, is on the first shift forklift operator. Further, as most of the deliveries of raw
material received by the Respondent arrive during the first shift, with some, but not as much,
coming in during the second shift, the task of unloading that material also falls on the first shift
forklift operator and other first shift employees. According to Zelenak, the amount of work
performed by the shift forklift operator was simply too much for one person to handle. He
testified that some four years earlier, he and Molinaro agreed to share some of the workload.
However, in early 2004, Zelenak complained to DeBalko that he “couldn’t handle the work load
anymore” (Tr. 383). DeBalko, he contends, instructed him to get help from the crane operators
on that shift. Zelenak presumably did so and testified that it did alleviate the workload
somewhat.

Zelenak testified that soon thereafter, on Friday, February 6, he and first shift yard
employee, Mike Heintzleman, were called to a meeting with DeBalko and told that he wanted
them to begin “swing” shifts, meaning that every two weeks or so, employees on the first shift
would be assigned to the second shift, and the latter shift employees to the first. DeBalko,
according to Zelenak, told them he wanted to make the change to see how the two shifts
worked together. Selenak was not sure if DeBalko held a similar meeting with the second shift
employees. Molinaro testified that he too was present at this February 6, meeting. He also
recalled DeBalko telling employees at this meeting that the Respondent was having difficulty
obtaining the rods needed to produce mesh and that, consequently, it might have to go from
three shifts to two.

Molinaro also recalls making certain remarks to Wyss and DeBalko during the week of
February 6, regarding the Respondent’s obligation to bargain in good faith. He contends that
the Union’s position regarding the negotiations was that “all they have to do to negotiate in good
faith is to show up for the meetings.” He remembered that on more than one occasion during
this particular week, he remarked to Wyss and DeBalko that he did not believe that the
Respondent’s approach to the negotiations constituted good faith bargaining. He also recalled
commenting to employees and managers alike that the Respondent “did not want this union
because then we will have to have a contract book, and then they won’t be able to change

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things, and what’s in the book they are going to have to go by until the next contract, and then
they will have to open up the contract and try to change things” (Tr. 281). Molinaro’s testimony
in this regard is undisputed. Wyse did not testify, and DeBalko, who did testify, was not
questioned about the remarks Molinaro claims he made to both.22 I credit Molinaro’s
undisputed testimony as to the comments he made to Wyse and DeBalko. His unrefuted
assertion, about mentioning to other employees and unnamed managers that the Respondent
did not want the Union because they would be unable to change things once employees
obtained a contract, is likewise credited.

On Sunday, February 8, the Union held a meeting with employees at its union hall to
discuss strike issues. The meeting, according to Molinaro, was well-attended. He recalled that
during the meeting, he expressed the view that the Respondent was not negotiating in good
faith, and gave an account of how he had been involved in a successful strike against a former
employer, and that the employees were able to prevail only by sticking together. Zelenak
apparently attended the meeting, although Molinaro claims he was unaware of it, and only
learned of Zelenak’s presence the following evening, February 9, from co-workers Tony
Andrews and Charlie Boyle. He claims that Andrews and Boyle brought up the fact that they
had seen Zelenak at the meeting because the latter, according to Molinaro, did not regularly
attend such meetings, a claim denied by Zelenak.23 Molinaro then commented to Andrews and
Boyle that “maybe Chris [Zelenak] could be the company spy and went back and told
[management] everything” that had occurred at the union meeting the day before. Zelenak
denied informing anyone in management about the meeting.

On February 10, as first shift employees Roger Gering and Nate Staley were punching
out from their first shift, Molinaro, who was reporting to work, mentioned to them that Zelenak
might be the company spy who told management everything about what had transpired at the
union meeting. Gering and Staley, according to Molinaro’s uncontradicted testimony, replied
that Zelenak might very well be a Company spy since Zelenak and certain management
officials, including Wyss and DeBalko, hang out together on weekends. Molinaro recalled two
management officials standing nearby who, in his view, could have overheard his conversation
with Gering and Staley. (Tr. 291-292).

In the afternoon of February 10, DeBalko held a meeting with employees to discuss how
best to coordinate the work between the first and second shift. He contends he did so because
the first and second shift employees appeared to be having some problems, and he had
received complaints that one shift was doing more work than the other. Zelenak, who was out
sick that day and had not reported for work, did not attend this meeting.

DeBalko testified that soon after he began the meeting, Molinaro interrupted and
remarked, “Let’s get this straight; we are here because Chris Zelenak is complaining. You
know, it is not something that we are doing, it is Chris.” Molinaro, he claims, proceeded to
accuse Zelenak of being a company spy, stating, “We are sitting here having this meeting
because Chris is a spy, and he is complaining about us or telling you things that we are not
doing.” Although he tried to get the meeting back on track, DeBalko claims he was unable to do
so because Molinaro continued interrupting and “beating” up on Zelenak, asserting that
22 The failure to question DeBalko about, or to call Wyse to refute, Molinaro’s testimony as
to what he said to them regarding the Respondent’s attitude toward bargaining, warrants an
adverse inference that had DeBalko been asked or Wyse called to refute Molinaro’s statement,
they would not have done so.
23 Zelenak claims to have attended between 80-90% of the Union meetings.

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employees knew Zelenak was Wyss’ friend. Purportedly unable to continue his presentation,
DeBalko ended the meeting after only 15 minutes or so. DeBalko claims he took no action
against Molinaro for calling Zelenak a spy as he did not consider Molinaro’s spy remark to be a
threat but simply an expression of Molinaro’s opinion. He acknowledged that Molinaro was
outspoken and had, in the past, complained to him about other matters, such as large potholes
in the yard, maintenance needed on the forklifts, and delivery trucks arriving late. (Tr. 756-759).

Molinaro’s version is that he attended the February 10, meeting shortly after his
conversation with Gering and Staley. At the meeting, DeBalko explained that employees would
be going to swing shifts. Employees Boyle and Andrews became upset at this as it would affect
their ability to get their children off to school in the morning. Molinaro had no problem with the
change as he had done swing shifts in the past, and let DeBalko know that he was not opposed
to it. At one point, Molinaro asked DeBalko about Zelenak. Molinaro then commented that
Zelenak had been out one day and left early on another, and asked if Zelenak had simply left or
was given the day off with pay. Molinaro went on to say that he believed Zelenak to be a
Company spy, and suggested that Zelenak may have told management what had occurred at
the union meeting. He then asked DeBalko in a joking manner if he had allowed Zelenak to
take the day off with or without pay. DeBalko simply smiled and said nothing. (Tr. 297-298).

Zelenak reported for work on the morning of February 11. He testified that some ten to
fifteen minutes after he began his shift, a “manager,” whom he did not identify, called him “a
company snitch,” a scab” and a “Company spy,” and that, soon thereafter, some five to six
employees also began referring to him as a Company spy. When he asked the latter who was
responsible for spreading this rumor, he was told it was Molinaro, and that the latter had already
been fired for his remarks. (Tr. 386-387) Zelenak claims he then went to DeBalko around 8:00
a.m. that morning to complain about the name-calling, that DeBalko took him to see Wyss, and
that, once there, he told DeBalko and Wyss that Molinaro was going around telling people that
he was a company spy. According to Zelenak, Wyss and DeBalko advised him not to worry
because Molinaro had already been fired. (Tr. 407). He purportedly told Wyss and DeBalko that
if, for some reason, Molinaro was to get his job back, he wanted Molinaro put to work at another
location so he would not have to deal with him.24

After his meeting with DeBalko and Wyss, Zelenak returned to work. He testified that
the name-calling he experienced that morning did not continue after that. At some point just
prior to the end of his shift that day, Zelenak again went to see DeBalko and informed him that
he intended to leave his job in two weeks. Zelenak believes this meeting occurred with DeBalko
only. He testified on direct examination, and again on cross-examination, that he gave DeBalko
two weeks notice because he “couldn’t handle my job” and largely because of his “workload.”
(Tr. 388; 410). As to the workload, Zelenak explained that he had “just come back from a bad
cold, it was freezing cold outside, and [he] had a high fever.” He testified that “there could have
been different circumstances” for his wanting to leave, but that “it was just too much,” and that
he “shouldn’t have been there even that day” but had to go to work because he did not get paid
for sick days. (Tr. 411). He recalled complaining to DeBalko at this meeting that the workload
had not been distributed properly, that he was getting all the work, that it never stopped, and
24 Zelenak’s testimony on direct examination regarding his meeting with DeBalko that
morning varied somewhat from the account he gave cross-examination. On direct examination,
for example, Zelenak claimed to have met only with DeBalko, and did not mention telling Wyss
and DeBalko that he did not want to work together with Molinaro if, for some reason, the latter
was to be rehired. Rather, on direct examination, Zelenak recalled asking DeBalko why
Molinaro had been fired, and returning to work after DeBalko declined to give him an answer.

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that management didn’t care if the workload was not being distributed evenly and he got stuck
with all the work. On cross-examination, after much prodding by Respondent’s counsel,
Zelenak testified that Molinaro’s conduct in spreading rumors about him being a company spy
and a snitch part was a factor in his decision to resign.25

DeBalko agrees that Zelenak came to see him on the morning of February 11. His
version of the exchange that occurred between the two that morning is at odds with, and indeed
contradicts, Zelenak’s account of their meeting. According to DeBalko, Zelenak only asked
what had happened at the February 10, meeting because he had heard that Molinaro made
some remarks about him at the meeting. DeBalko responded that it was no big deal, that
Molinaro was just going off a bit, and not to worry about it. DeBalko did not describe Zelenak as
being upset or angry, but rather as merely curious about the remarks Molinaro had made about
him. (Tr. 718). Nor did DeBalko mention anything in his testimony about taking Zelenak to see
Wyss that morning, or telling Zelenak not to worry because Molinaro had already been fired.
Rather, DeBalko contends that he and Zelenak “just had a couple of words and things,” after
which he advised Zelenak not to worry about the remarks made by Molinaro, that it was not a
big deal, and that he was overreacting and should just ignore Molinaro. DeBalko claims he had
no intentions of disciplining Molinaro when Zelenak came to see him the first time. (Tr. 779), an
assertion clearly inconsistent with Zelenak’s own assertion of DeBalko saying to him during that
same conversation that Molinaro had been fired.

DeBalko agrees that Zelenak came to see him a second time several hours later. His
description of what occurred during that second meeting is, again, at odds with Zelenak’s
version of that meeting. Thus, according to DeBalko, Zelenak complained about “hearing a lot
of things from the plant.” Specifically, Zelenak purportedly told him that “Mauro [Molinaro] is at it
again,” that now it was not only Molinaro but other “people in the plant against him,” that it was
not worth working in fear, and that the Respondent could not protect him. Zelenak, he
contends, also expressed concern that his tires might get slashed and his car might be
damaged, and then notified DeBalko that he was giving him two weeks notice. (Tr. 719; 780).

However, Zelenak, as previously noted, claims he told DeBalko at this second meeting
only that he was leaving because he couldn’t handle the workload any longer. While Zelenak,
as further noted, admitted taking into account Molinaro’s “spy” remarks in arriving as his
decision to submit his resignation, he never testified to having mentioned this to DeBalko at this
second meeting. Zelenak, in fact, denied telling DeBalko that he was afraid he might get beat
up or have his tires slashed, or that he felt or had been threatened by Molinaro.

DeBalko, it should be noted, was inconsistent on the question of whether Zelenak
complained about being threatened by Molinaro. Thus, he initially testified that he decided to
discharge Molinaro because of the threats he had made to Zelenak. However, he subsequently
conceded that Zelenak never actually complained about being threatened by Molinaro (Tr. 739).
DeBalko’s further testimony about Zelenak complaining to him during this second afternoon
meeting about Molinaro being at it again and turning employees against him, is likewise
25 Asked by Respondent’s counsel if “the reason and true reason” for deciding to leave was
because “of the grief” he had been put through in being called a spy, Zelenak replied, “No. A lot
of the reason was the workload.” When Respondent’s counsel asked if Zelenak had a reason
for not wanting to ascribe his resignation to the name-calling he experienced on February 11,
Zelenak answered, “I don’t know.” Only after further questioning by Respondent’s counsel did
DeBalko reluctantly admit that Molinaro’s “spy” remarks about him had “played a part” in his
decision to give two weeks notice. (Tr. 411).

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inconsistent with Zelenak’s testimony that the name-calling he had been subjected to when he
first arrived for work that morning abated soon thereafter and did not continue. Finally, DeBalko
testified that he advised Zelenak not to be rash about resigning, and that he felt and hoped that
the matter would just blow over within two weeks.26

Despite his asserted belief that the Zelenak-Molinaro incident would go away in two
weeks, DeBalko nevertheless claims that, after Zelenak came to see him the second time, he
went and informed Wyss of what had occurred and explained that Zelenak was resigning
because of Molinaro. He contends that Dunlap and manufacturing process engineer Bart
Downey joined the meeting soon thereafter at DeBalko’s request. According to DeBalko,
Downey had purportedly seen Molinaro amid a group of employees hollering and screaming
earlier that day, that Downy reported the incident to an individual named Maureen, and that the
latter passed the information on to him. Because the meeting centered on Molinaro, he and
Wyss decided to call Downey in to the meeting to discuss what he observed. Downey testified
that he had indeed seen Molinaro on the plant floor screaming and waving his arms at other
employees, as if involved in a fight, and told DeBalko, Wyss, and Dunlap this at a meeting held
the following morning. There is no evidence that this alleged incident was ever investigated by
Downy, DeBalko, Wyss, or any other management official.

DeBalko testified that he, Wyss, and Dunlap reviewed Molinaro’s personnel file,
concluded therefrom that Molinaro had a history of violent outbursts and, consequently, decided
to suspend Molinaro for three days pending a final decision as to what course of action to take.
DeBalko claims that no decision was made at that time on what further action to take against
Molinaro because they simply wanted to get Molinaro out of the work environment “so that they
could find out what was going on.” (Tr. 734). His assertion in this regard, as previously noted,
squarely contradicts Zelenak’s testimony that he was told by DeBalko and Wyss when he met
with them on the morning of February 11, that Molinaro had been fired.

An “Employee Warning Report” was thereafter prepared accusing Molinaro of
intimidating Zelenak by “spreading false and malicious reports to co-workers that he was the
company spy,” thereby creating “a hostile work environment for Chris Zelenak which resulted in
his resignation.” The report charges Molinaro with violating Rule 6 of the “Group II Major
Violations” (discussed supra), and cites February 10, as the date the alleged violation
purportedly occurred. The report advises Molinaro that, based on a “prior written warning”
issued to him on April 8, 2003 (see GCX-15),27 he was being suspended for three days “prior to
discharge.” (See RX-22).

DeBalko testified that after the warning was prepared, Molinaro and second shift
supervisor, Bill Jisinsky, were called to a meeting where DeBalko read the write-up to Molinaro
26 As it turned out, Zelenak was persuaded by Stinsky shortly thereafter not to leave.
27 The April 8, 2003, warning resulted from an incident involving Molinaro and Zelenak.
Zelenak’s version of this incident is that on April 8, 2003, Molinaro questioned about him about a
forklift, and soon thereafter threatened to put his fist through Zelenak’s chest. Zelenak denied
being physically assaulted by Molinaro, and testified that, soon after the incident, Molinaro came
up to him, shook his hand, and apologized. DeBalko testified that Zelenak came to him on April
8, 2003, to complain that Molinaro had physically grabbed him, threatened to hit him, and also
threatened his life. He contends that Zelenak expressed fear that Molinaro was going to kill
him. Zelenak, however, denied that Molinaro ever threatened to kill him, and testified that there
have been no further incidents with Molinaro since then.

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informing him of the suspension.28 (Tr. 735). Wyss and Dunlap were apparently also present.
He recalled that after notifying Molinaro of his suspension, the latter chuckled and stated, “you
have got to be kidding me,” and then asked what the Union had to say about his suspension.
DeBalko purportedly responded that the Union representative was gone for the day and would
be contacted in the morning. Molinaro, he contends, signed the write-up and left without saying
anything else. Neither he nor any of the management representatives present at the meeting
asked Molinaro any questions, or asked Molinaro for an explanation prior to suspending him.
Molinaro was instructed to call in on the third day to find out his status.

Molinaro recalls being summoned by DeBalko just two hours into his shift on February
11, to a meeting with DeBalko, Wyss, and Dunlap, and told by DeBalko that he was being
written up for making intimidating and malicious statements about Zelenak. He claims he asked
DeBalko, “where’s my Union representation?” and that DeBalko replied that all of the union guys
had already left. Wyss, he contends, remarked, “There is no union.” Molinaro stated that his
remark about Zelenak being a company spy was protected as a free speech right, and
explained that he never actually called Zelenak a company spy but had, instead, stated only that
Zelenak might be a company spy. According to Molinaro, DeBalko brought up Downey’s claim
of seeing Molinaro yelling and screaming as if engaged in a fight. When he asked if Downey
had actually seen him fighting, DeBalko answered, “no,” at which point Molinaro asked, “Then
what’s the problem?” (Tr. 301, 303).

Molinaro was then handed the written warning. He made no mention in his testimony of
DeBalko reading the warning aloud to him. In the “Employee Statement” portion of the warning,
Molinaro wrote that Zelenak chose to resign because of the heavy workload and the hardship
the Company “puts us through.” He explained that he did so because Zelenak had, for years,
been saying that he was going to leave the plant because he couldn’t take the work anymore
and not because of any particular employee. Molinaro claims that on reading the notation in the
warning stating he was being suspended “prior to discharge,” he became convinced that he
would not be returning to work and was being fired, and that his belief in this regard was
confirmed when he was directed to empty his locker and remove all his belongings. Molinaro
did recall DeBalko instructing him to call in on the third day to see if he still had a job.

I credit Molinaro’s more detailed account of the suspension meeting over DeBalko’s
somewhat inconsistent version. DeBalko’s claim, for example, that he told Molinaro he was
being suspended “until further notice,” when the suspension notice itself, which DeBalko claims
he read aloud to Molinaro, on its face states that the suspension was for three days only,
undermines his account. It is unlikely that DeBalko would tell Molinaro that his suspension was
of an indefinite duration, e.g., “until further notice,” if, as he contends, he read the contents of
the warning to Molinaro. Further, the fact that DeBalko instructed Molinaro to call in on the third
day of his suspension to find out “what was going on,” also makes it unlikely that he would have
told Molinaro that the suspension was “until further notice.” Had they been called to testify,
either Wyss, Dunlap, or Jisinsky, all of whom were present at the suspension meeting, would
have been able to add some clarity to DeBalko’s version of events, or disputed Molinaro’s
account. The Respondent’s failure to call any of them as witnesses leads me to believe that if
called, they would not have corroborated DeBalko’s account.

28 DeBalko testified to telling Molinaro at this meeting that he was being suspended “until
further notice.” (Tr. 734-735) As noted, however, he also claimed to have read the suspension
write-up to Molinaro, which states clearly that his suspension was to last three days and not, as
DeBalko claimed, “until further notice.”

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According to DeBalko, on the third day of Molinaro’s suspension, he, Wyss and Dunlap
met and decided to terminate Molinaro. DeBalko admits that he did not adhere to the 3-step
progressive disciplinary process required for a “Group II” violation. He explained that he did not
do so because the April 8, 2003, warning previously issued to Molinaro made clear that it was a
“last chance” warning and that any future similar misconduct by Molinaro would result in his
dismissal.29

Asked what the reason or reasons were for the decision, DeBalko, as previously
discussed, initially stated that it was because Zelenak had complained that Molinaro “was
threatening him.” He subsequently admitted that Zelenak never actually said he had been
threatened by Molinaro, but rather stated only that he “felt threatened” by the latter (Tr. 739).
DeBalko added that the April 8, 2003, incident involving Molinaro and Zelenak was also taken
into account in deciding to terminate Molinaro DeBalko insisted that it was not the “spy”
remarks made by Molinaro at the February 10, meeting, but rather the effect those remarks had
on Zelenak, which led to the decision to terminate Molinaro. (Tr. 739-742; 744). He admits that
had Zelenak not complained to him about feeling threatened by Molinaro’s remarks, the latter
would not have been discharged on the basis of any prior misconduct, including the April 8,
2003, warning. As previously discussed, however, Zelenak flatly denied making any such
comment to DeBalko. When he called DeBalko three days later, Molinaro was told his services
were no longer needed.

As evident from the above description of DeBalko’s and Zelenak’s testimony, there is a
real discrepancy between what each claims was said or occurred during their February 11,
meetings. DeBalko’s assertion, for example, that he had no intentions of disciplining Molinaro
when Zelenak first complained to him on the morning of February 11, is clearly at odds with, and
squarely contradicts, Zelenak’s claim of being told by DeBalko at that morning meeting that
Molinaro had been fired. Clearly, both accounts cannot be correct, for either DeBalko told
Zelenak, when the latter first came to see him, that Molinaro had already been fired, as Zelenak
contends, or he did not, as claimed by DeBalko. As between the two, I found Zelenak’s
account, and his testimony in general, to be more reliable and credible than DeBalko’s.

29 A review of RX-20, the April 8, 2003, warning referenced by DeBalko, reveals no mention
of this being a “last chance” warning. DeBalko explained that the “last chance” notification given
to Molinaro is contained in a type-written report, received into evidence as RX-21, prepared on
the basis of hand-written notes made by Wyss at the meeting at which Molinaro received the
April 8, 2003 warning. DeBalko admits that he did not see what Wyss had actually written in his
notes, nor was he able to identify when RX-21 was prepared or who might have prepared it.
Wyss, the one individual who could have identified the contents of RX-21 as reflecting his
alleged handwritten notes, did not testify. Further, DeBalko speculated that Molinaro would
have received a copy of RX-21, admitting that he did not know this for a fact. DeBalko
nevertheless testified that Molinaro was expressly warned during that meeting that he would be
discharged if he engaged in similar conduct in the future. For his part, Molinaro admits
receiving the April 8, written warning (GCX-15), but denies being told that this was a “last
chance” warning. Rather, he recalls Wyss saying only that if he and Zelenak could not get
along, he would have to get rid of both of them. (Tr. 312). He also denied receiving or seeing a
copy of RX-19, noting that if he had been given a copy by DeBalko or Wyss, his signature would
be on the document indicating he received it. I credit Molinaro’s account and find, particularly
since there is no mention in GCX-15 of it being a “last chance” warning, and since Wyss, who
could have established the reliability of RX-21 as well as DeBalko’s own assertion as to what
Molinaro may have been told, was not called to corroborate either.

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While there are some inconsistencies between Zelenak’s trial testimony and statements
contained in an affidavit he gave to the Board regarding this matter, they are relatively minor
and, in my view, not the result of any intent by Zelenak to be deceitful or to fabricate testimony.
Rather, from his testimony at the hearing, I am convinced that Zelenak viewed himself as being
caught between the proverbial “rock and a hard place,” having on the one hand to testify for the
General Counsel in support of the complaint allegations against his Employer, while, on the
other, having to provide testimony against fellow union member, Molinaro. Zelenak’s dilemma
in this regard, I believe, tended to make him anxious and nervous and led to the minor
ambiguities in his testimony. Overall, I am satisfied that Zelenak testified in an honest and
truthful manner.

DeBalko, on the other hand, was not so convincing. His testimony seemed more
calculated and contrived, and simply did not ring true. He was also prone to exaggeration, as
when he described the April 8, 2003 incident between Molinaro and Zelenak. His assertion, for
example, that Zelenak reported to him that Molinaro had physically assaulted and threatened to
kill Zelenak was not corroborated by Zelenak, nor was his further claim that, during his second
meeting with Zelenak on February 11, Zelenak expressed fear that his tires would be slashed
and his car damaged. I am convinced that DeBalko’s comments in this regard were, if not
outright lies, gross exaggerations of what Zelenak may have said to him designed to bolster the
Respondent’s stated reason for discharging him.30

Thus, I find that when Zelenak first went to complain to DeBalko on the morning of
February 11, about being called a “spy” and a “snitch,” DeBalko told Zelenak not to worry
because Molinaro had already been fired. I further find, again consistent with Zelenak’s credited
account, that when he gave DeBalko two weeks’ notice the second time he went to see him on
February 11, Zelenak cited his difficulty in handling his workload as the reason for wanting to
leave, and never told DeBalko that he was doing so because he felt threatened by Molinaro.
Although Zelenak admitted that his decision to leave was motivated, in part, by Molinaro’s “spy”
remarks, Zelenak did not mention this to DeBalko.

Zelenak’s credited testimony thus makes patently clear that the decision to fire Molinaro
was made before Zelenak first lodged his complaint with DeBalko at 8:00 a.m. on February 11.
The decision to terminate Molinaro, therefore, must have been based on something other than
the complaint lodged by Zelenak with DeBalko on the morning of February 11, or by anything
Zelenak may have said to DeBalko during the second meeting that day. The only incident
involving Molinaro immediately preceding Zelenak’s February 11, meetings with DeBalko
occurred at DeBalko’s employee meeting the day before, February 10, during which Molinaro
first expressed the view that Zelenak might be a Company spy. I am convinced that it was this
February 10, behavior by Molinaro which DeBalko found particularly intrusive and unruly, and
not any complaints Zelenak may have made to DeBalko the following day, which prompted
DeBalko to initiate disciplinary proceedings, e.g., “a suspension prior to discharge,” against
Molinaro. The entry on the “Employee Warning Report,” showing that Molinaro’s suspension
30 The Respondent’s characterization and/or description on brief of Zelenak’s testimony as
“candid,” “true emotion,” and “heartfelt” makes clear that it too views Zelenak as a credible
witness. Ironically, the Respondent makes little reference to DeBalko’s testimony, and offers no
explanation for the discrepancy between Zelenak’s claim of being told by DeBalko and Wyss
during their February 11, morning meeting that Molinaro had been fired, and DeBalko’s version
that he simply told Zelenak to ignore Molinaro and, by implication, made no mention of Molinaro
having being fired.

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was based on conduct that purportedly occurred on February 10, supports such a finding.31
DeBalko’s assertion, therefore, that Molinaro was suspended and thereafter fired on the basis of
complaints he received from Zelenak on the afternoon of February 11, is found not to be
credible. I find instead that the decision to suspend and discharge Molinaro arose from the
remarks he made about Zelenak at DeBalko’s February 10, meeting.

4. The 2004 Union meetings

The record reflects that Local 8567-14 maintains a union hall at One N. Broad St., in
West Hazleton, PA, where it holds monthly meetings with unit employees, typically on
Saturdays or Sundays between 1:00 and 4:00 p.m. The union hall is situated diagonally across
a bar and restaurant known as “The Bottleneck Bar.” Both locations, e.g., the union hall and the
bar, are separated by N. Broad St., a busy four-lane street.

Stinsky testified that during a union meeting held on February 1, at the union hall, unit
employees who were at the Bottleneck Bar prior to the start of the meeting told him they had
seen Wyss at the bar. Stinsky and Conti then went over to the Bottleneck Bar to see if Wyss
was still there. On entering the bar, they saw Wyss and his wife sitting at a table next to a
31 There are other discrepancies between what is contained in the “Employee Warning
Report” issued to Molinaro, and the testimony of the various witnesses involved in this incident.
The report, as noted, states that Zelenak formally complained “that he was intimidated by
Molinaro” spreading false and malicious reports to co-workers.” According to the report, this
alleged incident of intimidation occurred at around “3:00 p.m.” on “2/10/04” in the vicinity of
where the “time clock” is located (see RX-22). Molinaro, as noted, admitted having a discussion
with employees Gering and Staley on the precise date, time, and place stated in the report
during which he expressed to them, and they concurred, his belief that Zelenak was a Company
spy. Zelenak, however, was not at work on February 10, and could not have witnessed this
incident or, for that matter, been the direct recipient of any “intimidating” remarks by Molinaro
that day. Zelenak, as noted, was out sick that day and did not return to work until the following
day, February 11, 2004. Zelenak, however, made no mention in his testimony of having
received any intimidating threats from Molinaro on February 11, or any other day, nor did he
mention anything about any incident involving Molinaro occurring on February 10, at 3:00 p.m.,
in the vicinity of the time clock, as set forth in the report. He did not testify, for example, to
having been told by either Gering or Staley of the conversation they had with Molinaro. Clearly,
Zelenak had no first hand knowledge of what occurred on February 10, at 3:00 p.m., near the
time-clock as he was not at work that day. What is not clear, however, is just where the
Respondent obtained the information about the alleged February 10, incident which, according
to the Employee Warning Report, formed the basis for the suspension that was issued to
Molinaro the following day. It would not have come from Zelenak, for he credibly denied having
been intimidated or threatened by Molinaro. Nor did DeBalko claim to have spoken with Gering
or Staley about what Molinaro said to them regarding Zelenak on February 10. DeBalko, in fact,
claimed that it was the alleged complaint made by Zelenak on the afternoon of February 11,
about feeling threatened by Molinaro, and the two weeks notice given by Zelenak during that
meeting, that led to Molinaro’s suspension, not anything that occurred on February 10. His
testimony in this regard thus renders suspect the declared reason shown in the report that the
suspension resulted from an incident that occurred at 3:00 p.m., on February 10, near the time-
clock. The above-described discrepancies cast doubt on the reliability and veracity of RX-22,
and serve to undermine the explanation proffered therein by the Respondent for suspending
Molinaro. I note in this regard that Wyss, who signed and presumably was responsible for
authoring RX-22, did not testify, leaving unresolved the ambiguities contained in the report.

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window from which the Union Hall was visible. Wyss, according to Stinsky, was gazing out the
window in the direction of the Union Hall. Stinsky testified that he had seen Wyss at the bar on
prior occasions, but never with his wife except on this one occasion. (Tr. 96-97). He recalls
seeing Wyss at the Bottleneck bar on three to five occasions between February and April, when
union meetings were being held, but also saw him on several other occasions when no
meetings were being held.

Stinsky recalls that a few days prior to an April 25, union meeting to discuss strike plans,
he, along with Conti, employee George Alaishuski, and Wyss were in the plant standing near a
welding machine when Conti mentioned something about the upcoming union meeting. Wyss,
according to Stinsky, chimed in that he would be at the Bottleneck bar that day, e.g., the day of
the Union meeting (Tr. 106). Stinsky attended the April 25, union meeting, and testified that
after the meeting ended, he along with Union treasurer, Richard McGettigan, and Union
president Ronald Lynn,32 went across the street to the Bottleneck bar to see if Wyss had shown
up. When all three entered the bar, they observed Wyss and Urban sitting at the bar counter. A
short while later, Wyss and Urban moved from the counter to a table along a wall near a window
that looked out at the front entrance to the union hall across the street.

Conti also testified regarding Wyss’ presence at the Bottleneck bar during union
meetings. Like Stinsky, he recalled having a discussion with Stinsky and Alaishuski about the
April 25, meeting a few days earlier, and recalls Wyss also being present during that
conversation. Conti claims that at one point, Alaishuski asked Wyss if he had ever ridden the
“mechanical bull” at the Bottleneck bar, and that Wyss answered he had not, but that he would
be at the bar on Sunday, April 25, for the meeting (Tr. 200).33 According to Conti, he had seen
Wyss at the Bottleneck bar on four occasions between February and April, 25, when the Union
was holding meetings. He claims that on one of those occasions, Wyss was with his wife, on
another occasion he was alone, and on the remaining two occasions, he was accompanied by
supervisor Urban. Conti contends that after the April 25, union meeting ended, he went over to
the Bottleneck bar and saw Wyss and Urban sitting at a table along the wall next to a window
that looked out towards the entrance to the union hall. Both were seated at the same location
they had been in during their prior visits to the bar. Conti testified that he frequents the
Bottleneck bar twice a month, and believes that Wyss does not regularly visit the bar because
when he asked the bartender if Wyss went there often, the bartender answered that Wyss did
not visit the bar much. (Tr. 208-209). Conti explained that his query to the bartender was
intended to find out if Wyss was spying on employees and the union meeting, and that he
concluded, from the bartender’s response, that Wyss was indeed spying on them.

McGettigan and Lynn also testified to attending the April 25, union meeting and to
seeing Wyss and Urban at the Bottleneck bar that day. McGettigan testified that he was asked
by Pozza to attend the meeting because the subject matter to be discussed involved a strike. At
some point during or after the meeting, Pozza asked him to go over to the Bottleneck bar to see
if Wyss and Urban were there. As he, Lynn, and Stinsky were crossing the street heading
towards the bar, Wyss and Urban were pulling up. Stinsky then pointed out who Wyss was as
32 McGettigan and Lynn are not employees of the Respondent.
33 Conti’s version of what Wyss said during this discussion differs slightly from Stinsky’s
account. Their accounts, however, are mutually corroborative to the extent they confirm that
Wyss expressed his intent to be at the Bottleneck Bar on the day the Union was to hold its
meeting with employees. Nevertheless, I accept Conti’s more detailed account of what was
said by Wyss that day, to wit, that he did not go to the Bottleneck Bar to ride the “mechanical
bull,” but “would be at the bar on Sunday [April 25, 2004] for the meeting,” as accurate.

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McGettigan had never before seen Wyss or Urban. When he entered the bar, McGettigan
observed Wyss and Urban sitting at the table near the window from where the union hall could
be seen. He recalls seeing both drinking beer, and Wyss writing something on a piece of paper.
McGettigan further recalls buying Wyss and Urban a beer and asking the bartender to tell Wyss
it was from the Steel Workers. A short while later, as McGettigan got up to go to the men’s
room, Wyss, he contends, approached him and asked for his name and who he worked for.
McGettigan responded that it was none of Wyss’ business, and that if he wanted to find out who
McGettigan was, Wyss had ways of finding out. He does recall telling Wyss that he was there
to support his “brothers at Ivy Steel.” At one point during that brief encounter, McGettigan
claims he told Wyss that he found it ironic that “on this particular Sunday, at this time, he just
happened to be sitting at this bar.” McGettigan could not recall anymore of this conversation.

Like McGettigan, Lynn testified that Pozza and Stinsky asked him, either during or at the
end of the union meeting, to go over to the Bottleneck Bar to see if Wyss and another individual
were there. When he got there, Stinsky, who apparently accompanied Lynn to the bar,
identified Urban to him. Prior thereto, Lynn had no knowledge of who Urban or Wyss were.
Lynn claims that Urban was seated at the bar having a beer, and was joined shortly thereafter
by Wyss, who was identified to him by Stinsky. A short while later, he observed Wyss and
Urban leave the bar counter and take seats at the table near the window that looked out
towards the union hall. Like McGettigan, Lynn recalls seeing Wyss writing something down on
a piece of paper. He also recalls seeing McGettigan buy Wyss and Urban a beer, and observed
Wyss having a conversation with McGettigan as the latter was heading towards the men’s room.
He did not, however, hear the exchange that occurred between them.

B. Discussion and analysis

1. The allegation involving Hinkle’s pay

The complaint alleges, and the General Counsel contends, that the reduction in Hinkle’s
wage rate in September, from $12.35/hour to $11.15/hour, was done unilaterally by the
Respondent without giving the Union prior notice and an opportunity to bargain over the change
in Hinkle’s pay.34 The Respondent admits that Hinkle’s pay was cut sometime in August, but
contends that the reduction was made at the Union’s behest and pursuant to an agreement
reached with the Union during the negotiations. I find merit in the allegation.

First, I find no merit in the Respondent’s contention that the Union asked it to reduce
Hinkle’s pay during the negotiations. While Hoffpauir and Messina testified that such a request
was made on more than one occasion by the Union, and Pozza in particular, during
negotiations, said testimony was disputed by Pozza, Fiore, Conti, and Stinsky, all of whom
denied that any such request was ever made. Dopson likewise testified that no such request
was made by the Union at the August meetings he attended. I reject Hoffpauir’s and Messina’s
testimony in this regard as not credible. Their testimony regarding this matter was neither
consistent nor supported by the Respondent’s or the Union’s bargaining notes received into
evidence.

Hoffpauir’s claim, for example, that Pozza expressly asked to have Hinkle’s pay
reduced, does not square with, and seems to run counter to, Messina’s claim that Pozza never
actually verbalized his request for Hinkle’s pay to be reduced, but rather hinted at it by
34 The Respondent does not deny that it is a successor employer, or that it had a duty to
bargain with the Union over the reduction in Hinkle’s pay.

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repeatedly insisting that Hinkle was being favored by the Respondent. Messina somehow
inferred, unreasonably in my view, from Pozza’s alleged remarks about Hinkle, that the former
was actually seeking a reduction in Hinkle’s pay. Clearly, if, as claimed by Hoffpauir, Pozza had
willingly answered “yes” to Hoffpauir’s query of whether the Union wanted Hinkle’s pay reduced,
I find it highly unlikely that Pozza would have turned shy and been unwilling to respond in like
fashion to the identical question allegedly posed to him by Messina. Rather, I find it more likely
than not that, as reluctantly testified to by Messina, no such verbal request was ever made by
Pozza either to Messina or to Hoffpauir, and that Hoffpauir was not being truthful in asserting
that Pozza expressly told him to reduce Hinkle’s pay.35 Nor am I convinced that Pozza implicitly
conveyed that message to Messina by purportedly responding to the latter’s query that Hinkle
was receiving favored treatment. Thus, even if I were to believe, and I do not, that Messina
asked Pozza point blank if he wanted Hinkle’s pay reduced, Messina had no reasonable basis
for assuming or concluding, solely on the basis of Pozza’s alleged response that Hinkle was
receiving favorable treatment, that Pozza was somehow demanding that Hinkle’s pay be
reduced.

In sum, Hoffpauir’s and Messina’s claim that the Union repeatedly asked for a reduction
in Hinkle’s pay during negotiations is found not to be credible. I note in this regard, and both
Hoffpauir and Messina conceded, that none of the parties’ bargaining notes makes reference to
any such request by the Union, or to the alleged agreement to reduce Hinkle’s pay that
Hoffpauir claims was entered into by the parties during said negotiations. I am convinced that
had such an agreement been entered into, a seasoned labor attorney like Messina, with more
than 30 years experience, would have made sure that that agreement would be reflected
35 Hoffpauir was generally not a very credible witness both from a demeanor standpoint and
from inconsistencies in his testimony. For example, in support of his rejected claim that Pozza
asked to have Hinkle’s pay reduced, Hoffpauir, as noted, testified to having had a 1½ hour long
discussion with Pozza sometime in August on the Hinkle matter, but changed his story when
confronted with the fact that Pozza had not attended any of the August bargaining sessions.
Pozza credibly, in my view, denied Hoffpauir’s claim in this regard. Further, I note that Messina,
the Respondent’s principal negotiator, made no mention in his testimony of having witnessed a
discussion of that duration between Hoffpauir and Pozza at any bargaining session. Nor was
Hoffpauir consistent in explaining how he allegedly provided a copy of RX-26 to the Union,
asserting, rather assuredly at first, that it was handed to the Union at an August 10, bargaining
session, as reflected in a handwritten notation found on RX-26, but subsequently claiming, after
being told that the parties did not meet on August 10, that it might have been mailed to the
Union instead. Hoffpauir’s further claim, that he and the other members of his bargaining team
were somewhat clueless at first about what the Union was allegedly claiming regarding Hinkle,
and that it was not until several months after the start of the negotiations that they purportedly
figured out what the Union was allegedly asserting, again makes little sense and came across
as another of his fabrications. Again, I note that Messina made no such claim in his testimony.
His poor demeanor on the witness stand, coupled with the inconsistencies in his testimony,
leads me to conclude that Hoffpauir did not testify in an honest and truthful manner, but rather
tailored his testimony to fit the Respondent’s desired outcome. His testimony on the question of
why Hinkle’s pay was reduced is therefore rejected as not credible.
Messina was equaling uninspiring as a witness. He seemed at times unable or, as I am
more inclined to believe, unwilling to give an honest and straightforward answer to some rather
simple questions posed to him on cross-examination by General Counsel, despite experiencing
no similar difficulties, and seeming more self-assured, when questioned on direct by
Respondent’s counsel. Thus, I give little or no weight to Messina’s testimony on the question of
what may have transpired at the negotiations regarding Hinkle.

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somewhere in the bargaining notes, or memorialized in some other form or fashion. The
absence of any mention or reference in the bargaining notes to such an agreement, and the
Respondent’s failure to produce, other than Hoffpauir’s rejected testimony, some credible
documentary or other evidence establishing the existence of an agreement, leads me to
conclude that no such agreement to reduce Hinkle’s wage rate was ever entered into between
the Respondent and Union during their negotiations.

Nor is there any indication in the record, other than Hoffpauir’s and Messina’s
discredited assertions that the Union sought and agreed to Hinkle’s reduction in pay, that the
Respondent’s decision to reduce Hinkle’s pay was ever discussed, much less bargained over,
with the Union during negotiations. There is, to be sure, some evidence to suggest that the
issue of employee wages may have been the subject of some discussion by the parties during
bargaining. The focus of such wage discussions, however, appeared to center on whether or
not to grant an increase to employees who were at the top of their wage range, as allegedly
proposed by the Respondent, or to grant an across-the-board wage increase to all unit
employees, as allegedly sought by the Union. Although the Respondent on brief asserts that
Hinkle’s wage reduction was raised by the Union and discussed by the parties in context with
their discussion of the above wage proposals, there is simply no credible evidence to support
that assertion.

The bargaining notes do show certain comments being made at the February 25, and
July 10, bargaining sessions about Hinkle being overpaid or making more money than Fiore.
Thus, RX-11, the Respondent’s February 25, notes, contains a comment about Hinkle being
paid more than Fiore, but does not identify the source of the comment. However, RX-9, the
Respondent’s July 10 notes, and GCX-47 (at page 13), the Union’s own notes of that day, show
the Respondent bringing up the subject of Hinkle being “over range” or “paid above his rate.”
Both the Respondent’s and the Union’s July 10, notes thus make clear that it was the
Respondent, and not the Union as claimed by Hoffpauir and Messina, which first broached the
subject of Hinkle’s pay.

The references in the July 10, and February 25, bargaining notes, are sketchy at best
and, other than showing that Hinkle may have been overpaid, offer no insight or clue as to what,
if anything, may have been said or discussed by the parties on the issue of Hinkle’s pay at those
two bargaining sessions. In and of themselves, the references to Hinkle’s wage in the above
notes do not establish that the parties exchanged proposals of any kind on the Hinkle matter, or
held in-depth discussions or bargained over what, if anything, should be done about Hinkle’s
wages. Nor do I find anything in the February 25, and July 10, notes, or in any of the parties’
other bargaining notes, to suggest that the subject of reducing Hinkle’s wage rate was raised
and discussed by the parties in conjunction with, and as part of, the discussions they
purportedly had on their respective proposal to increase employee wages.

To summarize, the Respondent’s claim that it lowered Hinkle’s wage rate at the Union’s
request, and after negotiating with and entering into agreement with the Union over the matter,
lacks evidentiary support and is, therefore, found to be without merit. I find it more likely than
not, particularly in light of the Union’s and the Respondent’s own July 10, bargaining notes, that
it was the Respondent, not the Union, who first brought up the subject during negotiations of
Hinkle being overpaid. I further find that on or about September 1, the Respondent unilaterally
reduced Hinkle’s wage rate without giving the Union prior notice or an opportunity to bargain
over said decision. The few bargaining notes which show the Respondent complaining about
Hinkle being above his wage range or overpaid do not show the Respondent expressing to the
Union its intent to lower Hinkle’s wage rate to conform to the rate he purportedly should have
been receiving as a material handler, or any discussions being held between the parties

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regarding the Respondent’s representation that Hinkle was overpaid. The credible evidence of
record, including Stinsky’s undisputed account as to what Wyss told him, leads me to believe
that the real motivation for the reduction in Hinkle’s wage rate stemmed either from the
Respondent’s desire to bring Hinkle’s pay down to that called for in the wage range for his
position, or because Hinkle, according to Wyss, was not performing up to expectations. In
either case, that decision was not prompted by any request from the Union, nor was it the
product of any negotiations or agreement by the parties.

The subject of Hinkle’s wages is a term and condition of employment that has long been
recognized as a mandatory subject of bargaining.36 Section 8(a)(5) of the Act requires an
employer to provide its employees' representative with notice and an opportunity to bargain
before instituting changes in any matter that constitutes a mandatory bargaining subject, NLRB
v. Katz, 369 U.S. 736 (1962), and an employer violates its duty to bargain if, when negotiations
are in progress, it unilaterally institutes changes in existing terms and conditions of employment.
Northwest Graphics, Inc., 343 NLRB No. 16 (2004). This is precisely what occurred here with
Hinkle’s wage cut. While there was some brief mention made by the Respondent during one or
two bargaining sessions about Hinkle’s pay exceeding the maximum allowable rate for his
position, no proposal to reduce Hinkle’s pay was ever presented by either party during said
negotiations, nor did any bargaining ever take place on whether to reduce Hinkle’s pay. Rather,
the decision to reduce Hinkle’s pay was undertaken unilaterally by the Respondent. Further,
this unilateral change was, in my view, “material, substantial, and significant” in that this more
than 9% reduction in pay meant that Hinkle was receiving $48.00 less a week. Flambeau
Airmold Corp., 334 NLRB 165 (2001). The fact that the unilateral change in Hinkle’s wage rate
may have affected only one unit employee, and not other members of the bargaining unit, does
render the change inconsequential or insubstantial. See, Kentucky Fried Chicken, 341 NLRB
No. 13 (2004). Accordingly, I find, as alleged in the complaint, that the Respondent’s unilateral
change in Hinkle’s pay, without giving the Union prior notice and an opportunity to bargain,
violated of Section 8(a)(5) and (1) of the Act.

2. The allegations involving Molinaro

(a) His suspension and discharge

The complaint alleges, the General Counsel contends, and the Respondent denies that
Molinaro was unlawfully discharged for his Union or other protected activity. The analytical
framework for determining employer motivation in a case alleging a discriminatory discharge
was established by the Board in Wright Line, 251 NLRB 1018 (1980), enfd. 662 F. 2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982). Under Wright line, the General Counsel, as part of
her burden of proof, must first make a prima facie showing that the discharge or other action
taken against an employee was motivated by antiunion considerations. To make out a prima
facie case, the General Counsel must show that the employee, Molinaro in this case, had
engaged in union or other protected activity prior to his discharge, that Respondent knew or was
aware of his activities, and that it harbored antiunion animus. If the General Counsel succeeds
in meeting this initial burden, the burden shifts to the Respondent to demonstrate that it would
have discharged Molinaro even in the absence of union activity. The General Counsel, I find,
36 Section 8(d) requires collective bargaining over “wages, hours, and other terms and
conditions of employment.” Mandatory subjects of bargaining are those encompassed within
Section 8(d)’s phrase, “wages, hours, and other terms and conditions of employment.” RCA
Corporation, 296 NLRB 1175, 1176 (1989); also Columbia University In The City Of New York,
298 NLRB 941 (1990) (“wages are undeniably a mandatory subject of bargaining”).

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has made a prima facie showing that Molinaro was discharged for his union or protected
activities.

As found above, it was the remarks made by Molinaro at DeBalko’s February 10,
meeting about Zelenak being a Company spy, not anything Zelenak may have said to DeBalko
the following day, that led to Molinaro’s 3-day suspension and subsequent discharge. Remarks
similar to those made here by Molinaro about Zelenak being a company spy have been found
by the Board to be protected under the Act. See, Somerset Shirt & Pajama Co., 232 NLRB
1103, 1109 (1977); also Hertz Corp., 316 NLRB 672, 692 (1995); Bakersfield Memorial Hospital,
305 NLRB 741, 746 (1991). As pointed out by the judge and affirmed by the Board in
Bakersfield Memorial, supra at 746, the right of one employee to warn other employees of spies
or informers in their ranks is protected by Section 7 of the Act. Thus, statements of an
employee to others based on a good-faith belief that another is an informer constitutes
protected activity.

Contrary to the Respondent’s assertion on brief, Molinaro’s February 10, remark about
Zelenak being a spy was neither malicious nor, in my view, made in bad faith. DeBalko himself,
as noted, testified that he viewed Molinaro’s remark as a mere statement of opinion and not a
threat. Molinaro, I find, honestly believed, from his perception of Zelenak’s relationship with
certain of Respondent’s managers, and his belief that Zelenak did not regularly attend Union
meetings but did attend the one held on February 8, to discuss strike matters, that Zelenak
might be a Company spy and not to be trusted. Molinaro, it should be noted, was not alone in
his belief, for fellow employees Gering and Staley apparently shared the same view. As
Molinaro pointed out in his testimony, during his conversation with Gering and Staley just before
DeBalko held his February 10, meeting, both expressed the view that Zelenak might be a
Company spy. Molinaro’s testimony in this regard was uncontradicted and found to be credible.
Whether true or not, Molinaro’s suspicion about Zelenak being a Company informer was
reaffirmed by Gering and Staley just before Molinaro made known his own views about Zelenak
being a spy at the February 10, meeting. Consequently, when Molinaro made his remark, he
honestly, but in all likelihood, mistakenly believed that Zelenak was a Company informer. The
Respondent’s suggestion on the other hand, that Molinaro’s comment about Zelenak was
motivated by ill-will or for the purpose of harming Zelenak, is devoid of evidentiary support and
without merit. Accordingly, I find that Molinaro’s remark during the February 10, meeting about
Zelenak being a spy was protected under Section 7 of the Act. As the remark was made in the
presence of DeBalko, and as the suspension and discharge occurred in direct response to the
exercise by Molinaro of his Section 7 right, it follows that the General Counsel has satisfied the
knowledge and animus elements of her prima facie case and has met her Wright Line initial
burden of proof.37

The Respondent contends that Molinaro was lawfully discharged not for what he said at
DeBalko’s February 10, meeting about Zelenak being a Company spy, but rather because of the
effect it had on Zelenak, e.g., causing Zelenak to be fearful of Molinaro and to tender his
resignation, conduct which it further contends amounted to a Group II Major Violation. The
Respondent’s argument in this regard is flawed in several respects. First, Zelenak, as found
above, never told DeBalko that he was resigning because he felt threatened by Molinaro or
because Molinaro had called him a spy. Although I believe, as testified by Zelenak, that
Molinaro’s “spy” remarks were taken into account by Zelenak when making his decision to
37 Molinaro’s unrefuted and credited testimony about the prounion remarks he made to
Wyss and DeBalko during the week of February 6, 2004, further serves to establish knowledge
by management of Molinaro’s pro-Union sympathies.

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resign, Zelenak never made that fact known to DeBalko during either of their two February 11,
meetings. Rather, according to Zelenak’s credited testimony, he simply told DeBalko that he
was leaving because he could no longer handle the workload and simply had had enough. The
Respondent’s assertion, therefore, that it took the action it did against Molinaro because
Zelenak had told him he had become fearful of Molinaro as a result of the latter’s spy remarks
and could no longer work with him, lacks credible evidentiary support.

Indeed, as further found, the decision to discharge Molinaro was made even before the
Respondent learned from Zelenak that the latter had been called a “spy” and a “snitch” by
employees. Thus, according to Zelenak’s credited account, when he first complained to
DeBalko on the morning of February 11, about being called a “spy” and “snitch” by employees,
and of the fact that Molinaro was apparently responsible for the remarks being made, DeBalko
told him not to worry because Molinaro had already been fired. DeBalko’s statement to Zelenak
about Molinaro having been fired is consistent with, and appeared to corroborate, what Zelenak
credibly testified other employees had told him before he first went to see DeBalko. Thus, not
only is there no credible evidence of Zelenak telling DeBalko that he feared, and was
consequently quitting because of, Molinaro, even if such statements had been made by Zelenak
to DeBalko, they could not have played any role in the decision to suspend and terminate
Molinaro since said decisions had already been made before Zelenak first complained to
DeBalko on the morning of February 11.

In sum, I find no credible evidence to support, and consequently reject as without merit,
the Respondent’s defense that Molinaro was suspended and discharged because Zelenak may
have felt threatened by, and submitted his resignation due to, the remarks Molinaro made about
him being a Company spy. Rather, Molinaro, as previously discussed and found, was
discharged solely for referring to Zelenak as a Company spy at DeBalko’s February 10,
employee meeting. Nor, in any event, would the stress caused to Zelenak by Molinaro’s remark
have justified disciplining Molinaro for engaging in Section 7 protected activity. Thus, in both
Hertz Corp. and Bakersfield Memorial Hospital, supra, the Board found that the discipline
imposed on employees who accused others of being a spy to be unlawful notwithstanding that
the recipients of such accusations, like Zelenak here, became so upset as to cause one to leave
work early, cry on the way home, and complain that other employees would not want to work
with her, see Hertz, supra at 680, and to have adversely affected the job performance of the
other, see Bakersfield Memorial, supra at 743. As previously discussed, Molinaro’s expressed
belief that Zelenak might be a Company spy was made in good faith, and not for the purpose of
denigrating Zelenak or otherwise causing him harm. As such, Molinaro’s remarks about
Zelenak being a Company spy were clearly protected. The Respondent’s decision to suspend
and discharge Molinaro for engaging in such conduct thus violated Section 8(a)(3) and (1) of the
Act. I further agree with the General Counsel that by disciplining Molinaro, pursuant to the
provision in item No. 6 of the Group II Major Violations in the employee handbook prohibiting the
coercion or intimidation of fellow employees, for his protected activity of calling Zelenak a spy,
the Respondent independently violated Section 8(a)(1) of the Act.38
Continued
38 Although DeBalko, on direct examination by Respondent’s counsel, testified that
Molinaro’s conduct was also viewed as violating Rule 10 (“engage in malicious mischief,
horseplay, or fighting endangering the safety of others”) of the “Group III Intolerable Violations”,
on cross-examination he testified that this particular provision was not used to support the
suspension and termination decision. (Tr. 743;787). While somewhat ambiguous, his testimony
in this regard is bolstered by the fact that the “Employee Warning Report” issued to Molinaro on
February 11, in conjunction with his suspension makes no mention of this provision. (see RX-
22). Thus, I do not agree with the General Counsel’s assertion on brief that the Respondent

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_________________________

(b) The alleged Weingarten39 violation

As previously pointed out, at the hearing the General Counsel moved to amend the
complaint to include an allegation that the Respondent’s failure to comply with Molinaro’s
request for union representation during the February 11, suspension meeting amounted to a
violation of his Weingarten rights and violated Section 8(a)(1). The motion to amend was
granted over the Respondent’s objection. The Respondent, on brief, renews its objection to the
amendment on grounds that the allegation is time-barred under Section 10(b) of the Act.40 On
further reflection, I find that the amendment to the complaint was improperly granted and that
the allegation is indeed time-barred.

Section 10(b) precludes the Board from considering allegations of unlawful conduct
occurring more than six months prior to the filing of a charge. The Board, however, will consider
such untimely allegations if it finds the alleged unlawful conduct in question to be “closely
related” to allegations contained in a timely-filed charge. Nickles Bakery of Indiana, 296 NLRB
927 (1989); Redd-I, Inc., 290 NLRB 1115 (1988). In applying the “closely-related” test, the
Board looks at whether (1) the otherwise untimely allegation involves the same legal theory as
the allegations in the timely-filed charge;41 (2) the allegations arise from the same factual
circumstances or sequence of events; and (3) a respondent would raise similar defenses to both
allegations. Id.

The General Counsel contends, and the Respondent denies, that the “closely-related”
test has been met here. I agree with the Respondent. First, the legal theories underlying both
the timely-filed Section 8(a)(3) unlawful suspension/discharge allegation of Molinaro, and the
otherwise untimely Section 8(a)(1) Weingarten allegation, are not the same. Thus, the theory
behind the Section 8(a)(3) allegation is that Molinaro was unlawfully suspended and
subsequently discharged for his union or other protected activity. Resolution of this issue
unlawfully relied on Item 10 of the “Group III Intolerable Violations” to suspend Molinaro.
39 See, NLRB v. Weingarten, Inc., 420 U.S. 251 (1975). In Weingarten, the Court held that
an employee has a Section 7 right to request representation as a condition to participating in an
investigatory interview which the employee reasonably believes will result in disciplinary action.
In Baton Rouge Water Works Co., 246 NLRB 995, 997 (1979), the Board held that the
Weingarten right to representation does not apply when the purpose of the interview is merely to
inform an employee of a previously-made disciplinary decision. However, when an employer
“informs the employee of a disciplinary action and then seeks facts or evidence in support of
that action..., the employee's right to union representation” may apply. Id., also, PPG Industries,
251 NLRB 1146, fn. 2 (1980).
40 Section 10(b) of the Act bars the Board from proceeding to complaint on a charge filed
and served more than 6 months after an alleged unfair labor practice. Here, the alleged
violation of Molinaro’s Weingarten rights occurred on February 11, 2004, the same day he was
given his suspension. The charge alleging the suspension to be unlawful was timely filed on
March 1, 2004, and made no mention of or reference to an alleged unlawful denial of Molinaro’s
Weingarten rights. The alleged Weingarten violation was raised for the first time by the General
Counsel at the hearing in late September 2004, more than six months after the Weingarten
violation allegedly occurred.
41 The Board has made clear that it is not necessary for the same section of the Act to be
invoked to satisfy this first prong of the “closely-related” test. Nickles Bakery of Indiana, supra
at 928, fn. 5.

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requires application of the causation test set forth in Wright Line, supra. That test, as noted,
calls for a burden-shifting analysis and requires the General Counsel to establish a
discriminatory motivation for the action taken by the employer. To establish a Weingarten
violation, the General Counsel need only show that an employee was subjected to an
investigatory interview that he or she reasonably believed could lead to discipline, and that the
employee asked for but was denied union representation during that interview. See, e.g.,
Consolidated Edison Company Of New York, Inc., 323 NLRB 910, 917 (1997). Unlike in Wright
Line, supra, the General Counsel is not required to show that an employee was engaged in
union or other protected activity prior to demanding his or her Weingarten right to have a union
representative present during the investigatory interview, or that the employer’s refusal to grant
the employee’s request was motivated by antiunion considerations. It is patently clear,
therefore, that the theories underlying both allegations are not the same, and involve very
different elements of proof. Consequently, I find that the first prong of the “closely-related” test
has not been met here.

Nor would the defense raised by Respondent to the Weingarten allegation be the same
as or similar to the allegation that it unlawfully suspended and discharged Molinaro for his union
or protected activity. Thus, in defending against the Weingarten allegation, the Respondent
would have to show either that the February 11, suspension meeting was a disciplinary, not an
investigatory, meeting called for the sole purpose of notifying Molinaro of its decision, or that
Molinaro, in fact, never asked for union representation at that meeting. On the other hand, to
defend against the Section 8(a)(3) suspension/discharge allegation, the Respondent would
have to show that Molinaro did not engage in any union or other protected activity or, if he had,
that Molinaro would have been suspended and discharged even if he had not engaged in any
such activity. It is patently clear, therefore, that the Respondent’s defense to the timely-filed
Section 8(a)(3) charge, alleging Molinaro’s suspension and discharge to be unlawful, has no
bearing on, and is wholly irrelevant to, the question of whether Molinaro’s Weingarten rights
were violated, and vice-versa.

In sum, I find that the untimely Section 8(a)(1) Weingarten allegation is not “closely-
related” to the Section 8(a)(3) allegation involving Molinaro’s suspension and discharge, and, as
such, cannot be considered under Section 10(b). Accordingly, the grant of the General
Counsel’s motion at the hearing to amend the complaint to include the Weingarten allegation
was improper. The motion to amend the complaint in this regard is therefore denied.42
42 Even if the Weingarten allegation were found to have been timely filed under the “closely-
related” test, I would nevertheless recommend dismissal of the allegation, as the February 11,
suspension meeting was not, in my view, an investigatory one but rather convened for the sole
purpose of notifying Molinaro of his 3-day suspension. Assuming, arguendo, that the
Respondent had not yet made a decision on whether to keep or terminate Molinaro when it
issued him the 3-day suspension, an argument which, as found above, I reject as contrary to the
weight of the evidence, it is nevertheless clear that a final decision to suspend Molinaro was
made prior to the February 11, meeting. Other than a brief exchange regarding what Downey
had observed, I find nothing in Molinaro’s credited version of the February 11, meeting to
suggest that Molinaro was questioned about the conduct which led to the suspension, or that
the DeBalko or anyone else at the meeting tried to elicit information from Molinaro. While I am
convinced that Molinaro asked for union representation at the February 11, meeting, that fact
alone can hardly serve to transform the February 11, meeting into an investigatory interview
triggering Weingarten rights.

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

(a) The rule requiring prior approval for solicitation

The complaint alleges, and the General Counsel contends, that the language on page
17 the Respondent’s employee handbook, set forth as Rule No. 5 in the Group II Major
Violations (GCX-10, p. 17), prohibiting employees from soliciting for any purpose within the plant
without its permission, is facially unlawful and violates Section 8(a)(1) of the Act. The
Respondent argues that its actual policy regarding employee solicitation and distribution is set
forth in the “Solicitation and Distribution Policy” found on page 19 of the handbook, not the
language listed as item 5 under Group II Violations, and that said “Solicitation and Distribution
Policy” is, on its face, lawful. As to the language in Item 5 of the Group II violations requiring
that employees obtain permission before soliciting, the Respondent argues that that language
serves as nothing more than a notification to employees of the consequence for violating the
“Solicitation and Distribution Policy” found on page 19 of the handbook. Alternatively, it argues
that the allegation, that its “Solicitation and Distribution Policy” is facially unlawful, is time-barred
under Section 10(b).

Regarding the Section 10(b) defense, it should be noted that the General Counsel,
contrary to the Respondent’s assertion, is not challenging the validity of the “Solicitation and
Distribution Policy” found on page 19 of the employee handbook. Rather, the focus of the
General Counsel’s attention, and what has been alleged as unlawful, is the language in Rule
No. 5 of the Group II Violations, which prohibits employees from soliciting anywhere in the
Respondent’s plant without its prior approval. Consequently, I need not pass on the validity of
the Respondent’s “Solicitation and Distribution Policy,” or on the question of whether Section
10(b) precludes consideration of such an allegation. However, the mere maintenance of a
facially invalid no-solicitation rule during the Section 10(b) period violates the Act even if the rule
was promulgated outside the six-month limitations period and has not been enforced. MEMC
Electronic Materials, Inc., 342 NLRB No. 119, slip op. 24 (2004); Eagle-Picher Industries, Inc.,
331 NLRB 169, 186 (2000); Alaska Pulp Corporation,300 NLRB 232, 233 (1990).43 The Board
in this regard has pointed out that "the mere existence of a broad no-solicitation rule may chill
the exercise of employees' Section 7 rights." Alaska Pulp Corporation,300 NLRB 232, 233
(1990).

As to the requirement in Rule No. 5, Group II Violations, that employees must obtain
permission from the Respondent before engaging in solicitation anywhere in the plant, that
provision is clearly unlawful. It is well-settled that, absent special circumstances, employees
have a statutory right to engage in solicitations in both work and nonworking areas during their
nonworking time. Stoddard-Quirk Mfg. Co., 138 NLRB 615 (1962); also, Lutheran Heritage
Village-Livonia, 343 NLRB No. 75 (2004); Federated Corporate Services, Inc., 340 NLRB No.
36 (2003). Nor are employees required to obtain their employer’s permission to engage in such
43 The Board’s recent decision in Delta Brands, Inc., 344 NLRB No. 10 (February 7, 2005),
is neither applicable nor controlling here, for that case involved the question of whether the
mere maintenance of a facially invalid no-solicitation rule in an employer’s policy manual
constituted, without more, objectionable conduct sufficient to warrant setting aside a Board-
conducted election. Unlike in Delta Brands, supra, the issue here is whether the maintenance
of a rule requiring employees to obtain permission from the Respondent before engaging in any
solicitation in the plant violates the Act. Thus, the question of whether the mere maintenance of
such a rule violates the Act was not before, nor addressed by, the Board in Delta Brands, supra.

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protected activity. A rule imposing such a requirement as a precondition to engaging in such
activity is unlawful. Saginaw Control & Engineering, Inc., 339 NLRB 541 (2003); Chromalloy
Gas Turbine Corp., 331 NLRB 858 (2000). On its face, the language in Rule No. 5 requires that
employees seek prior approval from the Respondent for all solicitation occurring within the plant,
including that undertaken by employees on their own free time. The Respondent does not
contend that the requirement in Rule No. 5 is not subject to being enforced. But even if the
Respondent had no intentions of enforcing Rule No. 5, rule against employees who wish to
engage in solicitation deemed protected by the Act, there is no evidence that employees were
ever told or made aware of that fact, or that they were given assurances that prior approval was
not required for employees to solicit on their own free time. The “prior approval” requirement of
Rule No. 5 of the Group II Violations is therefore overly broad and unlawful under Section
8(a)(1) of the Act.

(b) The surveillance allegations

The General Counsel contends, and I agree, that the Respondent, on April 25, engaged
in, or at a minimum created the impression that it was engaging in, the unlawful surveillance of
its employees’ union activities when Wyss and Urban appeared and remained at the Bottleneck
Bar while the Union conducted a strike meeting with Respondent’s employees at its hall across
the street. The test for determining if an employer has created an impression of surveillance is
whether the employees could reasonably assume from statements made or, in my view, from
certain employer conduct, that their union activities were being kept under surveillance. See,
Grouse Mountain Lodge, 333 NLRB 1322 (2001), and cases cited therein.

The undisputed and credited testimony by Stinsky, Conti, McGettigan, and Lynn makes
patently clear that Wyss and Urban were at the Bottleneck Bar on April 25, at the same time that
the union was holding its meeting with Respondent’s employees across the street from the
Bottleneck Bar at its union hall. Wyss’ appearance and presence at the Bottleneck Bar on this
particular date and time was no mere coincidence, for Wyss had, just a few days earlier, told
Stinsky and Conti, while they were discussing the upcoming union meeting, that he would be at
the bar on April 25. More importantly, Wyss made clear to them, in response to Conti’s query
on whether Wyss ever rode the “mechanical bull” at the bar, that his reason for going to the bar
was not to ride the bull but because of the union meeting that was to be held. Thus, when
Stinsky and Conti, after the April 25, union meeting ended, encountered Wyss and Urban at the
Bottleneck Bar on April 25, seated near a window from where the comings and goings of
employees attending the union meeting across the street were easily observable, they could
reasonably have concluded, particularly in light of what Wyss told them would be his reason for
going to the bar that day, that Wyss and Urban had been keeping watch, and were there solely
to observe, which employees attended the union meeting. Accordingly, I find, as alleged in the
complaint and as argued by the General Counsel, that on April 25, the Respondent, through
Wyss and Urban, engaged in, and/or created the impression it was engaging in, the unlawful
surveillance of its employees’ union activities, in violation of Section 8(a)(1) of the Act. I also
agree with the General Counsel that by telling Stinsky and Conti, a few days before the April 25,
meeting, that he would be at the Bottleneck Bar for the meeting, Wyss conveyed the impression
that his purpose in going to the bar was to keep the employees’ union activities under
surveillance. His comment in this regard amounted to an unlawful threat of surveillance and
violated Section 8(a)(1) of the Act.44
44 The complaint alleges other instances of surveillance by Wyss on February 1, and on two
other unspecified dates. The facts surrounding these other alleged instances of unlawful
surveillance by Wyss are too vague and tenuous to support the finding of additional violations.

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Conclusions of Law
1. The Respondent is an employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.

2. The Union is a labor organization within the meaning of Section 2(5) of the Act.

3. By maintaining a rule in its employee handbook requiring employees to get its
permission before engaging in lawful solicitation, the Respondent violated Section 8(a)(1) of the
Act.

4. By suspending and thereafter discharging employee Mauro Molinaro for engaging in
protected activity, the Respondent violated Section 8(a)(3) and (1) of the Act.

5. By unilaterally reducing the wage rate of employee Timothy Hinkle without giving the
Union prior notice and an opportunity to bargain, the Respondent has violated Section 8(a)(5)
and (1) of the Act.

6. The above-described violations are unfair labor practices affecting commerce within
the meaning of Section 2(6) and (7) of the Act.

7. Except as found herein, the Respondent has not engaged in any other unfair labor
practices.

Remedy
Having found that the Respondent has 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.

The Respondent shall be required to rescind and not give effect to Rule No. 5 of the
“Group II Major Violations” in the employee handbook which prohibits employees from engaging
in lawful solicitation in the plant without prior authorization from the Respondent.

To remedy its unlawful unilateral change in Hinkle’s wage rate, the Respondent shall be
required, if so requested by the Union, to rescind the change made to Hinkle’s wage rate. It
shall also be ordered to make Hinkle whole for the loss in wages and other benefits he may
have sustained due to the unilateral reduction in his wage rate, in accordance with Isis Plumbing
Co., 138 NLRB 716 (1962), with interest as prescribed in New Horizons for the Retarded, 283
NLRB 1173 (1987).

As to its unlawful discharge of Molinaro, the Respondent shall be required to, within 14
days from the date of the Order, offer him full reinstatement to his former position or, if that
position no longer exists, to a substantially equivalent position without prejudice to his seniority
or any other rights or privileges he previously enjoyed. Further, the Respondent shall be
required to make Molinaro whole for any loss of earnings and other benefits he may have
suffered resulting from his unlawful 3-day suspension and discharge in the manner prescribed in
Isis Plumbing Co. supra, with interest as prescribed in New Horizons for the Retarded, supra.

Finally, the Respondent shall, within 14 days from the date of the Order, remove from its
files any and all references to Molinaro’s unlawful suspension and discharge, and within 3 days

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thereafter, notify him in writing that this has been done and that the suspension and discharge
will not be used against him in any way.

On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended45

ORDER
The Respondent, Ivy Steel & Wire, Inc., Hazleton, PA, its officers, agents, successors,
and assigns, shall

1. Cease and desist from

(a) Requiring employees to obtain permission before engaging in lawful solicitation in the
plant.

(b) Threatening to engage in the surveillance of employee union activity, engaging in the
surveillance of employee union activity, or creating the impression that employee union activity
is being kept under surveillance.

(c) Suspending and/or discharging employee Mauro Molinaro or any other employee for
engaging in protected concerted or union activity.

(d) Unilaterally lowering the wage rate of Timothy Hinkle or any other employee without
first giving the Union prior notice and an opportunity to bargain over the change.

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

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

(a) Rescind and cease giving effect to Rule No. 5 of the “Group II Major Violations” in the
employee handbook which prohibits employees from engaging in lawful solicitation in the plant
without the Respondent’s prior authorization.

(b) Within 14 days from the date of the Order, offer Mauro Molinaro full reinstatement to
his former job or, if that position no longer exists, to a substantially equivalent position, without
prejudice to the seniority or other rights and privileges he previously enjoyed.

(c) Make Mauro Molinaro whole for any losses he may have sustained as result of his
unlawful 3-day suspension and discharge, with interest, as provided in the remedy section of
this decision.

45 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.

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(d) On request of the Union, rescind the unilateral and unlawful change made in Timothy
Hinkle’s wage rate, and make Timothy Hinkle whole for any loss of earnings and other benefits
he sustained as a result of the unilateral reduction in his wage rate, with interest as provided in
the remedy section of this decision.

(e) Within 14 days from the date of this Order, remove from its files any reference to
Mauro Molinaro’s unlawful suspension and discharge and, within 3 days thereafter, notify him in
writing that this has been done and that the suspension and discharge will not be used against
him in any way.

(f) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the
Board of its agents, all payroll records, social security payment records, 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 back pay due under the terms of this
Order.

(g) Within 14 days after service by the Region, post at its facility in Hazleton, PA, copies
of the attached notice marked “Appendix.”46 Copies of the notice, on forms provided by the
Regional Director for Region 4, after being signed by the Respondent's authorized
representative, shall be posted by the Respondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employees employed by the Respondent
at any time since September 1, 2003.

(h) Within 21 days after service by the Region, file with the Regional Director a
sworn certification of a responsible official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply.

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

Dated, Washington D.C.

_____________________
George Alemán
Administrative Law Judge
46 If this Order is enforced by a Judgment of the United States Court of Appeals, the words
in the notice reading “POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD”
shall read “POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF
APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD.”
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APPENDIX
NOTICE TO EMPLOYEES

Posted by Order of the
National Labor Relations Board
An Agency of the United States Government

The National Labor Relations Board has found that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.

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

WE WILL NOT require employees to obtain our permission in order to engage in lawful
solicitation in our facility.

WE WILL NOT threaten to keep your activities under surveillance, and WE WILL NOT engage
in or create the impression that we are engaging in the surveillance of your union activities.

WE WILL NOT suspend and/or discharge Mauro Molinaro or any other employee for engaging
in union or other protected activity.

WE WILL NOT unilaterally reduce the wage rate of Timothy Hinkle or any other employee
without first given the Union notice and an opportunity to bargain over the reduction.

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

WE WILL rescind and not give effect to Rule No. 5 of the “Group II Major Violations” contained
in the employee handbook which prohibits employees from engaging in lawful solicitation in the
plant without prior authorization.

WE WILL, within 14 days from the date of the Board’s order, offer Mauro Molinaro full
reinstatement to his former position or, if his position no longer exists, to a substantially
equivalent position without prejudice to the rights and privileges he previously enjoyed.

WE WILL make Mauro Molinaro whole for any losses he may have suffered as a result of his
unlawful 3-day suspension and discharge, with interest.

WE WILL, if asked to do so by the Union, rescind the unlawful unilateral change we made to
Timothy Hinkle’s wage rate, and WE WILL make Timothy Hinkle whole for any loss in pay and
other benefits he may have suffered as a result or our unilateral reduction in his wage rate, with
interest.
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WE WILL, within 14 days from the date of this Order, remove from our files any reference to
Mauro Molinaro’s unlawful 3-day suspension and discharge and shall, within 3 days thereafter,
notify him in writing that this has been done and that the suspension and discharge will not be
used against him in any way.

IVY STEEL & WIRE, INC.
(Employer)

Dated By
(Representative) (Title)

The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
615 Chestnut Street, One Independence Mall, 7th Floor, Philadelphia, PA 19106-4404
(215) 597-7601, Hours: 8:30 a.m. to 5 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (215) 597-7643.