Jennmar Corp.

National Labor Relations Board - Board Decisions

Feb 8, 1991

301 N.L.R.B. 623 (N.L.R.B. 1991)

623
301 NLRB No. 87
JENNMAR CORP.
1 The judge’s decision properly ruled on the unfair labor practice allegations,
objections to an election, and determinative challenged ballots then before him.
The parties thereafter filed briefs with the Board addressing various of these
issues. Subsequently, the Board approved the Charging Party’s request to with-
draw its objections; severed the representation case from the unfair labor prac-
tice case; and entered an order certifying the results of the election. Hence,
we now have before us various exceptions of the Respondent to certain of the
judge’s unfair labor practice findings. There are no exceptions to his dismis-
sals.
2 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully ex-
amined the record and find no basis for reversing the findings.
3 On the basis of the circumstances described above, Chairman Stephens
agreed that the interrogations of Fox were coercive even after his display of
support for the Union. In particular, he notes that the threats concerning ces-
sation of production and loss of benefits distinguish this case from Sunnyvale
Medical Clinic, 277 NLRB 1217 (1985).
Jennmar Corporation of Utah, Inc. and United
Mine Workers of America. Cases 27–CA–10955
and 27–CA–11007
February 8, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On May 9, 1990, Administrative Law Judge Clifford
H. Anderson issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the Charging Party and the General Counsel filed an-
swering briefs.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision1 and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions as modified and to adopt the recommended
Order as modified.
1. The General Counsel alleged, in part, in para-
graph 5(a) of the complaint that the Respondent’s pro-
duction foreman Tony Perez threatened employees
‘‘that if the Union comes in, wages and benefits would
be cut.’’ The judge found merit in this allegation. The
Respondent maintains that there was no evidence in
the record to support the judge’s finding. We agree
with the Respondent and find that that aspect of para-
graph 5(a) of the complaint is without evidentiary sup-
port. We need not pass on the other aspect of para-
graph 5(a), i.e., that Perez threatened job loss if the
Union came in, because the evidence supports a find-
ing, as the judge found, and as set out at complaint
paragraph 5(e), that Perez violated the Act by threat-
ening an employee that ‘‘if the Union comes in, we
will have a job, but you won’t.’’
2. The Respondent maintains that there is no evi-
dence to support a finding that, on or about May 18,
1989, Perez, as alleged in paragraph 5(e) of the
amended complaint, threatened employees with loss of
their benefits if the Union came in. The Respondent
argues that only statements made by Perez on that date
can be used to support paragraph 5(e) of the amended
complaint. The judge found that certain statements
made by Perez to Fox on May 24 supported that part
of the allegation in paragraph 5(e) of the complaint.
Therefore, he concluded that an 8(a)(1) violation had
occurred. We agree with the judge’s conclusion.
Where, as here, the complaint is technically incorrect
but the error was not prejudicial to the Respondent and
did not prevent it from fully and fairly litigating the
case, we shall affirm the judge’s unfair labor practice
finding. See generally Power Plant Maintenance Co.,
286 NLRB 205 (1987).
3. The Respondent has filed exceptions to the
judge’s finding, based on allegations as alleged in
paragraphs 5(g) and (i) of the complaint, that the Re-
spondent violated Section 8(a)(1) by various interroga-
tions. These were interrogations of employee Fox. The
judge found that, on May 19, 22, and 24, 1989, the
Respondent, acting through Perez, unlawfully interro-
gated Fox about his union sympathies and that, on
May 22, 1989, the Respondent, acting through
Pugliese, unlawfully interrogated Fox about his union
sympathies. The Respondent claims that Fox was an
open union supporter and that none of the interroga-
tions constituted an attempt to restrict Fox’s exercise
of his Section 7 rights. The General Counsel maintains
that Fox’s first public display of union support did not
occur until the May 22 questioning of Fox by Pugliese.
We agree. Thus, Fox was not a known union supporter
when Perez questioned him about his union activities
on May 19 and when Pugliese started to do so on May
22. Moreover, in the same conversation in which he
interrogated him on May 22, Pugliese unlawfully
threatened Fox that, if the Union came in, the Re-
spondent would cease production. It was in this con-
text of prior unfair labor practices that Perez thereafter
interrogated Fox on May 22. Then, on May 24, when
Fox had demonstrated his support for the Union, Re-
spondent through Perez not only interrogated him but
also threatened that his benefits would be taken away
during negotiations. In all the circumstances, and given
the background of other unfair labor practices, we
agree with the judge that all the interrogations of Fox
violated the Act.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent,
Jennmar Corporation of Utah, Inc., Helper, Utah, its
officers, agents, successors, and assigns, shall take the
action set forth in the Order as modified.
624 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1. Delete paragraph 1(a) and reletter the subsequent
paragraphs.
2. Insert the following as new paragraph 1(e).
‘‘(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.’’
3. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT interrogate our employees about their
union activities or sympathies.
WE WILL NOT accuse our employees of starting the
union organizing drive.
WE WILL NOT threaten our employees with loss of
their jobs or benefits if the United Mine Workers of
America organizes our facility.
WE WILL NOT threaten to withhold modern equip-
ment from and/or stop expansion of our Helper, Utah
facility because of our employees’ union activities.
WE WILL NOT threaten to send parts and equipment
to other facilities because of the Union or the orga-
nizing drive.
WE WILL NOT threaten to stop facility expansion be-
cause of the Union or the organizing drive.
WE WILL NOT threaten to turn our Helper, Utah fa-
cility into a warehouse with the loss of production jobs
if the Union organizes our facility.
WE WILL NOT suggest or imply that employees’ jobs
could be saved and things get back to normal if they
would get their authorization cards back from the
Union and stop the election.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of the rights guaranteed them by Section 7 of the Na-
tional Labor Relations Act.
JENNMAR CORPORATION OF UTAH, INC.
William J. Daly, Esq., for the General Counsel.
Glen H. Mertens, Esq. (Ford & Harrison), of Los Angeles,
California, for the Respondent.
Jonathan Wilderman, Esq. (Wilderman & Linnet, P.C.), of
Denver, Colorado, for the Charging Party.
DECISION
STATEMENT OF THE CASE
CLIFFORD H. ANDERSON, Administrative Law Judge. I
heard this case in trial on November 28, 29, and 30, 1989,
at Price, Utah. Briefs were submitted on January 16, 1990.
The matter arose as follows.
On May 25, 1989, the United Mine Workers of America
(the Union, the Petitioner, or the Charging Party) filed a peti-
tion with Region 27 of the National Labor Relations Board
docketed as Case 27–RC–6980 seeking to represent certain
employees of the Jennmar Corporation of Utah, Inc. (the Em-
ployer or Respondent) at its Helper, Utah facility. Pursuant
to a Stipulated Election Agreement dated July 6, 1989, an
election was held on July 28, 1989. The tally of ballots re-
flected 14 ballots for the Union, 15 against, and 2 challenged
ballots. On August 3, 1989, the Union filed timely objections
to the conduct affecting the results of the election. On Sep-
tember 29, 1989, the Regional Director for Region 27 issued
a Report on Challenges and Objections directing a hearing on
the two challenged ballots and certain potentially objection-
able conduct.
On June 26, 1989, the Union filed a charge against Re-
spondent docketed as Case 27–CA–10955. The Regional Di-
rector for Region 27 issued a complaint respecting this
charge on July 27, 1989. The Union filed a second charge
on August 16, 1989, against Respondent docketed as Case
27–CA–11007. On September 28, 1989, the Regional Direc-
tor for Region 27 issued an order consolidating cases,
amended consolidated complaint and notice of hearing con-
solidating the two unfair labor practices for a common hear-
ing. On September 29, 1989, the unfair labor practice cases
and the representation hearing on challenges and objections
were consolidated into a common hearing before an adminis-
trative law judge
The consolidated amended complaint alleges that Respond-
ent engaged in certain conduct in violation of Section 8(a)(1)
of the National Labor Relations Act (Act) including, inter
alia: threats to employees of loss of jobs and benefits, threats
of plant closure, dispersion of inventory, cancellation of new
expansion plans and delay of introduction of new machinery,
interrogations of employees concerning their union activities,
and adverse changes in plant rules and benefits during nego-
tiations. The complaint also alleges that Respondent sus-
pended and discharged Eric Fox in violation of Section
8(a)(3) and (1) of the Act.
The potentially objectionable conduct at issue in the con-
solidated hearing included the allegations of the consolidated
complaint occurring between the filing of the petition and the
holding of the election and the additional contention that the
Employer sent home employee David Hurst on the day of the
election in order to discourage employee support for the
Union.
The challenged ballots included in the consolidated hear-
ing were those of Fox and Hurst, the validity of which were
challenged by Respondent.
Respondent denies the conduct attributed to it as violating
Section 8(a)(1) of the Act. It admits the suspension and dis-
charge of Fox but avers these actions were not in violation
of the Act. Respondent contends Hurst gave notice of termi-
nation and was paid in lieu of working in accordance with
Respondent’s policies. Thus, Respondent argues that it en-
625JENNMAR CORP.
1 As a result of the pleadings and the stipulations of counsel at the trial,
there were few disputes of fact regarding collateral matters. Where not other-
wise noted, the findings here are based on the pleadings, the stipulations of
counsel, or unchallenged credible evidence.
2 Dates hereinafter refer to 1989 unless otherwise indicated.
gaged in no objectionable conduct and that its challenges to
the ballots of Fox and Hurst should be sustained and the re-
sults of the election certified.
All parties were given full opportunity to participate at the
hearing, to introduce relevant evidence, to call, examine, and
cross-examine witnesses, to argue orally, and to file
posthearing briefs.
On the entire record, including well written and helpful
briefs from all parties, and from my observation of the wit-
nesses and their demeanor, I make the following1
FINDINGS OF FACT
I. JURISDICTION
Respondent is a corporation with an office and place of
business in Helper, Utah, where it is engaged in the produc-
tion of mine roof support system bolts. Respondent, in the
course of its Helper operations, annually both sells and ships
and purchases and receives goods, services, and materials of
a value in excess of $50,000 directly from and to points and
places outside the State of Utah. There is no dispute and I
find that Respondent is and has at all times material been an
employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent operates six facilities nationwide with its
headquarters in Pittsburgh, Pennsylvania. Its Helper, Utah fa-
cility manufactures roof bolts for use in hard rock coal mine
roof support systems. Respondent is owned at least in part
by the Calandra brothers, one of whom is Frank Calandra.
Eugene Stewart is Respondent’s Pennsylvania headquarters-
based vice president of operations. At the time of the events
in question, the general manager of the Helper facility was
Doug Gillespie, its assistant general manager was James
Pugliese, and its production foreman was Antonio Perez.
In early spring 1989,2 the Union began organizing Re-
spondent’s production and maintenance employees at Helper.
By mid-May Respondent became aware of these activities
and commenced a series of employee meetings. On May 25,
the Union filed its petition pursuant to which an election was
conducted on July 28.
B. Allegations of Violations of Section 8(a)(1)
of the Act
The amended complaint as further amended at the trial al-
leges conduct by three individuals whose supervisory status
is not in question: Doug Gillespie, Jim Pugliese, and Antonio
Perez. It is appropriate to consider the allegations agent by
agent.
1. Douglas Gillespie—complaint paragraphs 5(b), (c),
(f), (j), and (m)
a. Contentions and testimony
(1) The May 18 meeting
Respondent held a series of employee meetings in which
the union drive was discussed and Respondent’s position and
opinions on the value of trade unionism were presented. The
first meeting was held on May 18. Doug Gillespie conducted
the meeting which was also attended by Respondent’s
agents: James Pugliese, Sales Manager Tony Korianos, and
Tony Perez. Complaint paragraphs 5(b), (c), and (f) allege
improper statements by Gillespie at this meeting. More par-
ticularly the complaint contends that Gillespie told employ-
ees at this meeting that if the Union organized Respondent’s
Helper facility: (1) employees would no longer be able to
enjoy flexible work assignments and would therefore be sent
home if no work was assigned to their machines, (2) new
machinery would be withheld from the facility because of the
union drive, and (3) during negotiations employees’ wages
and benefits would be considered minimum wages and other
minimum benefits as required by law and that ‘‘bargaining
would begin from that point.’’
James Valdez, a unit employee, testified that Gillespie told
the assembled employees:
[He] told us that if the place went union that they can
shut down and turn it into a warehouse and we can lose
our jobs. And he says if we did try to go union that—
they told us if we did go union, you know, the bar-
gaining would start out at zero. We’d lose all our bene-
fits and he said we could end up with nothing.
Anthony Dutro, a unit employee, testified that Gillespie
told the employees that during negotiations ‘‘your benefits
would be zero, and you’d go down to the minimum wage.’’
He also recalled that Gillespie described the expansion of the
Helper facility as on hold during the union campaign and
‘‘could be jeopardized if you signed a card or—basically
signed a card or went union.’’
David Hurst, a former employee, testified that Gillespie
told the employees that ‘‘if the union was to come into
Jennmar, it would threaten the profitability of the company.
If the profitability of the company was threatened, there
would be layoffs at the plant in Helper, Utah.’’ Hurst also
recalled Gillespie said that if ‘‘negotiations were to take
place, the company could reduce wages to minimum wage
and cut benefits to nothing, except paying unemployment
[and] worker’s compensation.’’ Finally, Hurst recalled that
Gillespie told the employees that, if the Union was in the fa-
cility, work could not be guaranteed and, if work was not
available in a certain classification, no other work would be
assigned and the employee would be sent home.
Gillespie specifically denied the statements attributed to
him. Gillespie testified that inflexible job assignments with
their potential for causing employees to be sent home for
lack of work was discussed only in the context of specific
examples of other employers who were organized. Gillespie
testified that he was careful to connect predictions of less fa-
vorable conditions in various regards at Helper only with the
caveat that Helper’s circumstances would be ‘‘whatever the
626 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
contract would be negotiated . . . . We don’t know, you
know, what’s gonna happen.’’ Gillespie categorically denied
telling employees in this meeting or anytime that the plant
would be shut down or turned into a warehouse.
Gillespie testified he told the employees at this meeting or
at other meetings:
just because you were union or you voted the union in,
that it didn’t mean that you automatically got raised.
The negotiation could possibly start at minimum wage,
minimum benefits. That you could end up with more
than you have now, you could end up with less than
you have now, or you could end up with the same as
you have now.
Gillespie also recalled telling employees, he believed at this
first meeting, that the employees could ask the Union for
their authorization cards back.
Francis Anthony Rendon, a head machine operator, testi-
fied that Gillespie told the employees that ‘‘when we started
to negotiate, that we would have to start from minimum
wage, that our benefit would start from zero, that’s basically
what he said.’’ Rendon also recalled that Gillespie told the
employees that they could ‘‘go back and get’’ any union
cards the employees had signed ‘‘if we felt uncomfortable.’’
Shirley Peterson, a unit employee, testified that Gillespie
told the employees at the meeting that wages and benefits
could ‘‘go up and down.’’ She denied that Gillespie said that
wages would drop to the legal minimum. Peterson also de-
nied that Gillespie stated that Helper employees would be
sent home rather than assigned other work if the Union orga-
nized the facility.
Mariano Urrutia, a unit employee, testified that he could
recall only that Gillespie told the employees that negotiations
could start from the bottom and go up from that point. Floyd
Seal, the head mechanic, recalled that Gillespie told employ-
ees that negotiations could ‘‘go either way’’ and that there
was no guarantee of employees improving their cir-
cumstances and that it was also possible that conditions
could get worse.
(2) Paragraph 5(j) of the complaint
The complaint alleges that Gillespie told employees on
June 5 that, if they were concerned about their jobs, a major-
ity could get their cards back so there would be no election
and things could return to normal. James Valdez testified that
on or about June 5 he spoke to Gillespie alone at the work-
place and asked him about an apparent shortage of material
needed to continue work. He testified that Gillespie told him:
As long as this thing is going on, we’re not gonna have
any supplies coming in. He goes, if we were really con-
cerned about our jobs, he told me we’d get the majority
of the guys and go get the union cards that you signed,
and make them promise there won’t be no election.
And the expansion can start, and he said that things can
go back to normal, and they won’t have to have this
election or all this stuff going on.
Valdez’ handwritten notes of this conversation do not include
the statement respecting parts but does include the attribution
that the facility would be closed or turned into a warehouse
if the union campaign did not stop. Gillespie denied making
the statements attributed to him.
(3) Paragraph 5(m) of the complaint
The complaint alleges that Gillespie told employees on
June 2 that Respondent would not install new machinery at
the facility because of the election. Gillespie played a video-
tape of Respondent’s Illinois facility in multiple sessions on
June 2 at Respondent’s Helper facility. Present at one session
were Gillespie, Cliff Holly, maintenance foreman, Floyd
Seal, and Tony Perez. Also attending was employee Eric
Fox. Fox testified that Gillespie, in discussing the newer ma-
chinery at the Illinois plant and Respondent’s intentions to
install such machinery at Helper, said that ‘‘there’s been a
hold put on all this because of the union, because of what’s
going on with the union.’’
Gillespie, Perez, and Seal deny that such a comment was
made during any showing of the videotape. Others attending
different sessions testified that no similar remarks were made
in those sessions.
b. Argument, analysis, and conclusions
(1) The May 18 meeting
The parties skillfully argued the credibility of the wit-
nesses and the state of current Board law on the issues in
contention. Respondent’s main arguments were: (1) that Gil-
lespie was speaking to employees after having been educated
as to what was permitted and not permitted under the law
and therefore would be unlikely to have made the statements
attributed to him, (2) that Gillespie credibly denied the alle-
gations, and (3) that there was corroborating testimony from
other witnesses that he did not make the statements alleged.
The General Counsel and the Charging Party advance the
statements of the various witnesses supporting the allegations
as worthy of belief and cite traditional Board cases sup-
porting the proposition that the statements, if made, were
violations of the Act.
I have considered the arguments of the parties and the
record as a whole on these issues with due regard for the
credibility of the witnesses and the persuasiveness of their
demeanor. I am persuaded for the reasons set forth below
that the General Counsel has not sustained his burden of
proof on these contentions and that, in each case, I find no
violation was proved. Accordingly, I will recommend dis-
missal of the underlying allegations in paragraphs 5(b), (c),
and (f) of the complaint.
Meetings of employees attended by significant numbers of
employees where agents of management address various as-
pects of unionization in a manner designed to gain support
for management’s opposition to the union are always some-
what confused affairs. Remembered statements are generally
less precise and versions of what was said vary more widely
among witnesses because large lecture-type meetings do not
hold the attention of the passive participants as do conversa-
tions between a few individuals in which all are interacting.
So, too, as the Court has noted, some of the distinctions the
cases draw in determining what is permissible or violative of
the Act are more nice than obvious. Various subtleties re-
specting characterization, prediction, etc., are discussed in the
cases, which find violations of the Act or permissible state-
ments depending on subtleties in language and nuances
627JENNMAR CORP.
which are difficult for the casual hearer to understand and
easy to confuse in recollection. Employees gathered to hear
management’s views on a subject with which they are not in-
timately familiar often recall or attribute statements to man-
agement agents based on impressions taken from the meeting
rather than testifying from a specific verbatim recollection of
statements made. Indeed, it is often the case that the manage-
ment speech so carefully crafted and delivered is designed to
and often achieves the goal of allowing, if not encouraging,
the formation of employee impressions of unfavorable con-
sequences of unionization which are far more negative than
a textual analysis of the specific words of the speech would
support.
In the instant case the meeting at issue was the first of
many held. Employees and perhaps managers were at their
least experienced in dealing with the subject matter of orga-
nization and representation. The wide range and frequently
contradictory versions of Gillespie’s statements made at this
meeting by the numerous witnesses who described it support
the notion that accurate recollection of his specific statements
was difficult and elusive. I do not find that the contradictory
versions of events indicate deliberate distortion or fabrica-
tion. I specifically decline to find any witness did other than
testify as best as possible to what he or she recalled from
the meeting. As noted, however, I find the versions to be at
such variance that I am unable to credit any single version
over Gillespie’s credible denials. Accordingly, I find the
General Counsel has failed to sustain his burden of proof on
any allegation respecting Gillespie’s statements at the May
18 meeting.
More particularly, I find the testimony of Gillespie that he
did not tell employees they would be sent home if work on
their machines ceased, that he did not tell employees that
new equipment would be withheld from the facility or that
bargaining would start from legal minimums, that he did not
tell employees that jobs would be lost or jeopardized if em-
ployees signed authorization cards, given the corroboration
noted above, prevails over the contrary versions of the Gen-
eral Counsel’s witnesses given the very large variation in
versions of events and the burden of proof the General Coun-
sel bears on all allegations.
(2) Paragraph 5(j)
The testimony respecting paragraph 5(j) was direct and
conflicting. Valdez, supported by handwritten notes he iden-
tified as having been prepared soon after the events, at-
tributes statements to Gillespie in a one-on-one conversation
which statements Gillespie unambiguously denies making at
any time. Nor may there be a dispute, given current Board
law, that the remarks made by Gillespie, if Valdez be cred-
ited, violate Section 8(a)(1) of the Act.
Respondent points out that Valdez attributes similar state-
ments to Pugliese in his notes, but that those remarks are not
alleged as violations of the Act in the complaint. Respondent
argues the implausibility of Valdez being threatened in vir-
tually the same words at separate times by two agents of
management each of whom ‘‘were well aware that such
statements were prohibited.’’ The General Counsel advances
the credibility of Valdez as well as the fact that he was an
employee at the time of his testimony.
I credit the testimony of Valdez over the denials of Gil-
lespie in this matter and find the violation as alleged. I do
so in large part on demeanor. My conviction is not so much
that Gillespie was lying in denying making the remarks, rath-
er it is that Valdez did not deliberately falsify either his notes
or his testimony on this issue. Men are mortal and perception
and memory may play tricks on an honest man. However,
when a witness establishes that contemporary or near con-
temporary notes were made of the specific words used in a
conversation, the likelihood of lapses of memory or confu-
sion over events is much diminished. The issue presented in
this latter situation is more one of determining if gross fab-
rication and/or perjury has occurred. Having carefully consid-
ered the record as a whole and the demeanor of the two indi-
viduals involved, I find that Valdez did not concoct his
notes. I therefore find his testimony respecting this meeting
as corroborated by his notes is to be credited. In reaching
this conclusion I have considered my generally favorable im-
pression of Gillespie and found it must defer to my findings
respecting Valdez and his notes. Accordingly, crediting
Valdez over Gillespie, I find the General Counsel has sus-
tained his burden of proof with respect to paragraph 5(j) of
the Act. More particularly, I find that on or about June 5,
Respondent, through its admitted agent Gillespie, threatened
employees with loss of employment unless employees aban-
doned their attempts to organize Respondent’s Helper facil-
ity.
(3) Paragraph 5(m)
The General Counsel contends that Gillespie, during the
presentation of a video of a sister facility, threatened employ-
ees with the withholding of new machinery for the period
union activities continued. Eric Fox is the sole witness sup-
porting the contention and is challenged by Gillespie and, di-
rectly and indirectly, others.
Considering the arguments of the parties, the record as a
whole, relevant probabilities, and the demeanor of the wit-
nesses, I credit the denial of Gillespie over the attributions
of Fox. On this record I simply do not believe Gillespie
would make the statement claimed by Fox at a meeting at-
tended by others without a corroborating recollection being
available. Further, Gillespie’s denial was convincing and his
demeanor during this testimony persuasive. While I do not
find that Fox lied about the matter I conclude he simply
formed a mistaken impression of statements made. Having
failed to sustain the General Counsel’s factual contentions, I
further find he has failed to sustain his burden of proof on
the allegations in paragraph 5(m) of the complaint. I shall
therefore dismiss this allegation.
2. James Pugliese—complaint paragraphs 5(h) and (i)
a. Contentions and testimony
Eric Fox testified that on the morning of May 22 in the
parking lot in front of the main office he had a conversation
with Pugliese. Fox testified:
628 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 The first meeting was placed by others as occurring on May 18.
4 Perez apparently used the gambit of claiming ‘‘some other people told
me’’ various facts in his conversation with employees. Thus, Perez testified:
And so we start . . . talking [a]bout it and I told him that I heard that
whole bunch of people try to get in union. So he [would] think that I
don’t really know nothing about union.
He asked me if I knew what was going on with the
union and how I felt about the union, being as I’d been
there for about two and a half years at this time. I told
him I thought the union could help us out in a lot of
ways. There had been a lot of people injured at the
plant, myself being one of them.
I just told him I had strong feelings, you know, that
I wanted to check out more into it to see what it could
do to help us out. At that time he told me he had been
working with the union for 18 years on the railroad
here in Helper.
He said the union had never done anything for him
but cost him a lot of money and eventually cost him
his job. Then later on in the conversation he was saying
that this stuff at the union was causing a lot of prob-
lems such as they might turn the plant into a ware-
house. And that this could lead up to him and Mr. Gil-
lespie being truck drivers for the warehouse, and they
would only keep two other employees to be fork-lift
operators employed at that time.
Pugliese specifically denied ever asking Fox how he felt
about the Union, that the plant might become a warehouse
because of the Union or that only Pugliese and Gillespie
would have jobs in such a setting.
Jim Daniel Valdez, a shear cutter operator, testified that on
Monday, May 22, he had a conversation with James
Pugliese. Valdez testified:
And [Pugliese] told me he was on the phone twice that
day with Calandra. And he told me that Calandra had
told him to stop buying supplies as long as this [union
thing] is going on, [Calandra] didn’t want anything pur-
chased. And he started telling me that the second time
[Calandra] called [Calandra] wanted him to shut it
down. And he told [Calandra] that they can’t do it dur-
ing the [union organizing] drive. . . . [H]e says
Calandra had told him that no union or anyone’s gonna
tell [Calandra] how to run his business.
Pugliese denied talking to Frank Calandra during the relevant
period. He specifically denied telling Valdez about any con-
versation he had had with Calandra concerning plant closure,
about Calandra resisting others running his business or any
other aspect of the conversation as recounted by Valdez.
b. Analysis and conclusions
The issues presented by the complaint paragraphs con-
cerning Pugliese are factual rather than legal. No doubt exists
under current law that the conduct of Pugliese described by
Valdez and Fox in their testimony, if credited, supports the
allegations of the complaint and sustains a finding of viola-
tions of Section 8(a)(1) of the Act.
Pugliese’s denials were not persuasive in my judgment.
Based on demeanor, I credit the statements of Fox and
Valdez over Pugliese’s denials. Accordingly, I sustain the
General Counsel’s factual contentions. There is no real ques-
tion that the actions found constitute violations of Section
8(a)(1) of the Act and I so find. Accordingly, I sustain the
General Counsel’s complaint paragraphs 5(h) and (i).
3. Antonio Perez—complaint paragraphs 5(a), (d), (e),
(g), (k), and (l)
a. Contentions and testimony
Valdez, who at the time in question was supervised by
Perez, testified that before the first employee meeting in
which the Union’s organizational drive was discussed,3 he
had a conversation with Perez which began by Perez stating
‘‘You’re one of the ones.’’ When Valdez asked Perez what
he meant, Perez said, in Valdez’ recollection:
You, I know you. You’re one of the ones who’s trying
to start this union, aren’t you?
Valdez responded that he did not ‘‘have to tell you any-
thing,’’ whereupon Perez continued:
Well, I know, someone told me you were. If you guys
go union, you know they could turn this place into a
warehouse. And when they do that, I’ll have a job and
you won’t.
Perez could not recall if he had had conversations with
Valdez about the Union before the election but categorically
denied making the statements attributed to him by Valdez.
Fox testified that he missed work during the period May
15 through 18 and returned on May 19. While operating his
machine that day Perez approached him and asked him if he
knew what was ‘‘going on’’ with the Union. Fox answered
that he had just returned to work and did not know. Fox also
testified that on May 22 while on the way to the breakroom
Perez ‘‘confronted me . . . how my feelings were toward the
union.’’
On May 24 Perez approached Fox, in Fox’s recounting,
and asked about his wife’s opinions of the Union and her
support for the organizing drive. Fox told Perez his wife sup-
ported him. Contract negotiations were then discussed. Fox
recalled Perez told him that, once the Union was in negotia-
tions, machine operators would only operate their machines
and, if the machine did not need to be operated that day, the
operator would be sent home. Respondent’s practice at that
time was to allow operators to perform other tasks when
their equipment was not in operation. Fox also testified that
Perez asked him if he knew what would happen in negotia-
tions and that Perez stated: ‘‘that they would probably take
away all our benefits at that point, and start from there.’’
Perez admitted he asked Fox about his views on the Union
and about his wife’s opinions although Perez testified he was
not able to separate the conversations in his mind’s eye.
Perez also recalled telling Fox4 that he had heard various
things including the assertion that ‘‘if the place is union’’
machine operators could be sent home if their machine were
not in use.
Anthony Dutro, a production machine operator supervised
by Perez, testified that on May 22 he and two other produc-
tion workers, Johnny Martinez and John McKendrick, had
been assigned the task of counting small parts by Perez.
629JENNMAR CORP.
5 ‘‘Back east’’ was apparently a commonly understood reference to Re-
spondent’s other facilities.
Dutro recalled Perez asked if the employees knew ‘‘why
we’re doing this . . .?’’ Dutro answered that it was usual
practice to count parts for inventory. Perez answered, in
Dutro’s recollection, that the parts were to be shipped ‘‘back
east.’’5 Perez continued:
Then he also pointed over to the new header area
where the foundation [of the building expansion] had
been poured, and said that construction would be
stopped until the union business was over with. At that
point he also said that some equipment was being sent
back east as well until the union business was over
with.
Neither Johnny Martinez nor John McKendrick testified.
Perez testified that he told Dutro that the parts being counted
were being shipped east. When Dutro asked if the shipments
were being made was because of inventory, Perez answered
no. Dutro, in Perez’ memory, then said ‘‘Oh, because of the
union.’’ Perez responded ‘‘Whatever you say’’ and no more
on the subject was spoken. Perez also denied telling Dutro
that Respondent was stopping production of bolts because of
the Union.
David Hurst testified that on the morning of May 22 he
was working with fellow employee Paul Nunez when Perez
approached them and said that machinery that had ‘‘been in-
tended to come to the Helper plant had been cancelled.’’
Nunez asked Perez why, in Hurst’s recollection, and Perez
simply said ‘‘You know why.’’ Hurst and Perez left the area
and were joined by two other employees, Jim Valdez and
Shane Pitts, in a discussion of Respondent’s existing health
plan and in sharing employee tales of dissatisfaction with the
plan. Perez said, in Hurst’s memory, ‘‘Maybe things will be
better if we have the union, or maybe we won’t have jobs.’’
Valdez did not address this matter in his testimony. Pitts did
not testify.
Perez recalled telling Hurst only that certain machines
were going ‘‘back there’’ to be repaired. He also denied ever
telling employees they might lose their jobs, if the Union or-
ganized the facility.
b. Analysis and conclusions
The testimony given by the employees described above
was straightforward and convincing. I find no reason to
doubt the events as described. I have less confidence in
Perez who, while conceding certain conversations with em-
ployees, seemed all too ready to deny statements attributed
to him based on his hindsight consideration of what he
should have done or said on the occasion. I find his credi-
bility in these aspects of the case to be significantly inferior
to that of the employees giving the testimony described
above. Accordingly, I credit their version of events over the
differing version of Perez where such differences occur. I
simply find the employees’ descriptions far more persuasive
on this record than Perez’ testimony.
The events described by the employees occurred over an
approximately 1-week period from May 18 to 24. Perez’ ac-
tions include, inter alia:
(1) interrogation of employees about their union activities
and the accusation of employees that they were involved
with the Union,
(2) statements to employees that, because of the union
‘‘business,’’ parts and equipment were being shipped to other
plants and construction had been halted,
(3) threats that, if the facility were to go union, it could
be converted to a warehouse with concomitant loss of unit
jobs.
These acts and conduct are traditional violations of Section
8(a)(1) of the Act and warrant no extended legal analysis. I
so find. Accordingly, I find Respondent through Perez in the
period May 18 through 24 violated Section 8(a)(1) of the Act
by (1) interrogating employees about their union activities,
(2) threatening changes in the plant’s operation because of
the union organizing drive including loss of parts and with-
holding of new equipment, halting of an ongoing building
expansion, and conversion of the operation to a warehouse
with concomitant loss of jobs.
Perez’ statements to Fox respecting the detrimental effects
on machine operators’ hours of a rigid approach to work as-
signments were linked to the Union successfully organizing
Respondent and were discussed apparently in the context of
negotiations. There was not however the necessary link in
Perez’ remarks between adverse consequences to employees
and the Union’s possible position in negotiations respecting
machine use to render the statement permissible. On this
record the risk to machine operators as described by Perez
would come about because of the Union’s success in organi-
zation and not from some negotiated change in working con-
ditions. Such a statement is then a threat to adverse con-
sequences linked to union representation and not a prediction
of the outcome of negotiations. Such a threat violates Section
8(a)(1) of the Act.
Perez’ statement to Fox that in negotiations Respondent
would ‘‘probably’’ take away all employee benefits may well
have been an inarticulate explanation of zero sum bargaining.
Fox testified that he was sure Perez did not understand what
would happen in negotiations. The standard for evaluation of
employer-agent statements to employees is objective rather
than subjective however. Here, the bald threat of loss of ben-
efits is not saved by the conditional modifier, ‘‘probably.’’
I find the statement, as the others described above, would
reasonably be expected to chill employees’ exercise of Sec-
tion 7 rights in the context of the events as described above.
Accordingly, I find the statement also violates Section
8(a)(1) of the Act.
In summary, I have credited the attributing employees over
Perez who I have found to be a supervisor and agent of Re-
spondent. I have also found that the conduct described vio-
lates Section 8(a)(1) of the Act. The General Counsel has
therefore met his burden with respect to these aspects of the
complaint. I have therefore found an agent of Respondent en-
gaged in the conduct alleged in paragraphs 5(a), (d), (e), (g),
(k), and (l) of the amended complaint. Respondent has there-
fore in each instance violated Section 8(a)(1) of the Act.
4. Summary of findings respecting paragraph 5 of
the complaint
As noted above, I have found the General Counsel has
sustained the following subsections of paragraph 5 of the
630 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
amended complaint: 5(a), (d), (e), (g), (h), (i), (j), (k), and
(l).
Further, I have found without provable merit and will
therefore dismiss the following subsections of paragraph 5 of
the amended complaint: 5(b), (c), (f), and (m).
C. Allegations of Violations of Section 8(a)(3) and (1)
of the Act
The General Counsel contends that Respondent: (1) sus-
pended employee Eric Fox on or about June 15, (2) dis-
charged Fox on or about July 27, and (3) has at all times
thereafter failed and refused to reinstate him. Respondent
does not deny the actions described but avers they were
taken for benign reasons unrelated to activities protected
under the Act.
1. Relevant events
Eric Fox started as a unit employee at Helper in March
1987 and was regarded by Respondent as a good worker. On
December 29, 1988, Fox was arrested on felony charges of
distribution and sale of a controlled substance at a location
away from the workplace. Fox was released on bail soon
after his arrest and missed no work.
Fox testified that the following day he spoke with Jim
Pugliese telling Pugliese of the charges against him and of
his innocence. He recalled that Pugliese told him that he
would talk to Gillespie about the turn of events and get back
to him. Later in the day, in Fox’s recollection, Pugliese told
him:
Mr. Gillespie didn’t see no problem with it because I
was a good worker, and he didn’t want to [hear] any
more about the incident.
Fox told Pugliese that the local paper would report his arrest
and that, since Helper was a small community, management
was sure to hear more about it. Pugliese told Fox that ‘‘he
don’t read the paper and he don’t listen to no talk around
town.’’
Pugliese testified that Fox had in fact reported to him that
he had gotten into ‘‘some trouble’’ and ‘‘was going to
court,’’ but that Fox never told him the nature of his trouble
or the specifics underlying his court appearances. Pugliese
testified that, as a matter of personal conviction, unless and
until an employee was adjudged guilty of a charge, he was
simply not concerned with the matter. Pugliese testified that
he regularly reads the local paper but saw no reference to
Fox’s arrest until the paper reported Fox’s subsequent guilty
plea in July as described below. Gillespie, too, testified that
he had no knowledge of the nature of the charges against
Fox until his subsequent guilty plea.
In the following months Fox had various court and legal
commitments related to the charges which took him away
from work. Without exception Pugliese and/or Gillespie gave
Fox permission to take off the necessary time. Fox claimed
he explicitly told Gillespie on several occasions that the time
off was necessary for preparation of his defense to drug
charges against him. Gillespie denied that Fox had so in-
formed him of the charges and further denied receiving any
information about the nature of Fox’s troubles from Pugliese
or any other source.
By early May, Fox, through counsel, was engaged in plea
bargaining with the prosecution. It was determined he needed
a letter of recommendation from his employer as part of the
process. Fox testified he asked Pugliese for such a letter on
May 4, 1989, for use in a plea bargain involving a guilty
plea to reduce felony charges and a ‘‘no jail time’’ sentence.
Pugliese testified that Fox asked for a letter of reference for
use in a court proceeding without specification of its purpose
as part of a guilty plea and without specification as to the
offenses involved. Pugliese and Gillespie discussed the letter
which Pugliese prepared and gave to Fox. The May 11, 1989
letter was on Respondent’s letterhead signed by Pugliese and
addressed to ‘‘To Whom It May Concern.’’ The letter set
forth Respondent’s favorable impressions of Fox’s work per-
formance. It does not address nonwork circumstances.
Thereafter Fox took leave returning to work on May 19,
1989. That day he had the conversations with Perez and oth-
ers described, supra, from which Respondent’s knowledge of
his union sympathies will be inferred. On June 5 Fox entered
his guilty plea to the lesser felony charge of attempting to
arrange the sale or distribution of a controlled substance. The
local newspaper reported this fact in its June 8, 1989 edition.
Pugliese read the item and brought it to Gillespie’s attention.
Fox was at this time on vacation. Gillespie testified he con-
tacted Stewart by telephone to obtain guidance on Respond-
ent’s proper course. Gillespie testified that he reached the de-
cision to suspend Fox in his discussion with Stewart and
that, at that time, neither he nor Stewart knew, suspected,
were concerned with, or discussed Fox’s sympathies for the
Union. Gillespie also testified that neither Perez nor Pugliese
contributed to the determination to suspend Fox. A decision
was taken to suspend Fox pending further investigation on
his return from vacation. On June 15, 1989, when Fox re-
turned to work from vacation he was so suspended pending
further investigation by Respondent of the charges and guilty
plea.
Gillespie testified that he began an investigation of the
case and made a variety of attempts to contact the knowl-
edgeable law enforcement officials in the relevant jurisdic-
tions. Gillespie was eventually informed that Fox had ‘‘spent
time in Emery [County, Utah] on a drug related charge. And
that he had several other arrests concerning alcohol.’’ Gil-
lespie also was told that further disclosure respecting the
matter must await sentencing by the appropriate court.
Fox testified that on June 26, 1989, he met with Stewart
and Gillespie at the facility to inquire about the state of the
pending investigation. Fox recalled that Stewart in his pres-
ence asked Gillespie:
[H]ow things were looking for the vote on the union,
and Mr. Gillespie said, ‘‘Well, as long as we haven’t
got too many black sheeps running out here,’’ he says,
‘‘it looks like we should have the union defeated.’’ And
Mr. Stewart said that—they’ve never had the union in
there, and they didn’t need the union in there, and that
they’d do whatever they had to do to keep the union
out.
Gillespie and Stewart each denied ever making such remarks
to Fox.
Gillespie testified his investigation was not concluded until
after Fox’s sentencing on July 17, 1989. At that time Gilles-
631JENNMAR CORP.
6 The General Counsel and the Charging Party objected to the introduction
of all evidence concerning the meetings and offers exchanged between Fox
and Respondent respecting Fox’s reinstatement arguing such evidence was in-
admissible under Rule 408 of the Federal Rules of Evidence. I overruled the
objection and admitted the evidence. I reaffirm that ruling here for the fol-
lowing reasons.
Art. IV of the Federal Rules of Evidence is titled ‘‘Relevancy and Its Lim-
its.’’ Rule 408, Compromise and Offers to Compromise, is in that article and
states:
Evidence of (1) furnishing or offering or promising to furnish, or (2) ac-
cepting or offering or promising to accept, a valuable consideration in
compromising or attempting to compromise a claim which was disputed
as to either validity or amount, is not admissible to prove liability for or
invalidity of the claim or its amount. Evidence of conduct or statements
made in compromise negotiations is likewise not admissible. This rule
does not require exclusion of any evidence otherwise discoverable merely
because it is presented in the course of compromise negotiations. This
rule also does not require exclusion when the evidence is offered for an-
other purpose, such as proving bias or prejudice of a witness, negativing
a contention of undue delay or proving an effort to obstruct a criminal
investigation or prosecution.
Rule 408 of the Federal Rules of Evidence by its terms is simply a definition
of relevancy and does not shelter evidence from general admissibility as do
certain other rules such as those in the area of privilege. See, for example,
art. 5 of the Federal Rules, Rule 501 and the notes thereto. Evidence of settle-
ment attempts is therefore not generally excludable. While the Rule holds such
evidence not admissible to prove the merits of the matter in settlement discus-
sions, where otherwise relevant, such evidence may be admitted without re-
striction. In this sense evidence of settlement negotiations is limited in its use
under Rule 408, but it is not rendered inadmissible for other purposes.
Board cases frequently involve negotiations which are both settlement nego-
tiations and part of the matter in controversy. Thus, for example, recognition
and bargaining cases involve post charge or complaint bargaining which may
be for the purpose of resolving the unfair labor practice charges and also con-
cluding agreement on a contract. In cases where a failure to offer reinstatement
to a discriminatee is alleged, offers to reinstate may be both part of general
unfair labor practice settlement efforts and part of Respondent’s defense to the
failure to offer reinstatement allegation.
In the instant case the ultimate failure of the negotiations which the General
Counsel sought to keep out of the record led to the discharge of Fox, a matter
alleged by the General Counsel to be a violation of the Act. Evidence of the
specifics of the offers in the negotiations was also offered by Respondent in
support of its argued lack of animus against Fox and as business justification
for the discharge. Thus, the evidence was independently relevant to both the
General Counsel’s prima facie case and to Respondent’s defense. It was there-
fore not inadmissible under Federal Rule of Evidence 408 and was properly
received into evidence and considered in reaching my decision here.
pie learned that Fox had been sentenced to probation includ-
ing drug counseling and drug testing. Gillespie and Stewart,
who at the time was at the Helper facility, agreed that Fox
would be offered reinstatement with certain specific condi-
tions and a meeting was arranged with Fox to be held on
July 20, 1989.
At the July 20, 1989 meeting6 Gillespie and Stewart told
Fox that they were willing to reinstate him without backpay
with conditions which included: (1) at-will drug testing, (2)
immediate termination for failure to pass such a test, and (3)
reservation of the right to inform other employees of the spe-
cifics of the agreement.
Fox testified that he did not accept or reject Respondent’s
oral offer but that a decision was reached to reduce the offer
to writing and give it to Fox the following morning. Gil-
lespie and Stewart testified that Fox agreed to the terms but
that they urged him to review the written terms with his
counsel. Stewart and Gillespie contemplated the form would
be prepared the following morning, signed by Fox in due
course and Fox would be able to return to work the fol-
lowing Monday, July 24. Gillespie and Stewart testified that
at the meeting’s end the matter seemed happily resolved.
That evening at a company baseball game in which Fox
played, the fact that Fox was returning to work was an-
nounced to the attending employees.
The proposal was typed up and given to Fox on Friday,
July 21, 1989. The proposal tracked the discussion of the day
before providing, inter alia, for reinstatement with no back-
pay, company drug testing and immediate termination for
positive testing, and a company right to discuss the terms of
the settlement with other employees. Gillespie testified that
Fox agreed to return the form that same day. Fox recalled
that Gillespie told him that he wanted the signed form as
soon as possible.
In the event, Fox had trouble reaching his counsel and his
probation officer. When he did reach his probation officer,
Fox testified he was told by the probation officer that ‘‘he
didn’t feel he would work under them conditions.’’ Fox con-
tacted Gillespie by phone on the afternoon of July 24 and
told Gillespie that he was not going to accept Respondent’s
proposal but would propose his own terms for their consider-
ation.
On July 26 Fox, Gillespie, and Stewart met. Fox submitted
his own settlement. It proposed in part a specific testing pro-
cedure with a retest right on Fox’s request, a progressive dis-
cipline standard for test failures, confidentiality of the terms
of the settlement, and a reservation of claims under the then-
pending unfair labor practice complaint. Stewart told Fox his
proposal was unacceptable. Fox adhered to his view that he
would not accept Respondent’s written proposal. Fox was
then terminated for refusing to sign Respondent’s proposal.
Fox testified that that evening, at a company gathering at
a local lounge, he spoke to Respondent’s counsel, Glen
Mertens. Fox initially described this conversation as follows:
I asked if he knew anything that this could be re-
solved and if he understood why the termination came
up at this time. He told me that if I were to write up
my own proposal instead of the one the union gave me,
and to not show up at this hearing today [i.e. the instant
unfair labor practice trial], and to deny all my backpay,
that the company would probably reinstate me to my
job.
Mertens testified that Fox approached him at the time and
location described. Mertens recalled he first reviewed his role
as counsel for Respondent, established that Fox was not rep-
resented by counsel respecting the termination—neither by
the union lawyer nor his criminal lawyer, and then asked Fox
what he wanted to talk about. Fox wanted to know if ‘‘there
was any way he could get his job back.’’ Mertens suggested
Fox take another proposal to Respondent. When Fox said his
proposal had been rejected, Mertens responded in his recol-
lection:
Well, that doesn’t mean you can’t submit another
proposal. But I’ll tell you that there are essential things
about the counter-proposal that you submitted that the
company people will never agree to. For instance, they
are not going to allow you to be tested positive three
or four times in a row before they can finally get rid
of you .
They are not going to sign a counter proposal such
as the one you submitted earlier today, which expressly
resolves or purports to resolve that pending unfair labor
practice.
632 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Mertens further testified:
But one of the problems that Mr. Stewart and Mr. Gillespie had had with
[Fox’s] written proposal, is that not only did it say the unfair labor prac-
tice charge will remain open, but it protected his right to receive backpay.
When the—what Mr. Stewart and Mr. Gillespie had proposed, is that the
suspension without backpay stand as is, at least with respect to the settle-
ment and the suspension issues. If at some point down the road the
N.L.R.B. were to decide that he’s entitled to back pay, fine.
But we did not want to have a statement in a written settlement proposal
with respect to reinstatement that said, ‘‘You have a right or you may
have a right to recover backpay down the road.’’ As far as the company
representatives were concerned, they did not think he was entitled to
backpay, and they wanted something to that effect put in the settlement
agreement, as indeed their original proposal reflects.
Mertens specifically denied telling Fox that as part of a pos-
sible settlement he must not participate in the unfair labor
practice trial. Mertens also specifically denied telling Fox he
would have to waive his claim to backpay. He testified he
told Fox ‘‘We are not going to settle this unfair labor prac-
tice through a written memorandum concerning reinstate-
ment.’’7 The conversation ended on Mertens’ statement that
Fox was free to submit additional proposals and could even
apply to be rehired.
2. Argument
The General Counsel and the Charging Party argue that
Fox’s version of events should be credited. Thus the moving
parties argue that Fox’s testimony that he told both Pugliese
and Gillespie on various occasions that he had been arrested
on drug charges be credited over their denials. They further
argue Fox’s version of subsequent events be credited where
it differs from Respondent’s agents’ testimony. Working
from that premise they further argue that Respondent’s
agents Gillespie and Pugliese well knew of Fox’s drug arrest
but were unconcerned until Fox’s union activities were ob-
served after which time Fox was suspended and later dis-
charged. The General Counsel argues it was not Fox’s guilty
plea which triggered Respondent’s acts but rather its dis-
covery that Fox was supporting the Union and was therefore
a probable union vote in the election.
Respondent emphasizes the objectivity of Gillespie who at
the time he testified was no longer employed by Respondent
and had accepted other employment. While also supporting
the testimony of Pugliese, counsel for Respondent notes that
Gillespie and Stewart determined Fox’s fate and that they did
so without any consideration of or indeed knowledge of
Fox’s union sympathies. Further, Respondent urges that Fox
be discredited where his version of events is contradicted by
Respondent’s agents.
Beyond credibility issues, Respondent argues that there
was an essential lack of animus in the proposals Respondent
made to Fox and an inherently obvious basis for its rejection
of Fox’s subsequent proposal. Thus, Fox was to be reinstated
before the election under Respondent’s proposal preserving
Fox’s right to vote. In Respondent’s view, agreement had in
essence been reached on July 20 and been happily an-
nounced to employees participating with Fox in the evening
softball game. Only Fox’s subsequent change of mind after
the July 20, 1989 oral agreement prevented him from return-
ing to work and casting an unchallenged ballot in the elec-
tion. Were Respondent seeking to punish Fox for his union
activities or seeking to prevent his suspected prounion vote
from being counted, asks Respondent counsel, would Re-
spondent have made a proposal which, if timely accepted,
would have restored his employment and preserved his vot-
ing eligibility?
3. Analysis and conclusions
a. Credibility resolutions
I have earlier in this decision discredited in part the testi-
mony of many of the witnesses to the events here, i.e., Fox,
Pugliese, and Gillespie. Having considered the record as a
whole and the demeanor of each witness during testimony
concerning the events in issue here, I am unable to find that
one or more witnesses may simply be uniformly discredited.
I shall make certain threshold credibility resolutions however.
Initially, based on the demeanor of the witnesses while giv-
ing the relevant testimony, I credit Mertens over Fox respect-
ing their posttermination conversation, and Stewart and Gil-
lespie over Fox concerning their June 26 conversation. My
determinations, primarily based on demeanor, are reinforced
by the persuasiveness of Respondent’s argument that these
agents would be unlikely to make the comments attributed to
them in the circumstances described by Fox given that
charges had been filed with the Board.
I confess to having great difficulty resolving the conflict
in testimony over the contentions of Fox that he discussed
the nature of his ‘‘problem’’ with Gillespie and Pugliese and
that Respondent was therefore well aware that he had been
arrested on drug charges and was contemplating a plea bar-
gain which would involve of a plea of guilty—all well before
the actual plea. I share the General Counsel’s view that it
would certainly be natural for Respondent’s agent to be at
least curious respecting the type of judicial proceedings Fox
was caught up in. I also agree with Respondent however that
Fox may not have wished to widely publicize the fact of his
arrest and jailing on drug charges. This latter argument is
met to at least some extent however by the fact noted by the
General Counsel that Helper and Carbondale County are part
of small town America where such matters become widely
known and that an employee arrested on such charges in
such an area would be well advised to be the first to inform
his employer of such events.
Having closely considered the testimony on this issue in
light of the record as a whole, the demeanor of the witnesses
and the burden of proof the General Counsel bears, I find
that the version of events of Gillespie, and where consistent,
those of Pugliese and Stewart should be credited over the
differing version of Fox. On balance, in my view, this issue
resolves itself into an evaluation of the comparative believ-
ability of the witnesses. Gillespie’s relative objectivity and
superior demeanor as to this aspect of his testimony convince
me that his version of events should be credited. Where
Fox’s testimony is inconsistent with Gillespie’s as to this as-
pect of the case, it is discredited. Thus, I find that Gillespie
did not know of Fox’s arrest circumstances until learning of
his guilty plea and did not consider or discuss Fox’s union
activities in his conversation with Stewart in which the deci-
sion to suspend Fox was taken.
b. Analysis and conclusions
Given the credibility resolutions noted supra, I find that
the General Counsel has failed to meet his burden of proof
that Fox’s suspension and discharge, or either of them, were
in violation of Section 8(a)(3) and (1) of the Act. Having
633JENNMAR CORP.
credited Gillespie that he did not know of Fox’s drug arrest
as a drug matter until learning of Fox’s guilty plea, and hav-
ing credited Gillespie and Stewart in their version of the con-
versation respecting what action to take against Fox after
learning of his guilty plea, I find Respondent’s suspension of
Fox was free of any consideration of his union activities and
would have occurred had no union campaign been underway.
Fox’s termination was admittedly because he refused to
accept Respondent’s reinstatement offer. I reject the argu-
ment of the General Counsel and the Charging Party that the
entire suspension/discharge scenario was a device to cloak
Respondent’s expedient use of the guilty plea and illegal mo-
tive to eliminate a union adherent and prounion vote. I fur-
ther find, accepting Respondent’s argument that it appeared
to Respondent that an agreement had been reached on July
20 which would have put Fox back to work and kept him
eligible to vote in the election, that Respondent was acting
in good faith in its reinstatement negotiations. It may be that
Fox’s probation officer advised him not to accept Respond-
ent’s proposal as written. Respondent however is not pre-
cluded from holding a contrary or even an unreasonable view
on the issue so long as it did not consider Fox’s union activi-
ties or sympathies in reaching its decision. On this record,
I find no convincing evidence that Respondent violated the
Act in this regard.
Accordingly, having credited generally the testimony of
Respondent’s agents, as set forth in detail above, I find that
Respondent did not suspend or terminate Fox because of his
union activities. Accordingly, I find that Respondent has not
violated Section 8(a)(3) and (1) as alleged in the complaint.
I shall, therefore, dismiss the allegations of paragraphs 6 and
7 of the complaint in their entirety.
IV. THE CHALLENGES
Respondent challenged two individuals, Eric Fox and
David Hurst. The Regional Director’s September 29, 1989
Report on Challenges and Objections, order directing hearing
and order of consolidation and notice of hearing, inter alia,
directed a hearing be held on each challenge. The two indi-
viduals’ ballots may be separately addressed.
A. Eric Fox
Eric Fox was alleged in complaint paragraphs 6 and 7 as
discriminatorily suspended and later discharged by Respond-
ent. I have found these allegations without merit, supra. A
consequence of this finding is that Fox was legally separated
from Respondent’s employ before the election. This being
so, there is no basis for considering Fox an eligible voter on
the day of the election. Accordingly, I shall recommend that
Respondent’s challenge to Fox’s ballot be sustained.
B. David Hurst
1. The evidence
David Hurst was without dispute a good employee at Re-
spondent’s Helper facility who was within the unit until the
events in issue here. He was also a known union supporter
whose prounion adorned apparel clearly identified him to all
as a likely vote for the Union. Hurst was determined to leave
the Helper, Utah area for reasons unrelated to the instant
controversy. On Monday, July 24, the Monday before the
Friday, July 28 election, Hurst gave Gillespie notice of his
intent to resign effective the end of the Friday, July 28 work-
day. One week’s notice of resignation was required by the
terms of Respondent’s employee handbook in order for the
resigning employee to be paid for unused sick or personal
leave days.
In announcing his resignation Hurst met with Gillespie ini-
tially. Later Pugliese joined them. Hurst testified that pleas-
antries were exchanged and Hurst’s work complimented.
Hurst recalled Gillespie telling him in Pugliese’s presence:
‘‘the union organizing drive aside, he still felt I was a good
worker.’’ Hurst asked for a letter of reference and that his
final paycheck be ready before he left the area. He recalled
that Gillespie asked him if he intended to work ‘‘clear
through the week.’’ Hurst answered he would work 40 hours
that week. Gillespie responded that he ‘‘wanted to know so
that he could go ahead and prepare the paycheck and have
time enough to get ready.’’
Gillespie telephoned Stewart that same day and discussed
Hurst’s resignation. Stewart testified that it was agreed that
Hurst would be terminated with pay for the remainder of the
workweek. Stewart testified this action was consistent with
past practice and was undertaken with respect to all employ-
ees who resigned with notice. He testified that it was his per-
sonal if unwritten ‘‘policy for many years . . . to pay them
and discharge them.’’ Stewart supplied examples of similarly
treated employees at Helper and other Respondent facilities.
Gillespie therefore initiated the process of obtaining Hurst’s
final papers and preparing a final check which would pay
Hurst as if he had worked through Friday, July 28, 1989.
Hurst, unaware of these developments, continued working
on Monday, Tuesday, and Wednesday of that week. On
Thursday morning, just after the beginning of his shift, Hurst
was brought to the office. There he met with Gillespie,
Pugliese, and Stewart. Hurst recalled that Gillespie told him
‘‘they were giving me two days paid vacation. That they felt
my mind was no longer on my work. That when somebody
is leaving employment they consider him accident prone and
I was—that was pretty much it.’’ Hurst answered he would
like to continue working. Stewart told him it was ‘‘standard
policy’’ to lay employees off with pay.
Hurst testified:
I repeated again that I would rather stay and finish
out the week as we had agreed to prior. Gene Stewart
said you have no choice, you better clear out. At that
point I asked if I would be allowed to vote at the elec-
tion the next day. Doug [Gillespie] said, ‘‘Yes, we’re
not trying to take your right to vote away.’’
. . . .
I don’t remember anything else after that. Well yes,
I do. I take that back. Gene Stewart began questioning
me as to my feelings toward Jennmar and towards the
union, asking me wasn’t I better off at Jennmar than I
had been at my previous employer, the warehouse at
Sears here in Price [Utah].
Gillespie and Stewart testified that Hurst asked during this
meeting if he could vote the following day and was told that
he could, but that his vote would probably be challenged by
Respondent. Gillespie and Stewart denied that either men-
tioned the Union in this conversation.
634 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 Dutro’s Board-prepared affidavit dated August 3, 1989, asserts that Gil-
lespie made no remarks about Hurst in this meeting but that Stewart
spoke and [said] Dave Hurst was the leader of the thing and that Hurst
was leaving and walking away from the situation. He said it was like
what the UMW did in Marysville, Ohio at the Honda plant.
9 Indeed, there is a significant question whether such a finding could be
made in a challenge resolution where the General Counsel has not alleged
such conduct as violative of Sec. 8(a)(3) and (1) of the Act in the consolidated
complaint.
After this conversation ended Hurst went to the breakroom
to get his lunch bucket. There he found the entire unit await-
ing the beginning of an employee meeting. Hurst said his
goodbyes to his fellows, he was asked to leave as the meet-
ing started and he did so.
Jim Valdez testified that after Hurst left the meeting Gil-
lespie told the assembled employees that Hurst was well
known to be a union supporter and that ‘‘the Union will
walk away from you too.’’ Employee Anthony Dutro re-
called that Gillespie said that Hurst was a ‘‘UMWA orga-
nizer, and they’re all going to leave you hanging.’’8
Stewart and Gillespie denied that the statements attributed
to Gillespie were made by him at the meeting. Gillespie tes-
tified that the employee meeting held that Thursday morning
as Hurst left may have included a statement that Hurst was
no longer employed by Respondent, but did not include any
reference by him or other agents of Respondent that Hurst
was a union organizer.
The following day, Friday, July 28, Hurst returned to the
jobsite to cast a ballot which was challenged by Respondent
and to pick up his final papers. He testified that he spoke
with Gillespie who told him that he had been unaware of the
company policy of terminating with pay employees who
gave notice until Stewart had told him of it in discussing
Hurst. Gillespie denied this assertion.
2. Analysis and conclusions
The Charging Party’s evidence offered to challenge Stew-
art’s assertion that it was his uniform, if unwritten, policy to
‘‘pay off’’ employees who gave notice is insufficient. The
indirect evidence that Respondent was pleased to eliminate
the likely prounion vote of Hurst and to show employees that
a prounion employee was ‘‘abandoning’’ them, even if fully
credited, does not overcome Stewart’s direct credible testi-
mony of a policy of terminating employees who give notice
and his recitation of examples before and after Hurst of that
policy being consistently followed. Accordingly, I find that
there is insufficient evidence to suggest that Hurst was dis-
charged because of his union sympathies.9
Given my finding that Hurst was terminated in accordance
with company policy, it follows that his ballot is not valid
and should not be opened and counted. This is so for the
fundamental reason that he was not an employee at the time
of the vote. Cf. Respondent’s cited case, Inacomp America,
281 NLRB 271 (1986). Accordingly, I shall recommend the
challenge to his ballot be sustained.
C. Summary and Recommendation of Certification
I have found above that the challenges to the ballots of
Hurst and Fox should be sustained. These challenges having
been sustained there are no longer any unresolved challenged
ballots and challenges are no longer determinative of the re-
sults of the election. I shall, therefore, further recommend
that the Board certify that the Union did not receive a major-
ity of valid votes cast in the July 28, 1989 election.
V. THE OBJECTIONS
1. Preliminary matters
The Regional Director’s September 29, 1989 Report on
Challenges and Objections, order directing hearing and order
of consolidation and notice of hearing, inter alia, directed a
hearing be held on the Charging Party’s Objection 2, involv-
ing Hurst. The report further noted that complaint paragraphs
5(j), 6(a), 6(b), and 7 addressed conduct occurring after the
petition was filed and before the election was conducted and
were therefore ‘‘matters which, if proven, would be [a] basis
for setting aside the election.’’ The report continued:
Accordingly, these matters will be considered as addi-
tional objections to the conduct of the election.2
2 While the Petitioner does not allege the conduct described in
paragraphs 5(j), 6(a), and 6(b) of the Amended Complaint to be ob-
jectionable, I note the Board to have long held that I cannot ignore
evidence relevant to the conduct of the election simply because the
Union may not specifically have mentioned such conduct in its ob-
jections. See American Safety Equipment Corp., 234 NLRB 501
(1978), and the cases cited therein.
The Regional Director’s report was not appealed by any
party. The time for such appeal had passed before the hear-
ing in this matter. At the commencement of the hearing the
General Counsel amended his complaint to allege new para-
graphs 5(k), (l), and (m). Paragraph 5(m) alleges conduct oc-
curring on June 2, within the objection window period.
Respondent argues on brief that the matters set for hearing
in the Director’s report not alleged in the Charging Party’s
objections were ‘‘patently untimely and should be summarily
dismissed.’’ Respondent argues on brief at 26–27:
Although belated objections may be raised by the
Regional Director based on objectionable conduct that
is discovered during the investigation of other objec-
tions, see generally American Safety Equipment Corp.,
234 NLRB 501, 501–502 (1978), there is no authority
or justification for permitting untimely objections based
on conduct that was investigated prior to the election
and of which the Regional Director was obviously
aware during the objection-filing period. In this case,
the Regional Director has determined that there was
probable merit to the violations alleged in paragraph
5(j) before the July 28 election, and hence he should
have lodged objections based on that conduct within the
time period specified in the Board’s own regulations.
There is no authority in the Board’s regulations for the
Regional Director to ‘‘sit on’’ allegedly objectionable
conduct for several weeks and then raise unilateral ob-
jections at his leisure. [Emphasis in the original.]
In discussing paragraph 5(m) of the complaint on brief,
counsel for Respondent makes the following statement at
footnote 8, page 41:
No attempt was made by the General Counsel or the
Regional Director to raise a belated objection based on
the allegations of paragraph 5(m) [of the complaint],
635JENNMAR CORP.
10 Respondent’s argument attacking the Report on Objections may also be
viewed as an indirect attempt to achieve an out-of-time appeal of the Regional
Director’s report.
and hence Jennmar assumes that no such objection is
pending for adjudication.
Respondent’s arguments respecting the untimeliness of the
Regional Director’s inclusion of the additional conduct not
specifically addressed in the objections in the instant hearing
miss the mark. No time limits or requirements exist requiring
the Regional Director either to issue his report or to include
particular conduct within a hearing on objections within a
certain period. Nor do latches generally run against the Gov-
ernment. Questions of the timeliness of the Regional Direc-
tor’s handling of objections cases are simply not addressed
in the Board’s Rules and Regulations or in the case law as
Respondent suggests. Accordingly, I find no merit to Re-
spondent’s argument that the Regional Director’s report im-
properly joined untimely matters in the hearing.10
Paragraph 5(m) of the complaint was added at the hearing
well after the Regional Director had issued his report. Insofar
as the paragraph alleges conduct which occurred in the pe-
riod after the filing of the petition and before the election,
it raises a potential challenge to the ‘‘laboratory conditions’’
which the Board is obligated to provide voters that they may
exercise their voting franchise in a free and informed man-
ner. The Board has noted that it will ‘‘remain vigilant in en-
suring that all the conditions surrounding the election proc-
ess’’ are proper. This is so irrespective of the specific lan-
guage of the objections. See American Safety Equipment
Corp., 234 NLRB 501 (1978).
I find this strong statement of policy and intention is
equally binding on Regional Directors and hearing officers
and administrative law judges hearing objections cases.
When evidence of conduct destructive of laboratory condi-
tions is properly placed in evidence during consideration of
the merits of the objections, that other conduct may and, in-
deed, must, under the stricture of reversible error, be consid-
ered and ruled upon in ruling on the objections. This being
so, paragraph 5(m) of the complaint, even though not men-
tioned by the Regional Director in directing the hearing on
objections, will be considered as if it has been timely in-
cluded in the Charging Party’s objections.
2. Merits of the objections
a. The Charging Party’s objections
The sole remaining objection in issue after the Regional
Director’s report was Objection 2:
On July 27, 1989, the Employer sent employee Dave
Hurst home from work early and refused to allow him
to work on Friday, July 28, 1989, because of his activ-
ity protected by the Act and to discourage other em-
ployees from supporting the Union.
I have found, supra, that Hurst was not sent home improp-
erly and that his discharge with pay was consistent with Re-
spondent’s policy and not because of his union activities. It
follows therefore that the objection lacks provable merit and
must fail. I shall, therefore, recommend that the Charging
Party’s Objection 2, the only remaining objection, be dis-
missed.
b. Other conduct
(1) Complaint paragraphs found to be without merit
The complaint paragraphs relevant here are paragraphs
5(m), 6, and 7. I have elsewhere found the General Counsel
had not met his burden of proof with respect to each of these
complaint paragraphs. The Charging Party’s burden respect-
ing its objections is the same as that of the General Counsel
in the unfair labor practice case. Therefore, my ruling on the
conduct alleged as objectionable is no different than my rul-
ing on the complaint. Accordingly, I find these allegations
are not sustained as objectionable conduct for purposes of
setting the election aside.
(2) Complaint paragraphs found meritorious
As described above, I found that paragraph 5(j) of the
complaint was sustained as a violation of Section 8(a)(1) of
the Act by the General Counsel. That paragraph alleged mis-
conduct by General Manager Gillespie on June 5—a date
within the period between the filing of the representation pe-
tition and the election. I credit Valdez who testified that Gil-
lespie told him on that date:
As long as this thing is going on, we’re not gonna have
any supplies coming in. He goes, if we were really con-
cerned about our jobs, he told me we’d get the majority
of the guys and go get the union cards that you signed,
and make them promise there won’t be no election.
And the expansion can start, and he said that things can
be back to normal start, and he said that things can go
back to normal, and they won’t have to have this elec-
tion or all this stuff going on.
Gillespie’s statement contains a threat that supplies would be
withheld because of the union campaign, suggests jobs may
be in jeopardy, implies the expansion then underway at Help-
er was frozen because of the emploees’ union activities and
solicits employee efforts to avoid an election. This conduct
is undisputably objectionable. This is particularly so in light
of the violations found before the petition was filed which
place the June conduct in a more sensitive context. The in-
formation imparted by Gillespie was sure to be repeated to
other employees and thus reinforced the statements made
earlier by Perez and Pugliese found violative above.
Given all the above, I find the laboratory conditions re-
quired by the Board were destroyed by Respondent’s conduct
and the election should be set aside and a new election di-
rected. I shall so recommend.
c. Summary and conclusion
I have found that Respondent’s challenges are meritorious
and that the challenges be sustained and the results of the
election certified. I have further found that the other conduct
litigated in the unfair labor practice aspects of the instant
consolidated matter in paragraphs 5(m), 6, and 7 of the com-
plaint did not establish grounds for setting aside the election.
I have also found that the conduct found violative of para-
graph 5(j) of the complaint occurred during the period be-
tween the filing of the representation petition and the election
636 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 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 objec-
tions to them shall be deemed waived for all purposes.
12 If this Order is enforced by a judgment of a United States court of ap-
peals, 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.’’
and constitutes a basis for setting aside the election. I shall,
therefore, recommend that the Board direct such a new elec-
tion with the traditional notice of election in such situations
described in Lufkin Rule Co., 147 NLRB 341 (1964).
REMEDY
Having found Respondent engaged in certain unfair labor
practices, I shall recommend that it be ordered to cease and
desist therefrom and to take certain affirmative action to ef-
fectuate the purposes and policies of the Act.
CONCLUSIONS OF LAW
1. 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. Respondent violated Section 8(a)(1) of the Act by en-
gaging in the following acts and conduct:
(a) Threatening employees that, if the Union represented
Helper employees or negotiated on their behalf, wages and
benefits would be cut, employees could lose their jobs,
and/or work practices could be changed causing layoffs.
(b) Interrogating employees about their union activities
and sympathies and accusing employees of starting the union
organizing drive.
(c) Threatening employees that if the Union organizes Re-
spondent’s Helper facility, certain management employees
would retain employment but employees would be termi-
nated and/or lose their benefits, that the facility would be
turned into a warehouse, that parts would be sent to other
Jennmar facilities, that the plant expansion would stop, and
that new equipment would not be sent to the Helper facility.
(d) Suggesting that employees could preserve their jobs
and get back to normal by seeking the return of their author-
ization cards from the Union and stopping the election.
4. Respondent has not otherwise violated the Act as al-
leged.
5. The challenges to the ballots of Fox and Hurst are valid.
6. Respondent’s agent, Gillespie, destroyed the laboratory
conditions necessary to hold a free and fair election through
his conduct on June 5 described in the analysis of paragraph
5(j) of the complaint, supra.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended11
ORDER
Order Respecting Unfair Labor Practices
The Respondent, Jennmar Corporation of Utah, Inc., Help-
er, Utah, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening employees that, if the Union represented
Helper employees or negotiated on their behalf, wages and
benefits would be cut, employees could lose their jobs,
and/or work practices could be changed causing layoffs.
(b) Interrogating employees about their union activities
and/or sympathies and accusing employees of starting the
union organizing drive.
(c) Threatening employees that if the Union organizes Re-
spondent’s Helper facility, certain management employees
would retain employment but employees would be termi-
nated and/or lose their benefits, that the facility would be
turned into a warehouse, that parts would be sent to other
Jennmar facilities, that the plant expansion would stop, and
that new equipment would not be sent to the Helper facility.
(d) Suggesting that employees could preserve their jobs
and get back to normal by seeking the return of their author-
ization cards from the Union and stopping the election.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at its Helper, Utah facility copies of the attached
notice marked ‘‘Appendix.’’12 Copies of the notice, on forms
provided by the Regional Director for Region 27, in English
and such other languages as the Regional Director determines
are necessary to fully communicate with employees, after
being signed by Respondent’s authorized representative, shall
be posted for 60 consecutive days in conspicuous places in-
cluding all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by Respondent
to ensure the notices are not altered, defaced, or covered by
any other material
(b) Notify the Regional Director in writing within 20 days
from the date of this Order what steps Respondent has taken
to comply.
Order Respecting the Representation Case
1. The challenges to the ballots of Eric Fox and David
Hurst shall be sustained and the results of the July 28, 1989
election certified.
2. The objections including the conduct included by the
Regional Director’s report are sustained and a new election
shall be directed consistent with the Board’s practice in such
circumstances.
3. The following language provided in the Board’s deci-
sion in Lufkin Rule Co., 147 NLRB 341, 342 (1964), shall
be included in the notice of election to be issued in this mat-
ter.
The election conducted on July 28, 1989 was set
aside because the National Labor Relations Board
found that certain conduct of the Employer interfered
with employees’ exercise of a free and reasoned choice.
Therefore a new election will be held in accordance
with the terms of this notice. All eligible voters should
understand that the National Labor Relations Act, as
amended, gives them the right to cast their ballots as
they see fit, and protects them in the exercise of that
right, free from interference by any of the parties.