Loparex LLC

National Labor Relations Board - Board Decisions

Mar 31, 2009

353 N.L.R.B. 1224 (N.L.R.B. 2009)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
353 NLRB No. 126
1224
Loparex LLC and Teamsters Local 662. Cases 18–
CA–18436, 18–CA–18448, and 18–CA–18671
March 31, 2009
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBER SCHAUMBER
On November 12, 2008, Administrative Law Judge
Paul Bogas issued the attached decision. The Respon-
dent filed exceptions and a supporting brief, the General
Counsel filed an answering brief and cross-exceptions,
and the Respondent filed a reply brief and an answering
brief.
The National Labor Relations Board has considered
the decision and record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,1 and conclusions and to adopt the recommended
Order.2
In late June or early July 2007, the Respondent told all
individuals designated as “shift leaders” at its Hammond,
Wisconsin facility that they were statutory supervisors

1 There are no exceptions to the judge’s finding that the Respondent
violated Sec. 8(a)(1) by forbidding employees to talk about the Union.
Assuming, arguendo, that the Respondent’s exceptions could be con-
strued to cover this finding, the Respondent fails to allege with any
degree of particularity, either in its exceptions or its brief in support
thereof, the error the judge purportedly committed, or on what grounds
the judge’s decision as to this violation should be overturned. In these
circumstances, in accordance with Sec. 102.46(b)(2) of the Board’s
Rules and Regulations, we find that any exception on this point should
be disregarded. We therefore adopt the judge’s finding and conclusions
on this violation, pro forma, without addressing their merits. Conley
Trucking, 349 NLRB 308, 308 fn. 2 (2007).
We adopt the judge’s recommended dismissal of the complaint alle-
gation that the Respondent violated Sec. 8(a)(3) and (1) when it disci-
plined employee Jody Schillinger. There are no exceptions to the
judge’s finding that the General Counsel satisfied his initial burden of
proof under Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982). We affirm the find-
ing that the Respondent met its Wright Line rebuttal burden for the
reasons stated by the judge.
In affirming the judge, Member Schaumber notes that the Board and
circuit courts of appeals have variously described the evidentiary ele-
ments of the General Counsel’s initial burden of proof under Wright
Line, sometimes adding as an independent fourth element the necessity
for there to be a causal nexus between the union animus and the ad-
verse employment action. See, e.g., American Gardens Management
Co., 338 NLRB 644, 645 (2002). As stated in Shearer’s Foods, 340
NLRB 1093, 1094 fn. 4 (2003), since Wright Line is a causation analy-
sis, Member Schaumber agrees with this addition to the formulation.
2 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Liebman and Member Schaumber constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
and were not allowed to sign union cards or engage in
other prounion activities. In October 2007, the Respon-
dent communicated the same prohibition to Chris
Meeker after it designated him a shift leader. The com-
plaint alleged and the judge found that this prohibition
violated Section 8(a)(1) because these individuals are not
supervisors under Section 2(11) of the Act. See, e.g.,
Shelby Memorial Home, 305 NLRB 910, 910 fn. 2
(1991). As described more fully below, we affirm the
judge’s finding that the Respondent’s shift leaders are
not statutory supervisors because, contrary to the Re-
spondent’s assertion, they do not possess the authority to
transfer,3 assign, responsibly to direct,4 or to effectively
recommend rewards.5 We therefore affirm the judge’s
8(a)(1) finding.
The judge found the shift leaders do not have the au-
thority to assign, but did not address the issue of inde-
pendent judgment. Assuming, arguendo, that shift lead-
ers assign work to their crew members, we find that the
Respondent failed to prove that the shift leaders at issue
exercise such authority with independent judgment and
thus failed to prove their supervisory status.6
Pursuant to Section 2(11), individuals are statutory su-
pervisors if (1) they hold the authority to engage in any 1
of the 12 supervisory functions listed in Section 2(11);
(2) their exercise of such authority is not of a merely
routine or clerical nature, but requires the use of inde-
pendent judgment; and (3) their authority is held in the
interest of the employer. The burden to prove supervi-
sory authority is on the party asserting it. Oakwood
Healthcare, 348 NLRB at 687; see also NLRB v. Ken-
tucky River Community Care, 532 U.S. 706, 711–713
(2001). “Explaining the definition of independent judg-
ment in relation to the authority to assign,” the Board has
stated that the authority to effect an assignment must be

3 In affirming the judge, we rely solely on his finding that shift lead-
ers do not exercise independent judgment regarding the transfer author-
ity.
4 In affirming the judge, we rely solely on his finding that shift lead-
ers do not have the requisite “authority to take corrective action, if
necessary.” Oakwood Healthcare, Inc., 348 NLRB 686, 692 (2006).
5 In discussing the authority to effectively recommend rewards, the
judge stated, “The Board declines to find supervisory status based on
alleged authority that the putative supervisors were not notified they
possessed.” JD sec. III.A.5.a (citing Golden Crest Healthcare Center,
348 NLRB 727, 730 fn. 9 (2006)). To clarify, the opinion in Golden
Crest Healthcare Center states, “The Board has declined to find indi-
viduals to be supervisors based on alleged authority that they were
never notified they possessed, where its exercise is sporadic and infre-
quent.” 348 NLRB at 730 fn. 9. We otherwise adopt the judge’s deci-
sion regarding the authority to effectively recommend rewards.
There are no exceptions to the judge’s finding that the Respondent’s
shift leaders do not have the authority to discipline.
6 For the reasons set forth below, we need not pass on the supervi-
sory status of former shift leader Tim Monicken.
LOPAREX LLC 1225
independent, i.e., free of the control of others, it must
involve a judgment, i.e., forming an opinion or evalua-
tion by discerning and comparing data, and the judgment
must involve a degree of discretion that rises above the
“routine or clerical.” Croft Metals, Inc., 348 NLRB 717,
721 (2006).
At the beginning of a shift, the Respondent’s shift
leaders receive a priority sheet, which lists the jobs to be
run on each machine in order of importance and when
those jobs are due. From that priority sheet, shift leaders
tell each crew member which machine he or she will
operate during that shift. While all the shift leaders have
these job responsibilities, there is no evidence that they
carry out these responsibilities in the same manner.
When assigning crew members to a machine, shift leader
Chris Meeker stated:
I just—I usually try and mix it up between so that not
every person is working on the same thing from day in
and day out. Otherwise, if there’s something that one
person ran before that’s still running, I may put them on
that machine since they already know how to run it and
then they had experience running it the day before.
Otherwise, I just kind of randomly assign ‘em for that
list.
Thus, Meeker did not take into account the relative skills of
his crew members as he shifted them from one task to an-
other. Instead, he either assigned crew members to ma-
chines randomly or assigned them to stay on a machine to
complete their previously assigned task. These assignments
do not reflect the exercise of independent judgment. See
Rockspring Development, Inc., 353 NLRB No. 105, slip op.
at 2 (2009) (no independent judgment shown absent evi-
dence that putative supervisor assessed the relative skills of
employees in shifting them from one crew to another);
Oakwood Healthcare, 348 NLRB at 698 (no independent
judgment shown where putative supervisors did not assess
individual professional and personal attributes when making
assignments). Accordingly, the Respondent’s instruction to
Meeker forbidding him to engage in prounion activity vio-
lated Section 8(a)(1).
That same prohibition directed at the other shift lead-
ers at issue in this case was likewise a violation of Sec-
tion 8(a)(1). While shift leader Monicken testified that
he considered his crew members’ productivity and ex-
perience when making assignments, by the time of the
hearing, Monicken had been transferred to the scheduling
department and was no longer a shift leader. In these
circumstances, we need not pass on his supervisory
status at the time the Respondent instructed him not to
engage in union activity, as any such finding would not
materially affect the remedy. As to the remaining shift
leaders, there is no evidence how they carried out their
job responsibilities. Monicken did not testify that other
shift leaders considered crew member productivity and
experience. Meeker’s testimony affirmatively shows that
he—at the least—did not. There is no other evidence
concerning the factors considered by the remaining shift
leaders. Accordingly, the Respondent has not met its
burden of proving that the remaining shift leaders exer-
cised independent judgment when making assignments.
Thus, the Respondent’s prohibition against their partici-
pation in union activity violated the Act.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Loparex LLC, Hammond,
Wisconsin, its officers, agents, successors, and assigns,
shall take the action set forth in the Order.
Joseph H. Bornong, Esq., for the General Counsel.
Richard L. Marcus, Esq. (Sonnenschein, Nath & Rosenthal,
LLP), of Chicago, Illinois, for the Respondent.
Tim Wentz, of Eau Claire, Wisconsin, for the Charging Party.
DECISION
STATEMENT OF THE CASE
PAUL BOGAS, Administrative Law Judge. I heard this case in
Minneapolis, Minnesota, on May 14, 2008. Teamsters Local
662 (the Union) filed the initial charge on July 19, 2007, the
second charge on July 30, 2007, and the third charge on Febru-
ary 27, 2008. On September 11, 2007, the Union amended the
second of those charges. The Regional Director for Region 18
of the National Labor Relations Board (the Board) issued the
order consolidating cases and the consolidated complaint on
March 27, 2008. The complaint alleges that the Respondent
violated Section 8(a)(1) of the National Labor Relations Act
(the Act) by, inter alia, interfering with employees’ rights to:
post noncompany information on bulletin boards at the facility,
distribute union literature and buttons, and discuss the Union.
The complaint also alleges that the Respondent violated Section
8(a)(1) by telling individuals classified as “shift leaders” that
they were supervisors and could not sign union cards or other-
wise engage in union activities. The complaint further alleges
that the Respondent discriminated against employee Jody
Schillinger in violation of Section 8(a)(3) and (1) by issuing
him a disciplinary warning because of his activities on behalf of
the Union. The Respondent filed a timely answer in which it
denied committing any of the alleged violations.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the Union and the Respondent,1 I make the following find-

1 The General Counsel filed a motion to strike the Respondent’s
posthearing brief as untimely. I deny that motion. The parties’ briefs
were due on or before June 27, 2008. The Respondent submitted its
brief to the Division of Judges electronically on June 27. On that day,
the Respondent served the General Counsel by United States mail, and
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1226
ings of fact and conclusions of law.
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, manufactures siliconized re-
lease liners and specialty papers at its facility in Hammond,
Wisconsin, from which it annually sells goods and materials
valued in excess of $50,000 directly to customers outside the
State of Wisconsin, and annually purchases goods and materials
valued in excess of $50,000 directly from suppliers outside the
State of Wisconsin. 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. Background
The Respondent is in the business of treating paper and films
with silicone and plastic coatings. Its products are used as peel-
away backing for such items as self-adhesive band-aids and
roofing shingles. The Respondent operates multiple production
facilities, including the Hammond, Wisconsin, location (the
Hammond facility) that is involved in the instant case. As of
early 2007, the Respondent had approximately 200 production
employees at the Hammond facility. The production employ-
ees operate machines that cut rolls of paper or film to specified
sizes and apply the coatings. There are two complexes at the
Hammond facility—referred to as the “east side” and the “west
side” of the plant. These complexes are separated by a distance
of 150 to 200 yards. The Respondent operates the Hammond
facility 24 hours a day, 7 days a week.
The Respondent acquired the Hammond facility from a
competitor, Douglas-Hanson Company, in June 2006. The
record indicates that some, but not all, of the Respondent’s
Hammond officials were working at that facility for Douglas-
Hanson at the time the Respondent took over the facility.
Among the officials of the Respondent who had also been em-
ployed at the Hammond facility under Douglas-Hanson are
Todd Bloom (production manager), Pete Riehle (technical di-
rector), Rich Larsen (supervisor/team manager), and Jason
Carlson (plant supervisor/team manager).

the General Counsel actually received the Respondent’s brief no later
than the next business day. It does not appear that the service on the
General Counsel technically complied with the regulation requiring a
party that files its brief electronically on the due date to notify the Gen-
eral Counsel “by telephone of the substance of the transmitted docu-
ment” and serve the General Counsel “by personal service no later than
the next day, by overnight delivery service, or, with the permission of
the party receiving the document, by facsimile transmission.” NLRB
Rules and Regulations, Sec. 102.114(i). On the other hand, the General
Counsel received the Respondent’s brief on the day it was entitled to it
under the regulations, and the motion to strike does not identify any
prejudice to the General Counsel from the improper method of service,
nor is any such prejudice apparent. Under these circumstances, I exer-
cise my discretion to accept the Respondent’s brief. See Total Property
Services, 317 NLRB 975 fn. 3 (1995).
B. Union Activity Commences
Employees at the Hammond plant are not represented by a
union, nor were they at the time the Respondent acquired the
facility. Shortly before the Respondent acquired the Hammond
plant, employees there engaged in a union campaign. Jody
Schillinger, the alleged discriminatee in the instant case, was
active in that campaign. Schillinger has been employed at the
Hammond facility for over 6 years and at the time of trial he
was working there as a production operator. He had been ter-
minated by Douglas-Hanson during the union campaign, but
obtained reinstatement and backpay pursuant to the settlement
of an unfair labor practices charge. Although the previous
charge was filed against Douglas-Hanson, compliance with the
settlement was completed at a time when the Respondent was
operating the facility.
In early 2007, about 8 months after the Respondent acquired
the Hammond facility, Schillinger resumed his union activity.
In January or February 2007, Schillinger had a conversation
with a coworker, Randy Risler, about a new attendance policy
implemented by the Respondent. It was Schillinger’s view that
the new attendance policy had “infuriated a lot of the employ-
ees.” In February, a week after the conversation with Risler,
Schillinger was called into the office of Bloom—the production
manager for the east side of the Hammond facility. Bloom and
team manager Carlson were present. Bloom asked Schillinger
what he had said to Risler about the attendance policy.
Schillinger replied that he could not remember. Then Bloom
brought Lisa Koats—the Hammond facility’s human resources
manager—and Risler into the meeting. Like Bloom, Koats
asked Schillinger what he had said to Risler about the atten-
dance policy. Schillinger stated that he did not remember, and
Koats challenged him, stating that Schillinger remembered
“everything in detail.” Schillinger made a comment indicating
that he believed he was being questioned because of his prior
union activity. Koats stated, “That’s all water under the
bridge.” Schillinger asked what he should do if someone asked
him about union organizing, and Koats told him that if anyone
did that, he was “to just work and not talk about the Union.”
On the day of the meeting with Bloom and Koats, or shortly
thereafter, Schillinger contacted a representative of the Union
about organizational activities. Around the same time in early
February 2007, Schillinger began to openly show support for
the Union by wearing union buttons and union hats whenever
he was at work. On about half of his workdays, he also wore a
shirt with a union insignia on it. Another union supporter,
Chris Meeker, publicly showed support for the Union by wear-
ing a shirt that had “Local Teamsters 662” printed on it and
buttons that had “Local Union 662 Teamsters 2007 IBT”
printed on them.
C. Respondent Promulgates New Rule Requiring Employees to
Obtain Approval before Posting Information on
Bulletin Boards
The Respondent maintained a number of bulletin boards
around the Hammond facility on which it posted company in-
formation. The evidence showed that, prior to April 2007,
employees used these bulletin boards to post non-work infor-
mation—or example, sports schedules and for-sale announce-
LOPAREX LLC 1227
ments. On March 9, Schillinger, along with coworker Meeker,
posted a union organizing flyer on one or more of the bulletin
boards at the Hammond facility. The union organizers subse-
quently discovered that the organizing flyer had been removed.
They reposted the flyer, but it was removed again. This cycle
of posting and removal was repeated several times. There was
no evidence identifying the person or persons who removed the
flyer, or showing over how many hours, days or weeks the
cycle of posting and removal was repeated. At the same time
that the union flyer was being removed, other nonwork postings
by employees remained on the bulletin boards. One of these
employee postings, regarding birds an employee was offering
for sale, was on a bulletin board where the union flyer had been
posted, during the same period when the union flyer was re-
peatedly removed.
On April 16, 2007,—approximately 5 weeks after Schillinger
and Meeker had first posted union material—the Respondent
announced a new rule that prohibited employees from posting
anything on the company bulletin boards without the Respon-
dent’s prior approval. The rule was set forth in a memorandum
that read:
April 16, 2007
To: All Employees
From: Management Staff
Subject: Bulletin Boards
The company has placed several bulletin boards around the
plant as a way of communicating more effectively with all of
you. The bulletin boards are for the exclusive use of company
for its postings. Accordingly, any employee who wants to
post anything on a Company bulletin board must first get the
approval of Human Resources.
Additionally, please do not write or put any markings on
company posted notices.
Your cooperation in this matter is appreciated.
The Respondent did not offer any testimony or other evidence
revealing who made the decision to promulgate this new rule,
or explaining the motivation for the rule or the timing of the
rule’s promulgation.
The complaint also alleges that later, on about July 20, 2007,
the Respondent published a new, stricter, version of the rule.
This version prohibited employees from posting anything on
the bulletin boards and made no exception for items posted
with prior approval. The new policy also threatened to dis-
charge or otherwise discipline employees who violated the
posting prohibition. The Respondent produced a memorandum
setting forth this rule in response to a subpoena request for:
“Any document that includes instructions to employees that
could be considered rules of conduct or disciplinary rules, spe-
cifically including, but not limited to, any rules concerning . . .
use of bulletin boards.” This memorandum reads as follows:
July 20, 2007
To: All Employees
From: Management Staff
Subject: Bulletin Boards
The company has placed several bulletin boards around the
plant as a way of communicating more effectively with all of
you. The bulletin boards are for company postings only. Ad-
ditionally, please do not write or put any markings on com-
pany posted notices.
Employees who do not follow this policy will be subject to
disciplinary actions up to and including discharge.
Your cooperation in this matter is appreciated.
At trial, none of the Respondent’s officials testified about the
July 20 memorandum, or made any claim that it was a draft that
was not put into effect. On the other hand, no witness for either
side testified that the July 20 memorandum was actually posted
or that the rule it sets forth was communicated to employees.
Indeed, union activist Schillinger testified that he did not know
whether the July 20 memorandum was posted. Meeker did not
testify that the Respondent had ever made the rule set forth in
the July 20 memorandum known to him or anyone else.
Under the circumstances, I conclude that the General Coun-
sel has failed to show that the July 20 policy was actually pub-
lished to employees. I note that Schillinger and Meeker were
careful to retain information regarding many of the Respon-
dent’s actions relevant to alleged unfair labor practices,2 but
that, as noted above, neither testified that the Respondent had
published the rule set forth in the July 20 memorandum. There-
fore, although the Respondent’s production of the memoran-
dum in response to a subpoena request for “instructions to em-
ployees,” and the format of the memorandum, suggest that
employees were instructed about the new rule, I find that, on
balance, the record evidence fails to establish by a preponder-
ance of the evidence that the stricter, July 20, policy was pub-
lished at the Hammond facility.
D. Respondent Prohibits Employees from Distributing Union
Flyers in Parking Lot
During their nonwork hours, Schillinger, Meeker, and two
other employees—Rick Toufar and Harlan Rott—distributed
prounion flyers in the Hammond facility’s parking lot. On an
occasion in late May or early June 2007, company officials
confronted the employees in the parking lot and directed them
to cease these activities. Meeker had been handing union flyers
to employees who he encountered in the parking lot and also
placing the flyers on the windshields of cars. He was walking
through the parking lot when production manager Todd Denni-
son approached in a car and asked what Meeker was doing.
Meeker replied that he was “putting out flyers.” Dennison told
Meeker that he “couldn’t do that on company property.”
Meeker responded, “I [am] well within my rights to hand out
the flyers.” Dennison said that Meeker could do it, “just not on
company property.”
After the exchange with Dennison, Meeker joined Schillin-
ger and the other employees who had been distributing the
flyers. Riehle, the plant’s technical director, approached
Schillinger with one of the flyers in his hand and said “You

2 For example, they tape recorded meetings with officials of the Re-
spondent and kept copies of nonunion materials that were openly
posted or distributed at the facility.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1228
know you can’t be doing this. This is what you got fired for
before.” Schillinger replied that he was within his rights to
handbill. Riehle left, and then returned with Koats, who told
the employees that what they were doing “violated company
policy.” Meeker asked what policy they were violating, but no
one from the Respondent answered. Koats told Schillinger that
“You can’t do it on company property. You have to do it out
on the street.” When Schillinger disputed this, Koats stated
“No. I want you to stop right now.” Schillinger stated that the
employees were acting within their rights, and suggested that
Koats and Riehle “contact a lawyer.” Shortly after this ex-
change concluded, Meeker saw Larsen (supervisor/team man-
ager) removing the prounion flyers from car windshields.
Some days or weeks later, on about June 22, Meeker re-
turned to the plant and began distributing prounion flyers and
pamphlets. Ryan Murtha, an individual who works in the
scheduling department of the Hammond facility, approached
Meeker and told him that he could not hand out flyers on com-
pany property. Murtha told Meeker to leave the area, and
Meeker complied. Approximately 15 minutes later, Murtha
approached Meeker again. Murtha apologized, and stated that
Meeker was within his rights to hand out the flyers.3
Subsequently, in February 2008, flyers regarding a judicial
election were placed on the windshields of cars in the same
parking lot where the union supporters had been stopped from
distributing flyers. There was no evidence showing whether
the Respondent was aware of, or intentionally allowed, this
distribution.
E. Respondent Prohibits Employees from Distributing Union
Buttons or Discussing the Union inside the Hammond Facility
In June 2007, Meeker left prounion buttons near one of the
timeclocks at the Hammond facility. On June 20, the Respon-
dent called Meeker, Schillinger, and Toufar to a meeting with
Dennison and Koats in the Hammond facility’s packing room.
Dennison showed the employees prounion buttons that had
been found near the timeclock, and stated: “That is not accept-
able. Okay. You’re not allowed to pass them out while you’re
here.”4 Dennison continued:
I don’t want to catch you passing them out, okay, I don’t want
to see them laying around. You’re more than welcome to
wear them. You have that right. Okay? You can pass them
out when you’re outside, on your own time, but when you’re
here working, you, you need to be working. . . . Your orga-
nizing conversations, you know, can’t take place while you’re
in here working.
Schillinger asked whether Dennison meant that “we can’t talk
about anything.” Dennison answered:
No, I didn’t say that. While you guys are working, in idle
conversation, you can, whatever, but you can’t be conducting
organizing meetings.
. . . .

3 The record does not show that Murtha was a supervisor or agent of
the Respondent.
4 Meeker recorded this conversation, and the parties stipulated to the
accuracy of a transcript of that recording. (GC Exh.) 2(c).
[D]on’t organize during working hours, okay? I’m just say-
ing, do your job, you’re not paid to organize, okay? Don’t
pass out buttons while you’re working. If you want to stand
at the door and pass them out all you want . . . . I know that
you guys are kind of the driving force behind this organiza-
tion, which is fine.
Schillinger disputed the legitimacy of the restriction being
stated by Dennison. He told Dennison: “I’ll just fill you in a
little bit—according to the National Labor Relations Board, if,
let’s say, one of us, or anybody, wanted to lay something
around, perfectly legal according to them.” Dennison replied,
“Not while you’re working.” Koats put a finer point on it, stat-
ing that such distribution was permitted, “[d]uring nonworking
hours.” Schillinger countered that the union buttons “can be
laying in the lunch room.” Dennison, answered “No it can’t,”
but that “[w]hen you’re outside off the clock, you can pass out
anything you want.”
The record shows that the Respondent permitted machine
operators to engage in nonwork conversations regarding a vari-
ety of nonunion subjects during worktime, as long as the opera-
tors continued to perform their duties. The evidence also
showed that the Respondent permitted a solicitation unrelated
to the Union to be left inside the Hammond facility. More spe-
cifically, in July 2007, a stack of discount coupons for a fast
food restaurant was left at the ordering counter in the Respon-
dent’s main lunchroom. These coupons remained in the lunch-
room for several days.
F. Respondent Disciplines Schillinger for Talking to a
Coworker
In early July 2007, Schillinger was at work operating a ma-
chine. A coworker, Donna Gotzman, who was assigned to a
machine 15 to 20 feet away, asked Schillinger for assistance
with a task at her machine. It was common for employees to
help one another with a number of the tasks associated with
operating the machines. Schillinger went over to help Gotz-
man, leaving his own machine to operate unattended. Tim
Monicken, shift leader, observed Schillinger with Gotzman and
asked “What are you doing?” Schillinger answered that he
“was helping Donna [Gotzman].” Then Schillinger returned to
work on his own machine. Approximately 45 minutes to 2
hours later, Gotzman again asked Schillinger to assist her with
a work-related task at her machine. Schillinger left his ma-
chine, which in this instance was idle, to help Gotzman. While
Schillinger was providing assistance to Gotzman, she asked
him a question about employee benefits and Schillinger stayed
to answer it. At this time, Monicken approached Schillinger
and asked “What’s your excuse this time?” Schillinger did not
answer Monicken, but rather shrugged his shoulders and went
back to his own machine. Monicken reported the incident to
his superior, plant supervisor Carlson. 5
Approximately a week later, on July 16, Schillinger was
called to a meeting with Carlson and Monicken. They asked
Schillinger about the two occasions when Monicken had spo-

5 Monicken testified that Schillinger’s union activity had no bearing
on his decision to bring the conduct to Carlson’s attention. Carlson did
not testify.
LOPAREX LLC 1229
ken to him about talking to Gotzman. Schillinger said he was
helping Gotzman. Carlson stated that he had seen “two or three
of you guys standing around talking in the middle of the floor,”
and that it was “just hard to believe it’s talk about work.”
Schillinger asked to see the rule that he could only talk about
work, and Carlson responded, “I didn’t say you have to be talk-
ing about work, you gotta be by your machine.” Carlson went
on to say that lately there had been quality control problems at
the facility and he opined that “a lot of it is people not paying
attention to their machines.” In reference to Schillinger’s con-
versation with Gotzman, Monicken stated “That sure doesn’t
look very good, you know, your machine is sitting there, noth-
ing’s going on and you’re standing over there by her machine,
you know, like I said before, if your machine is running it looks
a lot different.” Schillinger said, “All right, it won’t happen
again.” He also said that he was sorry if, at the time, he had
failed to inform Monicken that he was helping Gotzman.
Monicken stated that it appeared to him as if Schillinger was
not helping Gotzman, because “you guys weren’t doing nothing
you must have already helped her.” Later in the same meeting,
Carlson stated:
If I come walking through there and you got two people
standing around talking, it looks kind of fishy. You know? I
don’t know what the heck you’re talking about. And I know,
if the machine, again, if the machine, it’s either not running,
or it’s not getting watched.
Then Carlson gave Schillinger a written warning. Carlson and
Monicken made statements indicating that the written warning
resulted from the fact that Monicken had confronted Schillinger
about leaving his machine to talk to Gotzman, and shortly
thereafter Monicken found Schillinger away from his machine
and talking to Gotzman again.
Schillinger and Monicken walked together after the meeting.
Schillinger made a statement indicating that he thought the
meeting and/or the written warning were motivated by his un-
ion activity. Monicken replied, “that’s not the reason.” During
this conversation, Monicken also told Schillinger, “You know
they’re watching you, so gotta be careful.”
At trial, both Schillinger and Monicken testified that it was
not acceptable for an employee to talk to coworkers when the
machine that the employee was responsible for operating was
idle. Schillinger gave general testimony that if his machine was
not running, and a coworker (as opposed to a shift leader or a
plant supervisor) wanted to talk to him, he would start his ma-
chine before engaging in the conversation. However, Schillin-
ger did not contradict the testimony that on the specific occa-
sions in question, he had left his machine idle while he talked to
Gotzman.
G. Shift Leaders
1. Respondent prohibits shift leaders from engaging in
union activities
In late June or early July 2007, the Respondent told all indi-
viduals designated as “shift leaders” at the Hammond facility
that they were “supervisors” and were not allowed to sign un-
ion cards or engage in other prounion activities. Later, in Oc-
tober 2007, the Respondent communicated the same prohibition
to Meeker. Meeker was called to a meeting with Dennison,
Bloom, and Carlson, at which Dennison stated that Meeker was
being granted a promotion to shift leader and could no longer
be part of the Union, take part in union activities, or have any
contact with union representatives.
2. Production operation and shift leaders
In order to understand the position of shift leader at the
Hammond facility, it is helpful to have an overview of certain
aspects of how the production operation there is organized.
The Respondent operates the Hammond facility 24 hours a day,
7 days a week. It staffs this continuous operation using four
teams of employees, each of which works a 12-hour shift and
has approximately 50 employees. Generally, only one of the
four teams is present during any particular 12-hour shift. Two
of the teams are scheduled to work the day shifts, and the other
two teams are scheduled to work night shifts. Each night shift
team will work three or four of the seven night shifts during a
week, and each day shift team will work three or four of the
seven days shifts. The teams take turns working on weekends.
The day shift starts at 5 am and ends at 5 pm and the night shift
starts at 5 pm and ends at 5 am.
The regular production employees spend most of their work
time operating machines that cut rolls of paper or film to speci-
fied sizes and apply silicone or plastic coatings. This work
does not require prior training or experience. New employees
learn how to operate the machines on-the-job. As discussed
above, the production employees are divided into four teams
based on the shift schedule they will be working. Most of the
approximately 50 production employees on a team are further
divided into smaller units that are sometimes referred to as
“crews.”
A shift leader is a member of a crew, who leads the work of
the crew, and works the same 12-hour shift as the other crew
members. The number of employees that a shift leader over-
sees varies from crew to crew. For example: shift leader Dave
Nogal leads a crew with just one other employee; shift leader
Jeff Nelson has one or two other employees on his crew; shift
leader Tracy Pelzel has three other employees on his crew;
Meeker (who became a shift leader in October 2007) has be-
tween four and six other employees on his crew. On the west
side of the facility, most crews consist of a shift leader plus
three others individuals. Monicken testified that when he was a
shift leader in 2007 he led between 12 and 16 employees, but
the record indicates that it was an anomaly for so many crew
members to work under a single shift leader. Some rank-and-
file production workers do not report to shift leader at all, but
rather report directly to a manager.
The shift leaders are generally supervised by team managers.
Since mid to late 2007, there have been eight team managers at
the Hammond facility. The team managers work the same 12-
hour shifts as the shift leaders—with one team manager present
on the east side of the facility and one on the west side of the
facility for the entirety of any given shift. The Respondent had
previously referred to at least some of the team managers as
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1230
“shift supervisors,”6 but in 2007 it changed the title for these
individuals to “team manager.” The record regarding this
change is thin, but what evidence there is does not suggest that
the change in title was attended by any meaningful change in
the types of duties involved. At the time when the Respondent
changed the job title to “team manager,” there were less than
eight team managers. During some shifts, the Respondent had
a single-shift supervisor/team manager overseeing both sides of
the facility, rather than having one such individual on each side
of the plant. By November 2007, the Respondent added addi-
tional team managers to reach a total of eight, so that there
would be one team manager on each side of the plant for the 12
hours of each shift.
Although it is clear that, since late 2007, there have been two
team managers assigned to work during the entirety of each 12-
hour shift, there is some question about whether, prior to that
time, a shift supervisor/team manager was scheduled to be pre-
sent at all times. Production Manager Dennison testified that
the team managers work the same 12-hour shifts as the shift
leaders. He did not testify that this was a new schedule, but he
was not asked whether the same schedule had been in effect at
all times relevant to this litigation. On the other hand,
Monicken stated that when he was working as a shift leader
from January to September 2007, his supervisor did not begin
work until 8 am—that is, until 3 hours after the start of the crew
members’ shift. The record does not make clear whether the
individual Monicken referred to as his “supervisor” was a shift
supervisor/team manager or some other type of official. Nor
does the record show that any possible deviation from the gen-
eral practice of having a shift supervisor/team manager on-site
to supervise shift leaders at all times extended to any shift
leader other than Monicken.7 The evidence did not show that
prior to when the shift supervisors were re-designated as team
managers, they generally had been working shorter or different
schedules than the crew members.
The team managers each report to one of two production
managers. During the relevant time period, those production
managers were Bloom (who managed the east side of the facil-
ity) and Dennison (who managed the west side of the facility).
The production managers do not work the same schedule of 12-
hour shifts as the production employees, shift leaders, and team
managers. Rather, the production managers are scheduled to
work from 8 am to approximately 5 pm, Monday through Fri-
day, and work at other times on an as-needed basis. The two
production managers report to the operations manager. The
operations manager is the highest on-site official at the
Hammond facility.

6 The record indicates that shift supervisors were also sometimes re-
ferred to using other titles, including “plant supervisor” and “night
supervisor.”
7 Indeed, the evidence showed that Monicken’s situation was un-
usual in certain other respects. For example, Monicken stated that as
shift leader he led between 12 and 16 employees, whereas most shift
leaders had about 3 crew members reporting to them. Moreover,
Monicken testified that as shift leader his duties extended to both the
east side and the west side of the Hammond facility, whereas the evi-
dence suggests that other shift leaders’ duties were generally confined
to one side of the plant or even to a single machine.
3. Duties and responsibilities of shift leaders
The evidence shows that shift leaders, like other members of
a crew, operate equipment at the Hammond facility. However,
the shift leaders also have a variety of additional duties and
responsibilities that are not shared by other crew members. As
a general matter, these include answering crew members’ ques-
tions, solving problems, and walking from machine to machine
to oversee the work. In addition, shift leaders have a number of
specific duties. At the start of a shift, the shift leader receives a
job priority sheet for the machine or machines that the crew
operates. This sheet lists the jobs to be run on each machine in
order of importance, and also tells when the jobs are due. The
shift leader reviews the priority sheet and tells each crew mem-
ber which machine he or she will be operating. The testimony
indicated that shift leaders use various approaches for deciding
which crew member will perform each job. Meeker testified
that in some instances this is done “just kind of randomly” from
the priority sheet. In other instances, the shift leader will take
into account an employee’s experience or skill level with a
particular machine or with the job being run on it. In addition,
when the list includes a high priority job, the shift leader may
pick a particularly productive crew member to perform it.
Sometimes the shift leaders follow the preferences of crew
members, sometimes they rotate crew members through various
jobs, and sometimes they keep a crew member on the same
machine day after day.
During the period since Meeker became a shift leader, his
team manager (Carlson) will sometimes direct him to send a
crew member to work elsewhere in the facility on a temporary
basis. The record does not show how often this occurs, but the
impression given by Meeker’s testimony is that it is not an
unusual occurrence. When Carlson makes such a request,
Meeker must send whichever crew member Carlson specifies.
If Carlson does not specify an employee, Meeker is free to send
any crew member. During one period he picked the employees
based on experience, but more recently he has sent employees
on a rotating basis or because of their own preferences. It is not
Meeker, but someone at a level above his, who decides whether
it is necessary to make these temporarily transfers, and where
the employee will be taken from and transferred to. The evi-
dence does not show that Meeker has any input at all into the
decision about whether such temporary transfers are necessary,
how many employees are transferred, where those employees
will work during the period of the temporary transfer, or
whether his own crew will be provided with a transferee on a
temporary basis. The evidence did not establish that any shift
leader other than Meeker chooses crew members for temporary
assignments.
Many of the machines at the Hammond facility have to be
“set-up” for particular jobs. The crew members obtain the set-
up specifications from the facility’s computer system and typi-
cally set-up the machines themselves. After a crew member
finishes setting up a machine for a particular job, it is the re-
sponsibility of the shift leader to check that the set up is correct
before production begins. The shift leader will also sometimes
help a crew member who has questions about how to set up the
machine for a job.
The shift leaders are expected to make sure that the crew
LOPAREX LLC 1231
members have the supplies they need to keep the machines
operating. Meeker testified that as a shift leader he personally
cuts needed supplies to size, brings the supplies from the ware-
house to the crew members, and unloads the supplies. Although
the shift leaders try to make sure that their crews meet produc-
tion deadlines, there was no evidence showing that a shift
leader is subject to actual consequences if his or her crew fails
to complete a job on time or meet production goals.
Shift leaders have a role in quality control, but the extent of
that role is not clear. The evidence showed that shift leaders
are responsible for checking the quality of products before al-
lowing those products to be shipped to customers, and shows
that if a shift leader allows unacceptable product to be shipped
to a customer there are actual consequences for the shift leader.8
The record does not show, however, whether a shift leader will
be held responsible for the production of defective product even
if the shift leader detects the problem before it is shipped.
Meeker, a witness for the General Counsel, stated that, as shift
leader, if he “okayed” product to be shipped out, and that prod-
uct turned out to be defective, he would be the one written up
for the mistake, not the crew member who produced the defec-
tive product. Michael Baker stated that, as a shift leader, he
was once suspended when “I didn’t check” the quality of “out-
going material” “good enough.”9 Monicken, a witness for the
Respondent, testified that if defective product was produced,
both the shift leader and the crew member who produced it
would be “held responsible” even if the shift leader had not
been the one responsible for the mistake. However, Monicken
was unaware of any instance when being “held responsible”
translated into actual consequences for a shift leader.
If a crew member refuses direction from a shift leader, the
shift leader has no authority to issue any form of discipline to
the employee. The shift leader may make a report to the team
manager regarding the crew member’s conduct, but does not
decide on, or make a recommendation regarding, discipline.
Similarly, if an employee fails to show up or is late for work,
the shift leader informs the team manager, but has no role in
deciding upon any resulting attendance-based discipline.
The shift leaders’ duties include filling out performance re-
views for members of the crews. Reviews are completed annu-
ally for experienced employees and at 30, 60, and 90 days for
new employees. The shift leader signs the performance review
and discusses it with the employee. In the case of the annual
reviews, the team manager also signs off on the document. The
evidence indicated that the team managers do not alter the rat-
ings given by the shift leaders. Team managers will, however,
sometimes discuss ratings with the shift leaders if they believe
those ratings should be higher or lower.
There was evidence that the Respondent has a number of
uses for the performance reviews. They alert crew members to

8 At one time, the Hammond facility had employees classified as
“quality checkers,” but when the Respondent acquired the facility in
2006 it eliminated that position. The shift leaders took over responsi-
bility for checking the quality of the crew’s product before permitting it
to be shipped to customers.
9 Baker worked as a shift leader primarily under Douglas-Hanson,
and was transferred out of that position only 2 days after the Respon-
dent took over the Hammond facility.
areas where their performance is unsatisfactory and can be
improved. The performance reviews are used to some extent in
deciding on yearly merit increases for crew members. Exactly
what part the performance reviews play in the merit increase
process is not clear. Dennison testified that the performance
reviews are “associated with” the merit increases, but he did not
explain how they were associated, whether anything else is
considered, or how the decisional process works. Dennison
testified that the performance reviews are also used in deciding
which employees to promote, but, here too, evidence on the
specifics of that usage was not provided. A team manager who
testified for the Respondent stated that performance appraisals
“can be” used in determining merit increases, but not that they
were used for that purpose, and certainly not they were used in
that fashion with any regularity. The testimony of Mitchell
Stewart casts some doubt on the notion that shift managers, or
the performance reviews they complete, have a significant role
in the granting of merit increases. Stewart, a witness for the
Respondent, testified that he was a shift leader for a period of
over 3 years ending in March 2008, and during that time was
not aware that the performance reviews he was completing had
any bearing at all on crew members’ merit increases.
Despite the fact that they have significant duties beyond
those of other crew members, shift leaders are in certain re-
spects treated more like the crew members who they oversee,
than like recognized supervisors such as team managers.10 For
example, team managers, but not shift leaders, participate in the
frequent meetings that production managers Bloom and Denni-
son hold to discuss safety, quality control, production, and gen-
eral business news.11 In addition, the form the Respondent uses
to review the performance of the shift leaders is the same form
used to rate the performance of the crew members working
under shift leaders. The Respondent uses a different form to
evaluate the performance of recognized supervisors such as
team managers and production managers. Moreover, the forms
the Respondent uses to evaluate the shift leaders’ performance
call for ratings on 33 separate factors, but not one of those fac-
tors rates the shift leaders on their success directing, assigning
work to, disciplining, or otherwise supervising crew members.
In addition, shift leaders, like the crew members they oversee,
are paid an hourly wage, whereas team managers are salaried
employees. A crew member who assumes the responsibilities
of shift leader receives a $2-per-hour raise, but the evidence
does not show whether that raise lifts the shift leaders’ pay
above that of all the crew members who they lead. Lastly, crew
members and shift leaders are subject to the same rigid atten-
dance policy. This is a system under which employees accu-
mulate points (called “occurrences”) for time missed, and then
receive predetermined progressive discipline when they reach
certain point levels. On the other hand, team managers, and
other recognized supervisors, are not disciplined using the point

10 The Respondent admitted the complaint allegation that Jason Carl-
son, who is identified in the record as a team manager, has been a su-
pervisor for purposes of Sec. 2(11) at all material times.
11 An exception to the general exclusion of shift leaders may occur
when a team manager is absent from work and a shift leader acts in the
team manager’s position.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1232
system, but rather are subject to a less rigid “rule of reason”
attendance policy.
H. Complaint Allegations
The complaint alleges that the Respondent violated Section
8(a)(1) of the Act: on about April 16, 2007, when the Respon-
dent published a new policy requiring employees to obtain
management permission before posting anything on plant bulle-
tin boards; on about July 20, 2007, when the Respondent pub-
lished a new policy prohibiting employees from posting non-
company materials on bulletin boards and explicitly threatening
to discharge or otherwise discipline employees who violated
this policy; in about the first week of June 2007 when Dennison
prohibited employees from distributing union flyers on com-
pany property; in late May or early June 2007, when Riehle and
Koats prohibited employees from distributing union flyers on
company property and threatened that employees could distrib-
ute those materials only on public property; on about June 22,
2007, when Dennison and Coats prohibited employees from
distributing or leaving union buttons or literature anywhere in
the Respondent’s facility or at anytime when employees were
on the clock; on about June 22, 2007, when Dennison and
Coats prohibited employees from talking about the Union any-
where in the Respondent’s facility or at anytime employees
were on the clock; since late June, when agents of the Respon-
dent prohibited shift leaders from signing union cards or other-
wise engaging in union activities and told shift leaders that they
were supervisors when, in fact, at all material times such indi-
viduals have been employees within the meaning of Section
2(3); and, on about July 16, 2007, when Carlson threatened an
employee that anytime two employees were talking he would
assume they were discussing the Union. The complaint further
alleges that on about July 16, 2007, the Respondent discrimi-
nated against Schillinger in violation of Section 8(a)(3) and (1)
of the Act by issuing a disciplinary warning to him because he
engaged in protected union and concerted activities.12
III. ANALYSIS AND DISCUSSION
A. Section 8(a)(1)
1. April 16, 2007 memorandum regarding use of
bulletin boards
The Board has held that an employer may restrict employ-
ees’ use of its bulletin boards for Section 7 communications
unless those restrictions are promulgated with an antiunion
motivation or are discriminatorily enforced. Register Guard,
351 NLRB 1110, 1114, and 1118 fn. 18 (2007); see also Road-
way Express, 279 NLRB 302, 304 (1986) (removal of bulletin
board a violation of Section 8(a)(1) when action was motivated
by posting of union material), enfd. 831 F.2d 1285 (6th Cir.
1987). Based on the record in the instant case, I find that the
Respondent had an antiunion motivation when, on April 16, it
announced a new rule that prohibited employees from posting

12 At the start of the hearing, I granted the General Counsel’s unop-
posed motion to make a number of amendments to the complaint.
Those amendments are incorporated in the statement of complaint
allegations set forth above. See GC Exh. 1(i) and GC Exh. 1(o).
anything on company bulletin boards unless the company ap-
proved in advance. Prior to that time, the Respondent had im-
posed no such restriction on employees who used company
bulletin boards to communicate non-work information—
including sports schedules and offers to sell personal items.
The Respondent initiated the restriction in the wake of employ-
ees’ repeated postings of prounion material on one or more of
the bulletin boards at the Hammond facility. This timing is
suspicious and supports an inference of unlawful motivation.
See Jordan Marsh Stores Corp., 317 NLRB 460, 462 (1995)
(finding a violation of Section 8(a)(1) where employer promul-
gated a rule requiring employees to obtain approval for per-
sonal postings on bulletin boards after advent of union cam-
paign when such approval was not required prior to union cam-
paign) and Roadway Express, supra (timing shows unlawful
motivation where, inter alia, the employer removed bulletin
boards shortly after employees posted union materials); see also
Detroit Paneling Systems, Inc., 330 NLRB 1170 (2000) (timing
is an important factor in assessing whether an employer’s ac-
tion was motivated by union or protected activity), enfd. sub
nom. Carolina Holdings, Inc. v. NLRB, 5 Fed. Appx. 236 (4th
Cir. 2001); Bethlehem Temple Learning Center, 330 NLRB
1177, 1178 (2000) (same); American Wire Products, 313
NLRB 989, 994 (1994) (same). Moreover, the Respondent has
not offered, much less substantiated, any lawful explanation for
its decision to restrict employees’ use of the bulletin boards
after the union activity started, even though the company had
not found it necessary to restrict such usage prior to the union
activity. Under these circumstances, it is evident that the Re-
spondent’s promulgation of the new restriction on employee
use of bulletin boards was motivated by employees’ protected
union activity. See Jordan Marsh Stores, 317 NLRB at 462.
The Respondent argues that the record does not show that
the new restriction on employee usage of the bulletin boards
was motivated by prounion activity since there was no evidence
that it had knowledge of such activity at the time it promulgated
the restriction on April 16. This contention is contrary to the
weight of the evidence. First, it is probable that the Respondent
was aware of the prounion literature that had been repeatedly
posted, and removed, from one or more bulletin boards at the
Hammond facility. Even assuming that this had escaped the
Respondent’s notice, the record demonstrates that there was
other prounion and protected activity of which the Respondent
clearly was aware. In approximately February 2007, Schillin-
ger started to wear a union shirt, hat, and button to work on a
daily basis. That month Koats—the facility’s human resources
manager—told Schillinger “to just work and not talk about the
Union.” Officials of the Respondent repeatedly pressed
Schillinger to reveal what he had said during a discussion with
a coworker about a new attendance policy that some employees
were upset about. This all happened shortly before the Re-
spondent promulgated the April 16 restriction on employees’
usage of the bulletin boards. The Respondent’s statement that
Schillinger was not to talk about the Union, and its reaction to
his discussions about the attendance policy, reveal the Respon-
dent’s knowledge of, and hostility towards, such activity find
that the Respondent violated Section 8(a)(1) when, on April 16,
2007, it promulgated a new restriction on employees’ use of
LOPAREX LLC 1233
company bulletin boards and did so for the purpose of interfer-
ing with the posting of union materials.13,
2. Prohibition on distribution of union flyers in the parking lot
at Hammond facility
In late May or early June 2007, company officials Dennison,
Riehle and Koats, told of-duty employees that they were pro-
hibited from distributing union literature in the Hammond facil-
ity’s parking lot. The Board has held that “[t]he distribution by
off-duty employees of union literature in company parking lots
is clearly protected by Section 7 of the Act” and that an em-
ployer violates Section 8(a)(1) by prohibiting such activity
unless the prohibition is justified by business reasons. St.
Luke’s Hospital, 300 NLRB 836, 837 (1990); see also PPG
Industries, 351 NLRB 1049, 1051 (2007) (same).
The Respondent contends that its action was lawful because
the company officials did not prohibit off-duty employees from
handing the literature directly to others, but only prohibited the
placement of literature on car windshields. According to the
Respondent’s brief, distribution on car windshields created “the
prospect for wholesale littering of the company’s property . . .
because the materials can become loose and fall on the ground,
or because employees and others . . . may discard them on the
ground rather than in a trash receptacle.” This argument is
frivolous. First, it misrepresents the facts. The Respondent
prohibited the off-duty employees from handing out union lit-
erature in the parking lot, not only from placing the literature
on car windshields. More specifically, during the incident in
question, Meeker stated that he was within his rights to “hand
out” flyers in the parking lot, and Dennison said that Meeker
could not do it on company property. In addition, when Koats
approached the off-duty employees in the parking lot and pro-
hibited them from doing “it” on company property, what those
employees had been doing was placing union literature on
windshields and handing the flyers directly to persons passing
by. Neither Dennison, Koats, nor Riehle ever said anything to
the employees indicating that the prohibition was limited to the
placement of the literature on car windshields. Even at trial,
none of the Respondent’s officials denied that the prohibition
extended generally to distribution in the parking lot.
If one assumes, contrary to the evidence, that the only activ-
ity the Respondent prohibited was the distribution of union
literature on car windshields, the Respondent has still failed to
establish the necessary business justification for such a prohibi-
tion. The purported concern with “wholesale littering” that is
raised in the Respondent’s brief appears to be wholly the inven-
tion of counsel. No official of the Respondent testified that
concern about litter had anything to do with the decision to
prohibit distribution of union materials in the parking lot. Nor
did the Respondent establish that its officials had reason to
believe that employees’ placement of literature on car wind-
shields had resulted in “wholesale littering” in the past, or

13 The complaint also alleges that the Respondent violated Sec.
8(a)(1) when, on about July 20, 2007, it promulgated a second, stricter,
limitation on employees’ use of bulletin boards. For the reasons dis-
cussed above, the evidence did not establish that the stricter policy was
ever actually placed into effect. Therefore, the allegation based on the
July 20 policy should be dismissed.
would do so in this instance. On this record, the Respondent
has completely failed to meet its burden of showing that it had
concerns about littering that were serious enough to outweigh
employees’ Section 7 right to distribute union literature.
In St. Luke’s Hospital, supra, the Board found a violation
based on facts very similar to those present here. There, as
here, the employer claimed that its prohibition on distribution
in the company parking lot was lawful because that prohibition
only covered the placement of literature on car windshields and
was justified based on concerns about increased litter. The
Board rejected the employer’s argument in that case for essen-
tially the same reasons that I reject them here. First, the Board
stated that, since the company did not inform employees that
the prohibition only covered placing literature on car wind-
shields, the prohibition constituted “an absolute prohibition
against any form of distribution on the employees’ parking lot”
and violated the Act. St. Luke’s Hospital, 300 NLRB at 837;
see also Bigg’s Foods, 347 NLRB 425 fn. 7 (2006) (where
employer did not clearly communicate the scope of its no-
distribution rule, the rule is ambiguously overbroad and a viola-
tion). If anything, the argument that the Respondent’s prohibi-
tion was absolute is stronger here since that prohibition, as
communicated by Dennison, extended to “handing out” union
literature on company property, not just to placing such litera-
ture on car windshields in the parking lot. Second, in St. Luke’s
Hospital, the Board stated that even assuming the prohibition
only covered distribution on car windshields, the prohibition
was unlawful because the employer had failed to show that its
claimed concerns regarding excessive litter were legitimate.
The Board made that determination despite the testimony of a
company official that such concerns were the reason for the
prohibition. Once again, the defense is even weaker in the in-
stant case since the Respondent not only failed to show that
distribution on car windshields led to excessive litter, but also
failed to present testimony that company officials were moti-
vated by concerns about littering.
For the reasons discussed above, I conclude that the Respon-
dent violated Section 8(a)(1) when, in late May or early June
2007, officials of the company prohibited off-duty employees
from distributing union literature in the Hammond facility’s
parking lot or elsewhere on company property.
3. Prohibitions on distribution of union buttons or literature and
union discussions during working hours
Under Board law, “[a] no-distribution rule which is not re-
stricted to working time and to work areas is overly broad and
presumptively unlawful.” Teletech Holdings, Inc., 333 NLRB
402, 403 (2001). The governing principle is that a rule is pre-
sumptively invalid if it prohibits distribution on the employees’
own time. See Our Way, Inc., 268 NLRB 394 (1983). On June
20, the Respondent called union supporters Meeker, Schillin-
ger, and Toufar to a meeting and prohibited them from distrib-
uting union materials “while you’re here.” Dennison told the
employees that he did not want to “catch you passing [union
materials] out” and “don’t want to see them laying around.”
Schillinger protested that it was employees’ right to leave mate-
rials in the lunch room, to which Dennison responded “Not
while you’re working,” and Koats added “during nonworking
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1234
hours.” Dennison stated that the employees could pass out the
union materials “when you’re outside, on your own time.” At
approximately the same time that the Respondent announced
these prohibitions on the distribution of union materials, it was
permitting the distribution in its lunchroom of promotional
materials for a fast food restaurant.
Under Board law, the restrictions on distribution articulated
by Dennison and Koats are presumptively invalid for at least
two reasons. First, the Respondent limited distribution to
“nonworking hours.” The Board has held that such a restriction
is invalid because it does not permit distribution during periods
of the workday that are the employees’ own time such as meal
times and break periods. Grimmway Farms, 314 NLRB 73, 90
(1994), enfd. in part 85 F.3d 637 (9th Cir. 1996) mem;
Wellstream Corp. 313 NLRB 698, 703 (1994); Keco Industries,
306 NLRB 15, 19 (1992). The Respondent, in prohibiting dis-
tribution, did not clearly convey to employees that they could
distribute union materials during such periods that are employ-
ees’ “own time,” and, in fact, indicated the contrary. Id.; see
also Laidlaw Transit Inc., 315 NLRB 79, 82 (1994) (rule pro-
hibiting solicitation during “company time” is presumptively
invalid because “it does not clearly convey to employees that
they may solicit on breaks, lunch, and before and after work.”)
Second, the prohibition violated the Act because Dennison
and Koats did not state that they were only disallowing distri-
bution in work areas of the facility. A prohibition is invalid as
“overbroad” if it can be interpreted to “’to restrict solicitation
and distribution in breakrooms or cafeterias, places where em-
ployees do not perform work activities but technically are
‘company property.’” Winkle Bus Co., 347 NLRB 1203, 1216
(2006), quoting Laidlaw Transit Inc., 315 NLRB at 82. In this
case, the Respondent interfered unlawfully with employees’
rights by explicitly prohibiting the employees from distributing
union materials in the facility’s lunch room—a nonwork area—
and indicating that distribution was allowed only “outside” the
facility.
For the reasons discussed above, I conclude that the Respon-
dent violated Section 8(a)(1) on June 20, 2007, by prohibiting
employees from distributing union materials during nonwork-
ing time and in nonworking areas of the Hammond facility.
During the conversation on June 20, Dennison also told the
employees that while they were working it was permissible to
engage in “idle conversation . . . whatever,” but that they could
not have “organizing conversations.” The Board has held that
an employer violates the Act by discriminatorily prohibiting
employees from talking about a union at any time of day when
employees are free to discuss other subjects unrelated to work.
BCE Construction, 350 NLRB 1047, 1047 and 1052 (2007);
Novartis Nutrition Corp., 331 NLRB 1519, 1524 (2000), enfd.
23 Fed. Appx. 1 (D.C. Cir. 2001), Willamette Industries, 306
NLRB 1010, 1017 (1992); Orval Kent Food Co., 278 NLRB
402, 407 (1986). In the instant case, Dennison was singling out
union organizing conversations—explicitly stating that such
conversations were prohibited even though “idle conversation”
would be permitted.
I conclude that the Respondent violated Section 8(a)(1) on
June 20, 2007, by discriminatorily prohibiting employees from
talking about union organizing.
4. Respondent talks to Schillinger about his conversations
with Gotzman
On July 16, the Respondent’s officials Carlson and
Monicken had a lengthy discussion with Schillinger. The offi-
cials chastised Schillinger regarding two occasions, about a
week earlier, when Monicken had seen him away from his ma-
chine talking to a Gotzman, a coworker. Carlson also alluded
to another incident when he had seen Schillinger and other
employees “standing around talking in the middle of the floor.”
Carlson stated that he found it “hard to believe” they were talk-
ing about work. He opined: “[I]t looks kind of fishy. You
know? I don’t know what the heck you’re talking about. And I
know . . . the machine, it’s either not running, or it’s not getting
watched.” Schillinger told Carlson and Monicken “it won’t
happen again.” Carlson gave Schillinger a written warning
regarding the conversations with Gotzman.
The complaint alleges that this exchange constituted a threat
“that anytime Carlson saw two employees talking to one an-
other, Carlson thought that employees were discussing the Un-
ion.” The evidence is insufficient to support this allegation.
Neither Carlson nor Monicken made any reference to the Union
or protected activity. In its brief, the General Counsel focuses
on Carlson’s statement that the conversations employees were
having away from their machines “look[] kind of fishy,” but the
record does not show that this was an obscure reference to con-
versations about union activity, as opposed to a reference to any
conversations that were nonwork related and a distraction from
employees’ job duties. Indeed, Carlson specifically told
Schillinger that he did not know what the employees were talk-
ing about. The General Counsel does not cite any authority
where, under similar circumstances, statements such as those
involved here were found to constitute an unlawful threat.
I conclude that the allegation that Carlson threatened em-
ployees in violation of Section 8(a)(1) should be dismissed.
5. Shift leaders
The complaint alleges that the Respondent violated Section
8(a)(1) of the Act in June or early July 2007 by telling shift
leaders at the Hammond facility that they were supervisors who
were prohibited from signing union cards or engaging in other
union activities protected by Section 7 of the Act. The Re-
spondent does not dispute that it engaged in this conduct, but
argues that the shift leaders are, in fact, “supervisors” who are
excluded from the definition of “employee” and therefore are
not entitled to the protections set forth by Section 7. For the
reasons discussed below, I find that shift leaders at the
Hammond facility are not supervisors for purposes of the Act
and that the Respondent violated Section 8(a)(1) of the Act by
telling those individuals that they were supervisors who were
prohibited from signing union cards or engaging in other pro-
union activity. Shelby Memorial Home, 305 NLRB 910, 910
fn. 2 and 918–919 (1991), enfd. 1 F.3d 550 (7th Cir. 1993).
a. Supervisory status under the Act
Section 7 of the Act provides that “employees” have the
right, inter alia, to “join, or assist labor organizations.” Section
7, 29 U.S.C. Sec. 157. The definition of “employee” in the Act
excludes from coverage “any individual employed as a supervi-
LOPAREX LLC 1235
sor,” Section 2(3), 29 U.S.C. Sec. 152(3), and thus the Act does
not extend the rights described in Section 7 to “supervisors.”
Section 2(11) of the Act defines a supervisor as:
[A]ny individual having the authority, in the interest of the
employer, to hire, transfer, suspend, lay off, recall, promote,
discharge, assign, reward, or discipline other employees, or
responsibly to direct them, or to adjust their grievances, or ef-
fectively to recommend such action, if in connection with the
foregoing the exercise of such authority is not of a merely
routine or clerical nature, but requires the use of independent
judgment.
Section 2(11), 29 U.S.C. Sec. 152(11). The supervisory au-
thorities are listed in the disjunctive, meaning that an individual
may qualify as a supervisor based on any one of the twelve
listed types of authority. However, Section 2(11) also contains
the conjunctive requirement that the power be exercised with
“independent judgment”—meaning that the judgment must be
free from control by another authority and the exercise of
judgment must involve a degree of discretion rising above the
“routine or clerical.” Oakwood Healthcare, Inc., 348 NLRB
686, 693 (2006). “[T]he ‘burden of proving supervisory status
rests on the party asserting that such status exists.’” Id. at 694,
quoting Dean & Deluca New York, Inc., 338 NLRB 1046, 1047
(2003). “The party seeking to prove supervisory status must
establish it by a preponderance of the evidence.” Oakwood
Healthcare, 348 NLRB at 694.
In the instant case, the Respondents contends that the shift
leaders exercise five of the types of supervisory authority listed
in Section 2(11)—authority to transfer, to assign, to responsibly
direct, to discipline, and to effectively recommend rewards.
Transfer: The Respondent appears to base its contention that
shift leaders transfer employees on the evidence showing that
Meeker has sometimes been directed by Carlson to send a crew
member to a temporary assignment elsewhere in the facility. In
some instances Carlson specifies a particular crew member for
the temporary assignment, and sometimes Meeker is free to
choose the crew member who will go.
Based on the record here, I conclude that the Respondent has
failed to show that shift leaders were supervisors by dint of a
role in temporary transfers. First of all, the evidence did not
establish that any shift leader besides Meeker had a role in the
temporary transfers of crew members. This deficiency in the
Respondent’s evidence is particularly significant since Meeker
was not yet a shift leader in June/July 2007 when the Respon-
dent declared that shift leaders were supervisors.
Even assuming that Meeker’s involvement in temporary
transfers is representative of that of shift leaders in general,
such involvement would not confer supervisory status for at
least two reasons: (1) Meeker’s limited involvement with tem-
porary transfers does not rise to the level of the authority to
“transfer employees,” and (2) Meeker does not exercise what
authority he does have with discretion that is more than “rou-
tine or clerical.” Regarding the first reason, the evidence shows
that Meeker is not the one who decides whether a transfer will
take place, where the individual will be transferred from and to,
or how long the re-allocation of personnel will last. Those
decisions, which presumably reflect an assessment of the Re-
spondent’s production and staffing needs, are made above
Meeker’s level and presented to Meeker by Carlson. In other
words, Meeker does not decide to temporarily transfer a crew
member, he is told to do so. What Meeker has the authority to
do is decide which member of the crew will be used for the
temporary transfer after someone else decides that the transfer
will occur and only if Carlson does not designate someone.
The type of narrow selection authority for temporary transfers
that is exercised by Meeker here is not the authority to “transfer
employees” for purposes of Section 2(11), and the Respondent
cites to no precedent suggesting otherwise. See Croft Metals,
Inc., 348 NLRB 717, 718 (2006) (leadperson a nonsupervisor
where, inter alia, the lead person’s supervisor is the one who
decides whether it is necessary to temporarily transfer an em-
ployee to the crew from another part of the plant); Children’s
Farm Home, 324 NLRB 61, 67 (1997) (Board affirms finding
of no supervisory status where purported supervisors can ar-
range temporary transfers of employees, but have no authority
to permanently transfer employees); Greenpark Care Center,
231 NLRB 753 (1977) (no supervisory status where putative
supervisor transfers employees but “transfer is temporary in
nature, its duration being only the time needed to assist during
the emergency or absence”); see also PPG Aerospace Indus-
tries, 353 NLRB 223 (2008) (authority is not supervisory
“[w]here the putative supervisor serves as a conduit relaying
assignments from management”).
Second, even assuming that Meeker’s involvement in the se-
lection of temporary transferees could be viewed as the author-
ity to transfer employees, the evidence shows that authority was
not exercised with the “independent judgment” necessary to
elevate it above the merely “routine or clerical.” This was re-
vealed by Meeker’s testimony about how he makes the selec-
tion. Meeker testified that he used to select the crew member
based on relevant experience, but that he abandoned that prac-
tice some time ago and since then had sent crew members ei-
ther on a rotation basis or based on the preferences expressed
by crew members. The Board has held that selecting employ-
ees based on a rotation or on employee preferences does not
involve a degree of judgment rising above the “routine or cleri-
cal.” Shaw, Inc., 350 NLRB 354, 356 (2007) (rotating “essen-
tially unskilled and routine duties among available crewmem-
bers” in order to avoid burnout does not involve the use of in-
dependent judgment and is not supervisory); Children’s Farm
Home, 324 NLRB at 64 (Assigning employees does not in-
volve independent judgment when “[m]ost such decisions are
based on the expressed preferences of the employees involved
or are reached by a consensus of the employees on the shift.”).
Thus, to the extent that Meeker may be seen as having authority
to transfer employees, his exercise of that authority does not
require the level of independent judgment required to confer
supervisory status.
Assign: In Oakwood Healthcare, Inc., the Board stated that
“assigning” for purposes of Section 2(11) does not include
“choosing the order in which the employee will perform dis-
crete tasks,” or giving an “ad hoc instruction that the employee
perform a discrete task.” 348 NLRB at 689. Rather the author-
ity to assign “refers to the ‘act of designating an employee to a
place (such as a location, department, or wing), appointing an
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1236
employee to a time (such as a shift or overtime period), or giv-
ing significant overall duties, i.e., tasks to an employee. . . . In
sum to “assign” for purposes of Section 2(11) refers to the . . .
designation of significant overall duties to an employee.’”
Croft Metals, Inc., 348 NLRB at 721, quoting Oakwood
Healthcare, 348 NLRB at 689.
The record shows that shift leaders at the Hammond facility
do not have the authority to designate the crew members’ “sig-
nificant overall duties.” They do not decide which “place” or
“time” the employee will work. They do not decide, for exam-
ple, whether the overall duties of an employee will be in pro-
duction or some other aspect of the Hammond operation, or
whether employees will be on the day shift or the night shift.
Nor do the shift leaders determine which jobs will be run on
particular day or which machines will be operated. Those deci-
sions are all made at a level above that of the shift leaders. At
the beginning of each shift, the shift leader is given a “job pri-
ority sheet,” which informs him or her of the jobs to be run on
each machine in order of importance. The shift leader uses that
form and directs a crew member to start work on the first job
scheduled for a particular machine. To decide which employee
will work on a particular machine, the shift leader sometimes
considers the capabilities of the crew members, but other times
the shift leader makes the decisions randomly, or simply leaves
the crew members on the same machine day after day.
Considering these facts under the standards announced by
the Board, I conclude that the shift leaders’ authority to direct
employees to work on a particular machine does not amount to
“assigning,” but rather is limited to “ad hoc instruction that the
employee perform a discrete task.” Recently, the Board
reached the same conclusion under the very similar facts pre-
sented in Alstyle Apparel, 351 NLRB 1287 (2007). There, as
here, at the beginning of each shift the company provided its
“shift leaders” with forms listing the machines that were to be
operated. The shift leaders then “utilized the form and their
knowledge of the capabilities of each worker to assign the ma-
chines.” Id. at 1305. The administrative law judge found that
these activities by the shift leaders were not “assigning” for
purpose of Section 2(11), but rather were “ad hoc instructions”
that the employees “perform a discrete task.” Id. The Board
agreed with the judge’s conclusion that the shift leaders did not
assign work, and added that “even assuming that the shift lead-
ers assign work to the employees, such assignments do not
involve the exercise of independent judgment” necessary to
show supervisory authority. Id. at 1287. In the instant case, as
in Alstyle Apparel, the Respondent has only succeeded in show-
ing that shift leaders direct employees to perform discrete tasks
within an assignment, not that they possess assignment author-
ity for purposes of Section 2(11).
Responsibly to Direct: In Oakwood Healthcare, the Board
stated that an individual has supervisory authority “responsibly
to direct” employees when that individual decides ‘what job
shall be undertaken next or who shall do it,’ . . . provided that
the direction is both ‘responsible’ . . . and carried out with in-
dependent judgment.” 348 NLRB at 691. Direction is “re-
sponsible” only if “the person directing and performing the
oversight of the employee” is “accountable for the performance
of the tasks by the other, such that some adverse consequence
may befall the one providing the oversight if the tasks per-
formed by the employee are not performed properly.” Id. at
691–692. In order to meet the burden of showing that direction
by the shift leaders is “responsible,” the Respondent “must
present evidence of “actual accountability.” Alstyle Apparel,
351 NLRB 1287. Moreover, the level of accountability neces-
sary to show that direction is “responsible” is not established
unless it is “shown that the employer delegated to the putative
supervisor the authority . . . to take corrective action if neces-
sary.” Oakwood Healthcare, 348 NLRB at 692. The purpose
of this “accountability” requirement is to create a clear distinc-
tion between those employees who are directing employees in
the interests of management (and therefore are acting as super-
visors) and those whose interest in directing other employees
“is simply the completion of a certain task” (and therefore are
not acting as supervisors). Id. The standard is not met unless
the putative supervisor “will have, if and to the extent neces-
sary, an adversarial relationship with those he is directing.” Id.
The further requirement that authority to direct be exercised
with “independent judgment” imposes on the party arguing for
supervisory status the additional burden of showing that the
putative supervisor “act[s] or effectively recommend[s] action,
free of the control of others and forms[s] an opinion or evalua-
tion by discerning and comparing data.” Id. at 693.
In this case, the Respondent has established that shift leaders
direct the work of crew members. Although the shift leaders
spend some of their time operating machines, the evidence
shows that they also spend significant amounts of time telling
individual crew members which jobs to perform next and over-
seeing the work of the crew. The Respondent has, however,
not overcome the hurdle of establishing that this direction is
“responsible” because it has failed to show that shift leaders
have the authority to take “corrective action” and that they are
subject to “actual accountability” for the work of crew mem-
bers. Regarding the question of corrective action, the Respon-
dent did not show that shift leaders are empowered to impose
any type of consequences on crew members who refuse their
directions. To the contrary, in the event that a crew member
refuses a direction, the shift leader’s only demonstrated re-
course is to make a factual report of what occurred to the team
manager. That report does not include a recommendation re-
garding consequences and does not constitute corrective action.
The Respondent presented at least some evidence on the
question of shift leaders’ “actual accountability.” Monicken
and Baker, two current company officials, gave testimony that
shift leaders are “held responsible” if a crew’s productivity or
product quality are inadequate. However, when Monicken was
questioned further about this he admitted to being unaware of
any instance when being “held responsible” meant that the shift
leader was subjected to consequences for his or her failure. For
his part, Baker stated that shift leaders were “responsible” for
the quality and quantity of production, but he made no claim
that this meant that a shift leader could face the prospect of
material consequences based on the quality or quantity of the
crew’s output. Nor did the Respondent introduce evidence of a
policy or rule that authorized imposing adverse consequences
on a shift leader based on deficiencies in the quality or quantity
of production by a crew member. “Purely conclusory” evi-
LOPAREX LLC 1237
dence, such as that provided by Monicken and Baker, is insuf-
ficient to show that shift leaders’ are actually held accountable
for their direction of employees. Golden Crest Healthcare
Center, 348 NLRB 727, 731 (2006). “In the absence . . . of any
evidence of actual or prospective consequences to . . . terms
and conditions” of the putative supervisors, such consequences
are “merely speculative and insufficient to establish account-
ability.” Id.; cf. Croft Metals, Inc., 348 NLRB at 722 (where an
employer showed that the purported supervisors received writ-
ten warnings based on the shortcomings of their crews, the
actual accountability standard is met). In the instant case, the
Respondent relies on “purely conclusory,” and therefore insuf-
ficient, evidence of accountability.
My conclusion is consistent with Board decisions presenting
similar facts. In Lynwood Manor, the Board found that ac-
countability was not demonstrated despite the fact that the em-
ployer had presented testimony that the putative supervisors
were held accountable and that any mistakes fell “back on [the
putative supervisor’s] shoulders.” 350 NLRB 489, 490–491
(2007). The Board explained that such testimony was not suf-
ficient given that the employer failed to present “any specific
evidence, that [the putative supervisors] may be disciplined,
receive a poor performance rating, or suffer any adverse conse-
quences with respect to their terms and conditions of employ-
ment” due to the failures of the individuals whose work they
directed. Id. Similarly, in Golden Crest Healthcare Center, the
Board found that the employer failed to establish actual ac-
countability because, even though the purported supervisors
were evaluated on their performance directing others, the evi-
dence did not show that they actually faced the prospect of
material consequences based on how they performed in that
respect. 348 NLRB at 731. If anything, the evidence in favor
of finding “responsible direction” is weaker here than in
Golden Crest, supra, since in this case none of the factors on
which the performance of shift leaders is evaluated mention
directing work or otherwise supervising crew members. I con-
clude that the Respondent fell short of demonstrating that shift
leaders at the Hammond facility actually faced the prospect of
material consequences as a result of the performance of the
crew members working under them.14
Even were I to assume, contrary to the above, that the shift
leaders responsibly direct crew members, the Respondent
would still have to show that the shift leaders use “independent

14 The record does contain evidence that shift leaders have taken
over the responsibilities of “quality checker” employees, and are sub-
ject to material consequences if they fail to detect a quality defect be-
fore allowing product to be packed for shipment to a customer. That,
however, only shows that shift leaders are held responsible for their
own failure as quality checkers, not that they are held responsible for
the crew member’s production of defective product. See Oakwood
Healthcare, 348 NLRB at 695. The Board has held that quality control
is not a supervisory function. Brown & Root, Inc., 314 NLRB 19, 21
fn. 6 (1994). To establish that shift leaders were held responsible for
the quality of crew members’ work product, the Respondent would
have had to show that even if a shift leader detected a crew member’s
mistake in time to stop the defective product from being shipped, the
shift leader would still be subject to material adverse consequences
because of the crew member’s mistake. The Respondent did not pre-
sent such evidence.
judgment” when providing the responsible direction. The
Respondent has not done that. The evidence does not show that
it is necessary for the shift leaders to “form an opinion or
evaluation by discerning and comparing data” as required by
Oakwood, 248 NLRB at 693. Rather, the record reveals that in
deciding which job a crew member will be directed to perform,
shift leaders sometimes choose on a rotation basis, or even
randomly. One shift leader simply leaves each crew member
on the same machine day after day. A responsibility that can be
discharged in this manner does not rise above the level of the
merely routine or clerical, and does not entail the exercise of
“independent judgment.” Moreover, even in a case where shift
leaders at a manufacturing plant sometimes considered “the
capabilities of each worker” when assigning crew members to
work on particular machines, the Board has found that the shift
leaders did not exercise independent judgment for purposes of
Section 2(11). Alstyle Apparel, 351 NLRB 1287, 1287 and
1305; see also Croft Metals, Inc., 348 NLRB 717, 722 (em-
ployer did not meet burden of proof regarding independent
judgment where it “adduced almost no evidence regarding the
factors weighed or balanced by the lead persons in . . . directing
employees). The same conclusion would be particularly appro-
priate here given that the work involved is essentially unskilled
and routine. See Shaw, Inc., 350 NLRB 354, 356 (direction of
crew members’ work does not involve independent judgment
where, inter alia, that work is “essentially unskilled and rou-
tine”).
Discipline: The Respondent argues that shift leaders have
the authority to discipline for purposes of Section 2(11). How-
ever, in the fact section of its brief, the Respondent itself admits
that shift leaders “do not mete out discipline to their employ-
ees,” but only “report performance related problems.” If a crew
member refuses a shift leader’s direction, the shift leader’s only
demonstrated recourse is to make a report of the refusal to the
team manager. The shift leaders also inform the team managers
when crew members are not present for scheduled work. The
record does not show, however, that shift leader make any rec-
ommendation regarding discipline, or have any further in-
volvement in the decision about what, if any, discipline will be
imposed. The Board has held that “[a]n employee does not
become a supervisor if his or her participation in personnel
actions is limited to a reporting function and there is no show-
ing that it amounts to an effective recommendation that will
affect employees' job status.” Chevron U.S.A., 309 NLRB 59,
61 (1992). Factual accounts that do not include any recom-
mendation are not supervisory. Ohio Masonic Home, 295
NLRB 390, 393–394 (1989). Since, in the instant case, the
shift leaders’ only demonstrated involvement in discipline is to
report factual information, that involvement does not render
them supervisors.
Effectively Recommend Rewards: The Respondent contends
that shift leaders effectively recommend employee rewards for
purposes of Section 2(11). In support of this, the Respondent
relies on: (1) the fact that shift leaders complete performance
review forms for crew members and (2) testimony that those
performance reviews can play a part in the granting of merit
wage increases and promotions. I reject the Respondent’s con-
tention for several reasons. The most important and most obvi-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1238
ous reason is that the performance reviews contain no recom-
mendation from the shift leaders regarding raises, promotions,
or any other type of employee reward. Rather the shift leaders
rate each crew member on 33 indicia of performance and com-
ment on those ratings. The performance review forms do not
call for the shift leaders to make recommendations about raises
or promotions and there was no evidence that shift leaders in-
jected such recommendations into the review process. More-
over, the evidence did not show that the Respondent would give
any weight to such a recommendation if a shift leader volun-
teered it. The shift leaders’ completion of appraisal forms is
“primarily a reporting function” regarding the performance of
crew members and therefore does not constitute the power to
reward, or effectively recommend rewards, for employees.
Beverly Enterprises v. NLRB, 148 F.3d 1042, 1046–1047 (8th
Cir. 1998); Chevron U.S.A., supra; Ohio Masonic Home, supra;
see also Harborside Healthcare, Inc., 330 NLRB 1334 (2000)
(the ability to evaluate employees is not listed as a supervisory
attribute).
Second, even assuming that the performance ratings could
somehow be seen as recommendations regarding raises or pro-
motions, the evidence does not show that such recommenda-
tions were “effective.” The Respondent did not establish who
at the company was responsible for deciding whether crew
members would receive wage increases or promotions, or by
what process that decision was made. No one who was shown
to make such decisions testified that they gave the performance
reviews decisive weight when granting raises or promotions.
Moreover, the Respondent did not show that performance re-
view scores consistently correlated with the granting rewards to
employees. The record does not reveal whether or not others
factors such as profitability, general business conditions, pro-
ductivity, or the state of the labor market play a part in the
granting of increases and promotions. Instead, the Respondent
relies on imprecise testimony of its witnesses that performance
reviews are “associated with” rewards and “can be,” or were,
“used” in granting rewards. The burden is on the Respondent
to show that the shift leaders effectively recommended rewards.
Even assuming that the performance ratings could be seen as
reward recommendations, the conclusory, imprecise, and in-
complete evidence the Respondent relies on here would not be
sufficient to meet the burden of showing that those recommen-
dations were “effective.”
Third, the Respondent did not show that it informed shift
leaders that the performance reviews they were completing
were used by the Respondent as effective recommendations for
raises or promotions. To the contrary, Stewart, one of the Re-
spondent’s own witnesses, testified that during the 3 years he
was a shift leader he was not aware that the performance re-
views he completed for crew members had any bearing on
raises. The Board declines to find supervisory status based on
alleged authority that the putative supervisors were not notified
they possessed. Golden Crest Healthcare Center, 348 NLRB at
730 fn. 9. For this reason, as well as those discussed, above,
the Respondent has failed to establish that shift leaders effec-
tively recommend rewards.
Secondary Indicia: The Respondent claims that, until No-
vember 2007, the shift leaders were the highest ranking indi-
viduals on site for approximately two thirds of each working
day, and argues that shift leaders therefore must be seen as
supervisors. This argument is unpersuasive both as a matter
law and fact. The Board has held that “[t]he status of being the
highest ranking employee on site falls within the category of
secondary indicia of supervisory authority” and that such status
does not establish supervisory status absent a showing of one of
the primary indicia of supervisory status enumerated in Section
2(11). Golden Crest Healthcare Center, 348 NLRB at 730 fn.
10. Thus even assuming that the Respondent’s assertion was
supported by evidence, it would not render the shift leaders
supervisors because, as discussed above, the Respondent has
not shown that shift leaders possess any of the types of author-
ity set forth in Section 2(11).
At any rate, the Respondent has failed to substantiate its
claim that shift leaders were the highest ranking individuals on
site for two thirds of each working day during any period rele-
vant to this case. The Respondent’s own production manager,
Dennison, testified that team managers (who supervise the shift
leaders) work the same 12-hour shifts as the shift leaders they
supervise. It is true that another witness for the Respondent,
Monicken, stated that, during the period he was a shift leader in
2007, his supervisor was not present for the first 3 hours of the
12-hour shift—i.e., for 25 percent of his shift. Not only is this a
much less substantial period of supervisor-less time than that
claimed by the Respondent, but the Respondent failed to show
that Monicken’s experience was shared by any of the other shift
leaders. Indeed, the evidence indicated that in at least some
significant respects Monicken experience as a shift leader was
unusual. See, supra, footnote 7.
To the extent that secondary indicia of supervisory status are
considered here, those indicia generally show that the shift
leaders were treated more like regular production workers than
like supervisors. For example, shift leaders, like the crew
members they lead, are paid an hourly rate, whereas acknowl-
edged supervisory personnel, such as the team managers, are
paid a salary. See Croft Metals, Inc., 348 NLRB at 717–718
(Lead persons are nonsupervisory where, inter alia, they are
paid on an hourly basis “just like regular rank-and-file” em-
ployees, whereas “admitted supervisors are salaried.”). Simi-
larly, the Respondent evaluates the performance of shift leaders
using the same review form that is used for the rank-and-file
crew members, whereas acknowledged supervisors such as the
team managers are evaluated using a different performance
review form. In addition, shift leaders are subject to discipline
for attendance based on the strict point system that is used for
ordinary crew members, not the more flexible “rule of reason”
system that is used for team managers. Finally, the shift leaders
are not included in the frequent meetings that the facility’s
production managers hold to discuss safety, quality control,
production, and general business news with team managers.15
In addition, acceptance of the Respondent’s contention that

15 To the extent that the shift leaders may occasionally fill-in for ab-
sent team managers at these meetings, such substitution was not shown
to be more than sporadic. See Oakwood Healthcare, Inc., 348 NLRB at
694 (an employee’s “sporadic substitution” for a supervisor does not
confer supervisory status).
LOPAREX LLC 1239
shift leaders were supervisors would result in an improbable
supervisory ratio. The record shows that shift leaders Nogal
and Nelson each usually oversaw the work of only one other
crew member. In general, the evidence indicates that most shift
leaders have approximately three other individuals on their
crews. Given that the work of the crew members is unskilled,
the fact that holding shift leaders to be supervisors would result
in such a low supervisory ratio weighs against viewing the shift
leaders as supervisors. See Wilson Tree Co., 312 NLRB 883,
893 (1993) (crew leaders who oversee crews of three to four
employees are not supervisors, in part because holding other-
wise would mean the employer “would have an inordinately
low supervisory ratio”); Valley Mart Supermarkets, 264 NLRB
156,163 (1983) (rejecting argument that individual was a su-
pervisor where holding otherwise “would result in an unrealis-
tic and excessively high ratio of one supervisor for every five
employees at a facility where the employee’s work has not been
shown to have been other than routine”); NLRB v. GranCare,
170 F.3d 662, 667 (7th Cir. 1999) (en banc) (where finding of
supervisory status would result in ratio of 59 supervisors to 90
nonsupervisors, “[s]uch a highly improbable ratio of bosses to
drones 'raises a warning flag'”).
b. Conclusion regarding shift leaders
Starting in June or early July 2007, the Respondent informed
shift leaders that they were supervisors and were prohibited
from signing union cards or engaging in other union activities.
As discussed above, the Respondent has failed to meet its bur-
den of proving that shift leaders were supervisors pursuant to
Section 2(11) of the Act. Therefore, by announcing that the
shift leaders were supervisors and prohibiting them from en-
gaging in protected union activities, the Respondent has vio-
lated Section 8(1) of the Act. Shelby Memorial Home, supra.
B. Section 8(a)(3) and Warning to Schillinger
Twice on the same day in July 2007, Monicken discovered
that Schillinger had left his machine in order to talk to Gotz-
man. The first time Schillinger’s machine was running unat-
tended and the second time Schillinger’s machine was idle. In
each instance, Schillinger had responded to Gotzman’s request
for assistance with a task at her machine, although in the sec-
ond instance Schillinger remained to talk afterwards. On July
16, Carlson issued a disciplinary warning to Schillinger for this
conduct. The complaint alleges that the Respondent issued the
warning because of Schillinger’s union and other protected
activities, and therefore discriminated against Schillinger in
violation of Section 8(a)(3) and (1) of the Act.
In Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982),
approved in NLRB v. Transportation Corp., 462 U.S. 393
(1983), the Board set forth the standards for determining
whether an employer has discriminated against an employee on
the basis of union or other protected activity in violation of
Section 8(a)(3) and (1). Under the Wright Line standards, the
General Counsel bears the initial burden of showing that the
Respondent’s actions were motivated, at least in part, by anti-
union considerations. The General Counsel may meet this
burden by showing that: (1) the employee engaged in union or
other protected activity, (2) the employer knew of such activi-
ties, and (3) the employer harbored animosity towards the Un-
ion or union activity. Intermet Stevensville, 350 NLRB 1271,
1275 (2007); Senior Citizens Coordinating Council, 330 NLRB
1100, 1105 (2000); Regal Recycling, Inc., 329 NLRB 355, 356
(1999). If the General Counsel establishes discriminatory mo-
tive, the burden shifts to the employer to demonstrate that it
would have taken the same action absent the protected conduct.
Intermet Stevensville, supra; Senior Citizens, supra.
The General Counsel has met its initial burden with respect
to Schillinger. The evidence shows that Schillinger engaged in
a variety of prounion activities and that the Respondent was
aware of those activities. The evidence also establishes that the
Respondent harbored antiunion animus. As found above, the
Respondent repeatedly interfered with employees’ legitimate
exercise of their Section 7 rights to engage in protected union
activities. The Respondent unlawfully prohibited prounion
employees, including Schillinger, from posting union literature,
distributing union literature and union buttons, and talking with
coworkers about union organizing. After the meeting at which
Schillinger was disciplined, Monicken warned Schillinger,
“You know they’re watching you, so gotta be careful.”
The Respondent, however, has satisfied its responsive bur-
den by showing that the company would have issued the disci-
plinary warning to Schillinger even absent his union support
and activities. The evidence showed that within a period of
several hours Schillinger had twice been observed away from
his own work station, talking to a coworker. In the second
instance, Schillinger’s machine was idle and he offered no ex-
planation to Monicken when challenged about this lapse. At
trial, both Schillinger and Monicken testified that it was not
acceptable for employees to leave their machines idle while
they talked to coworkers.16 The record does not show that the
Respondent had observed other employees repeatedly engaging
in such conduct without issuing comparable discipline to them.
According to the General Counsel, I should conclude that
Schillinger was treated disparately because the evidence did not
show that the Respondent disciplined Gotzman—the other par-
ticipant in the conversations for which Schillinger was disci-
plined. I disagree. Gotzman was not shown to have left her
machine idle while she talked with Schillinger. Indeed, the
evidence indicated that Gotzman remained at the machine to
which she was assigned. Thus, Gotzman was not guilty of the
same misconduct as Schillinger. In reaching my conclusion
that the Respondent would have issued the warning even absent
Schillinger’s union activity, I considered that the discipline
imposed was relatively mild and not facially disproportionate to
the offense.
The allegation that the Respondent violated Section 8(a)(3)
and (1) when it issued a disciplinary warning to Schillinger on
about July 16, 2007, should be dismissed.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce

16 Schillinger testified that he could leave his machine idle if a shift
leader wished to talk to him, but not that it was permissible to do so in
order to talk to a coworker who did not have “lead” authority.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1240
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. The Respondent interfered with employees’ exercise of
their Section 7 rights in violation of Section 8(a)(1) of the Act:
on April 16, 2007, by promulgating a restriction on employees’
use of company bulletin boards for the purpose of interfering
with the posting of union materials; in late May or early June
2007, by prohibiting off-duty employees from distributing un-
ion literature in the Hammond facility’s parking lot or else-
where on company property; on June 20, 2007, by prohibiting
employees from distributing union buttons and other union
materials during nonworking time and in nonworking areas of
the Hammond facility; on June 20, 2007, by discriminatorily
prohibiting employees from talking about union organizing at
times when employees are free to discuss other subjects unre-
lated to work; since June or early July 2007, by informing em-
ployees classified as shift leaders that they are supervisors and
prohibiting those employees from signing union cards or oth-
erwise engaging in union activities.
4. The Respondent was not shown to have violated Section
8(a)(1) of the Act on about July 20, 2007, by publishing a new
policy regarding the use of bulletin boards.
5. The Respondent was not shown to have violated Section
8(a)(1) of the Act on or about July 16, 2007, by threatening
employees that anytime Team Manager/Plant Supervisor Jason
Carlson saw two employees talking with one another, he
thought that the employees were discussing the Union.
6. The Respondent was not shown to have violated Section
8(a)(3) and (1) of the Act on about July 16, 2007, when it is-
sued a disciplinary warning to employee Jody Schillinger.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act. I will recommend that the Respon-
dent be ordered to rescind the policy, dated April 16, 2007, that
imposed new restrictions on employees’ use of company bulle-
tin boards. In addition, I will recommend that the Respondent
be ordered to inform shift leaders that they are not supervisors
and may, if they so choose, sign union cards or engage in other
union activities.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended17
ORDER
The Respondent, Loparex LLC, Hammond, Wisconsin, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Promulgating or maintaining any restriction on employee
posting of materials on company bulletin boards or elsewhere at
the Hammond facility for the purpose of interfering with the

17 If no exceptions are filed as provided by Section 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Section 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
employees’ dissemination of union information or materials.
(b) Prohibiting off-duty employees from placing union lit-
erature on vehicle windshields or otherwise distributing union
materials in the Hammond facility’s parking lot.
(c) Prohibiting employees from distributing union buttons
and other union materials during nonworking time and in non-
working areas of the Hammond facility.
(d) Prohibiting employees from talking about the Union or
union activities at times when employees are free to discuss
other subjects unrelated to work.
(e) Telling employees classified as shift leaders that they are
supervisors.
(f) Prohibiting employees classified as shift leaders from
signing union cards or otherwise engaging in union activities.
(g) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Rescind the policy, dated April 16, 2007, that restricted
employees’ use of company bulletin boards.
(b) Inform all shift leaders at the Hammond facility that they
are not supervisors and are entitled as employees within the
meaning of Section 2(3) of the Act to sign union cards or oth-
erwise engage in protected union activities if they so choose.
(c) Within 14 days after service by the Region, post at its fa-
cility in Hammond, Wisconsin, copies of the attached notice
marked “Appendix.”18 Copies of the notice, on forms provided
by the Regional Director for Region 18, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced,
or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by the Respondent at any time since April 16,
2007.
(d) 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 inso-
far as it alleges violations of the Act not specifically found.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
National Labor Relations Board
An Agency of the United States Government

18 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
LOPAREX LLC 1241
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this No-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties
WE WILL NOT restrict you from posting materials on company
bulletin boards or elsewhere at the Hammond facility for the
purpose of interfering with your dissemination of union infor-
mation or materials.
WE WILL NOT prohibit you from placing union literature on
vehicle windshields or otherwise distributing union materials in
the Hammond facility’s parking lot when you are off-duty.
WE WILL NOT prohibit you from distributing union buttons
and other union materials during nonworking time and in non-
working areas of the Hammond facility.
WE WILL NOT prohibit you from talking about the Union or
union activities at times when you are free to discuss other
subjects unrelated to work.
WE WILL NOT tell you that shift leaders are supervisors.
WE WILL NOT prohibit shift leaders from signing union cards
or otherwise engaging in protected union activities.
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 the policy, dated April 16, 2007, that im-
posed restrictions on your use of company bulletin boards.
WE WILL inform all shift leaders that they are not supervisors
and are entitled as employees within the meaning of Section
2(3) of the Act to, if they so choose, sign union cards or other-
wise engage in protected union activities.
LOPAREX LLC