M.J. Metal Products

National Labor Relations Board - Board Decisions

Aug 10, 1999

328 N.L.R.B. 1184 (N.L.R.B. 1999)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1184
M. J. Metal Products, Inc. and Sheet Metal Workers
International Association, Local Union #207.
Cases 27–CA–15523, 27–CA–15549, 27–CA–
15619, and 27–RC–7813
August 10, 1999
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS LIEBMAN
AND HURTGEN
On August 26, 1998, Administrative Law Judge Ge-
rald A. Wacknov issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and the
General Counsel filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order as modified and set
forth in full below.2
The Respondent has excepted to the judge’s recom-
mendation that a Gissel3 bargaining order be issued. It
asserts that this remedy “would be inappropriate, would
not effectuate the purposes of the Act, and is not justified
by the record.” We find no merit in the Respondent’s
arguments.
In Gissel, the Supreme Court “identified two types of
employer misconduct that may warrant the imposition of
a bargaining order: ‘outrageous and pervasive unfair
labor practices’ (‘category I’) and ‘less extraordinary
cases marked by less pervasive practices which nonethe-
less still have the tendency to undermine majority
strength and impede the election processes’ (‘category
II’).”4 The Supreme Court stated that in fashioning a
remedy in the exercise of its discretion in category II
cases, the Board “can properly take into consideration the
extensiveness of an employer’s unfair labor practices in
terms of their past effect on election conditions and the
likelihood of their recurrence in the future. If the Board
finds that the possibility of erasing the effects of past
practices and of ensuring a fair election (or a fair rerun)
by the use of traditional remedies, though present, is
slight and that employee sentiment once expressed
through cards would, on balance, be better protected by a
bargaining order, then such an order should issue.”5

1 Absent specific exceptions, we adopt the judge’s findings that the
Respondent violated the Act and engaged in objectionable conduct by
threatening to sell the business and shut down operations if the Union
were selected; retaliating against unit employees for their union activity
by changing their work schedules, requiring them to bring doctors’
slips when they are absent and to document repairs to products, and
refusing to give them previously approved time off for personal busi-
ness; interrogating employees regarding their union activities or the
union activities of other employees; threatening to demote employees
to apprentice positions and hire journeymen sheet metal workers if
employees select the Union to represent them; telling unit employees
that the company would never be union; and suggesting to employees
that their concerns be resolved through “arbitration” in an effort to
cause them to discontinue their union activities. We also adopt, absent
specific exceptions, the judge’s findings that the Respondent violated
the Act by interviewing employees in preparation for the unfair labor
practice proceeding without appropriate safeguards, and by the dis-
charge of Jay Newcombe and Brian Johnson.
The Respondent has excepted to some of the judge’s credibility find-
ings. The Board’s established policy is not to overrule an administra-
tive law judge’s credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Stan-
dard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d
Cir. 1951). We have carefully examined the record and find no basis
for reversing the findings.
2 We shall modify the judge’s recommended Order in accordance
with our decisions in Indian Hills Care Center, 321 NLRB 144 (1996),
and Excel Container, 325 NLRB 17 (1997), and to conform to the
violations found.
3 NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).
In agreeing with the judge that a Gissel bargaining or-
der should be issued, we find, for the reasons set forth
below, that the Respondent’s course of misconduct, both
before and after the election, clearly demonstrates that
the holding of a fair election in the future would be un-
likely and that the “employees’ wishes are better gauged
by an old card majority than by a new election.”6
Because this case falls within category II, we have, as
mandated by the Supreme Court in Gissel, examined the
extensiveness of the Respondent’s unfair labor practices
and the likelihood of their recurrence in the future. In
this regard, we observe that the unfair labor practices
committed in this case include “hallmark” violations
such as the discharge of 4 union supporters in a unit of
about 15 employees, more than 25 percent of the unit
employees, as well as threats to sell the business and shut
down operations if the Union were selected.7 The Re-
spondent also committed numerous other serious and
pervasive unfair labor practices: retaliating against unit
employees for their union activity by changing their
work schedules, requiring them to bring doctors’ slips
when they are absent and to document repairs to prod-
ucts, and refusing to give them previously approved time
off for personal business; interrogating its employees
regarding their union activities or the union activities of
other employees; threatening to demote employees to
apprentice positions and hire journeymen sheet metal
workers if employees select the Union to represent them;
telling unit employees that this company would never be
union; suggesting to employees that their concerns be
resolved through “arbitration” in an effort to cause them
to discontinue their union activities; and failing to ob-
serve the Johnnie’s Poultry8 safeguards when the Re-
4 Charlotte Amphitheater Corp. v. NLRB, 82 F.3d 1074, 1078 (D.C.
Cir. 1996) (quoting Gissel, 395 U.S. at 613–614).
5 395 U.S. at 614–615.
6 Charlotte Amphitheater Corp. v. NLRB, supra, 82 F.3d at 1078.
7 The term “hallmark violations” has been used to describe unfair la-
bor practices that are highly coercive and have a lasting effect on elec-
tion conditions. See NLRB v. Jamaica Towing, 632 F.2d 208, 212–213
(2d Cir. 1980).
8 146 NLRB 770 (1964), enf. denied 344 F.2d 617 (8th Cir. 1979).
328 NLRB No. 170
M.J. METAL PRODUCTS 1185
spondent’s attorney interviewed employees in connection
with this case.
The coercive effect of the Respondent’s misconduct
cannot be denied. These serious violations, which di-
rectly affected the entire unit, began the day after the
Union requested recognition and continued even after the
election. In this relatively small unit of approximately 15
employees, the Respondent unlawfully discharged two
union supporters 3 days after the Union requested recog-
nition, and discharged two more about 2 months later, 3
days after the election. This conduct “goes to the very
heart of the Act” and is not likely to be forgotten. NLRB
v. Entwistle Mfg. Co., 120 F.2d 532, 536 (4th Cir. 1941).
“Such action can only serve to reinforce employees’ fear
that they will lose employment if they persist in union
activity.” Consec Security, 325 NLRB 453, 454 (1998).
The impact of this action was magnified by its proximity
to the Union’s demand for recognition, the filing of the
representation petition, and the election. Id. This con-
duct by the Respondent sent employees “the unequivocal
message that it was willing to go to extraordinary lengths
in order to extinguish the union organizational effort.”
Id. It is reasonable to infer that such a message will have
a lasting effect on the unit employees’ exercise of their
right to organize. Id.
The severity of the misconduct is compounded by the
involvement of high-ranking officials. Id, slip op. at 3.
The Respondent’s unfair labor practices emanated from
the highest level officials, with many attributable to the
company president and owner himself. The company
owner told employees, inter alia, that the company would
never be union, threatened that if the employees wanted
to go union he would hire journeymen and that current
employees would be apprentices, and has proclaimed
that, “Well, now that this union crap is behind us, things
are going to start changing. . . .” As the Board has ob-
served, “[w]hen the antiunion message is so clearly
communicated by the words and deeds of the highest
levels of management, it is highly coercive and unlikely
to be forgotten.” Id.9
Although the discharged employees are entitled to re-
instatement and backpay, these remedies would not, in
our view, erase the coercive effects of the Respondent’s
conduct. The reinstated employees would not likely risk
again incurring the Respondent’s wrath and another pe-
riod of unemployment by resuming their union activities.
Particularly telling in this regard is the Respondent’s
unlawful treatment of employee Brian Johnson, which
was widely disseminated among the unit employees. As
detailed in the judge’s decision, on the day following the
Union’s demand for recognition, the Respondent’s presi-
dent and owner, Mark Johnston, changed Johnson’s work

9 See also Electro-Voice, 320 NLRB 1094, 1096 (1996); America’s
Best Quality Coatings Corp., 313 NLRB 470, 472 (1993), enfd. 44 F.3d
516 (7th Cir. 1995), cert. denied 515 U.S 1158 (1995).
schedule in a manner designed to interfere with his abil-
ity to provide care for his seriously ill son. When John-
son questioned why this was being done to him, Johnston
replied to the effect, “You guys know why.” And when
Johnson asked how long the new shift change would be
in effect, Johnston said, “Forever.”10
As noted, the Respondent’s misconduct continued
even after the election, when the Respondent discharged
two union supporters and disregarded employee rights by
failing to observe the Johnnie’s Poultry safeguards dur-
ing the preparation for this proceeding. An employer’s
continuing hostility toward employee rights in its pos-
telection conduct “evidences a strong likelihood of a re-
currence of unlawful conduct in the event of another or-
ganizing effort.” Garney Morris, Inc., 313 NLRB 101,
103 (1993), enfd. 47 F.3d 1161 (3d Cir. 1995).
In this case, there is no claim that a Gissel order is not
warranted because of the passage of time between the
Gissel order and the unfair labor practices which justified
it, or because of the intervening turnover of employees
and management. These issues which have concerned
some courts in denying enforcement of our Gissel or-
ders11 are simply not present. There has been a relatively
short time period between the unfair labor practices and
the issuance of this Order, and there is no evidence of
any substantial turnover of management or employees,
other than that caused by the Respondent’s unlawful dis-
charge of four union supporters.12 Indeed, the Respon-
dent does not even argue that changed circumstances
preclude the issuance of a bargaining order.13
10 The Respondent does not contest the judge’s finding that the
abrupt change in Johnson’s work schedule violated Sec. 8(a)(3) of the
Act.
11 For example, the District of Columbia Circuit has stated that to
justify the imposition of a Gissel bargaining order, the Board must
find that a bargaining order is necessary at the time
it is issued and support its finding with a “reasoned
explanation that will enable the reviewing court to
determine from the Board’s opinion (1) that it gave
due consideration to the employees’ section 7 rights,
which are, after all, one of the fundamental purposes
of the Act, (2) why it concluded that other purposes
must override the rights of the employees to choose
their bargaining representatives and (3) why other
remedies, less destructive of employees’ rights, are
not adequate.”
Flamingo Hilton-Laughlin v. NLRB, 148 F.3d 1166, 1173 (D.C. Cir. 1998)
(emphasis in original), quoting NLRB v. Charlotte Amphitheater, supra, 82
F.3d at 1078 (citations omitted).
12 “It would defy reason to permit an employer to deflect a Gissel
bargaining order on the ground of employee turnover when that turn-
over has resulted from the employer’s unlawful discharge[s]. . . .”
NLRB v. Balsam Village Management Co., 792 F.2d 29, 34 (2d Cir.
1986).
13 The District of Columbia Circuit made clear in Charlotte Amphi-
theater that the burden is on a respondent to bring to the Board’s atten-
tion evidence of changed circumstances that would mitigate the need
for a bargaining order. Thus, the court stated that before issuing a
bargaining order, “the Board has no affirmative duty to inquire whether
employee turnover or the passage of time has attenuated the effects of
earlier unfair labor practices.” 82 F.3d at 1080.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1186
In addition, the Respondent has presented no evidence
or argument that would lead us to believe that it is now
prepared to allow the employees to freely exercise their
Section 7 rights. To the contrary, the Respondent’s con-
duct indicates to us that there is reasonable likelihood
that the Respondent will continue to thwart employee
rights in the future. Thus, even though the Respondent
did not except to most of the unfair labor practices and
objectionable conduct found by the judge, thereby effec-
tively conceding that it engaged in such conduct, it nev-
ertheless continues to contest the propriety of even hold-
ing a second election. It argues in its exceptions that
conducting a second election “would be inappropriate,
would not effectuate the purposes of the Act, and is not
justified by the record.” Further, there is no evidence or
even argument that the Respondent has attempted to re-
instate or make whole the two employees whose dis-
charges it no longer contests, or to otherwise remedy the
misconduct which it concedes.14 These circumstances
lead us to doubt that the Respondent would conform its
conduct to the requirements of the law and permit a fair
election to be held.
In concluding that a Gissel order is warranted, as re-
quired by some circuit courts we have examined its ap-
propriateness under the circumstances existing at the
present time and we have considered the inadequacy of
other remedies. See, e.g., Flamingo Hilton-Laughlin v.
NLRB, 148 F.3d at 1173. Further, as discussed below,
we have given due consideration to the employees’ Sec-
tion 7 rights, another concern expressed by some
courts.15
In Gissel, the Supreme Court rejected the argument
advanced by the employers that a bargaining order is a
punitive remedy that “needlessly prejudices employees’
Section 7 rights.” 395 U.S. at 612. The Court stated that
a bargaining order not only deters “future misconduct,”
but also remedies “past election damage.” Id. The Court
reasoned as follows:

If an employer has succeeded in undermining a union’s
strength and destroying the laboratory conditions nec-
essary for a fair election, he may see no need to violate
a cease-and-desist order by further unlawful activity.
The damage will have been done, and perhaps the only
fair way to effectuate employee rights is to re-establish
the conditions as they existed before the employer’s
unlawful campaign.33 There is, after all, nothing per-
manent in a bargaining order, and if, after the effects of
the employer’s acts have worn off, the employees
clearly desire to disavow the union, they can do so by
filing a representation petition. For, as we have pointed

14 Cf. Charlotte Amphitheater, supra, 82 F.3d at 1080 (the employer
argued that 13 of the 20 discriminatees had been placed on its active
work roster; the court held that this was evidence of changed circum-
stances that might mitigate the need for a bargaining order).
15 See fn. 11, supra.
out long ago, in finding that a bargaining order in-
volved no “injustice to employees who may wish to
substitute for the particular union some other . . . ar-
rangement,” a bargaining relationship “once rightfully
established must be permitted to exist and function for
a reasonable period in which it can be given a fair
chance to succeed,” after which the “Board may . . .
upon a proper showing, take steps in recognition of
changed situations which might make appropriate
changed bargaining relationships.” [395 U.S. at 612–
613 (quoting Franks Bros. Co. v. NLRB, 321 U.S. 702,
705–706 (1944).]
___________________
33 It has been pointed out that employee rights are affected
whether or not a bargaining order is entered, for those who desire
representation may not be protected by an inadequate rerun elec-
tion, and those who oppose collective bargaining may be preju-
diced by a bargaining order if in fact the union would have lost an
election absent employer coercion. [citation omitted.] Any effect
will be minimal at best, however, for there “is every reason for
the union to negotiate a contract that will satisfy the majority, for
the union will surely realize that it must win the support of the
employees, in the face of a hostile employer, in order to survive
the threat of a decertification election after a year has passed.”
Bok, The Regulation of Campaign Tactics in Representation Elec-
tions Under the National Labor Relations Act, 78 Harv.L.Rev. 38,
135 (1964).

This passage clearly shows that in approving the
Board’s use of the bargaining order remedy in Category I
and II cases, the Gissel Court explicitly took into account
the rights of employees who both favored and opposed
union representation. The Court stated that if an em-
ployer’s unfair labor practices have the tendency to un-
dermine a union’s majority strength and destroy election
conditions, then “the only fair way to effectuate em-
ployee rights” is to issue a bargaining order.16 In these
circumstances, the interests of the employees favoring
unionization are safeguarded by the bargaining order.
The interests of those opposing the union are adequately
safeguarded by their right to file a decertification petition
at an appropriate time pursuant to Section 9(c)(1) of the
Act. On the other hand, if the facts of a case fall within
Category III, i.e., the employer committed only “minor
or less extensive unfair labor practices” with only a
“minimal impact on the election machinery,” then a bar-
gaining order may not issue, notwithstanding the fact that
a majority of employees signed authorization cards in
support of the union. 395 U.S. at 615.
In sum, the Gissel opinion itself reflects a careful bal-
ancing of the employees’ Section 7 rights “to bargain
collectively” and “to refrain from” such activity. There-
fore, if a bargaining order has been adequately justified
16 Fifteen years earlier, the Court observed in Brooks v. NLRB, 348
U.S. 96, 103 (1954), that the Act placed “a nonconsenting minority
under the bargaining responsibility of an agency selected by a majority
of the workers.” Thus, the statute itself subordinates the rights of the
minority to those of the majority. See Sec. 9(a) of the Act.
M.J. METAL PRODUCTS 1187
under the Gissel standards, then we respectfully submit
that due consideration has been given to the employees’
Section 7 rights consistent with the concerns expressed
by the District of Columbia Circuit.
Accordingly, for all these reasons, we agree with the
judge that a Gissel bargaining order is an appropriate and
necessary remedy in this case.17
ORDER
The National Labor Relations Board orders that the
Respondent, M. J. Metal Products, Inc., Casper, Wyo-
ming, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Interrogating its employees regarding their union
activities or the union activities of other employees.
(b) Retaliating against its employees for their union ac-
tivity by changing their work schedules, by requiring
them to bring doctors’ slips when they are absent, by
requiring them to document repairs to products, and by
refusing to give them previously approved time off for
personal business.
(c) Threatening to demote employees to apprentice po-
sitions and hire journeymen sheet metal workers if em-
ployees select the Union to represent them.
(d) Interfering with employees’ right to select a union
by stating that the Company would never be union.
(e) Suggesting that employees’ concerns be resolved
through “arbitration” in an effort to cause them to
discontinue their union activities.

(f) Threatening to sell the business and shut down its
operations if it unionized.
(g) Discharging employees because of their interest in
and activities on behalf of the Union.
(h) Conducting employee interviews regarding matters
that are the subject of NLRB proceedings without advis-
ing employees that they may refuse to engage in such
interviews and that there will be no reprisals for their
cooperation or noncooperation with the Respondent’s
investigation of the matter.
(i) In any other manner interfering with, restraining, or
coercing employees in the exercise of rights guaranteed
to them under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.

17 However, we disagree with the judge’s statement in his remedy
section that the bargaining order is “provisional” and that it “shall be-
come effective in the event a majority of ballots in the representation
matter herein has not been cast for the Union.” Under Board precedent,
the Union is entitled to both a bargaining order and a certification of
representative in the event the revised tally of ballots shows that it won
the election. See Gordonsville Industries, 252 NLRB 563, 604 (1980),
and the cases it cites. We shall modify the judge’s recommended Order
accordingly.
For the same reason, there is no merit in our dissenting colleague’s
position that the Board should reserve judgment on the Gissel bargain-
ing order until after the election results are known. See the majority
opinion in General Fabrications Corp., 328 NLRB 1113, 1115 fn. 17
(1999).
(a) Within 14 days from the date of this Order, offer
Jay Newcombe, Brian Johnson, Shannon Leedall, and
Kelly Martin full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed.
(b) Make Jay Newcombe, Brian Johnson, Shannon
Leedall, and Kelly Martin whole for any loss of earnings
and other benefits suffered as a result of the discrimina-
tion against them, in the manner set forth in the remedy
section of the judge’s decision.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharges,
and within 3 days thereafter notify the employees in writ-
ing that this has been done and that the discharges will
not be used against them in any way.
(d) On request, recognize and bargain with the Union
as the exclusive collective bargaining representative of
the employees in the following appropriate unit concern-
ing terms and conditions of employment and, if an un-
derstanding is reached, embody the understanding in a
signed agreement:

All full-time and part-time employees, engaged in the
fabrication, assembly, shipping and receiving, and in-
stallation of products produced at the Respondent’s
Casper, Wyoming facility; and excluding all other em-
ployees, office clerical employees, professional em-
ployees, guards and supervisors as defined in the Act.

(e) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all
other records necessary to analyze the amount of back-
pay due under the terms of this Order.
(f) Within 14 days after service by the Region, post at
its Casper, Wyoming facility copies of the attached no-
tice marked “Appendix.”18 Copies of the notice, on
forms provided by the Regional Director for Region 27,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily 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 Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
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.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1188
to all current employees and former employees employed
by the Respondent at any time since September 23, 1997.
(g) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
IT IS FURTHER ORDERED that Case 27–RC–7813 is re-
manded to the Regional Director for Region 27 with di-
rections to open and count the ballot of Shannon Leedall
and to serve on the parties a revised tally of ballots. If
the majority of the ballots have been cast for the Union,
the Regional Director shall issue the appropriate certifi-
cation. If the majority of the ballots have not been cast
in favor of the Union, the election shall be set aside and
the representation case dismissed.

MEMBER HURTGEN, dissenting in part.
I would not now pass on the Gissel issue. There is at
least a reasonable possibility that the Union has won the
election, and that a second election will not be held. See
my dissent in General Fabrications Corp., 328 NLRB
1113 (1999).

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

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

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

WE WILL NOT interrogate you regarding your union ac-
tivities or the union activities of other employees.
WE WILL NOT retaliate against you for your union ac-
tivity by changing your work schedules, or by requiring
you to bring doctors’ slips when you are absent, or by
requiring you to document repairs to products, or by re-
fusing to give you previously approved time off for per-
sonal business.
WE WILL NOT threaten to demote you to apprentice po-
sitions and hire journeymen sheet metal workers if you
select the Union to represent you.
WE WILL NOT interfere with your right to select a union
as your collective-bargaining representative by stating
that this Company will never be union.
WE WILL NOT suggest to you a means by which your
concerns may be resolved through arbitration in an effort
to cause you to discontinue your union activities.
WE WILL NOT threaten to sell the business and shut
down its operations because of your union activity.
WE WILL NOT conduct employee interviews with you
regarding matters that are the subject of NLRB proceed-
ings without advising you that you may decline to en-
gage in such interviews and that there will be no reper-
cussions in the event that you cooperate or refuse to co-
operate with our investigation of the matter.
WE WILL NOT discharge employees because of their in-
terest in and activities on behalf of the Union.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer Jay Newcombe, Brian Johnson, Shannon
Leedall, and Kelly Martin full reinstatement to their for-
mer jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority
or any other rights or privileges previously enjoyed.
WE WILL make Jay Newcombe, Brian Johnson, Shan-
non Leedall, and Kelly Martin whole for any loss of
earnings and other benefits resulting from their dis-
charge, less any net interim earnings, plus interest.
We will, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharge of Jay Newcombe, Brian Johnson, Shannon
Leedall, and Kelly Martin and WE WILL, within 3 days
thereafter, notify them in writing that this has been done
and that the discharges will not be used against them in
any way.
WE WILL, on request, recognize and bargain with Sheet
Metal Workers International Association, Local Union
#207 as the exclusive collective-bargaining representa-
tive of our employees in the following appropriate unit:

All full-time and part-time employees, engaged in the
fabrication, assembly, shipping and receiving, and in-
stallation of products produced at our Casper, Wyo-
ming facility; and excluding all other employees, office
clerical employees, professional employees, guards and
supervisors as defined in the Act.

M. J. METAL PRODUCTS, INC.

Donald E. Chavez, Esq., for the General Counsel.
Bruce Willoughby, Esq. (Brown, Drew, Massey and Sullivan),
of Casper, Wyoming, for the Respondent.
Dale Hill, Business Manager, of Casper, Wyoming, for the
Union.
DECISION
STATEMENT OF THE CASE
GERALD A. WACKNOV, Administrative Law Judge. Pursuant
to notice a hearing in this matter was held before me in Casper,
M.J. METAL PRODUCTS 1189
Wyoming, on April 21 and 22, 1998. The charge in Case 27–
CA–15523 was filed on September 24, 1997, by Sheet Metal
Workers International Association, Local Union #207 (the Un-
ion). Thereafter, subsequent charges were filed by the Union
on October 8 and December 4, 1997.
The petition in Case 27–RC–7813 was filed by the Union on
September 26, 1997. Thereafter, a representation hearing was
held on October 7, 1997. On October 28, 1997, the Regional
Director for Region 27 of the National Labor Relations Board
(the Board) issued a Decision and Direction of Election and an
election was held on November 25, 1997. The tally of ballots
reflects that of approximately 13 eligible voters, 6 cast ballots
in favor of the Union, 6 cast ballots against the Union, and
there was 1 challenged ballot which is sufficient in number to
affect the results of the election. Thereafter the Union filed
timely election objections.
On November 26,1997, the Regional Director issued an or-
der consolidating cases, consolidated complaint and notice of
hearing in Cases 27–CA–15523 and 27–CA–15549. On Janu-
ary 2, 1998, the Acting Regional Director issued a Supplemen-
tal Decision on Challenged Ballot and Objections to Election,
Order Directing Hearing, Order of Consolidation, and Notice of
Hearing, in which the unfair labor practice cases and the repre-
sentation proceeding were consolidated for the purposes of
hearing. The consolidated complaint alleges violations by M.J.
Metal Products, Inc. (the Respondent) of Section 8(a)(1), (3),
and (5) of the National Labor Relations Act (the Act).1 The
Respondent, in its answer to the complaint, denies that it has
violated the Act as alleged.
The parties were afforded a full opportunity to be heard, to
call, examine and cross-examine witnesses, and to introduce
relevant evidence. Since the close of the hearing, briefs have
been received from counsel for the General Counsel (the Gen-
eral Counsel), and counsel for the Respondent. On the entire
record, and based on my observation of the witnesses and con-
sideration of the briefs submitted, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a corporation with its office and place of
business located in Casper, Wyoming, where it is engaged in
the sheet metal business. In the course and conduct of its busi-
ness operations the Respondent annually purchases and re-
ceives at its Wyoming facility goods, materials, and services
valued in excess of $50,000 directly from places outside the
State of Wyoming. It is admitted and I find that the Respon-
dent is engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted and I find that at all material times the Union
has been a labor organization within the meaning of Section
2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The principal issues raised by the pleadings are whether the
Respondent has violated and is violating Section 8(a)(1) and (3)

1 The complaint was amended at the hearing to include additional al-
leged violations of Sec. 8(a)(1) of the Act.
of the Act by various alleged unlawful acts, including the dis-
charge of four employees; and whether, under the circum-
stances herein, the Respondent’s conduct warrants that the Re-
spondent be required to bargain with the Union as the collec-
tive-bargaining representative of its employees, and has vio-
lated Section 8(a)(5) of the Act by instituting certain alleged
unilateral changes without bargaining with the Union.
Further, in the related representation proceeding, the issues
are whether the determinative challenged ballot of one of the
alleged discriminatees should be counted and a revised tally of
ballots issued, and, if a majority of the ballots has not been cast
in favor of the Union, whether the election objections should be
found to be meritorious and a new election conducted.
B. The Facts
The Respondent manufactures stainless steel food service
equipment. Mark Johnston is president and owner; John Dykes
is production manager.
On September 15 and 22, 1997,2 the Respondent’s employ-
ees attended union meetings and signed union cards authorizing
the Union to represent them for purposes of collective bargain-
ing. Thirteen of the Respondent’s approximately 15 employees
signed authorization cards. On September 22, Union Business
Agent Dale Hill went to the Respondent’s shop and spoke with
Johnston. Hill testified that he informed Johnston that a major-
ity of his employees had signed voluntary recognition cards
authorizing the Union to represent them as their collective-
bargaining agent for purposes of negotiating wages and work-
ing conditions. He presented Johnson with the following letter,
dated September 22:

Please be advised that Sheet Metal Workers’ Interna-
tional Association, Local Union #207 represents a major-
ity of your employees. We have obtained Authorization
Cards from a majority of the employees employed by you
in a Unit that is appropriate for purposes of collective bar-
gaining.
We are requesting immediate recognition of the Local
Union as the Collective Bargaining Agent of your em-
ployees, for the purposes of negotiating an Agreement for
wages, hours and working conditions.
We are available to meet with representatives of your
Company at a mutually convenient time and place, in or-
der to negotiate and discuss the terms and conditions of a
Collective Bargaining Agreement.
In the event you have any doubt as to whether our Un-
ion represents a majority of your employees, we are will-
ing to have an independent third party check our Authori-
zation Cards, signed by your employees, against your per-
sonnel records.
Your employees are protected under Section 7 of the
National Labor Relations Act and guaranteed their right to
form or assist in forming a union.
We would appreciate your FAXED response by
Wednesday, September 24, 1977 4:00 P.M. (FAX 234–
8110).

Hill testified that the Respondent did not contact him thereafter,
and that he had no further communications with the Respon-
dent. Accordingly, the Respondent has not provided the Union
an opportunity to negotiate regarding any mandatory subjects
2 All dates or time periods hereinafter are within 1997 unless other-
wise specified.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1190
of bargaining.3 Thereupon, on September 26, the Union filed
the representation petition in this matter.
Donald Stagg has been employed by the Respondent for 2
years. Stagg testified that he attended a union meeting at the
union hall on September 22, and that on the following day, at
work , Production Manager Dykes approached him and asked,
“[H]ow did the meeting go last night.?” Stagg replied that it
went okay, and Dykes asked him if he was thinking of joining
the Union. Stagg replied that he didn’t think that union matters
were supposed to be discussed on company time, and Dykes
said, “I think it’s a mistake,” and turned and walked away.
Stagg testified that about 20 minutes after this conversation
with Dykes, Office Manager Novella Marvel, an admitted
supervisor, approached him in the shop and advised him that he
had not clocked out the night before. She then asked him
whether he had left early to go to the union meeting. Stagg
merely replied that he thought he had clocked out, but it was
possible that he had not.
Bardo Miller has been employed by the Respondent for 3
years. He is currently shop foreman,4 but in September was a
member of the unit herein and signed a union authorization
card. Miller testified that on about September 23, Johnston
mentioned something about the Union trying to get in, and told
him that if the employees wanted to go union he would hire
journeymen sheet metal workers and that the current employees
would all become apprentices. Johnston also said, according to
Miller, that he would never be union.
Miller testified that a day or so later Dykes asked him if he
was going to join the Union. Miller said that he was thinking
about it. Dykes said that he had thought about it at one time
when he was coming up through the ranks, and decided against
it. He asked Miller what benefits the employees believed they
could get through the Union, and Miller replied that they might
get a little more pay and better insurance and other benefits.
Dykes said the employees were going to lose if they went Un-
ion.
Robert Tasler has been employed by the Respondent for
about 4 years as a welder. Tasler testified that he attended a
union meeting on the evening of September 22. On the follow-
ing day, at work, Dykes approached him and asked him “how
the big meeting went last night,” and whether he was going to
join the Union. Tasler, who had signed a union authorization
card, was noncommittal and replied that that he didn’t know
yet.
Earl Anthony Sanchez was employed by the Respondent
from April 24, 1995, until November 19, 1997. Sanchez testi-
fied that on September 17 he spoke with Johnston about having
to attend a series of La Maze classes with his wife, and wanted
to alter his schedule and leave work an hour early on the fol-
lowing day, September 18, and again on September 25. Johns-
ton gave him permission to leave work early on both days, and
said it should not be a problem.
On September 24, Sanchez , together with almost all of the
shop employees, participated in union hat day. On that day,
and thereafter, the shop employees wore hats bearing the union
logo at work to demonstrate their support for the Union. San-
chez testified that Dykes came over to him as he was clocking

3 It is alleged herein that the Respondent has violated the Act by
making certain unilateral changes without providing the Union an op-
portunity to bargain over such matters.
4 The record does not reflect whether this is considered to be a su-
pervisory position.
in that day, pulled Sanchez’ hat down and said, “nice hat.”
Later that day Sanchez, who was wearing his union hat, re-
minded Johnston about having to leave work an hour early the
next day for the La Maze class, and asked if it was still okay to
do so. Johnston, according to Sanchez, said no and told him
that everybody was on a set schedule because that’s the way
everybody wanted it. Sanchez said fine. Sanchez testified that
Dykes was present during this conversation.
Danny Ashley was employed by the Respondent from April
1991 until December 1997. He was a team leader. He wore a
union hat on hat day and continued to wear it thereafter to show
support for the Union. Ashley testified that shortly after hat
day one of the Respondent’s primary customers, Bill Britz, had
attempted to phone him at home and had left word that Ashley
and/or Jay Newcombe5 should return his call as the matter was
urgent. Several days later, Ashley returned Britz’ phone call.
Ashley testified as follows regarding his conversation with
Britz:

[Britz] said he was concerned about what was going on
at the shop and whether it was going to affect his products
getting to him, and that he wanted to know why we were
starting a union. I told him that we were concerned about
some of the other people’s wages and the safety of the
shop, and we wanted a change. So he went on about un-
ions are bad, the unions out East were corrupt and they
weren’t any good for little companies, he believed that the
unions were for just big companies at all [sic]. And he
went on to say that his father was an independent contrac-
tor and he was an independent contractor, [and] he was
just totally against unions.
Then he went on to say that he wanted to be an arbitra-
tor for Mark Johnston and myself, along with Jay New-
combe, to settle the differences between us. And I told
him that he could not be an arbitrator because he had al-
ready given me his biased opinion against the union. So I
said, thanks, but I cannot use you as an arbitrator.
So we switched the subject to other things, and some-
thing about a strike. Oh, he said that if there was a strike
that he would have to bring his people up from Wheatland
to cross our picket line, and he said, things could get real
ugly. And he didn’t specify what he meant by that.
He went on to say that he had talked to Mark [Johns-
ton] sometime earlier and he had asked Mark who was the
instigator in getting this union involved, and Mark had
told him that Brian Johnson was the instigator along with
Jay Newcombe and myself. And he said he could believe
that Brian could be the instigator because Brian is a very
boisterous person, he’s very forward, and he said he could
not believe that I was involved in such a thing.

William Britz was called as a witness by the General Coun-
sel. Britz is the owner of a company that designs and builds
animal enclosures, and has been a customer of the Respondent
since 1994. He considers himself a personal friend of Mark
Johnston. When Britz became aware of the union activity at
the Respondent’s facility he became concerned that it could
affect his business. Britz testified that the Respondent is his
“primary supplier and it means a lot to our company. Our
company would be dead in the water without them.” He asked
5 Both of these individuals could be reached through the same phone
number of a mutual relative.
M.J. METAL PRODUCTS 1191
Johnston about the situation, and was told that a union organ-
izer had visited Johnston, but that things would continue on as
they had been and Britz should not be concerned about getting
his orders filled. Thereafter, he called Johnston from time to
time and asked him how the union situation was going. Johns-
ton kept him updated about the representation hearing that was
scheduled for October 7.
Britz testified that Danny Ashley, Brian Johnson, and Jay
Newcombe were the key employees that Britz worked with in
getting his orders manufactured at the Respondent’s shop, and
that his relationship with them was one of camaraderie. He
asked Johnston if it was okay if he spoke with Ashley about the
union matter, as he felt particularly close to Ashley. Johnston
told him that he could do what he wanted, so long as it was
understood that Johnston was not involved and had nothing to
do with it.
Britz did talk to Ashley by phoning him at home on a Satur-
day. He testified that he got Ashley’s home number from the
information operator as he felt it would be inappropriate to
obtain it from the Respondent. Ashley returned his call at
some point, and Britz told him that this was a personal call and
he felt they had a close relationship. He asked what the problem
was at the shop. Ashley said that overtime was a problem, and
that there were other problems. Britz suggested that he serve in
some way as an arbitrator of these things, and, according to
Britz, Ashley became upset and “just jumped right on me,” and
said there was no way he would have Britz be an arbitrator
because Britz was Johnston’s friend. Britz told Ashley that he
had had problems with unions in the East, and at some point in
the conversation, according to Britz, Ashley stated that things
were going to get ugly and that the employees were going to
go on strike and that they were going to form a picket line.
Britz said that a strike would hurt his business too, and that if
the employees formed a picket line he would be obliged to
cross it and try to get his parts manufactured in order to survive,
as he did something like a quarter of a million dollars worth of
business with the Respondent. He said that he could not just
stand by and let things happen, and that he wanted to be a part
of the solution. Britz testified that he was “extremely shocked”
by Ashley’s negative response to what he believed was a rea-
sonable suggestion regarding his offer to act as an arbitrator.
Thereafter, Britz informed Johnston about the conversation.
Johnston, according to Britz, said that he didn’t want to hear
about it; however, he did not tell Britz to refrain from speaking
to his employees about the matter. Britz testified that Johnston
never requested him to speak to any of the employees on Johns-
ton’s behalf.
Ashley testified that he was absent from work on October 3
because of an asthma attack that was brought on by having
assisted his brother-in-law, Jay Newcombe, haul hay the previ-
ous day. His wife called the Respondent for him and said that
he would be absent that day. Shortly thereafter, at 8 a.m.,
Dykes showed up at his house (Ashley does not have a phone)
and said that he was sent there to relay a message from Johns-
ton: that if he wanted to return to work he would need a doc-
tor’s excuse. Ashley asked what brought that about, as a doc-
tor’s excuse had never been necessary in the past, and Dykes
said that Johnston was starting to change a couple of things and
was beginning to go by a “new book” that he had just obtained.
Jay Newcombe was employed by the Respondent for about
5-1/2, from April 1992 until November 27, 1997. He was a
team leader and was responsible for training new employees.
He attended all the union meetings, signed a union authoriza-
tion card, and participated in hat day on September 24. He con-
tinued to wear the union cap every day thereafter until the day
of his discharge, infra. Further, he testified on behalf of the
Union in the representation hearing on October 7.6 Shortly
after September 22, the date the Union requested recognition,
Newcombe was asked by Johnston to return the set of keys to
the Respondent’s premises that he often used to open the shop
in the morning because, according to Johnston, thefts had been
occurring.7
Newcombe was on the same pool team as Eric Risberg, the
Respondent’s salesman, and was a friend of Risberg. New-
combe testified that several days after hat day he happened to
be at Risberg’s home where the team would practice. Risberg
handed him an envelope bearing the “MJ Metal” logo, and said
that he had obtained it from Johnston’s desk. He told New-
combe to go ahead and open it up and take a look at the docu-
ments inside. The envelope contained a number of bank state-
ments showing that checks written by Johnston had been re-
fused payment by the bank because of insufficient funds in the
Respondent’s account. Risberg went on to say how much the
Union was going to hurt the Respondent. Further, he said that
Johnston had received an offer from someone out of state to
purchase the shop for a lot of money, that the person was in-
tending to move the shop out of state and was only intending to
keep key personnel, and that everybody else was going to be
“fucked.” Then Risberg ended the conversation by stating,
“Well, that’s enough about the union, let’s go play some pool.”
Eric Risberg was called as a witness by the Respondent. His
title is equipment and supply specialist, and his primary respon-
sibilities are to sell and prepare bids for the Respondent’s prod-
ucts, and to attend trade shows. He reports directly to Johnston.
On occasion he may work in the shop, and on these occasions
he does not supervise any employees.
Risberg testified that he had invited several individuals over
to his house to play pool. He was aware of the situation at the
shop as he had talked with Johnston about the matter “more
than once, probably less than fifteen” times, and testified that
he thought he would take it upon himself and talk to the em-
ployees about the situation as he had belonged to two unions
and was somewhat familiar with union matters. While Risberg
testified that during these conversations Johnston related his
thoughts about how he intended to react to this union situation,
Risberg was only able to remember the following: that Johnston
told him to keep what he shared confidential, and that that
Johnston had contacted his attorney. Johnston did not tell him
not to discuss the matter with the employees.
Risberg testified that before entering into the discussion
about the Union at his home with Newcombe and, perhaps,
Tony Sanchez,8 he advised them that they could leave at any

6 The issue in the representation proceeding was whether four indi-
viduals are supervisors within the meaning of the Act: Dan Ashley,
Bardo Miller, Jay Newcombe, and Brian Johnson. Thereupon, on
October 28, the Regional Director issued a Decision and Direction of
election, finding that the four individuals were not statutory supervisors
and were included within the appropriate bargaining unit. On appeal,
this Decision was affirmed by the Board. MJ Metal Products, 325
NLRB 240 (1997).
7 It also appears that Johnston asked for Ashley’s set of keys for the
same reason.
8 According to Newcombe, Sanchez was not present during this con-
versation, although he was present at Risberg’s home that evening.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1192
time if they didn’t want to hear his comments or did not appre-
ciate what he was telling them.9 He said that he believed it
probably wouldn’t be a good thing to have a union and that he
knew from conversations with Johnston that there had been an
offer to buy the Company from someone out of state. He went
on to say that he believed that Johnston would accept this offer
as Johnston had always said that he would sell the business “if
it stopped being fun.” He told Newcombe that it was therefore
his personal opinion that Johnston would not want to continue
to operate the business as a union shop.
Risberg testified that he spoke with approximately three
other employees about the Union, but he could not recall the
identity of these individuals. Johnston did not ask him or au-
thorize him to make such statements to any of the employees;
nor did Johnston ever tell him that his comments to the em-
ployees were acceptable or permissible, or otherwise express
satisfaction with Risberg’s conduct in speaking with the em-
ployees regarding the matter.
A few days later, Johnston held an employee meeting at the
shop. The meeting was conducted by Johnston who had also
invited his wife and daughter, his parents, and several other
individuals, including Britz and Risberg. Johnston began the
meeting by thanking his family and Britz for being present, and
told the employees about how he had started the business and
brought it up from nothing. And he asked the employees to
reconsider their efforts to bring in the Union, as he believed
that they were all like family and should stick together, and that
all the problems could be worked out. Apparently, Johnston
was the only one who spoke at the meeting.
On Friday, October 3, the same day as Ashley had called in
sick, Newcombe also called in sick. Similarly, as with Ashley,
Dykes showed up at his home that morning (Newcombe does
not have a phone) and advised him that he needed to get a doc-
tor’s note if he was missing work because of illness that day.
He was also told that he should come in the next day, Saturday,
to make up the time. However, Newcombe’s medical problem
continued and he was not able to return to work until the fol-
lowing Monday. Newcombe testified that he had never been
required to bring in a doctor’s excuse on previous occasions
when he had missed work because of illness.
Kelly Martin worked for the Respondent from September 17
to 25. He was interviewed and hired by Johnston. Martin testi-
fied that during the interview Johnston asked him about his
math skills, and Martin said that he was good at math. Johns-
ton asked him if he could read a tape measure accurately, and
Martin said yes. Johnston told Martin not to worry about the
fact that he didn’t have experience in fabricating stainless steel,
and said that most of the guys had started with little or no ex-
perience and had been trained on the job. According to Martin,
nothing was said about a probationary period.
Upon being hired, Johnston brought Martin to Jay New-
combe and told him that Newcombe would be his trainer and
would be instructing him on what to do. Thereafter, during his
brief 1-week tenure with the Respondent, Martin worked with
Newcombe, Tony Sanchez, Bardo Miller, and Leonard Saw-
yer. Newcombe, according to Martin, had complemented his
work. Martin observed that Dykes and Johnston walked
through the shop occasionally, but Martin, who would have
been able to observe that his work was being inspected or

9 Newcombe, on rebuttal, denied that Risberg made any such intro-
ductory statement.
evaluated by them, never noticed that they were stopping to
watch or inspect what he was doing; and neither of them said
anything to him about his work performance. Martin testified
that he was able to read a tape measure and cut materials to a
tolerance of within a sixteenth of an inch. He also performed
some drilling operations on sheet metal, and during the various
occasions when he did this drilling work a total of some three
or four drill bits happened to break. However, no one told him
that he was drilling incorrectly or breaking too many bits.
Martin testified that after he was hired he received a copy of
the Respondent’s employee policy manual. The manual, at
page 15, contains a clause entitled “Performance Review, in
pertinent part as follows:

Performance appraisals provide a systematic way for
each employee to measure his or her development, to dis-
cuss it with a supervisor and to know how well he or she is
meeting the requirements of the job.
Job performance will be reviewed after the first three
months on the job and then on an annual basis. Perform-
ance reviews are considered in making pay increases and
promotion decisions, but the results of the review will not
necessarily ensure to a pay increase or a promotion.
Performance review forms are intended to assist su-
pervisors in recording their assessments of employee per-
formance and in communicating their appraisals to the
employee.

Martin attended a union meeting on September 22, and
signed a union authorization card on that date. He wore a union
hat on hat day—Wednesday, September 24. On previous days
Johnston and Dykes had said hello to him. On the day he wore
a hat, Johnston did not greet him, and Martin noticed that
Johnston was scowling at him while he was working.
On the following day, September 25, Martin was terminated.
Martin testified that Dykes came out into the shop where he
was working and said it was time for his 7-day evaluation, and
that Johnston wanted to speak with him later that day. Martin
had never been advised about a 7-day evaluation. He went in to
see Johnston at the appointed time, and Johnston told him to sit
down. Johnston said he was sorry but that things just didn’t
seem to be working out as well as Johnston had expected, and
that Martin was not picking up the work as fast as Johnston had
hoped he would. Martin said that he had done everything he
had been told to do, and Johnston said, “you know, you’re just
not getting into the rhythm of things around here. You can see
how busy we are out there.” Martin said that he could work
faster if that’s what Johnston wanted and Johnston said no,
“that’s why we have a 7-day trial period to see if a guy’s going
to work out.” Martin said that he had not been told anything
about a 7-day trial period, and Johnston replied that all the em-
ployees are told that when they are hired. Martin said that he
was not saying that there wasn’t such a trial period, but that he
hadn’t been told about it. At this point Johnston handed him
his final paycheck, and said that he was sorry that things didn’t
work out, wished him good luck. There was no discussion of
the quality of his work.
Shannon Leedall was hired by the Respondent on September
17, and worked until September 25. Leedall testified that on
September 17, during his employment interview with Johnston,
there was no mention of a probationary period. Upon begin-
ning work he was given an employee policy manual, supra.
Leedall attended a union meeting on the evening of September
M.J. METAL PRODUCTS 1193
22, and signed a union authorization card. He wore a union hat
on hat day. Leedall testified that both Dykes and Johnston,
who were each wearing “MJ Metal” ball caps, saw him wearing
the union hat on that day. Further, the Respondent’s secretary,
Novella Marvel, and the Respondent’s salesman, Mark Risman,
were also wearing company ball caps. All the shop employees,
however, were wearing union ball caps.
Leedall continued to wear his hat on the following day, Sep-
tember 25, and was wearing it when he was told to go to Johns-
ton’s office. Johnston said, according to Leedall, that “I wasn’t
up to standards where he thought I would be within a week’s
time, and that he was going to have to let me go.” During the
conversation Johnston’s eyes seemed to be mostly fixed on
Leedall’s union hat.
Leedall testified that he reported to and was being trained by
Bart Miller. During his brief tenure no one, not even Miller,
commented upon his work as being satisfactory or unsatisfac-
tory. His work was to drill rivet holes and attach metal trim to
the product with rivets, after which he would fill the rivets with
silicone. He did not observe that his work was watched or in-
spected by Dykes or Johnston. In the course of his drilling
work only one drill bit broke. He had to use a tape measure on
occasion, and testified that he had no problem with reading the
calibrations on the tape measure.
Brian Johnson worked for the Respondent from January 30,
1989, until November 28, 1997. He was an assistant team
leader and his work was primarily to polish and finish the final
product. Johnson contacted the Union about the first part of
September. He had previously discussed this with some of his
co-workers and was given verbal authorization by them to con-
tact the Union. He wore a union hat on hat day, and continued
wearing it throughout his employment. He testified as a wit-
ness for the Union during the representation hearing on October
7.
Throughout his 8 years of employment Johnson’s hours of
work had always been from 8 a.m. until 4:30 p.m.10 And just
prior to the union activity herein the Respondent had issued a
new work schedule, commencing on September 12, in which
Johnson’s hours of work continued to remain the same.11
These hours of work were designed to accommodate his having
to care for his son, who in 1990 was diagnosed with a degen-
erative disease that caused him to be confined to a wheelchair
as the disease progressed. Thus, in order to take care of his
son, Johnson had to be home from work before 5 p.m., which
was the time his wife was scheduled to begin work at her place
of employment.
On September 23, the day following the Union’s request for
recognition, Johnston told Johnson that he was going to have to
make certain changes and that Johnson’s new hours of work
would be from 10 a.m. to 6:30 p.m. Johnston, according to
Johnson, did not give a reason for this change. Johnson said
that he didn’t know if he could work that schedule because it
conflicted with his wife’s work schedule. Johnston simply
replied that this was the way it would be. Johnson said that
under the circumstances he might have to find another job, and
Johnston replied, “Whatever.” Johnson asked when the change

10 The Respondent’s various weekday shifts were as follows: 6 a.m.
until 2 p.m., 8 a.m. until 4:30 p.m., and 10 a.m. until 6:30 p.m.
11 In addition, three other employees were scheduled to work the 8
a.m. to 4:30 p.m. shift.
would go into effect, and Johnston said it would go into effect
the next day.
Later that day Johnson again asked him when his new shift
change would start, and Johnston again stated that it would
begin the following day. Johnson asked how long the new
shift change would be in effect and Johnston said, “Forever.”
Johnson said that this would be a burden on him and would
have an adverse effect on his family, and Johnston replied that
his “hands were tied.” Johnson asked him to put the shift
change in writing, and Johnston refused to do this stating that
he was the boss and his verbal order was good enough. John-
son asked him why this was being done to him, and Johnston
replied something to the effect, “You guys know why.” There
was no discussion on this occasion or on any other occasion
about complaints by other employees regarding Johnson’s
schedule.
Thereupon Johnson commenced to work the 10 a.m. to 6:30
p.m. shift. In order to do this it was necessary to make short-
term arrangements to have someone else look after his son
between the time his wife had to leave for work (although his
wife was able to arrange to remain at home until the care giver
arrived, this necessitated that she arrive at work late) and he
was able to come home from work.
After the change in Johnson’s work hours, the shop employ-
ees presented Johnston with two documents. One of them,
signed by six employees, states:

We the undersigned employees of MJ Metal Products
wish to clarify the issue of Brian Johnson, and the matter
of his shift change that took place immediately following
the notification of our employer that we wished to be rep-
resented by Sheet Metal Workers Local # 207.
I hereby state that at no time did I complain about
Brian Johnson leaving the shop at the end of his 4:30 PM
shift he has worked at since his employment began at MJ
Metal Products.

Another similar document, signed by eight employees, was
presented to Johnston thereafter, as follows:

NOTICE
THIS ACTIVITY IS PROTECTED BY SECTION 7 OF
THE NATIONAL LABOR RELATIONS ACT

We the undersigned employees of MJ Metal Products
Inc. are acting together through legally protected con-
certed activities for mutual aid and protection of all em-
ployees.
We request that you return Brian Johnson to his regu-
lar shift of 8:00 am to 4:30 pm on or before Monday Oc-
tober 20th 1997.
In our opinion, no benefit is realized by changing his
shift to 10:00 am to 6:30 pm. To our recollection, no
deadline has been missed due to his previous shift, and
you are very well aware of his personal situation that
makes the 8:00 am to 4:30 pm shift more suitable, in fact,
a necessity.
Your agreement with Brian at the beginning of his em-
ployment with MJ Metals more than eight years ago, was
to allow him to work his regular shift because of the per-
sonal needs of his terminally ill child. This was a kind and
considerate action on your part, Changing Brians [sic]
shift has hurt the child at home, who needs his father.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1194
On September 29 Johnston presented Johnson with a memo
and asked him to sign it. The memo, dated September 29,
states: “ I Brian Johnson ground thru a liner for Holmes Equip
on Fri Sept. 26th.” Johnson was reluctant to sign it and Johns-
ton asked if he was refusing to sign. Johnson said he wanted
some time to think about it, and Johnston said he didn’t have
time to wait. Therefor, according to Johnson, he reluctantly
signed the document “under duress.”
On the same date Johnston brought the same memo to New-
combe, who had repaired the aforementioned liner. Newcombe
testified that Johnston wanted him to verify in writing that
Johnson had ground through a stainless steel liner and that
Newcombe had repaired the liner. At first Newcombe refused
to sign it. Newcombe told Johnston that grinding through cer-
tain liners was easy to do given the nature of the product, and
was a common occurrence, and that the problem might even be
attributed to Newcombe who had performed the initial welding
process on the liner. Johnston, at this point, became angry and
asked Newcombe if the problem with the liner was the fault of
both employees; Newcombe replied that this was a possibility.
Then Johnston directed him to just sign the paper.
Johnson testified that it was not uncommon to grind through
this type of liner, as certain areas of the stainless steel for this
particular product, due to its configuration, had been stretched
and was very thin in places and “was notorious for blow-
throughs and holes.” In fact, Johnson testified that since about
1990, when he first began working on this product , about one
out of every two liners of this particular type developed holes
during the grinding process no matter how careful he was to
avoid grinding through the steel; and sometimes the same spot
had to be patched and repaired several different times. On
previous occasions when he had ground through liners, Johnson
had never been required to document this fact; it was merely a
routine part of the production process.
On about November 21, Johnston called a meeting in his of-
fice and announced to the employees that, regardless of their
current shift, their schedules for the week prior to Thanksgiving
would be changed to the hours of 8 a.m. until 4:30 p.m., and
that they would revert to their prior schedules on the following
Monday after Thanksgiving. Thus, Johnson, had he not been
discharged, infra, would have thereafter remained on the 10
a.m. to 6:30 p.m. shift.
The representation election was held on November 25. The
day following the election, November 26, was Thanksgiving
eve. Apparently all employees were scheduled to work only
until 4:30 p.m. that day because of the holiday. Johnson testi-
fied that at 4:25 p.m. that day12 Dykes told him, “We need you
to stay late tonight,” explaining that there was an order that had
to be shipped that evening. Johnson said that he could not stay,
as he had made a previous appointment in town for 5 p.m.
Dykes again asked him to remain, and Johnson stated that while
he would not be able to remain until the shipment was on the
truck, he would stay as long as he could.
Johnson testified that he did not understand Dykes to be giv-
ing him a direct order to remain until the shipment had been
loaded on the truck, but rather, as on previous occasions, be-
lieved that Dykes was merely requesting him to remain if pos-
sible. Johnson testified that on “pretty frequent” prior occa-
sions he had been asked to stay and work overtime in order to

12 Johnson testified that he looked at his watch at the time of the
conversation and that the time was exactly 4:25 p.m.
complete a particular shipment: On some of these occasions he
did not remain at all, and on others he remained for a period of
time but left before the work was completed; however, he had
never been reprimanded either for refusing to stay or for leav-
ing before the work had been completed.
According to Johnson about seven employees, including
Johnson and Newcombe, remained at work after the 4:30 p.m.
quitting time that evening. Newcombe, according to Johnson,
left shortly thereafter, at about 4:40 p.m. Johnson left at 4:45
p.m., after he had prepared the materials for packing and box-
ing a large 14-foot stainless steel hood that was one of the items
to be shipped. He instructed the crew how to wrap and package
the item with the custom-made cardboard packaging he had
fabricated that conformed to the shape of the unit. At the time
he left the only work to be completed was the wrapping of the
unit in plastic sheeting, boxing the unit (including the stapling
together of the sections of boxing material) with the cardboard
packaging, banding of the unit to the pallet with some type of
banding straps, and loading the unit, together with other items,
on the truck either manually or with a forklift. This was not
specialized work, and everyone in the shop was capable of
performing it. All of this work had to be done sequentially and,
according to Johnson, could easily have been done by two or
three people. In fact, had more people worked on it at one time
they would have gotten in each others’ way.
On the following workday, Friday, November 28, Johnson
clocked in and was summoned to Johnston’s office. Johnston’s
wife was also present. Johnston said that “apparently we have
a problem with Wednesday night.” Johnson said that to his
knowledge there had been no problem, and Johnston said that
Johnson did not stay until all the work had been completed and
the truck had been loaded. Johnson replied that he had re-
mained as long as he could. Johnston, according to Johnson,
stated that “[w]e need to have team players here and people that
are going to do what they are asked to do.” Johnson repeated
that he had stayed as long as he could, but that he had previ-
ously scheduled a 5 p.m. appointment in town that evening and
had to leave. He asked whether his nearly 9 years of service
didn’t speak something of his loyalty and of his being a team
player. Johnston’s wife replied that the only reason he had
been employed for 9 years was because he couldn’t find an-
other job. Thereupon, Johnston handed him his final paycheck.
Regarding the work of Martin and Leedall, Johnson testified
that it was customary for workers to break drill bits and that
this was an ongoing daily occurrence caused by having to drill
many rivet holes through stainless steel.
Newcombe testified that on Thanksgiving eve there was no
scheduled evening shift and everyone was scheduled to leave
work at 4:30 p.m. As he was finishing up work for the day,
Dykes approached him and said, “[W]e need you to work late”
in order to make sure that a shipment goes out. This, according
to Newcombe, was couched in the same terminology used by
Dykes on prior occasions, and Newcombe understood it to be a
request rather than a direct order. Newcombe looked at his
watch and noticed that it was 4:23 p.m., and explained to Dykes
that he was going to have to leave as his wife regularly dropped
off their children at the Respondent’s shop at 4:30 p.m. (New-
combe’s customary quitting time), on her way to work, so that
she could be at work by 5 p.m. Dykes said that the products
had to be shipped that evening, and Newcombe said that he
would stay as long as he could. Newcombe remained about 15
minutes during which time he finished welding a final part onto
M.J. METAL PRODUCTS 1195
the hood so that it was completely fabricated; all that remained
to be done after he left was to wrap it up, band it and load it on
the truck. This, according to Newcombe, was work that could
have readily been performed by two or three people, and there
were more than enough people remaining to do the work. Ac-
cording to Newcombe, Johnson was still there when New-
combe left the premises that evening, shortly before 4:45 p.m.
The truck that was scheduled to pick up the shipments had not
yet arrived.
Newcombe testified that all the other orders that were to be
loaded on the truck that evening had been setting in the shop,
wrapped and/or on pallets, ready to be shipped, for a number of
days. Thus, only the one hood was being prepared for shipment
that evening. Newcombe testified that there is only one forklift
so only one pallet can be loaded on the truck at a time, and,
further, that about half the items were not on pallets and were
light enough that they could be loaded by hand. He agreed that
the more people available to help load the truck the sooner the
loading would be completed.
The following workday, Friday, November 28, Dykes told
Newcombe that Johnston wanted to speak with him. He en-
tered Johnston’s office and Johnston said, “I hear we had a
problem Wednesday.” Newcombe asked what the problem
was, and Johnston explained that Newcombe had refused to
work late until the work was completed. Newcombe explained
that his wife was waiting outside for him with their children at
the end of his regularly scheduled workday, and that the com-
pany policy was that children were not permitted in the shop
while work was being performed. Johnston replied, “Well,
now that this union crap is behind us, things are going to start
changing . . . can’t go back to the way things were . . . You’re
going to have to decide what’s more important: either my
shipment going out on time [or] your wife’s going to work.”
Newcombe said that his wife had to go to work so that they
could pay all the bills, and Johnston replied that that was beside
the point and that he couldn’t have someone working there that
he couldn’t trust. Finally, Johnston reached into his desk
drawer and said that he had to let Newcombe go, and handed
him his check.
Newcombe testified that on previous occasions he had left
work early after being specifically instructed that he was to
remain until some work had been completed, and had never
been disciplined or even warned for this in the past. New-
combe testified that upon becoming team leader in about the
first part of 1994 he once complained to Johnston about John-
son’s inability to work late, and has complained about this a
few times thereafter. However since nothing was ever done
about the matter he pretty much stopped complaining. The last
time he spoke to Johnston about this subject was some 6
months to a year prior to Johnson’s discharge.
Newcombe testified that as team leaders he and Bart Miller
were assigned to oversee the work of new employees Shannon
Leedall and Kelly Martin Newcombe inspected their work, as
his job was to make sure that their work looked good before it
was shipped to the customer. Newcombe testified that for new
employees Leedall and Martin were doing “at least average, if
not better.” Neither Dykes nor Johnston asked him how either
of the two employees were doing, and he was not advised that
they were going to be terminated.
Robert Tasler, who was called as a witness herein by the
General Counsel, testified that the day prior to his testimony he
was summoned by another employee who said that the Respon-
dent’s attorney, Bruce Willoughby, wanted to meet with him,
apparently in one of the Respondent’s offices. During the
interview, Willoughby, asked him if he had met with personnel
from the labor board and with Union Representative Dale Hill.
Tasler said that he had. Willoughby inquired about what he
had talked about with them, and Tasler replied that they had
asked him some questions about the matter. At no time during
the meeting did Willoughby advise Tasler that the interview
was voluntary or that Tasler was not required to speak with
him; nor did he give Tasler assurances against reprisals in the
event Tasler elected not to meet with him or provided him with
information adverse to the Respondent.
Tasler testified that he did not complain about Brian John-
son’s work schedule; that he has missed work because of illness
and has never had to bring in a doctor’s excuse; and that he has
damaged materials in the course of his work and has never been
disciplined or required to document this fact in any way.
Donald Stagg testified that he had never complained to
Johnston about Brian Johnson’s work schedule, and, in fact, he
personally presented one of the petitions to Johnston protesting
the change in Johnson’s work schedule. Nor has Stagg ever
been requested to bring in a doctor’s excuse or statement when
he has taken time off to visit the doctor or dentist.
Stagg testified that the day before Thanksgiving he heard
John Dykes say to a group of employees that everyone needed
to stay until a truck had been loaded. He does not know
whether Newcombe or Johnson were in that group. Stagg did
remain, along with others, until the truck was loaded. Accord-
ing to Stagg there were plenty of people there to load the truck.
Johnson, who was generally responsible for the crating of
products for shipping, had made the cardboard packaging mate-
rial for the hood and remained until about 4:45 p.m., during
which time he showed some of the employees how the packag-
ing material should be placed around the hood for protection
during shipping. Stagg testified that it was very rare for John-
son to work overtime, and he did not do so on a regular basis,
but only when his schedule permitted.
Stag also was asked to meet with Attorney Willoughby the
day before the hearing. The meeting took place in an office at
the Respondent’s shop. Stagg testified that he was not advised
by Willoughby that the meeting was voluntary; nor was he
given assurances against reprisals if he elected not to discuss
the matter.
Shop Forman Bardo Miller testified that he worked with em-
ployees Shannon Leedall and Kelly Martin to a limited extent
and that they seemed to be doing “fine.” Miller never com-
plained about Johnson’s work schedule. Miller testified that he
was asked to meet met with Attorney Willoughby prior to the
hearing and was interrogated by him regarding the issues in this
proceeding. He was not told that the meeting was voluntary,
nor was he given any assurances against reprisal. Miller did
remain until the truck was loaded at about 5:15 or 5:30 p.m. He
testified that the work of wrapping, boxing, banding and load-
ing the hood on the truck would require, at the most, two em-
ployees, as these jobs are sequential. Some employees stayed
later than 5:30 p.m. that evening, and started preparing work for
the next workday.
Ashley testified that he has never complained to Johnston
about Johnson’s being unable to work beyond 4:30 p.m.13 Dur-
ing his 7 years of employment he occasionally ground through

13 Sanchez testified similarly.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1196
liners and worked on other products that developed defects and
had to be repaired. He was never required to document the fact
that repairs had to be made on these items.
Novella Marvel is the Respondent’s office manager, Marvel,
testified that according to the Respondent’s bills of lading,
there were three shipments to three different customers that
went out on the evening of November 26. One shipment con-
tained three units or items, one contained eight, and the third
contained only one unit. All were picked up by the same truck-
ing company in the same truck.
Marvel testified that according to the Respondent’s time
cards, reflecting the employees’ clock-out times on November
26, seven employees remained after 4:30 p.m. Both Newcombe
and Johnson clocked out at 4:45 p.m. The other five employees
clocked out that evening at times between 5 p.m. and 5:45 p.m.:
Eric Odom clocked out at 5 p.m.; Don Stagg and Steve Douglas
clocked out at 5:30 p.m.; and Bart Miller and Leonard Sawyer
clocked out at 5:45 p.m.14 Marvel testified that Stagg is the
employee who signed the invoices for shipping the orders, thus,
the orders had been shipped by 5:30 p.m., the time he clocked
out.
Marvel testified that one morning she asked several employ-
ees about not clocking out on the prior evening. It is part of her
job to see that employees clock in and out. Marvel testified that
on this occasion she approached Don Stagg and asked him,
“Are you sure you didn’t leave early to go to the meeting.” She
knew the employees were having a meeting the evening before,
but she was not certain what the meeting was about. Stagg
replied that he had not left early and believed that he had
clocked out at 6:30 p.m. Marvel did not recollect the date on
which this occurred, and testified that it could have occurred on
September 23, the day after Business Representative Hill had
met with Johnston.
William Lawrence has been employed by the Respondent
since September 1997. He testified that he was hired on a
Thursday by Johnston, and believes he was hired on the same
date as Leedall and Martin were hired. Lawrence testified that
during the employment interview by Johnston he was told that
Johnston would meet with him again the following Thursday to
see how he was doing. Lawrence believed that this constituted
a 1-week probationary period. Since then he has had eight or
nine evaluation periods after successive weeks. On October
10, 1997, he was asked by Johnston to sign the following
document, dated October 3:

I, Bill Lawrence, understand that I am not guaranteed a full
time position until my probation period is over, which shall be
on a week to week basis and be determined by the President
of MJ Metal Products, Inc.

Production Manger John Dykes has been employed by the
Respondent for 8 years. Dykes testified that on November 26,
the day before Thanksgiving, he was instructed by Johnston
that the hood needed to be shipped that evening in order to be
delivered to the customer on the promised date. Dykes testified
that, “I went out and told Jay [Newcombe] that we needed to
get the truck loaded today, it had to leave today, and that no-

14 The timeclock records are based on 7-minute segments, and are
rounded off to the nearest quarter hour. Thus, the employees may have
an actually clocked out as much as 7 minutes before or after the stated
time.
body was to leave until the truck was loaded.”15 Newcombe,
according to Dykes, replied that his children were being
brought to the shop at 4:30 p.m. and that he needed to leave
when the kids got there. Dykes then repeated that, “[N]obody
leaves until the truck is loaded.” At about 4:40 or 4:45 p.m.,
however, Dykes discovered that Newcombe had left. Dykes
was working in Johnson’s area at the time, and Johnson, who
was still working, told him that all that needed to be done was
to wrap the hood and band it down to the pallet, and that he was
leaving. Dykes said that nobody was to leave until the truck
was loaded. However, Johnson left shortly thereafter, prior to
the time the truck arrived. Dykes testified that he remained
until the truck was loaded (there were approximately 12 pallets
or boxes that were loaded onto the truck) and left the shop for
the day at between 5:20 and 5:25 p.m. According to Dykes, the
assistance of Johnson and Newcombe was needed to help with
the wrapping and banding of the hood and the loading of the
truck, and there were no people standing around with nothing to
do. When the truck arrived part of the remaining crew was
loading the truck while the others were completing the wrap-
ping and banding of the items on the pallet. No unforeseen
problems were encountered.
Dykes testified that at 5:20 p.m. he was asked by one of the
other team leaders whether he could let some of the crew leave
and go home; at this point there were only three or four pallets
remaining to be loaded on the truck. Dykes said yes. Thus,
Dykes testified that no one was given permission to leave be-
fore 5:20 p.m. Dykes further testified, on cross-examination,
that since Johnson and Newcombe had been terminated for
leaving early he would expect that everyone who left early
(prior to 5:20 p.m.) should also have been terminated. How-
ever, upon looking at the aforementioned timecards, Dykes
testified that, “[W]e might have let [Eric Odom] go earlier be-
cause he was not fully experienced in completing that. He
stayed until we let him go.” Odom’s timecard shows that he left
sometime before 5 p.m. Dykes does not remember specifically
telling Odom he was free to leave, although he stated that he
“apparently” told Odom he could leave, Dykes testified that
after Johnson and Newcombe left there were five employees
remaining to help load the truck, and Dykes felt that Odom,
who had been employed by the Respondent for “possibly” a
month, didn’t have the experience to help. Odom had been
there for “possibly a month.” The record shows that Odom was
promoted to team leader and then to shop foreman, in charge of
all the shop employees, in about December or early January
1998.
The next workday, Friday, Johnston asked Dykes what he
had told the men in the shop about remaining on the job, and
specifically asked what instructions Dykes had given to New-
combe and Johnson. Dykes said that he had told them to re-
main until the truck was loaded. Thereupon, Johnston said that
he wanted to speak with them when they arrived at work that
day, and advised Dykes that he was going to let them go for
insubordination. Dykes was not present during Johnston’s
separate discharge meetings with Newcombe and Johnson.
Dykes testified that he had heard that some of the employees
were talking about bringing the Union in, and asked several of
them, “just as a friend,” whether they had attended a union
15 He also gave the same instructions to the other employees and tes-
tified that he so instructed the employees, some individually and some
in groups, at 4 p.m.
M.J. METAL PRODUCTS 1197
meeting and were intending to go union. He asked Stagg,
Miller, and possibly Newcombe these questions. Thereafter,
he informed Johnston that he had asked the employees about
the Union and whether they intended to go union.
On the Friday that both Newcombe and Ashley called in
sick, Dykes was ordered by Johnston to go to their homes, as
neither of them had phones, and let them know that they were
needed the next day at work, and, further, that if they were not
going to be able to make it the next day, Saturday, they would
need a doctor’s excuse for Friday; however, according to
Dykes, they were to bring a doctor’s excuse for Friday even if
they worked on Saturday.16 They told him okay. It was un-
usual for two leadmen to call in sick on the same day. The
Respondent’s policy manual states that, “Frequent absences
will require documentation such as a physicians statements.”
Newcombe and Ashley, however, had missed only that 1 day.
Johnston, president of the Respondent, testified that he hired
Leedall and Martin on September 17. Both of them were pri-
marily working under Bart Miller, although Newcombe also
was in charge of their training. Johnston told them not to worry
about their lack of experience as they would be trained on the
job. Johnston testified that he did not know that Johnson had
been the employee who initially contacted the Union, and he
was not aware of any union activity until September 22, when
he was paid a visit by Business Agent Hill. He recalls inform-
ing Hill that he would never be a union shop. It was not until
Johnson and Newcombe testified on behalf of the Union at the
representation hearing that he became aware that these employ-
ees were supporters of the Union.
Johnston testified that he changed Johnson’s work schedule
from 10 a.m. until 6:30 p.m. shortly after the visit from Hill
because, beginning 2 years prior to this time, as the Respondent
got busier, Johnston was starting to get complaints from other
employees. Throughout this period of time Johnston had al-
ways informed Johnson that he needed to remain on the job
beyond 4:30 p.m., because the very nature of his work, finish-
ing and polishing the products and loading them on the trucks,
was work that was performed during the latter part of the day,
and Johnson would rarely work after 4:30 p.m. According to
Johnston, “I had been working with him for years and I did
finally make the decision that I need him on that [10 a.m. to
6:30 p.m.] shift mainly because of all the other employees stat-
ing that they are having to stay to cover for [Johnson].” Thus,
his schedule was changed, in part, because of complaints by
other employees. Johnston testified that Newcombe, Ashley,
and Dykes were the primary individuals who had complained to
him about Johnson’s schedule, and that they voiced their com-
plaints over a period of several years; Newcombe’s latest com-
plaint was about 4 or 5 months prior to the date that Johnson’s
schedule was changed.
Johnston testified that after his conversation with Hill on
September 22, he told Miller that he had been visited by the
business agent and wondered what was going on. He told
Miller the Respondent would never be a union shop.
Johnston testified that he informed Bill Britz about the union
activity, and told him that he was disappointed with the em-
ployees and that he had no idea which employees were most
active in promoting the Union.

16 While this instruction to them seems rather incongruous, Dykes
insisted that this is what he was instructed to tell them.
According to Johnston, Leedall and Martin were discharged
because they did not perform satisfactorily during their 1-week
trial period: They could not read a tape measure to the neces-
sary increments of sixteenths and thirty-seconds of an inch;
they were slow; and they broke too many drill bits. Also, at the
time the Respondent was busy and “needed the extra help crat-
ing, packaging, boxing, banding, riveting.” Johnston made this
decision on his own and did not consult with anyone else in the
shop about their work, although he “might have” talked to
Dykes about it. He observed their work about 10 percent of
the time when he was out in the shop.
Johnston testified that he discussed the union activity with
Risberg and that Risberg might have speculated about which
employees were promoting the Union. At first Johnston testi-
fied that Risberg did not tell him that he, Risberg, was speaking
to employees about the Union. When shown his affidavit indi-
cating that in fact he knew that Risberg was going to or had
talked with employees about the matter, Johnson stated that his
affidavit was correct, but nevertheless was unable to recall the
details of their conversations. Further, Johnston testified that
he told Risberg not to speak with the employees on Johnston’s
behalf.
Regarding his conversations with Britz about the matter,
Johnston testified that he informed Britz of the union activity,
and that whatever Britz did was up to him but “the company is
not telling him to say a word to them.” After the fact Britz
might have informed him of the telephone conversation with
Ashley, including the fact that Britz had offered to act as an
arbitrator in order to resolve the employees’ problems. Johns-
ton told Britz, however, that he did not want to know about any
conversations Britz may have had with the employees. Johns-
ton denies telling Britz that Newcombe, Johnson, and Ashley
were the union instigators.
Johnston testified that product damage is not an unusual oc-
currence at the shop, and prior to the instant occasion herein he
has never before asked an employee to document having dam-
aged a product. However he documented this incident because
he “pretty much” felt that Johnson was sabotaging the work and
that it was union-related as, “[I]t was really strange that [John-
son] would all of a sudden grind through a liner, you know, for
the first time in I don’t know how many years, and all of a sud-
den he grinds through it.” According to Johnston, this was a
very unusual circumstance, as Johnson is a very good finisher.
Johnston testified that he believed that Johnson had ground
through the liner on purpose because, “He probably wasn’t too
happy with what he was doing or what he was doing . . . this
was right in the middle of . . . everybody’s upset and arguing
and not getting along . . . [about] union stuff,” and “It probably
wouldn’t have happened” had the Union not been on the scene.
Further, Johnson testified that he required a doctor’s slip
from both Ashley and Newcombe because “it was kind of
strange that both [team leaders] were gone at the exact same
day.”
Finally, Johnston testified that both Newcombe and Johnson
were fired for insubordination, namely, disobeying Dykes’
direct order that they remain at work that day until the truck
was loaded.
C. Analysis and Conclusions
Immediately upon being confronted with the Union’s de-
mand for recognition on September 22, the Respondent’s man-
agers and supervisors began interrogating employees regarding
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1198
their attendance at union meetings and their support for the
Union. In this regard I credit the testimony of employees
Stagg, Miller, and Tasler. At this point the employees had not
yet identified themselves as union adherents. Nor has the Re-
spondent provided any evidence which would warrant the con-
clusion that such interrogation was not coercive in nature. Ac-
cordingly, I find that by such conduct the Respondent has vio-
lated Section 8(a)(1) of the Act as alleged.
Further, I find that on September 23, Johnston told Miller
that if the employees wanted to go union he would hire jour-
neymen sheet metal workers and that the current employees
would all become apprentices, and that his company Johnston
would never be union. The first statement constitutes, I find, a
specific threat of adverse action by, in effect, demoting em-
ployees to apprentice positions, and the second statement con-
stitutes interference with the employees’ right to select a union
as their collective-bargaining representative, as it tends to em-
phasize the futility of such activity. By such statements, the
Respondent has violated Section 8(a)(1) of the Act.
I find that the abrupt change in Johnson’s work schedule on
the day following the Union’s demand for recognition was
imposed by Johnston in retaliation for Johnson’s suspected
union activity. Thus, the timing of the change directly coin-
cided with the visit from the Union’s business agent; Johnson,
in order to care for his son, had been permitted to work the
earlier shift, from 8 a.m. to 4:30 p.m., for some 8 years even
though there may have been isolated, infrequent complaints
about his schedule; and some 10 days or so earlier, prior to the
union activity, Johnston had prepared a new schedule wherein
he changed the schedules of others but not of Johnson, thus
showing that he was agreeable to having Johnson continue
working the earlier shift as he had done in the past. Accord-
ingly, I conclude that the change in Johnson’s schedule is viola-
tive of Section 8(a)(1) and (3) of the Act.
Regarding the summary dismissal of recent hires Leedall and
Martin after only 1 week of employment, I credit their testi-
mony and find that they were told by Johnston that prior ex-
perience was not a problem and that they would be trained on
the job. Moreover, I find that they were not told of a 1-week
probationary or evaluation period, and that they were able to
satisfactorily perform the work they had been given and to and
read a tape measure with the requisite accuracy. It is signifi-
cant that Newcombe and Miller, the two group leaders who had
been assigned to train them and oversee their work, were of the
opinion that they were performing at least satisfactorily. Fi-
nally, their discharge took place 3 days following the Union’s
request for recognition, and 1 day following hat day, the day
that both Leedall and Martin wore union hats to work and made
their union adherence known to the Respondent. I do not credit
the testimony of Johnston, and find that the various reason he
gave for their discharge are not substantiated by the credible
record evidence. Indeed, even if they had been told that they
were to be evaluated after 1 week, which, I have found, is not
the case, there still would have been no reason to discharge
them as their work, I find, was not deficient.17
I therefore find that the General Counsel has presented a
prima facie case in support of the complaint allegation that

17 Accordingly, it appears unnecessary to make a credibility resolu-
tion regarding the testimony of employee William Lawrence to the
effect that he was advised by Johnston of a 1-week evaluation period
upon being hired.
Martin and Leedall were discharged as a result of their know
union adherence, and that the Respondent has not met its bur-
den of proof under Wright Line18 by demonstrating that Leedall
and Martin were discharged for legitimate nondiscriminatory
reasons. Accordingly, I conclude that by discharging Leedall
and Martin the Respondent has violated Section 8(a)(1) and (3)
of the Act.
I conclude that Johnston changed his mind about permitting
Sanchez to leave work an hour early on September 25 to attend
the La Maze class because of Sanchez’ union activity. Thus,
prior to the union activity Johnston had given permission to
Sanchez to take the time off, and it was on hat day, while San-
chez was wearing his union hat, that Johnston reneged on this
commitment, telling Sanchez that everybody was on a set
schedule because that’s the way everybody wanted it. Insofar
as the record shows, the only intervening occurrence between
the time permission was granted and the time it was retracted
was the advent of the Union in general and the identification of
Sanchez as a union adherent in particular. The Respondent has
not demonstrated that Johnston’s retracting of his prior agree-
ment was for legitimate business considerations. Accordingly,
by such conduct I find that the Respondent has violated Sec-
tion 8(a)(1) and (3) of the Act.
I credit the testimony of Johnson and Newcombe and find
that grinding through liners of the type involved herein was an
unavoidable occurrence that happened with some regularity due
to the nature of the manufacturing process, and that the incident
on September 29 was no different that many other such in-
stances. Thus, Johnson had ground through such liners on
numerous occasions in the past, prior to the union activity
herein, and had never been required to document such occur-
rences. Indeed, Johnston testified that he became suspicious of
Johnson after his union adherence became evident, and was
concerned that Johnson, apparently on behalf of the Union,
might be engaged in some sort of sabotage. There is no evi-
dence that Johnston’s alleged suspicions were justified. I find
that the record evidence demonstrates that requiring Newcombe
and Johnson to document the foregoing incident was motivated
by their known union adherence. Accordingly, I conclude that
by such conduct the Respondent has violated Section 8(a)(1) of
the Act.
Similarly, it is clear that the requirement that Newcombe and
Ashley bring doctor’s slips for their absence from work on
October 3, was occasioned by their union activity. Both of
them were known union adherents as they wore union hats on
hat day, both had missed work on prior occasions and had
never been required to submit a doctor’s note, and the Respon-
dent’s express policy in its policy manual was to require such
documentation only for “frequent absences.” Further, Dykes
told Ashley that Johnston, by requiring a doctor’s slip, was
going by a “new book,” apparently meaning a new set of rules,
and the Respondent has not demonstrated any legitimate ration-
ale or purpose for instituting a new set of rules at that particular
time. While the Respondent takes the position that the doctor’s
slip was required in this instance because it was highly unusual
for two team leaders to be absent on the same day, there has
been no showing that their absences were bogus or occasioned
by anything other than legitimate illness. Moreover, as with
83).
18 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S.989 (1982), approved in NLRB v.
Transportation Management Corp., 462 U.S. 393 (19
M.J. METAL PRODUCTS 1199
Respondent’s documentation of Johnson’s work on the occa-
sion when he ground through a liner, it appears that Johnston
was operating under the assumption that anything he consid-
ered to be “unusual” must necessarily be union-related and that
Newcombe and Ashley, by their absences, were perhaps en-
gaged in some sort of conspiracy to affect the Respondent’s
production. Clearly, this was not the case. Accordingly, I find
that by requiring the employees to sign a doctor’s slip under
these circumstances the Respondent has violated Section
8(a)(1) of the Act.
The discharge of Newcombe and Johnson on November 28,
3 days after the representation election, allegedly for insubordi-
nation in failing to remain after their scheduled working hours
until a truck had been loaded, follows the same pattern as the
other instances of discriminatory conduct found herein. Thus,
Newcombe and Johnson were known to be active union adher-
ents, and both testified on behalf of the Union during the repre-
sentation hearing on October 7. I credit their testimony herein
and find that both had refused to work late on previous occa-
sions and, prior to the advent of the Union, had suffered no
adverse repercussions for such refusals. Both were long-term
employees of the Respondent with responsible positions and
there is no evidence that their work records were other than
highly satisfactory. Moreover, each of them had a legitimate
excuse for leaving work early as, believing they were to work
only until 4:30 p.m. that day, they had made prior arrange-
ments; nor were they advised until shortly before quitting time
that they were to remain at work. Indeed, even then they at-
tempted to accommodate the Respondent by remaining as long
as possible.
Further, the employees remaining thereafter had no problems
with the work that was to be done, and it appears that there
were more than enough people to complete the job. Indeed,
Dykes testified that he let two of these employees leave early,
before the truck had been loaded. Finally, one employee,
Odom, left early at or prior to 5 p.m., without Dykes’ permis-
sion, and that employee was not discharged or, insofar as the
record shows, even disciplined. The Respondent’s rationale for
such disparate treatment, namely, that Odom was a relatively
new employee and was not experienced in wrapping, packag-
ing, and loading, seems to be a rather feeble contention and is
not substantiated by the record. Thus, as the record evidence
clearly shows, the processes of wrapping, packaging, and load-
ing are simplistic manual tasks that take no particular skill and
experience; and if Odom should have had a problem with such
work there were more experienced workers around who could
advise him, for example, of the proper methodology for carry-
ing a box onto a truck.
Finally, during Johnston’s discharge conversation with New-
combe, Johnston told him that, “Well, now that this union crap
is behind us, things are going to start changing . . . I can’t go
back to the way things were . . . . You’re going to have to de-
cide what’s more important: either my shipment going out on
time [or] your wife’s going to work.” Thus, Johnston was, in
effect, telling Newcombe that the “union crap” was the catalyst
that mandated a change in policy and precluded Johnston’s
returning to the preunion policy of permitting employees to
refuse to work overtime. Clearly, this implies that the dis-
charge of Newcombe and Johnson would not have happened
absent the intervening union campaign.
On the basis of the foregoing, I find that the General Counsel
has presented a prima facie case indicating that the Respon-
dent’s discharge of Newcombe and Johnson was motivated by
their union activity, and that the Respondent has not satisfied its
requisite burden of proof under Wright Line, supra, by provid-
ing persuasive contrary evidence that Newcombe and Johnson
were discharged for valid business considerations. Accord-
ingly, I find that the discharges of Newcombe and Johnson are
violative of Section 8(a)(1) and (3) of the Act, as alleged.
The telephone conversation between Britz and Ashley took
place after hat day, apparently in late September. I credit the
account given by Ashley, who appeared to have a vivid recol-
lection of the conversation, and I do not credit the testimony of
Britz insofar as it conflicts with Ashley’s recollection.
While both Britz and Johnston denied that that the two of
them contrived to have Britz phone Ashley and/or Newcombe,
I find that under all the circumstances Ashley could have rea-
sonably believed that Britz was speaking for and acting on
behalf of the Respondent. Thus Britz , a primary customer and
admitted confidante of Johnson’s, offered Ashley his services
as an arbitrator of the issues dividing the Respondent and the
employees, and related to Ashley that Johnston had told him
that Johnson, Newcombe, and Ashley were the leaders of the
union movement. Thereafter, Britz admittedly made Johnston
aware of the conversation. Further, in early October, Johnston,
who at the time was aware of Britz’ contact with Ashley, in-
troduced Britz and thanked him for attending the employee
meeting during which Johnston attempted to persuade the em-
ployees that the Union was not in their best interests. At no
time did Johnston make an attempt to disavow Britz’ remarks
or advise Ashley or the other employees that he had not author-
ized Britz to speak for the Respondent. Accordingly, I con-
clude that Britz’ remarks may be attributed to the Respondent.
Technodent Corp., 294 NLRB 924 (1989); Allegheny Aggre-
gates, Inc., 311 NLRB 1165, 1166 (1993).
I further find that certain of Britz’ remarks, attributable to the
Respondent, are violative of Section 8(a)(1) of the Act. Thus,
the identification of the three employees as leaders of the union
movement, under the circumstances, is inherently coercive in
nature. Moreover, Britz’ request to act as an arbitrator may be
reasonably understood as an implied promise to resolve the
employees’ problems to their satisfaction without the interven-
tion of the Union.
I credit the testimony of Newcombe and find that under all
the circumstances Newcombe could have reasonably believed
that Risberg, during the conversation at his home, was speaking
for and acting on behalf of the Respondent. During the conver-
sation Risberg attempted to impress upon Newcombe that un-
ionization would result in the sale and closure of the Respon-
dent’s business in Casper. To emphasize this point, Risberg
produced certain bank documents showing that the Respondent
had sometimes overdrawn its bank account, and said that he
had obtained them from Johnston’s desk. It is significant that
the Respondent did not proffer any evidence tending to show
that these documents, clearly confidential in nature, were sur-
reptitiously removed or were not voluntarily provided to Ris-
berg for the express purpose of causing Newcombe or other
employees to believe the scenario presented by Risberg. In the
absence of such evidence, I do not credit the testimony of Ris-
berg that he was acting upon his own volition and had not been
authorized and solicited by Johnston to approach the employees
and, in effect, threaten them with the closure of the Respon-
dent’s shop in the event they did not discontinue their advocacy
of the Union. Accordingly, I find that based on the record as a
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1200
whole, Risberg’s remarks may be attributed to the Respondent,
and that by such statements the Respondent has violated Sec-
tion 8(a)(1) of the Act as alleged. See Technodent Corp., supra;
Allegheny Aggregates, Inc., supra.
It is alleged in the complaint that the foregoing unfair labor
practices are so serious and substantial in character as to war-
rant the issuance of a bargaining order, and that at all times all
times since September 22, the Union, having obtained authori-
zation cards from 13 of approximately 15 unit employees, has
been and is the exclusive collective-bargaining representative
of the Respondent’s employees. It is further alleged that since
September 22, the Respondent has violated Section 8(a)(5) and
(1) of the Act by refusing to bargain with the Union, and that
since on or about November 26, the Respondent has violated
Section 8(a)(5) and (1) of the Act by unilaterally changing its
overtime policy without first giving notice to the Union and
providing the Union with an opportunity to bargain over such
change.
I agree that the unfair labor practices found herein, beginning
simultaneously with the Union’s request for recognition, are
sufficiently serious and pervasive to warrant a remedial bar-
gaining order. Such unfair labor practices include threats that
the Respondent would sell and shut down its Casper operations
and the unlawful discharge of four employees comprising over
20 percent of the employees in the bargaining unit. Moreover,
the Respondent’s unlawful treatment of Johnson, by knowingly
changing his work schedule in a manner designed to interfere
with his ability to provide care for his seriously ill son, after
accommodating Johnson in this regard for many years, is par-
ticularly egregious and sends a clear message to the employees
that serious adverse repercussions will follow their selection of
the Union as their bargaining agent. Such violations, I find,
are not likely to be remedied by the Boards traditional remedies
short of a bargaining order, as they are likely to have a long
term coercive impact on the employees’ freedom of choice
under the Act. NLRB v. Gissel Packing Co., 395 U.S. 575
(1969); Carter & Sons Freightways, Inc., 325 NLRB 433
(1998); Garney Morris, Inc., 313 NLRB 101 (1993). Accord-
ingly, I shall recommend a remedial bargaining order herein, in
the event the determinative challenged ballot of employee
Leedall has not been cast for the Union.19
Finally, I credit the unrebutted testimony of various employ-
ees who stated that upon being required to be interviewed by
the Respondent’s attorney during his preparation for this pro-
ceeding the employees were not given the appropriate safe-
guards consistent with the requirements of Johnnie’s Poultry
Co., 146 NLRB 770 (1964), enf. denied 344 F.2d 617 (8th Cir.
1979). By such conduct the Respondent has violated Section
8(a)(1) of the Act.
D. The Representation Proceeding
As noted above, the ballot of Shannon Leedall, who had
been discharged by the Respondent prior to the representation
election herein, was challenged by the Respondent . The tally

19 I do not find that the Respondent has made certain alleged unilat-
eral changes in violation of the Act. Thus, the deviations by the Re-
spondent in any of its established policies appear to be isolated in-
stances designed to retaliate against individual employees, and are
remedied herein.
of ballots issued after the election shows that six votes were
cast for and six votes were cast against the Union, and that the
ballot of Leedall is determinative of the results of the election.
Having found that Leedall was discriminatorily discharged
prior to the election, it follows that he was an eligible unit em-
ployee at the time of the election. I therefore recommend that
Leedall’s ballot be opened and counted and that an appropriate
certification be issued.
In the event that Leedall’s ballot has not been case in favor
of the Union and, further, if the Board refrains from imposing
upon the Respondent the recommended bargaining order found
herein to be necessary under the circumstances, then I recom-
mend that the election previously conducted herein be set aside
and a second election be conducted, as the election objections,
which are identical to the unfair labor practices found herein to
have occurred prior to the election, are clearly meritorious.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Respondent has violated Section 8(a)(3) and (1) of
the Act by the conduct found unlawful herein.
4. The Respondent’s violations of the Act mandate a bar-
gaining order remedy under Gissel Packing Co., supra.
THE REMEDY
Having found that the Respondent has violated and is violat-
ing Section 8(a)(1) and (3) of the Act, I recommend that it be
required to cease and desist therefrom and from in any other
manner interfering with, restraining, or coercing its employees
in the exercise of their rights under Section 7 of the Act. Fur-
ther, the Respondent shall be required to offer employees Jay
Newcombe, Brian Johnson, Shannon Leedall, and Kelly Martin
immediate and full reinstatement to their former positions of
employment and make them whole for any loss of wages and
other benefits they may have suffered by reason of Respon-
dent’s discrimination against them in the manner prescribed in
F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as
computed in New Horizons for the Retarded, 283 NLRB 1173
(1987).
Having found that the Respondent should, under the circum-
stances herein, be required to recognize and bargain with the
Union as the exclusive collective-bargaining representative of
its employees in an appropriate bargaining unit, the remedy
herein shall include a provisional bargaining order that shall
become effective in the event a majority of ballots in the repre-
sentation matter herein has not been cast for the Union.
In addition, the Respondent shall be required to post an ap-
propriate notice, attached as an “Appendix.”20
[Recommended Order omitted from publication.]
20 The notice should be modified accordingly in the event the Union
prevails in the election and the bargaining order is therefore no longer
necessary.