MK Railway Corp.

National Labor Relations Board - Board Decisions

Oct 19, 1995

319 N.L.R.B. 337 (N.L.R.B. 1995)

337
319 NLRB No. 49
MK RAILWAY CORP.
1 The General Counsel’s cross-exception asserts that the judge in-
correctly found, in sec. II,B, par. 6 of his decision, that employee
Joseph Healy testified that Vice President Gregg Lucier’s threat to
relocate work to Mexico was made ‘‘soon after he [Healy] observed
a sign posted in the employee toolcrib reading, ‘VOTE YES AND
LOSE YOUR JOB TO MEXICO,’’’ but that Healy in fact testified
that Lucier’s statement occurred right before Healy observed the
posted sign. We have reviewed the record and find merit in the Gen-
eral Counsel’s cross-exception and shall accordingly correct the
judge’s erroneous finding which has not affected our decision.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolution unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d
363 (3d Cir. 1951). We have carefully examined the record and find
no basis for reversing the findings.
1All dates are in 1994, unless otherwise indicated.
2 The findings of fact made in this case are based on a compilation
of the credited testimony, exhibits, and stipulations of fact, viewed
in light of logical consistency and inherent probability. Although
these findings may not contain or refer to all of the evidence, all
has been weighed and considered. To the extent that any testimony
or other evidence not mentioned in this decision may appear to con-
tradict my findings of fact, I have not disregarded that evidence but
have rejected as not credible, lacking in probative weight, surplus-
age, or irrelevant. Credibility have been made on the basis of the
entire record, including the inherent probabilities of the testimony
and the demeanor of the witnesses. Where required, I have set forth
specific credibility findings.
3 Lucier was no longer employed by Respondent as of the date of
the hearing.
MK Railway Corporation and International Union
of Operating Engineers, Local 542, AFL–CIO.
Cases 4–CA–23222–1 and 4–RC–18429
October 19, 1995
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN GOULD AND MEMBERS COHEN
AND TRUESDALE
On July 21, 1995, Administrative Law Judge George
Alema
´
n issued the attached decision. The Respondent
filed exceptions and a supporting brief, the Charging
Party Union filed an answering brief, and the General
Counsel filed a cross-exception and a brief in support
of the judge’s decision.
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 exceptions1 and briefs and has
decided to affirm the judge’s rulings, findings,2 and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, MK Railway Corporation,
Mountaintop, Pennsylvania, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Order.
[Direction of Second Election omitted from publica-
tion.]
DECISION
STATEMENT OF THE CASE
GEORGE ALEMA
´
N, Administrative Law Judge. This case
was tried before me in Mountaintop, Pennsylvania, on Feb-
ruary 8 and 9, 1995, based on a charge filed on October 25,
1994, amended on December 21, 1994, and a petition for a
representation election filed on August 5, 1994,1 by the
Union, International Union of Operating Engineers, Local
542, AFL–CIO. A complaint in this matter was issued on
December 29, 1994, by the Acting Regional Director for Re-
gion 4 of the National Labor Relations Board (the Board),
alleging that MK Rail Corporation (the Respondent), violated
Section 8(a)(1) of the National Labor Relations Act (the Act)
by threatening employees with job loss and a relocation of
work to Mexico if they selected the Union as bargaining rep-
resentative, and violated Section 8(a)(3) and (1) by discharg-
ing an employee, Joseph Laird, for engaging in union activi-
ties. The Respondent’s threat is alleged to constitute objec-
tionable conduct affecting the results of the election in Case
4–RC–18429. By order dated January 11, 1995, the Regional
Director consolidated Cases 4–CA–23222–1 and 4–RC–
18429 for hearing. Thereafter, the Respondent filed an an-
swer dated January 12, 1995, admitting some and denying
other allegations in the complaint, and denying the commis-
sion of any unfair labor practices. On February 7, 1995, the
Regional Director issued an order approving partial with-
drawal of the charge and dismissing the complaint allega-
tions pertaining to the Laird discharge.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the General Counsel, the Union, and the Respondent,
I make the following
FINDINGS OF FACT2
I. JURISDICTION
The Respondent is a Delaware corporation engaged in the
remanufacture of locomotives at its facility in Mountaintop,
Pennsylvania. During the past year, the Respondent, in the
conduct of the above operation, sold and shipped goods val-
ued in excess of $50,000 directly to points outside the Com-
monwealth of Pennsylvania. The Respondent admits, and I
find, that it is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act. It further
admits, and I find, that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Allegations
The complaint, as noted, alleges that the Respondent,
through former senior vice president for operations, Greg
Lucier,3 violated Section 8(a)(1) of the Act, and engaged in
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338 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 G.C. Exh. refers to General Counsel’s exhibits; R. Exh. to Re-
spondent’s exhibits; and C.P. Exh. to Charging Party’s exhibits.
5 The Respondent previously operated as the locomotive division
of Morrison Knudson Corporation.
6 As of the date of the hearing, Lucier was no longer employed
by Respondent. 7 The notice posting is not alleged as an unfair labor practice.
objectionable conduct, by threatening to transfer work from
its Mountaintop facility to its Mexico facility if employees
selected the Union as their collective-bargaining representa-
tive. Resolution of this issue requires that the following two
questions be answered: (1) Did Lucier make the statements
attributed to him by the General Counsel; if so, (2) did the
statement unlawfully interfere with, restrain, or coerce em-
ployees in the exercise of their Section 7 rights. The answer
to the first question depends on which version of events is
the more credible, that provided by the General Counsel’s
witnesses, principally Joseph Healy, or that of the several
witnesses who testified on Respondent’s behalf.
B. Facts4
In April 1994, the Respondent became engaged in the
business of remanufacturing full-size locomotives in Moun-
taintop, Pennsylvania.5 The Respondent also owns and oper-
ates other facilities in Boise, Idaho, and San Luis Potosi,
Mexico. Its Boise facility performs work similar to that done
at Mountaintop, while its Mexican facility is primarily en-
gaged in operation and maintenance of locomotives for the
Mexican government. At all times relevant to this proceed-
ing, the Respondent was under contract to rebuild or remanu-
facture approximately 72 locomotives owned by Southern
Pacific Railroad (the SP contract). The ‘‘rebuilding’’ process
involved an assembly line type procedure in which a loco-
motive would pass through nine different stations or ‘‘spots’’
in the Respondent’s Mountaintop facility where it would be
broken down into component parts, power-washed, stripped
of paint, and then, utilizing welders, electricians, and other
workers, structurally built up again, with the entire process
ideally expected to take approximately 66 days. The Re-
spondent’s complement of employees numbered approxi-
mately 300.
On August 5, the Union petitioned the Board for an elec-
tion seeking to represent all of Respondent’s full-time and
regular part-time production and maintenance employees. An
election was thereafter held on September 29 and 30, which
the Union lost by approximately 28 votes. On October 7, the
Union timely filed the above-mentioned objection to the
election and, on December 21, it filed the charge alleging
that such conduct also violated Section 8(a)(1).
Prior to the election, both the Union and Respondent cam-
paigned actively for employee support. The record reflects
that as part of its campaign, the Union held various em-
ployee rallies and distributed literature to employees (see R.
Exh. 3), while the Respondent, for its part, held meetings
with employees during which it sought to convince employ-
ees that a union was not needed at Mountaintop. It is alleged
that during one such meeting, the Respondent, through its
vice president of operations, Gregory Lucier,6 made the com-
ment which is the basis for the charge, and for the conduct
alleged as objectionable in the representation case.
1. Testimony of employee Healy and Union Agents
Carlos Smith and Joseph Giacin
Healy has been employed as a welder by the Respondent
since February 1993, on its second shift which runs from
3:30 p.m. to 12 a.m. He testified that in August 1994, soon
after the Union filed its petition for an election, the Respond-
ent held a meeting with all second-shift employees at its caf-
eteria, which Healy described as an antiunion meeting. Ac-
cording to Healy, approximately 60 employees attended this
meeting, which began about one-half hour after the start of
his shift, and lasted about one-half hour. Present at this meet-
ing on behalf of management were Lucier, and Plant Man-
ager James Fote. Following Fote’s introduction, Lucier, ac-
cording to Healy, began telling employees that ‘‘he had 3
million or 30 million invested in MK Rail,’’ and that ‘‘he
was going to get his money back out.’’ He further told them
about Respondent’s other affiliates located in Cornell, New
York, Boise, Idaho, and in Mexico, after which he began dis-
cussing the Union. According to Healy, Lucier stated that ‘‘if
the Union came in, he’d have to look at one of his other op-
tions, and that would be diverting work to Mexico.’’ Healy
recalled that when one employee, whom he believed to be
employee Bob Black, asked why Lucier would divert work
to Mexico, Lucier simply replied, ‘‘cheaper labor’’ (Tr. 11).
Healy admitted he could not recall Lucier’s exact words but
that the above represented the gist of what he told employees
during that August meeting. On cross-examination, Healy
stated that Lucier generally described the other plants where
work could go, and expressed the view that a union was not
needed at Mountaintop.
Although Healy was unable to pinpoint the exact date of
the August meeting, he was certain it occurred in August be-
cause he recalls it took place soon after he observed a sign
posted in the employee toolcrib reading, ‘‘VOTE YES AND
LOSE YOUR JOB TO MEXICO.’’ Healy maintained that
the sign was posted for about 2 weeks and that he thereafter
mentioned it to Union Business Agent and Organizer Carlos
Smith.7
Smith testified that the posting of the notice was called to
his attention by several employees, including Healy, at a
union rally in late August, and again a few days later. He
testified that Joseph Giacin, the Union’s international rep-
resentative, in his presence, called Respondent’s human re-
source manager, James Dermody, to complain about the
posting and that, to the best of his knowledge, the sign was
taken down after that conversation.
Smith’s testimony was in most respects corroborated by
Giacin who testified that at a Union rally held on September
1, he was told by Smith and other employees about the sign,
and that he first attempted to contact Fote on September 8
regarding its posting. Unable to locate Fote, Giacin called
Dermody who told him that he was aware of the sign and
would look into and take care of it. Dermody told Giacin
that he had seen other derogatory signs posted and, according
to Giacin, stated that he wanted to demonstrate his good faith
by removing the signs so as to avoid the need for the filing
of unfair labor practice charges. Dermody’s testimony as to
the timing of his conversation with Giacin regarding the
posted notice essentially concurs with Giacin’s recollection
of events. Thus, he testified that the sign came down on Sep-
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339MK RAILWAY CORP.
8 Prior to June 2, Respondent, according to Lucier, tried to hold
quarterly meetings with employees to update them on the Compa-
ny’s progress on its projects.
9 He expressly disagreed with Fote’s testimony that Lucier met
with employees in August and September. He also stated that Re-
spondent had retained Lucier’s itinerary and would be able to verify
whether or not Lucier visited the plant during those months and the
purpose of the visit. Lucier’s itinerary, like Fote’s notes, was not
produced at the hearing.
tember 1, and that when he spoke to Giacin, he told him the
sign had been taken down 1 week ago, which coincides with
Giacin’s testimony that he spoke to Dermody on September
8, after failing to reach Fote.
2. Testimony of Lucier, Plant Manager James Fote, and
Human Resources Manager James Dermody
During 1994, Lucier served as Respondent’s senior vice
president in charge of operations, a position he had held with
Respondent’s predecessor. He testified that Respondent
agreed to the holding an election among its employees but
that it had officially decided to oppose unionization efforts
at the Mountaintop facility because it felt a union was not
needed to represent the employees’ interests. With that in
mind, Respondent conducted a ‘‘do’s and don’ts’’ training
session for supervisory and managerial personnel on August
31, and brought in expert outside counsel to provide them
with an understanding of pertinent regulations, and to advise
them as to what they could and could not say during an or-
ganizing campaign. Lucier testified that the Respondent’s
campaign did not ‘‘officially’’ begin until after the ‘‘do’s and
don’ts’’ session and, for the most part, consisted of weekly
mailings and small group meetings with employees in which
it explained why it was opposed to the Union.
Although he apparently spent most of his time at the
Boise, Idaho facility, Lucier recalled having met with Moun-
taintop employees on only three occasions (June 2–3; August
5; and September 13) during 1994.8 According to Lucier, the
purpose of the June 2–3 meeting was to update employees
on events at the company. While he stated that no issues
were raised about the union at the June 2–3 meeting, he did
recall that a vague question was asked as to how the new
activities at the Mexico facility would impact on activities at
Mountaintop. Lucier testified he did not quite understand the
question and that he repeated it by stating, ‘‘[I]f your ques-
tion is, do we intend to send work from Mountaintop to
Mexico, the answer is no.’’ He went on to explain that the
Mexico facility was engaged in operations and maintenance
work, and that ‘‘some very preliminary analysis’’ had been
made ‘‘to see what we could do in Mexico in the event both
Mountaintop and Boise, our other major locomotive remanu-
facturing center, were filled to capacity.’’ He stated that em-
ployees were told that Respondent ‘‘did not intend to send
work from Mountaintop to Mexico, or from Boise to Mex-
ico’’ because it had invested significant money in both peo-
ple and assets, and was committed to those locations.
As to the August 5 meeting, Lucier testified he ‘‘vividly’’
recalled what transpired because his boss, John Herbots, was
also present. Unlike the other two meetings which occurred
in small employee groups, the August 5 meeting was a plant-
wide meeting of employees. After being introduced by Fote,
Lucier thanked employees for doing an excellent job in June
and July for nearing the completion of the schedule as origi-
nally planned, and empathized with their view that things
were not perfect at the plant. He purportedly assured them
that Respondent would try to improve the situation as fast as
possible. Lucier also recalled that when Herbots addressed
the employees, he was asked his opinion regarding a union
at Mountaintop, and that Herbots replied that Respondent did
not care if employees selected the Union to represent them
because it intended to continue with its work at Mountaintop,
as is. Lucier claims he became upset at Herbot’s comments
because Respondent’s official stated position was that it op-
posed unionization of the Mountaintop employees. Lucier
testified that no questions regarding Mexico were asked dur-
ing the August 5 meeting, and that no other employee meet-
ings were held in August.
The September 13 meeting, according to Lucier, was part
of its campaign to convince employees that a union was not
needed. Lucier identified it as a ‘‘one, two’’ punch in which
Fote addressed employees first, telling them about the
Board’s election process, the importance of their vote, and
how they should vote their conscience, followed by Lucier’s
comments of 10 to 15 minutes’ duration in which he updated
employees about events at the company, and explained why
the Respondent, and not the Union, could best represent the
employees’ interests. Lucier stated no questions were asked
at this meeting regarding Mexico, and further denied having
made any reference to ‘‘cheap labor’’ at any of the employee
meetings.
Dermody testified he coordinated the Respondent’s cam-
paign, and served as ‘‘clearinghouse’’ for any questions
posed by employees to supervisors regarding the organiza-
tional campaign. Dermody was also responsible for schedul-
ing employee group meetings, all of which he claims he at-
tended. Regarding meetings attended by Lucier, Dermody re-
called only a June 2 meeting, and did not recall Lucier at-
tending any employee meetings in August or September.9
While he recalled that Lucier may have visited the plant dur-
ing that time period, at one point with Herbots, Dermody
was certain that Lucier did not address the employees as a
group. He recalled there being four employee meetings in
September, but testified these were attended only by Fote
and himself. Regarding the June meeting, Dermody stated
that Lucier spoke to employees about the SP contract and al-
legedly updated them on the project. During that meeting,
according to Dermody, Lucier was asked by an employee
whether MK Rail would remanufacture locomotives in Mex-
ico, and that Lucier responded, ‘‘No.’’ Dermody did not re-
call hearing Lucier make the ‘‘options’’ remark during the
June meeting.
Fote testified that following the filing of the petition, man-
agement took steps to educate its supervisory staff as to what
could or could not be said during the campaign, and that
Lucier was present at the training session held for that pur-
pose. Regarding employee meetings, Fote stated that before
the petition was filed, Respondent held general employee
meetings on the factory floor, and that following the filing
of the petition, employee group meetings were held in the
cafeteria. Fote recalls that between August 5 and September
30, approximately six employee meetings were held and that
Lucier attended three of them. He further recalled there being
only one general employee meeting in August during which
Lucier and Herbots addressed employees regarding the SP
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340 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 Although Fote testified that he took notes at all meetings at-
tended by Lucier, these were not produced at the hearing.
11 Thus, while disagreeing with Healy as to what was said and
when to employees, except for Maciejszak, all of Respondent’s wit-
nesses testified to having heard some discussion regarding Mexico
at employee meetings. Maciejszak stated only that he could not ‘‘re-
call’’ the topic being discussed.
contract and other company matters. However, Fote did not
remember the date of the August meeting, or for that matter
of any other meeting (except for an August 5 meeting), and
while he was able to recall the overall purpose of the meet-
ing, e.g., to bring employees up to date on the SP contract
and other matters, Fote could not recall if Lucier made any
comment regarding the Mexico facility or mentioning
‘‘cheaper labor.’’10
Fote, however, was able to recollect that at certain em-
ployee meetings he conducted, employees expressed concern
regarding rumors that Respondent would move its Mountain-
top facility to Mexico if the Union got in, and that he re-
sponded, ‘‘Hell, no’’ to such remarks. He explained that his
reason for responded as he did was because he knew what
the capabilities were of the Mexico facility, and that there
was never any discussion among management of even the
remotest possibility of moving work to Mexico. While he de-
nied on direct examination that Lucier was present at such
meetings, on cross-examination, Fote admitted he could not
recall whether or not Lucier was present when he made his
‘‘Hell, no’’ comment.
3. Testimony of employees Anthony Vino, John
Baloga, and Glenn Maciejszak
Employees Vino, Baloga, and Maciejszak were called by
the Respondent to corroborate Lucier’s testimony. Vino was
a production line employee who was employed on the second
shift during the relevant period here. Vino testified to having
attended meetings at which Lucier addressed employees, but
was unable to state the date or month in which these meet-
ings occurred. He further testified that during one such meet-
ing held in the cafeteria, an employee, whom he identified
as Lester Weeks, asked Lucier something to the effect that
‘‘if the union did get in, locks would be put on the fence
and the whole company moved to Mexico.’’ According to
Vino, Lucier responded by stating that ‘‘there were options’’
and ‘‘he would have to foresee in the future.’’ Vino stated
that Lucier was not trying to ‘‘[pinpoint] any answers,’’ and
was merely saying ‘‘there would be options, and he hoped
it wouldn’t come to that.’’ Lucier went on to discuss how
the Respondent currently had a ‘‘very open door policy’’ and
wanted to keep it that way. In an effort to downplay the sig-
nificance of his testimony in this regard, Vino described
Weeks’ question to Lucier as ‘‘loaded’’ and ‘‘senseless,’’
and that given the way it was phrased there would be no
‘‘right’’ answer that Lucier could have given. However,
when pressed by counsel for the General Counsel, Vino con-
ceded that Lucier could have simply responded ‘‘No’’ to the
employee’s question.
Baloga, like Vino, worked the second shift where he
served as a working leader, and recalls having been at sev-
eral meetings at which Lucier spoke to employees. On direct
examination, he could not recall Lucier stating at any meet-
ing that if the Union got in, he would look at other options,
one of which would be diverting work to Mexico because of
cheaper labor. However, on cross-examination, Baloga testi-
fied that at one such meeting (he could not recall the date
of the meeting) called by Respondent to express its views on
the Union, an employee raised the issue of work going to
Mexico, and that Lucier talked for a few minutes and ‘‘just
skirted the issue more or less.’’ When pressed for details on
what Lucier actually said, Baloga stated that Lucier’s re-
sponse ‘‘didn’t make much sense to me, it wasn’t relevant
to the question’’ and that Lucier ‘‘didn’t answer the question
pertaining to Mexico in any specific way’’ or ‘‘to my liking
anyway.’’ On further questioning, Baloga testified that
Lucier stated that ‘‘things would be different if the union got
in’’ and that that was the gist of what was said at the meet-
ing. Baloga stated that what Lucier had to say was not im-
portant to him so he ‘‘just blew it off’’ and did not con-
centrate on what was said. On redirect examination, Baloga
reiterated that Lucier did not make any comment about di-
verting work to Mexico, and that had such a statement been
made, he would have heard it. Baloga admitted being op-
posed to the Union, but claimed he remained neutral during
the entire campaign.
Maciejszak is employed as work leader in charge of the
‘‘fab’’ shop on the second shift. He testified to having heard
some discussion among employees expressing fear the Re-
spondent might ‘‘pack up and go to Mexico if the Union got
in.’’ Maciejszak admitted having attended two second-shift
meetings in the cafeteria at which Lucier was present, but
could not recall hearing any discussion about Mexico or
Lucier tell employees that he would divert work to Mexico
because of cheaper labor if the Union got in. He testified that
Lucier ‘‘more or less’’ stated he wanted to give Respond-
ent’s customers a good product and that he would like to
‘‘stay the way we are without a third party if that is pos-
sible.’’ Maciejszak stated that he did not take anything
Lucier said as a threat to him. Although the meetings, ac-
cording to Maciejszak, lasted anywhere from 30 to 45 min-
utes, he was not able to recall much more of what was said
during those meetings.
C. Discussion and Findings
It is patently clear from the testimony of witnesses for
both counsel for the General Counsel and the Respondent
that the question regarding the possible transfer of work from
Mountaintop to Mexico if the Union won the election was
not only a matter of discussion and concern among employ-
ees, but was also raised at management meetings with em-
ployees.11 Having fully considered all testimony adduced at
the hearing, I credit Healy’s account that at a group meeting
of employees held sometime in mid to late August, after the
representation petition was filed, Lucier told employees that
the transfer of work from Mountaintop to Mexico because of
cheaper labor was an option he would consider if the Union
got in. Healy’s testimony generally was supported by Re-
spondent’s own witness, employee Vino. Vino, as noted,
could not recall the particular date of any meeting he at-
tended; nevertheless, he testified candidly and forthrightly
that at one such meeting, Lucier told employees that should
the Union win the election, he had options available to him
one of which was moving work to Mexico, and that he
hoped it wouldn’t come to that. Vino’s version differs from
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341MK RAILWAY CORP.
12 The Respondent asserts in its posthearing brief that Healy’s tes-
timony regarding an ‘‘impression’’ he received during the alleged
Lucier statement suggests that Healy did not actually hear Lucier
make such a statement, but had, instead, been influenced by a writ-
ten comment in a coupon book circulated by the Union to employees
which made reference to the relocation of work to Mexico (see R.
Exh. 3). The Respondent mischaracterizes Healy’s testimony in this
regard. Healy’s ‘‘impression’’ reflected his understanding of what
Lucier intended to do based on the latter’s actual comments to em-
ployees. Thus, Healy heard Lucier state that one of his options
should the Union win was to relocate work to Mexico, and on the
basis of those comments got the ‘‘impression’’ that the Respondent
intended to shift work from Mountaintop to Mexico.
Healy’s only in that the former did not testify to hearing the
remark about ‘‘cheaper labor.’’ In most other respects, how-
ever, Vino’s account of what he heard Lucier tell employees
substantially accords with Healy’s testimony.
In crediting Healy’s testimony, I reject Lucier’s denial that
he made such a statement to employees. Lucier, as noted, ad-
mitted only that during a June 2 plantwide employee meet-
ing, attended by Fote and Herbots, he responded to a
‘‘vague’’ question from an employee which he claims he
‘‘didn’t quite understand,’’ and that he sought to allay any
fears by telling employees that Respondent had no intentions
of sending Mountaintop work to Mexico. I disagree with Re-
spondent’s contention in its posthearing brief that Lucier’s
testimony is corroborated by Fote and Dermody. Fote, for
example, who claimed to have attended all of Lucier’s meet-
ing with employees, stated that all of Lucier’s meetings oc-
curred between August 5 and September 30, and made no
mention of the June 2 meeting referred to by Lucier. Further,
while Lucier readily admitted that the subject of moving
work to Mexico was raised at one meeting, Fote was not
able to recall any such comments being made. Thus, despite
Lucier’s assertion that Fote was present during this meeting,
Fote was unable to corroborate Lucier as to the timing of the
meeting, on whether the subject of work going to Mexico
was raised, and regarding Lucier’s claim that he reassured
employees that work would not be diverted to Mexico. Fote
further claimed to have taken notes of the meetings he at-
tended and to have recorded the dates of such meetings. Un-
fortunately for the Respondent, such notes were not pro-
duced. Given his poor recollection of events while on the
witness stand, production of such notes clearly would have
gone a long way to verifying Fote’s version of events. His
failure to produce such notes persuades me that the notes ei-
ther do not exist or, if produced, would not have supported
Fote’s testimony.
Dermody’s testimony fares no better, in my view. Thus,
Lucier’s testimony that he attended employee meetings on
August 5 and September 13, conflicts with Dermody’s testi-
mony that Lucier did not attend any August or September
meetings with employees, and is in further conflict with
Fote’s recollection of Lucier having attended at least three
employee meetings between August 5 and September 30. Ac-
cording to Dermody, only he and Fote, not Lucier, addressed
employees at meetings held during those months. Dermody’s
testimony regarding the June 2 meeting also lacks credence.
He testified, for example, that during the June 2 meeting, an
employee asked whether Respondent intended to do remanu-
facturing work in Mexico, and that Lucier responded, ‘‘No’’
to the question. In an apparent effort to bolster his direct tes-
timony, Lucier, during cross-examination, declared he had
taken ‘‘extensive’’ notes and recorded what transpired at that
meeting, including the employee’s question and Lucier’s an-
swer to the Mexico inquiry. However, when confronted with
his notes of the June meeting, which were obtained during
the underlying investigation in this case, Dermody conceded
that his notes contained no reference to a colloquy between
Lucier and an employee regarding Mexico. Admitting that he
had not, contrary to his earlier testimony, recorded such a
discussion, Dermody sought to make light of this inconsist-
ency by stating that he chose not to record the conversation
because he ‘‘thought the question was stupid, and I thought
the topic was superfluous.’’ Dermody’s further testimony that
the Mexico comments occurred at the June 2 meeting con-
tradicts a prior statement in his sworn affidavit to the Board
that he could not recall if the comment was made at that
meeting. Given the inconsistencies and discrepancies in his
testimony, I do not credit Dermody’s testimony.
Further, none of the employee witnesses who testified for
Respondent could corroborate Lucier’s testimony. For exam-
ple, although Baloga could not recall having heard Lucier
make any remark about the company having ‘‘options’’ or
making reference to ‘‘cheaper labor,’’ he nevertheless admit-
ted not having paid much attention to what was being said
and just ‘‘blew off’’ Lucier’s speeches as being unimportant.
Baloga was able to recall only that an employee asked Lucier
a question regarding work going to Mexico during some un-
specified meeting, that Lucier ‘‘skirted the issue,’’ and that
the response was not to Baloga’s liking. Baloga did not state
what the response was. This latter testimony by Baloga sug-
gests that Lucier, rather than reassuring employees about its
plans, left doubt as to whether work would be sent to Mex-
ico should the Union prevail. Baloga’s further admission that
he was not satisfied with the answer lends credence to the
view that Lucier did not provide the assurances he claims.
Respondent sought to rehabilitate Baloga on redirect ex-
amination by getting him to admit that if Lucier had made
a comment about work going to Mexico due to cheaper labor
he would have ‘‘remembered it.’’ In light of his prior testi-
mony, however, that he could not recall whether such a state-
ment was made, and his admission that he paid little atten-
tion to what was said during such meetings, his claim that
he would have remembered any such remark by Lucier is
purely self-serving and is entitled to no weight.
Maciejszak, like Baloga, also had a poor recollection of
what was said by Lucier at meetings he attended. Despite
having attended two meetings and testifying they lasted any-
where from 30 to 45 minutes, Maciejszak recalled very little
of what was said, and testified only generally as to topics
discussed. The only specific thing he recalls being said by
Lucier during those meetings was that he (Lucier) wanted to
give Respondent’s customers a good product, and would like
to continue operating without a ‘‘third party’’ being present.
I find Maciejszak’s overall testimony to be vague and of lit-
tle evidentiary value. I, therefore, accord it no weight.
Having found that Lucier told employees in mid to late
August that ‘‘if the Union came in, he’d have to look at one
of his other options, and that would be diverting work to
Mexico’’ because of ‘‘cheaper labor,’’12 the question remains
whether Lucier’s comments violated Section 8(a)(1) of the
Act. Clearly, an employer may, without violating the Act,
make a prediction on the basis of objective facts as to the
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342 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 According to Lucier, his recollection of when he met with em-
ployees at Mountaintop was based on information provided to him
by his former secretary as to the dates he visited Mountaintop.
Lucier admitted not having personally reviewed his itinerary,
‘‘daytimer,’’ or travel records to confirm those dates. However, de-
spite the inconsistencies between Fote’s and Lucier’s testimony as
to when he met with employees, none of the documents or records
relied on by Lucier were produced at the hearing, leading me to be-
lieve that if produced, they would not have supported Respondent’s
case.
14 Gaines Electric Co., 309 NLRB 1077 (1992), relied on by Re-
spondent in its posthearing brief, is factually distinguishable from the
instant case. Unlike the Respondent here, the employer in Gaines,
after threatening employees with plant closure, prepared and caused
to be circulated to each employee a written and unambiguous state-
ment expressly disavowing and repudiating its threat, and providing
assurances to employees of their Sec. 7 rights and that it would not
engage in any further unlawful conduct.
likely consequences, beyond its control, that unionization
might have on its continued operation. NLRB v. Gissel Pack-
ing Co., 395 U.S. 575 (1969). Lucier’s comments, however,
do not satisfy the Gissel criteria, for they patently reflect that
any such decision to relocate work to Mexico was contingent
exclusively on the Union’s success or failure in the upcom-
ing election, and not on economic hardships beyond the Re-
spondent’s control that might result should the Union prevail
in the election. In these circumstances, I find that Lucier’s
remarks were designed to convey to employees that they ran
the risk of losing their jobs through either the closure of the
facility at Mountaintop or the diversion of work to the Mex-
ico facility if they selected the Union as the bargaining rep-
resentative. As such, the remarks were coercive and inter-
fered with the employees’ exercise of the Section 7 rights,
and violated Section 8(a)(1) of the Act, as alleged. Indeed,
Lucier’s remarks are not unlike those previously found to be
unlawful by the Board. See, e.g., A.M.F.M. of Summers
County, 315 NLRB 727, 732 (1994) (telling employee that
employer would sacrifice and close its facility to save other
facilities from union); House of Raeford Farms, 308 NLRB
568, 571 (1992) (telling employees they might be out of job
if union is voted in); Telex Communications, 294 NLRB
1136, 1139 (1989) (supervisor’s response to employee ques-
tion during employee meeting that if union won and em-
ployer were forced to pay higher wages employer might have
to move); Brunswick Corp., 282 NLRB 794 (1987) (super-
visor’s rhetorical question to employee on movement of plant
to Mexico); Rood Industries, 278 NLRB 160, 162 (1986)
(statement that employer would remove machinery from
plant and possibly move to Illinois should union win); and
Coeburn Garment Co., 276 NLRB 1481, 1482 (1985) (state-
ment to employees that work would be shipped elsewhere if
union was successful and got in the plant).
The Respondent here, however, does not contend that
Lucier’s remarks were privileged under the Gissel standard.
Rather, it contends that Lucier made no such statements, and
that even if Lucier made the remarks attributed to him by
Healy, ‘‘no reasonable person could possibly have construed
[his] comments’’ as a threat to divert work or jobs from
Mountaintop to Mexico should the Union win. As noted, I
do not credit Lucier’s denial but rather credit Healy that the
remarks were in fact made. Regarding its latter contention,
the Respondent relies on statements made by Vino and
Maciejszak that that they did not feel threatened by any of
Lucier’s comments. However, the test for whether an em-
ployer’s conduct or remark amounts to interference, restraint,
or coercion does not depend on an employer’s motive nor on
the successful effect of such coercion. El Rancho Market,
235 NLRB 468 (1978); also National Apartment Leasing
Co., 263 NLRB 15 (1982). Rather, the illegality of an em-
ployer’s conduct is determined by whether the conduct may
reasonably be said to have a tendency to interfere with the
free exercise of employee rights under the Act. El Rancho
Market, supra. I note in this regard that while Vino testified
he personally had not felt threatened by Lucier’s remarks, he
readily admitted that ‘‘some people could’’ have felt threat-
ened by such remarks.
The Respondent further argues that if Lucier is found to
have made the statements, the subsequent assurances he gave
to employees, and the ‘‘Hell, No!’’ answer given by Fote to
employees in response to inquiries about work going to Mex-
ico, served to disavow his prior remarks, and negated
Healy’s ‘‘impression’’ that work would be diverted to Mex-
ico. However, as indicated, neither Lucier nor Fote were
credible witnesses. Although both claimed to have attended
the same meetings, Lucier’s and Fote’s testimony differed on
when such meetings occurred,13 and as to what was said dur-
ing the meetings. Further, none of the employee witnesses
called by Respondent to corroborate Lucier testified to hav-
ing heard the latter expressly tell employees that work would
not be diverted to Mexico, as claimed by Lucier. In fact,
Maciejszak’s testimony that Lucier did not answer the ques-
tion on Mexico to his liking and that he just ‘‘skirted the
issue,’’ suggests that Lucier did not disavow or repudiate his
unlawful remarks but rather left the subject dangling in the
air for employees to ponder. Similarly, employee Vino testi-
fied only to having heard Lucier state that he had the option
of moving work to Mexico, but hoped it wouldn’t come to
that. He made no mention of having heard Lucier’s purported
disavowal or hearing Fote make his ‘‘Hell, No’’ remark. The
credible evidence of record convinces that neither Lucier nor
Fote gave employees the assurances suggested by the Re-
spondent, and made no effort to disavow or repudiate
Lucier’s unlawful remarks.14
The Respondent further argues that if Lucier is found to
have made the remarks, Healy was the only person to have
heard the comments and, in these circumstances, the com-
ments were isolated in nature and could not have been coer-
cive. However, as Healy credibly testified, some 60 employ-
ees were present at the meeting when Lucier made his threat
to divert work to Mexico. It is not unreasonable to believe
that others present at that meeting would have heard Lucier’s
remarks, and may have been persuaded by Lucier’s threat to
vote against the Union. Accordingly, I find that Lucier’s
threat to divert work to Mexico if the Union were to be
voted in, made to a group of approximately 60 employees,
was neither isolated nor de minimis, and was coercive of em-
ployee rights. See House of Raeford Farms, supra at 718. In
these circumstances, Lucier’s threat is found to have violated
Section 8(a)(1) of the Act.
Lucier’s unlawful remarks, as noted, are found to have oc-
curred in mid to late August, during the critical period be-
tween the filing of the petition on August 5, and the holding
of the election on September 29–30. In Dal-Tex Optical Co.,
137 NLRB 1782, 1786 (1962), the Board held that ‘‘conduct
violative of Section 8(a)(1) is, a fortiori, conduct which inter-
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343MK RAILWAY CORP.
15 Lufkin Rule Co., 147 NLRB 341 (1964). See also Gonzales
Packing Co., supra.
16 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
17 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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
feres with the exercise of a free and untrammeled choice in
an election.’’ The Board departs from this policy only in
cases where it is virtually impossible to conclude that the
misconduct could have affected the election results. See,
Gonzales Packing Co., 304 NLRB 805 (1991); quoting from
Clark Equipment Co., 278 NLRB 498, 505 (1986). The
record reflects that the Union lost the election by some 28
votes. Lucier’s threat to relocate work to Mexico should the
Union win was, as noted, made to a gathering of 60 employ-
ees, many of whom presumably heard, and may have been
influenced by, the unlawful remarks to vote against the
Union. Thus, this is not a case where it is ‘‘virtually impos-
sible’’ to conclude that the Respondent’s misconduct could
have adversely affected the election results. Accordingly, I
find that Lucier’s threat constituted objectionable, as well as
unlawful, conduct which interfered with the employees’ free
choice in the above election, warranting a setting aside of
those election results.
CONCLUSIONS OF LAW
1. The Respondent, MK Rail Corporation, is now and at
all times material has been an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
2. International Union of Operating Engineers, Local 542,
AFL–CIO is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. By threatening employees with loss of jobs by diverting
work from its Mountaintop facility to its Mexico facility if
they selected the Union as their bargaining representative, the
Respondent has engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1) and Section
2(6) and (7) of the Act.
4. The conduct described in paragraph 3 above also con-
stitutes objectionable conduct affecting the results of the rep-
resentation election held in Case 4–RC–18429 on September
29–30, 1994.
5. By the conduct described in paragraphs 3 and 4, the Re-
spondent has engaged in unfair labor practices affecting com-
merce within the meaning of Section 8(a)(1) and Section 2(6)
and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
Having further found that the Respondent engaged in ob-
jectionable conduct affecting the results of the election in
Case 4–RC–18429, I shall recommend that the election held
in that case on September 29-30 be set aside, that a new
election be held, and that the Regional Director include in
the notice of election the Lufkin Rule15 paragraph set forth
below:
NOTICE TO ALL VOTERS
The election of September 29–30, 1994 was set aside
because the National Labor Relations Board found that
certain conduct of the Employer interfered with the em-
ployees’ exercise of a free and reasoned choice. There-
fore, a new election will be held in accordance with the
terms of this Notice of Election. All eligible voters
should understand that the National Labor Relations
Act gives them the right to cast their ballots as they see
fit, and protects them in the exercise of this right, free
from interference by any of the parties.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended16
ORDER
The Respondent, MK Rail Corporation, Mountaintop,
Pennsylvania, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Threatening employees with loss of jobs by telling
them that it would divert work from its Mountaintop facility
to its Mexico facility if they selected the Union as their bar-
gaining representative.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at its facility in Mountaintop, Pennsylvania, copies
of the attached notice marked ‘‘Appendix.’’17 Copies of the
notice, on forms provided by the Regional Director for Re-
gion 4, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(b) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the election conducted in
Case 4–RC–18429 on September 29–30, 1994, be set aside,
and that a new election be held at such time and under such
circumstances as the Regional Director shall deem appro-
priate.
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344 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEE
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
Section 7 of the Act gives employees these rights.
To organize
To act together for other mutual aid or protection
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT threaten you with loss of jobs by telling you
that work at the Mountaintop facility may be diverted to our
Mexico facility if we select International Union of Operating
Engineers, Local 542, AFL–CIO, or any other labor organi-
zation as our bargaining representative.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
MK RAIL CORPORATION
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