Novartis Nutrition Corp.

National Labor Relations Board - Board Decisions

Aug 27, 2000

331 N.L.R.B. 1519 (N.L.R.B. 2000)

NOVARTIS NUTRITION CORP. 1519
Novartis Nutrition Corporation and Robert G. Tre-
semer, an Individual and Teamsters Local Un-
ion 120, a/w International Brotherhood of
Teamsters, AFL–CIO. Cases 18–CA–15042, 18–
CA–15094
August 28, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS FOX
AND LIEBMAN
On August 4, 1999, Administrative Law Judge Jerry
M. Hermele issued the attached decision. The Respon-
dent filed exceptions and a supporting brief. The Gen-
eral Counsel and the Charging Party filed answering
briefs and the Respondent filed a reply 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 as
further discussed below, and to adopt the recommended
Order as modified.
1. On July 16, 1998,2 Supervisor Mark Tagatz told
prounion employee Steve Taray to confine his union ac-
tivity to nonwork time. Tagatz further stated that Taray’s
“[job] performance there at Novartis was an issue” and
that he wanted to see improvement.
The judge found that Tagatz’s restriction on union ac-
tivity was overly broad and therefore unlawful. In addi-
tion, the judge found that Tagatz’s remark that Taray’s
performance was an issue violated Section 8(a)(1) be-
cause it reasonably tended to interfere with Taray’s Sec-
tion 7 rights.
We find it unnecessary to pass on Tagatz’s restriction
on union activity because finding that restriction unlaw-
ful would be cumulative and would not affect the Order.3
We agree with the judge, however, that the Respondent
violated Section 8(a)(1) by linking its comment about
Taray’s work performance with its restriction on his un-
ion activity.
In particular, we rely on the fact that Tagatz singled
out Taray to speak to him about his union activity and
simultaneously mentioned that Taray’s work perform-
ance was a concern. There is no evidence in the record
that the Respondent had expressed any problems with
Taray’s job performance prior to Taray’s solicitation of
union authorization cards. In these circumstances, we
find that Tagatz’s comment would reasonably be per-
ceived by Taray as warning him about his job perform-
ance because he engaged in union activity.4 Accord-
ingly, we conclude that the Respondent’s statement link-
ing Taray’s union activity with the Respondent’s concern
about his work performance interfered with Taray’s
statutory rights in violation of Section 8(a)(1) of the Act.5

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions 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 362
(3rd Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 All dates are in 1998, unless stated otherwise.
3 We agree with the judge that the Respondent violated Sec. 8(a)(1)
by its restrictions on the union activity of employees Lonny Hellerud,
Robert Tresemer, and Wendy Skarolid.
2. The judge found that the Respondent violated Sec-
tion 8(a)(1) and (3) of the Act by discharging employee
Robert Tresemer for engaging in union activity. For the
following reasons, we agree with the judge.
In July, the Union commenced an effort to organize
employees at the Respondent’s facility. Tresemer, a 10-
year employee, was an open union supporter who solic-
ited signatures for union authorization cards and openly
criticized management at anti-union meetings. Tresemer
worked as an operation technician, the highest nonsuper-
visory job at the plant. His work duties included per-
forming all jobs in the Aseptics Department, such as
mixing products, operating the aseptic filling machines
and the packaging equipment, operating the Unitherm 1
and 2 machines,6 and filling in for employees when they
were absent.
On October 15 Tresemer was assigned to run the
Unitherm 2 machine. At two separate times, 1:14 and
1:44 p.m., Tresemer indicated on the sterilizer log sheet
that he performed checks for steam and wrote “ok” that
the “steam seals [were] functioning.”7 At no time was
Tresemer aware that the steam was not turned on and that
there was no steam present. At 2:15 p.m., when the
Unitherm was ready to process the product, Tresemer
wrote “N/A” on the logsheet for “surge steam block.”8
At 2:45 p.m., the lack of steam was detected by the next
operator, Dan Moran, who indicated that there was no
steam present on the surge manifold. Within hours of the
4 See NLRB v. Okun Bros. Shoe Store, 825 F.2d 102, 105 (6th Cir
1987), cert. denied 485 U.S. 935 (1988). (In determining whether an
employer has violated Sec. 8(a)(1), “the Board considers the total con-
text in which the challenged conduct occurs and is justified in viewing
the issue from the standpoint of its impact upon the employees.”)
5 In his decision, the judge characterized Tagatz’s comment as a
“threat” and found that the Respondent violated the Act by threatening
employees for engaging in protected concerted activity. As stated
above, we find that the remark constituted a warning rather than a
threat. Therefore, we shall modify the recommended Order to conform
to the violation found.
6 The Unitherm is used to achieve a sterile condition in the manufac-
ture of nutritional beverage products. The Unitherm operator responsi-
ble for running the machines performs two basic functions: (1) bringing
the Unitherm from an unsterile to a sterile state; and (2) monitoring the
machines at one-half hour intervals to ensure that all parameters for
sterilization are being met. The operator also is required to make vari-
ous written entries to verify the sterilization process.
7 A steam sweep check requires an employee to perform a visual
verification that steam is emitting from 10 locations on the “surge
manifold” section of the Unitherm which is about one foot above the
floor.
8 This notation was not appropriate because steam was either present
or it was not.
331 NLRB No. 161
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1520
incident, a reviewer of Tresemer’s log sheet noticed the
irregularities and notified management.
On October 16, Supervisor Lehnertz met with Trese-
mer to discuss the October 15 incident, which resulted in
$2500 worth of product loss. During the meeting, Tre-
semer admitted that he was in a hurry and failed to in-
spect each of the 10 steam sweeps as required at the
specified times, but said that he observed steam emitting
from the base of the machine and assumed everything
was operating properly.9 After the meeting, Lehnertz
discussed the incident with Supervisor Anderson and
they both agreed that Tresemer should be discharged for
intentionally falsifying records. They then met with Per-
sonnel Supervisor Tracy Roberts who agreed with their
recommendation. On October 23, the Respondent issued
a letter to Tresemer terminating him for falsification of
company records for documenting steam flow when, in
fact, steam was not present.
In Wright Line,10 the Board set forth its test of causa-
tion for cases alleging violations of Section 8(a)(3) of the
Act. First, the General Counsel must adduce sufficient
evidence to support the inference that the protected con-
duct was a motivating factor in the employer’s decision.
Once this is established, the burden shifts to the em-
ployer to demonstrate that the same action would have
taken place even in the absence of the protected conduct.
Here, the judge properly found that the General Coun-
sel established that Tresemer’s protected conduct was a
motivating factor in the Respondent’s decision. The evi-
dence showed that Tresemer’s union activity was well
known to the Respondent, as demonstrated by Supervisor
Anderson’s unlawful remark to Tresemer that Tresemer
could not get union cards signed on company time, in-
cluding break time. The evidence also showed that at the
Respondent’s anti-union meeting in August, Tresemer
vocally criticized Supervisors Tagatz, Anderson, and
Terry Lehnertz for mismanagement and employee favor-
itism. Further, the Respondent kept notes on Tresemer’s
work performance and conduct from August 1 until Oc-
tober 20. The Respondent failed to present evidence that
it engaged in similar note taking on other employees’
work performance and conduct.
In addition, the unlawful termination occurred against
the background of other unfair labor practices showing
that the Respondent bore animus towards prounion em-
ployees. Besides Anderson’s illegal restriction on Tre-
semer’s union activities, Anderson also discriminatorily
prohibited employee Wendy Skarolid from talking about
the Union while working, in violation of Section 8(a)(1)
of the Act. Similarly, Supervisor Tagatz told employee
Hellerud that there could be no union activity during

9 Employee Taray’s uncontroverted testimony showed that some
steam might leak from the bleeders even if the steam valve is off.
10 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied, 455 U.S. 989 (1982), affd., Transportation Management Corp.,
462 U.S. 383 (1983).
lunch or break time. Also, the Respondent violated Sec-
tion 8(a)(1) of the Act by issuing a warning to employee
Taray because he engaged in union activity, and by
promising and granting benefits to employees during the
Union’s organizing campaign to discourage them from
engaging in union activities. For these reasons, we agree
with the judge that the General Counsel has met his bur-
den of establishing that Tresemer’s union activity was a
motivating factor in the Respondent’s decision to dis-
charge him.
We also find that the Respondent failed to meet its
burden of establishing that the discharge would have
occurred absent Tresemer’s protected activity. As found
by the judge, the Respondent’s contention that Tresemer
was discharged for intentionally falsifying company re-
cords lacks evidentiary support. The record shows that
prior to the October 15 incident, Tresemer twice failed to
make steam checks on the Unitherm 2 machine at the
required time intervals and to record the checks on the
log sheet, on July 31 and on August 10, respectively. In
each situation, Anderson characterized Tresemer’s con-
duct as mistakes that did not require discipline.
Indeed, the Respondent knew that Tresemer was not
fully proficient in the proper operation of the Unitherm 2
machine and, on October 1, granted him 14 days of addi-
tional training. For example, although the preferred
method was for the Unitherm operator to use scissors or
a pen to verify the presence of steam from each steam
sweep, Tresemer was trained years earlier to perform a
visual inspection of the surge manifold to confirm that
steam was emitting from the Unitherm, a practice fol-
lowed by other employees as well.11 Tresemer’s uncon-
troverted testimony reveals that he had received only
about 1 day of additional training at the time of his dis-
charge. Thus, Tresemer was discharged before he had
received the training on the Unitherm 2 machine that the
Respondent itself had recognized that he needed.
The record evidence also establishes that the Respon-
dent’s discharge of Tresemer constituted disparate treat-
ment. As set forth below, the record is replete with ex-
amples of similar mistakes and errors that occurred in the
Aseptic Department for which the Respondent issued
less severe disciplinary actions to employees. It is well
established that the “existence of disparate treatment for
similar misconduct can support a finding of improper
motive.” Yesterday’s Children, Inc. v. NLRB, 115 F.3d
36, 48–49 (1st Cir. 1997).
For example, on August 18, 1997, the Respondent is-
sued a written warning to employee Shawn Taylor for
“[failing] to turn the steam back on to the homogenizing
valves steam sweeps” after completion of maintenance
on the Unitherm 1. Specifically, the warning stated that
11 Employee Hellerud testified, without contradiction, that it was the
“current practice” for Unitherm operators merely to “look at” the steam
sweeps rather than check each individual steam sweep.
NOVARTIS NUTRITION CORP. 1521
Taylor “. . . missed the fact that there was no steam com-
ing out of the sweeps. Over the next 2 hours [Taylor]
performed four visual checks of the steam sweeps.
[And,] on each check [Taylor] indicated that there was
steam when in fact there was not.” Even though the error
was similar to Tresemer’s mistake and resulted in a
product loss of 1000 cases and 10 hours of filler down-
time, Taylor was not suspended or discharged.12
In 1995 employee Hellerud received only a 1-day sus-
pension for noting on the operator logs that there was
visible steam flow on the Unitherm even though the
steam sweep valve was off as detected by the quality
control technician. Similarly, employee Mike Porter
received just a written warning in 1994 for checking off
that the “steam seals for the air incineration unit were
operating at the sterilization of the system” when, in fact,
there was no steam present.
In addition, the Respondent issued a warning and 3-
day suspension to employee Kyle Ames on January 15,
1997, for failing to disconnect the CIP “crossover pipe”
on the Unitherm which resulted in improper sterilization
of the Unitherm and a $70,000 loss of production. Fur-
ther, on March 7, 1997, the Respondent issued a memo
to employee John Halverson regarding his failure to fol-
low the electrolytic failure protocol when he found a
“two way” electrolytic failure during routine testing.
Halverson’s error resulted in the potential loss of
$24,869.70 and 2745 cases on hold. The Respondent
informed Halverson that his discipline was dependent on
the financial impact to the company of the product loss.
In contrast, although Tresemer’s error resulted in product
loss of 252 cases equaling about $2500, Tresemer was
immediately terminated.
Similarly, on April 2, the Respondent issued a 1-day
suspension to employee Alan Kjenstad for making a se-
ries of mistakes that resulted in product loss worth $1920
and 7.5 hours of shutdown time on the Unitherm 1 ma-
chine. In addition, the Respondent issued a final warning
to Bob Hartung on February 13 for two mixing errors
that resulted in product loss of $1600. The final warning
was issued based on the fact that Hartung had many er-
rors in the past.
In sum, we find that the Respondent has failed to show
by a preponderance of the evidence that Tresemer would
have been discharged absent his union activity.13 While
the Respondent argues in its exceptions that Tresemer’s
conduct was more egregious than that of other employees

12 On January 30, Taylor also received a written warning for, inter
alia, checking off “brik” and case codes as okay although the expiration
date was incorrect and failing to dial up the homogenization pressure
while processing the Resource Plus Strawberry product. There is no
evidence in the record that Taylor was discharged for any of his errors.
13 The Respondent relies on its discharge of 10 field salesmen for
falsifying company records pertaining to customer visits, calls and
orders. We find, however, that such misconduct is not comparable to
that of Tresemer and the other Aseptic Department employees dis-
cussed above.
and that there is no basis to compare the discipline re-
ceived by other employees, the evidence shows that Tre-
semer’s mistake was similar to the errors of other em-
ployees and that the action taken by the Respondent was
inconsistent with its prior disciplinary practice.14
Accordingly, for all the above reasons, we agree with
the judge that the Respondent violated Section 8(a)(1)
and (3) of the Act by discharging Tresemer.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Novartis
Nutrition Corp., Summit, New Jersey, its officers, agents,
successors, and assigns, shall take the action set forth in
the Order as modified.
1. Substitute the following for paragraph 1(a).
“(a) Warning employees about their work performance
because they engaged in union activities.”
2. Substitute the attached notice for that of the admin-
istrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

14 The Board’s decision in Rockwell Automation/Dodge (Formerly
Reliance Electric), 330 NLRB 547 (2000), is distinguishable. In that
case, the Board found that the respondent did not violate Sec. 8(a)(3)
and (1) of the Act by terminating Gregory Silvers for falsifying com-
pany records. The respondent lawfully discharged Silvers for fraudu-
lently reporting that the rings he produced passed inspection when, in
fact, a large number of the final products were bad. In its decision, the
Board, inter alia, relied on the fact that the respondent demonstrated by
a preponderance of the evidence that it reasonably believed that Silvers
produced the bad rings and falsified the report form, and that the termi-
nation was consistent with its treatment of other employees who com-
mitted similar offenses.
By contrast, here, the Respondent failed to demonstrate that it rea-
sonably believed that Tresemer intentionally falsified company records.
Thus, the record shows that, consistent with the training he had re-
ceived years earlier, Tresemer checked for the presence of steam at
1:14, 1:44, and 2:15 p.m., and actually observed steam at the base of
the Unitherm. His entries in the steam log at 1:14 and 1:44 p.m. were
consistent with his checks of the equipment. Regarding the third entry,
the judge found that Tresemer’s inappropriate notation of “N/A” in the
log at 2:15 p.m. “called immediate attention to his log notations,
thereby rebutting any inference that he intentionally falsified the log
and hoped to conceal the falsification.” In addition, when questioned
by management, Tresemer readily and truthfully admitted not having
checked each steam sweep individually.
Furthermore, unlike the situation in Rockwell Automation, and as
discussed above, the Respondent’s termination of Tresemer was not
consistent with its treatment of other employees who committed similar
offenses.
In sum, in this case, the record fully supports the judge’s finding that
the Respondent advanced the “intentional falsification” claim as a
pretext to disguise its true motivation, which was to rid itself of a union
activist.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1522
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 warn employees about their work per-
formance because they engaged in union activities.
WE WILL NOT prohibit employees from engaging in
these protected concerted activities, including soliciting
union authorization cards, during lunch time or during
breaks.
WE WILL NOT discriminatorily prohibit employees
from talking about the Union while working.
WE WILL NOT promise to grant employees benefits
or grant any such benefits in order to discourage employ-
ees from engaging in these protected concerted activities.
WE WILL NOT discharge our employees for engaging
in these protected concerted activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the
Board’s Order, offer Robert Tresemer full reinstatement
to his former job or, if that job no longer exists, to a sub-
stantially equivalent position without prejudice to his
seniority or any other rights or privileges previously en-
joyed.
WE WILL make Robert Tresemer whole for any loss
of earnings and other benefits resulting from his 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 unlawful discharge, and WE WILL, within 3 days
thereafter, notify Robert Tresemer in writing that this has
been done and that the discharge will not be used against
him in any way.
NOVARTIS NUTRITION CORPORATION
Pamela W. Scott, Esq., Minneapolis, Minnesota, for the Gen-
eral Counsel.
Patrick M. Stanton, Esq. (Stanton, Hughes, Diana, Salsberg,
Cerra & Mariani), Florham Park, New Jersey, for the Re-
spondent.
Richard A. Williams, Esq. (Williams & Iverson), St. Paul, Min-
nesota, for the Union.
DECISION
I. STATEMENT OF THE CASE
JERRY M. HERMELE, Administrative Law Judge. In a
March 23, 1999 complaint, the General Counsel alleges that the
Respondent, Novartis Nutrition Corporation, violated Section
8(a)(1) of the National Labor Relations Act in the summer of
1998 by interfering with a union organizing campaign at its St.
Louis Park, Minnesota facility. Specifically, it is alleged that
management prohibited several employees from engaging in
organizing activity. Also, management allegedly solicited
grievances and promised benefits to employees in order to tor-
pedo the organizing campaign. Finally, it is alleged that the
Respondent violated Section 8(a)(1) and (3) of the Act by ter-
minating prounion employee Robert Tresemer in October 1998.
This case was tried in Minneapolis, Minnesota on May 11
and 12, 1999, during which the General Counsel called seven
witnesses and the Respondent called three witnesses. Then, on
June 29, 1999, the General Counsel, the Union, and the Re-
spondent filed written briefs.
II. FINDINGS OF FACT
Novartis Nutrition Corporation (Novartis),1 based in Sum-
mit, New Jersey, manufactures food products at several loca-
tions in the United States, including St. Louis Park, Minnesota,
a suburb of Minneapolis. These products include Ovaltine and
liquid supplements which are used at hospitals and nursing
homes (Tr. 19–20). During 1998, the Respondent purchased
and received over $50,000 in interstate goods at the St. Louis
Park plant, and sold over $50,000 in goods to out-of-state cus-
tomers (GC Exh. 1(e)). David Hurley is the Respondent’s
President, David Egberg is a Vice-President, and Mark Tagatz,
Terry Lehnertz, and John Anderson are supervisors at the plant
(GC Exh. 1(e)); Tr. 11, 94, 303). Tracy Roberts is the person-
nel supervisor (Tr. 74).
In November 1997, the Respondent commenced an effort to
survey its employees about various job-related matters. To that
end, management sent a written questionnaire to all employees
and later met with small groups of employees in April 1998.
And on July 1, 1998, personnel supervisor Roberts wrote a
memorandum to all employees listing several generalized goals
gleaned from the survey results, such as “define and communi-
cate career path opportunities within the company” (R. Exs. 9–
17; Tr. 347, 385).
In July 1998, Teamsters Local Union 120, affiliated with the
International Brotherhood of Teamsters, AFL–CIO (the Union),
commenced an effort to organize the employees of the Novartis
plant. Robert Tresemer, a 10-year employee, solicited signa-
tures for union cards (Tr. 12, 209, 353). Supervisor Tagatz
received complaints that some employees were being harassed
into signing cards. So, on July 16, 1998, Tagatz told prounion
employee Steve Taray to confine the union activity to “non-
work time.” Tagatz also told Taray that his “performance there
at Novartis was an issue” and that he wanted improvement.
Also in July, Tagatz told prounion employee Lonny Hellerud
that there could be no union activity during lunch or breaks
because this was “paid company time.” To be sure of his order,
however, Tagatz later talked with Roberts who said that the
employees could engage in union activity during lunch and
breaks, and in the breakroom. But Tagatz never clarified his
order to Hellerud (Tr. 21–23, 159–160, 174–175, 283–285).
Also that summer, supervisor Anderson told prounion em-
ployee Wendy Skarolid not to talk about the Union while work-
ing. Previously, Skarolid could talk about anything during

1 The Respondent’s parent corporation, based in Bern, Switzerland,
is in the pharmaceutical and chemical business (Tr. 18–19).
NOVARTIS NUTRITION CORP. 1523
work (Tr. 149). Anderson also told Tresemer, in August, that
he could not get union cards signed on company time, including
breaks (Tr. 212).2
Also in July 1998, management held meetings with the em-
ployees to discuss “union organizing activity and other issues
of concern” (GC Exh. 21; Tr. 146). Vice President Egberg
stated that he was opposed to the plant being unionized, where-
upon an antiunion film was shown to the employees. President
Hurley then spoke, saying that “I cannot promise anything” but
then proceeded to say that there would be new procedures to
award jobs, a new personnel staff, and an evaluation to upgrade
jobs (Tr. 172–174). Then, on August 5, Egberg wrote a memo-
randum to employees outlining specific “action” management
would take on the issues raised in the meetings. The following
specific reforms were implemented in August: tests would no
longer be used to determine pay increases; paychecks would be
given in advance of vacations; there were new “pay override”
and job posting policies; a new employee relations staff mem-
ber was hired; and there was a new policy to move employees
to the 100% pay level (GC Exhs. 6, 14–17; Tr. 149, 156). And
in September, there were reforms to the existing Pay Override
and Attendance Policy, and the PTO Policy (GC Exhs. 19–20).
No union election was ever held at the plant (Tr. 287).
As noted above, Tresemer was a veteran employee, holding
the highest nonsupervisory job at the plant (Tr. 205, 213). He
covered open shifts and trained new employees in his depart-
ment (Tr. 99). Tresemer was also a vocal prounion employee.
Indeed, at an August 1998 meeting held by management with
employees to dissuade them from voting for the Union, Trese-
mer criticized supervisors Tagatz, Anderson, and Lehnertz for
mismanagement and showing favoritism in their discipline of
employees (Tr. 210–211).
On July 31, 1998, Tresemer failed to make two steam checks
at the required time intervals and to record these checks on the
written operating log for the Unitherm 2 machine, which steril-
ized a thick liquid product used by patients with swallowing
problems (R. Exh. 7; Tr. 42–43, 176, 213). The “steam sweeps
check” required a visual verification that steam was coming
from the machine. New employees often made a lot of steam-
related mistakes, including failing to detect when the steam was
off. Each part of the machine emitting steam had to be
checked. This was a very easy, yet important, task, sometimes
performed with the use of scissors or a pen to verify the pres-
ence of steam which indicated that the sterilization process was
underway. The Unitherm also had steam gauges but an opera-
tor was not to rely on the gauges alone because they were
sometimes faulty. Tresemer did not rely upon scissors, pens or
the gauges; rather he was trained to perform a visual inspection
of the 10 locations on the “surge manifold” which was about
one foot above the floor. The operator was then required to
record his observations on a written log (R. Exh. 3; Tr. 38–39,
129, 134–138, 180–181, 222, 267–270). Employee Lonnie
Hellerud testified, however, that “current practice” was for
operators merely to “look at” the steam sweeps, rather than
getting down to check each one (Tr. 163–164). Anderson did
not discipline Tresemer, however, characterizing the July 31
error as a “mistake” (Tr. 312–313). Then on August 10 Trese-

2 Anderson was somewhat unsure about these conversations (Tr.
331–333). But Skarolid and Tresemer testified clearly about what
Anderson said. And the Presiding Judge believes Skarolid and Trese-
mer.
mer again failed to make one required steam check on the same
machine, but again Anderson characterized this as a mistake
requiring no discipline (R. Exh. 8; Tr. 316–317). Because Tre-
semer was not fully proficient in operating the Unitherm 2,
Anderson and Lehnertz suggested on October 1 that he needed
more training (Tr. 102–103, 214, 217–218). So, Tresemer was
granted 14 days of training (GC Exh. 23).
On Monday, October 15, Tresemer was again assigned to the
Unitherm 2 (Tr. 219). His supervisor, Mike Porter, said that
production was behind schedule (Tr. 220). Also, Tresemer had
a headache that day but was under no medical work-related
restriction (Tr. 227, 372). Unbeknownst to Tresemer, the steam
was not turned on to the Unitherm in the early afternoon of
October 15. Nevertheless, he performed three checks for
steam, at 1:14, 1:44, and 2:15 p.m. So, at 1:14 and 1:44 p.m.,
while the Unitherm was starting up, Tresemer wrote “OK” on
his log for “steam seals functioning.” At 2:15 p.m., when the
Unitherm was ready to process the product, he wrote “OK” and
“N/A” on his log for “surge steam block.” But at 2:45 p.m., the
next operator, Dan Moran, wrote that the surge manifold was
“off,” indicating the lack of any steam (GC Exh. 8; Union Exh.
1; Tr. 33–34, 224, 383–384). Tresemer did not inspect each of
the 10 steam sweeps as required at the three times. Rather, he
saw steam at the base of the machine and assumed everything
was operating properly (Tr. 220–221, 239, 326–327). He at-
tributed his errors to stress he was under that day, his headache,
and a lack of training (Tr. 226–227). The notation “N/A” was
never appropriate because either there was steam present or not
(Tr. 281). Likewise, it was improper to record “OK” merely
because an operator observed steam in the vicinity of the
sweeps (Tr. 204). When team leader Mona Garcia later told
Tresemer that the steam had not been turned on yet, Tresemer
was shocked (Tr. 226). As a result of his actions, $2500 worth
of liquid product went through the Unitherm unsterilized (Tr.
35). This was a relatively small loss, however (Tr. 183).
Within hours, a reviewer of Tresemer’s log report for Octo-
ber 15 noticed the following irregularities: the “N/A” at 2:15
p.m., and the lack of steam at 2:45 p.m. (GC Exh. 10, p. 35; R.
Exh. 5; Tr. 44–45, 281–282). In accordance with Company
procedure, the log was sent back to Tresemer for correction and
he crossed out the “OK” at 2:15 p.m. (Tr. 61–63, 68, 383–384).
Then, on Friday, October 16, Lehnertz met with Tresemer to
discuss the October 15 incident. Tresemer admitted that he was
in a hurry and failed to check the 10 individual steam sweeps,
on three separate occasions. But he added that he saw steam
coming from underneath and thought everything was operating
well (Tr. 106–107). Indeed, it was possible for some steam to
leak from the bleeders if the steam valve was off (Tr. 202).
Lehnertz then discussed the matter with Anderson, who exam-
ined Tresemer’s log entries and verified that the steam was
indeed off that day. After meeting with Tresemer, Lehnertz
and Anderson decided that Tresemer should be fired for falsify-
ing records and they presented their recommendation to per-
sonnel supervisor Roberts (Tr. 319–328). Roberts and Tagatz
agreed, but consulted with Vice President Egberg, President
Hurley and a lawyer because they were concerned about possi-
ble labor law problems given Tresemer’s past union activity
(Tr. 273–275, 291–292, 362–366). According to Anderson,
Tagatz, and Roberts, however, Tresemer’s union activity
played no role in the decision to terminate him (Tr. 275, 329,
374).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1524
On Tuesday, October 20, Tresemer met with Roberts, Ta-
gatz, Lehnertz and Anderson. Tresemer said for the first time
that he was bothered by a headache on October 15, and re-
peated that he was in a hurry that day, used no tools to verify
the presence of steam, assumed everything was okay when he
saw steam in the vicinity of the machine, and did not individu-
ally check the 10 sweeps, three times. Tresemer added that he
did not realize the steam was off (Tr. 227–228, 248, 276, 370–
371). In Tagatz’ opinion, however, Tresemer’s admissions
constituted a falsification of records because “he had docu-
mented steam flow . . . when in fact it was impossible. . . .” (Tr.
34, 299). On Friday, October 23, Tresemer received a letter
terminating his employment for “falsification of company re-
cords” (GC Exh. 7). That same day, Tresemer wrote a letter to
President Hurley maintaining that he simply made a “mistake”
and denying that he intentionally falsified records (R. Exh. 1).
According to Tagatz, terminations at Novartis were rare (Tr.
291). But Roberts approved the termination of between three
and ten field salesmen for records falsification (Tr. 377–380).
On September 16, 1994, employee Mike Porter received a
written warning for the following offense:

On 9/9/94 you checked off that the steam seals for the air in-
cineration unit were operating at the sterilization of the sys-
tem, this in fact was not true. You had stated to Vern Fryer
that he should open the valve for the steam seals and then you
assumed that he had done that and that the steam would be
there. This of course is a major mistake in the way we do
business in the Aseptic department. People who have done
this kind of thing in the past have been terminated. We feel
that your excellent job performance and up front demeanor
during this investigation is certainly worth some consideration
of a lesser penalty. We take into account the fact that you
were following behind Vern and you had told him to open
those valves, nevertheless, you did sign your initials saying
steam seals were okay after sterilization.

(GC Exh. 13). On December 19, 1995, employee Lonnie Hel-
lerud received a one-day suspension for the following incident:
On December 3, 1995 at 16:15 the QC lab technician found
no visible steam flow through the remote homogenizing valve
steam sweep. Further investigation found the steam sweep
valve was turned off. This valve had been turned off during
weekly maintenance five hours earlier. On your operator logs
you incorrectly noted on 10 checks (5 hours) that there was
visible steam flow through all the sweeps on the Unitherm.
Although the flow through that sweep is light, it clearly your
responsibility to make sure there is flow.
(GC Exh. 25, p. 1). Anderson characterized Hellerud’s infrac-
tion as a “mistake” (Tr. 330–331). According to Hellerud,
Novartis had a progressive discipline policy then, in which a
verbal warning was followed by a written warning, suspension,
and termination. But Hellerud added that this progressive dis-
cipline policy was eliminated “a couple of years ago” (Tr. 162).
Finally, on August 18, 1997, employee Shawn Taylor received
the following written warning:

On July 13, 1997 you performed routine operator mainte-
nance on the remote homogenizer for Unitherm #1. After
completion of the maintenance you failed to turn the steam
back onto the homogenizing valves steam sweeps. Further
compounding this mistake was that you missed the fact that
there was no steam coming out of the sweeps. Over the next
two hours you performed four visual checks of the steam
sweeps. On each check you indicated that there was stream
when in fact there was not. Fortunately the operator at shift
change noticed the steam sweep mistake immediately. The
system was shutdown, CIP’d and resterilized to end the proc-
ess deviation.

(GC Exh. 12, p. 15).
III. ANALYSIS
A. The 8(a)(1) Allegations
The General Counsel alleges that the Respondent illegally
prohibited four employees from engaging in activity protected
by Section 7 of the Act at the start of the union organizing
campaign in July and August 1998. Specifically, it is alleged
that two supervisors—Tagatz and Anderson—ordered the four
employees to refrain from such activities as collecting signa-
tures or talking about the Union during “paid company time.”
Collecting signatures for authorization cards and talking
about unions are generally protected activities. However, an
employer can place restrictions upon such activities without
running afoul of the Act. For example, an employer may limit
activities not associated with work to the nonworking time of
an employee, as long as union activities are not singled out.
Montgomery Ward, 269 NLRB 598, 599 (1984). But any rule
which purports to ban union activity completely during work-
ing hours will be presumed invalid because it is overly broad,
tending to connote periods from the beginning of the workday
to the end of the workday, including the employees’ own time.
Our Way, Inc., 268 NLRB 394, 394–395 (1983). But a pre-
sumptively invalid rule can be saved by a company that can
show a compelling and legitimate business reason necessitating
the rule. Midland Transportation Co., 304 NLRB 4, 5 (1991).
Employees Taray, Hellerud, and Tresemer were all engaged
in activity protected by Section 7 of the Act during paid break
times. And the Respondent’s written policy was to prohibit
“solicitation of employees” except during break times or lunch
periods.” (R. Exh. 18, p. 11). Nevertheless, supervisor Tagatz
approached Taray and told him to confine his union activity to
“non work time.” Clearly, this prohibition was much too broad
because it essentially prohibited union activity during all times
on company premises. Opryland Hotel, 323 NLRB 723, 728
(1997). Making matters worse was Tagatz’s simultaneous
threat to Taray that his “performance” was “an issue.” In the
presiding judge’s view, this remark reasonably tended to inter-
fere with Taray’s Section 7 rights, notwithstanding the fact that
Tagatz never disciplined Taray. See Rossmore House, 269
NLRB 1176 (1984). Likewise, Tagatz’s similar ban to Hel-
lerud regarding breaktime union activity also violated the Act
given that the Respondent has made no showing for the neces-
sity of such a ban. Moreover, Tagatz failed to tell Hellerud
about the correct rule even after learning about his incorrect
initial order. See Gaines Electric Co., 309 NLRB 1077 (1992);
Passavant Memorial Area Hospital, 237 NLRB 138 (1978).
Lastly, supervisor Anderson’s identical ban on Tresemer’s
breaktime protected activity also violated Section 8(a)(1).
Similar to rules governing onsite solicitation, an employer
may not restrict discussions about unions at any time of the day
when employees are free to discuss other subjects unrelated to
work. Willamette Industries, 306 NLRB 1010, 1017 (1992);
Orval Kent Food Co., 278 NLRB 402, 407 (1986). And that is
exactly what Anderson did by ordering employee Skarolid not
to talk about the Union while working. Moreover, the Respon-
NOVARTIS NUTRITION CORP. 1525
dent showed no necessity at all for this rule. Finally, it does not
matter that Skarolid apparently ignored Anderson’s order.
Thus, it is concluded that the Respondent’s no-union-talking
rule violated Section 8(a)(1) as well. Accordingly, the Respon-
dent will be ordered to cease and desist from the aforemen-
tioned illegal actions and to post an appropriate remedial notice
to its employees.
Turning to the matter of the Respondent’s solicitation of
grievances and promises to employees during the union effort,
the General Counsel alleges that the Respondent did nothing
about the employees’ previously raised concerns until the orga-
nizing campaign got underway. But the Respondent counters
that the minor benefits granted in the summer of 1998 were
merely the result of management’s long-standing efforts to
ascertain employee concerns.
To be sure, where an employer already has a policy of solic-
iting employee grievances, “the employer may continue the
practice during the organizing drive, but may not significantly
alter its past manner and method of solicitation.” Clare Hospi-
tal, 273 NLRB 1755 (1985). And once the union organizing
drive has begun, an employer may not promise or grant benefits
without giving rise to the inference that those actions were done
in order to interfere with the rights of the employees. See
NLRB v. Exchange Parts Co., 375 U.S. 405, 409–410 (1964).
The evidence clearly shows that the Respondent surveyed
and met with its employees beginning in late 1997—well be-
fore any whiff of union organizing activity—about job-related
matters. Moreover, that conduct continued through the summer
of 1998. Indeed, the General Counsel does not claim that
higher management’s meetings with the employees that sum-
mer constituted a significant change in the Respondent’s man-
ner of soliciting grievances. And the presiding judge does not
think so either. So, it is concluded that the Respondent’s solici-
tation of employees grievances did not violate the Act.
As for the Respondent’s granting of a variety of modest non-
wage changes in August and September 1998, it is necessary to
examine the following factors to determine whether these ac-
tions were unlawful:

(1) the magnitude of the benefit;
(2) the number of employees receiving the benefit;
(3) how employees reasonably would view the purpose of the
benefit; and
(4) the timing of the benefit.

See B & D Plastics, 302 NLRB 245 (1991). While the benefits
here concerned relatively minor matters such as issuing pay-
checks before vacation and better job posting procedures, all of
the employees apparently received them. And in the presiding
judge’s view, the Respondent has failed to connect a specific
ascertained grievance with a specific granted benefit. Also, it is
significant that when the benefits were granted, management
already exhibited union animus with its illegal summer 1998
edicts regarding union talk and card signing, and antiunion
meetings with the employees. Indeed, the timing of these bene-
fits—smack in the middle of the organizing drive—and Presi-
dent Hurley’s disingenuous statement to the employees that he
“cannot promise anything” while simultaneously listing the
reforms to be implemented, warrants the conclusion that the
employees reasonably viewed the granting of these reforms as a
quid pro quo to defeat the Union. Thus, “[i]t is immaterial that
an employer professes that he cannot make any promises, if in
fact he expressly or impliedly indicates that specific benefits
will be granted.” Michigan Products, 236 NLRB 1143, 1146
(1978). Finally, the Respondent has failed to proffer any inde-
pendent business necessity for the granting of these benefits at
these times. Compare Williams Litho Service, 260 NLRB 773
(1982) (absence of any evidence providing a causal connection
between the Union effort and the conferred benefit). Therefore,
it is concluded that the Respondent’s granting of benefits dur-
ing the organizing drive violated Section 8(a)(1) of the Act.
Accordingly, the Respondent will be required to cease and
desist this illegal practice.
B. Tresemer’s Termination
The General Counsel alleges that Robert Tresemer was dis-
charged in retaliation for his summer 1998 union activity; the
Respondent counters that Tresemer’s falsification of company
records regarding the presence of sterilizing steam in the
Unitherm machine on October 15, 1998 mandated his termina-
tion. In either event, the analysis of this issue is governed by
the standards of Wright Line, 251 NLRB 1083 (1980), enfd.
662 F.2d 899 (1st Cir. 1981), cert. denied, 455 U.S. 989 (1982);
approved in Transportation Management Corp., 462 U.S. 383
(1983). Thus, to prove its Section 8(a)(1) and (3) allegations
regarding the Respondent’s termination of Tresemer, the Gen-
eral Counsel must establish, by a preponderance of the evi-
dence, that his protected union activity was a motivating factor
in the Respondent’s decision to terminate him. If so estab-
lished, the burden then shifts to the Respondent to show, also
by a preponderance of the evidence, that its action was based
on a lawful reason and would have occurred absent the pro-
tected activity.
The presiding judge concludes that the General Counsel has
met his Wright Line burden. Specifically, there is evidence
aplenty of the Respondent’s animus against the Union, from the
illegal July and August 1998 no-solicitation orders from super-
visors Tagatz and Anderson directed to various employees,
including Tresemer, and the illegally timed August and Sep-
tember 1998 reforms implemented by President Hurley and
Vice President Egberg. Thus, having establihed an illegal mo-
tive by a preponderance of the evidence, the burden now shifts
to Novartis to prove that Tresemer actually falsified company
documents and that he was appropriately disciplined.
On a thorough review of the evidence, the Presiding Judge
rejects the Respondent’s claim that Tresemer was properly fired
for falsification of records. First, Tresemer’s actions on Octo-
ber 15, 1998 amounted to nothing more than negligence, as
opposed to intentional falsification. Indeed, it is unrebutted that
Tresemer checked for the presence of steam at 1:14, 1:44, and
2:15 p.m. and actually observed steam at the base of the
Unitherm; a practice followed by other employees as well.
While the preferred method was for the operator to check all 10
individual steam sweeps for the presence of steam, using some
tool, Tresemer readily admitted his sloppiness to management
the next day. Further, Tresemer made the inappropriate nota-
tion “N/A” on the steam log for 2:15 p.m., for reasons un-
known. By doing so, however, he called immediate attention to
his log notations, thus rebutting any inference that he intention-
ally falsified the log and hoped to conceal the falsification.
Second, contrary to the Respondent’s argument, the timing of
Tresemer’s union activity and his termination was highly suspi-
cious. Although Tresemer was not disciplined for what the
Respondent characterized as two separate “mistakes” in check-
ing for steam on July 31 and August 10, during the union effort,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1526
Anderson illegally forbade Tresemer from soliciting union card
signatures in August. Also in August, at a meeting of employ-
ees called by management, Tresemer criticized supervisors
Tagatz, Anderson, and Lehnertz for mismanagement. And
then, barely two months later, Lehnertz, Anderson, and Tagatz
recommended that Tresemer be fired for the October 15 inci-
dent. Third, management’s discipline of Tresemer, versus other
employees who made almost identical errors in checking for
steam, constituted classic disparate treatment of a prounion
employee. Specifically, in 1994, 1995, and 1997, three other
employees received written warnings or a one-day suspension
for indicating the presence of steam when in fact there was no
steam. In sum, Novartis’ official reason for firing Tresemer
was entirely pretextual. Therefore, it will be required to offer
Tresemer reinstatement to his job, with appropriate backpay.
CONCLUSIONS OF LAW
1. The Respondent, Novartis Nutrition Corporation, is an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. The Union, Teamsters Local Union 120, affiliated with
International Brotherhood of Teamsters, AFL–CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
3. Pursuant to paragraphs 5(a), 5(b), 5(c), 5(f), 5(g), and 7 of
the General Counsel’s complaint, the Respondent violated Sec-
tion 8(a)(1) of the Act by prohibiting four employees, in July
and August 1998, from engaging in protected concerted activ-
ity.
4. Pursuant to paragraphs 5(d), 5(e), and 7 of the complaint,
the Respondent violated Section 8(a)(1) of the Act by promis-
ing benefits to employees in July and August 1998 and granting
benefits to employees in August and September 1998, in order
to discourage employees’ union activities.
5. Pursuant to paragraphs 6 and 8 of the complaint, the Re-
spondent violated Section 8(a)(1) and (3) of the Act by termi-
nating employee Robert Tresemer on October 23, 1998.
6. The unfair labor practices of the Respondent, set forth in
paragraphs 3, 4, and 5, above, affect commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
Accordingly, IT IS ORDERED that the Respondent, Novar-
tis Nutrition Corporation, its officers, agents, successors, and
assigns, shall:3
1. Cease and desist from
(a) Threatening employees in any manner for engaging in
protected concerted activity.
(b) Ordering employees not to engage in protected concerted
activity during lunch or break times.
(c) Singling out the Union as a prohibited topic of conversa-
tion at work.
(d) Promising to grant, or granting, employees benefits in or-
der to discourage employees’ union activity.

3 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
(e) Discharging any other employees for engaging in union
activity.
(f) In any like or related manner, interfering with, restrain-
ing, or coercing employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following action
(a) Within 14 days of the date of this Order, offer Robert
Tresemer full reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privileges previ-
ously enjoyed.
(b) Make Robert Tresemer whole for any loss of pay and
benefits he may have suffered by reason of his unlawful termi-
nation, to be computed as set forth in F. W. Woolworth Co., 90
NLRB 289 (1950), with interest as computed in New Horizons
for the Retarded, 283 NLRB 1173 (1987).
(c) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records, including an
electronic copy of the records if stored in electronic form, nec-
essary to analyze the amount of backpay due under the terms of
this Order.
(d) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful discharge, and within
three days thereafter notify Robert Tresemer in writing that it
has done so and that it will not use the discharge against him, in
any way.
(e) Within 14 days after service by the Region, post at its fa-
cilities in St. Louis Park, Minnesota, and all other places where
notices customarily are posted copies of the attached notice
marked “Appendix.”4 Copies of the notice, on forms provided
by the Regional Director for Region 18, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced,
or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by the Respondent at any time since July 1, 1998.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.

4 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.”