Pacesetter Corp

National Labor Relations Board - Board Decisions

May 14, 1992

307 N.L.R.B. 514 (N.L.R.B. 1992)

514
307 NLRB No. 89
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent, the General Counsel, and the Charging Party
have excepted to some of the judge’s credibility findings. The
Board’s established policy is not to overrule unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
2 The General Counsel excepts to the judge’s failure to include
language in the Order reflecting the 8(a)(1) violations found. We
find merit in this exception and shall modify the Order and notice
accordingly.
Pacesetter Corporation and United Steelworkers of
America, AFL–CIO, CLC. Cases 17–CA–15533
and 17–RC–10640
May 14, 1992
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On January 9, 1992, Administrative Law Judge Tim-
othy D. Nelson issued the attached decision. The Re-
spondent, the General Counsel, and the Charging Party
filed exceptions and supporting briefs.
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 de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order as
modified.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Pace-
setter Corporation, Omaha, Nebraska, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order as modified.
1. Substitute the following as paragraph 1(a).
‘‘(a) Coercively interrogating employees about their
union activities or sympathies, seeking to prevent them
from talking about the Union among themselves, seek-
ing to impress on employees the futility of collective
bargaining, threatening employees with discharge be-
cause of their union activities, or threatening to close
the facility and transfer work elsewhere to avoid hav-
ing to deal with the Union.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
[Direction of Second Election omitted from publica-
tion.]
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that
we violated the National Labor Relations Act and has
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 protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT coercively question you about your
union support or activities.
WE WILL NOT seek to prevent you from talking
about the Union among yourselves.
WE WILL NOT seek to impress on you the futility of
collective bargaining if you choose the Union as your
collective-bargaining agent.
WE WILL NOT threaten you with discharge because
of your union activities.
WE WILL NOT threaten you with closure of the
Omaha phone room and the transfer of work else-
where, if you select the Union as your representative.
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.
PACESETTER CORPORATION
Mary G. Taves, Esq., for the General Counsel.
Soren S. Jensen, Esq. (Erickson & Sederstrom, P.C.), of
Omaha, Nebraska, for Respondent Pacesetter Corporation.
Voly E. Louderback, Representative, of Plattsmouth, Ne-
braska, and Richard Hawkins, Representative, of Omaha,
Nebraska, for Charging Party Steelworkers.
DECISION
STATEMENT OF THE CASE
TIMOTHY D. NELSON, Administrative Law Judge. I heard
these consolidated representation and unfair labor practice
cases in Omaha, Nebraska, on September 24, 1991 (all dates
below are in 1991 unless I specify otherwise). In Case 17–
RC–10640, United Steelworkers of America (the Union) filed
a petition for representation election on February 19, seeking
to be certified as the collective-bargaining representative of
certain telephone solicitors employed by Pacesetter Corpora-
tion (the Respondent) at its Omaha telemarketing center. The
Regional Director for Region 17 approved the parties’ Stipu-
515PACESETTER CORP.
1 The tally showed 6 votes for representation by the Union, 13
against, with 1 void ballot and 2 nondeterminative challenged bal-
lots.
2 The communicators make ‘‘cold’’ (unsolicited) calls to prospec-
tive customers within Nebraska and in the neighboring States of
Iowa and South Dakota. The solicitor tries to persuade the ‘‘pros-
pect’’ to make an appointment with a local sales representative; if
the prospect agrees, the prospect becomes a ‘‘lead.’’ The communi-
cator turns over leads to his or her supervisor, who refers the leads
to a local sales representative, who then visits the lead and tries to
make a sale.
3 The Respondent admits that the telemarketing supervisors in each
of the five product departments are ‘‘supervisors,’’ as defined in
Sec. 2(11) of the Act.
4 Iwerson’s testimony, harmoniously supplemented by other wit-
nesses, is the skeleton for the findings in this paragraph.
5 A communicator has a ‘‘red balance’’ when his or her percentage
commission total is less than the total hourly pay he or she has re-
ceived during a common accounting period. This negative balance,
when it exists, is usually ‘‘carried’’ into successive pay periods, to
be used as an offset to any greater commissions over base pay the
communicator might receive in a later pay period.
6 The Union has historically represented the production and main-
tenance employees in the Respondent’s Omaha manufacturing plant.
lated Election Agreement on February 28, and his agent con-
ducted an election in the stipulated voting/bargaining unit on
March 20, which the Union lost.1 The Union filed objections
to the election on March 27. It filed unfair labor practice
charges against the Respondent in Case 17–CA–15533 on
April 4. It withdrew certain objections in the representation
case on May 13.
On May 15, the Regional Director issued a complaint in
the unfair labor practice case against the Respondent. The
complaint, as amended at the trial, alleges that before the
election, the Respondent’s agents violated Section 8(a)(1) of
the Act by interrogating employees about union activities, by
‘‘selectively and disparately’’ prohibiting union talk, by mak-
ing threats of discharge and shutdown, and by emphasizing
the ‘‘futility’’ of collective bargaining in campaign speeches.
Separately, the complaint alleges that, after the election, on
March 26, the Respondent violated Section 8(a)(3) and (1)
by discharging employee Brian Iwerson because of his union
activities.
On May 22, the Regional Director issued an order consoli-
dating the two cases for a common hearing and disposition,
contemplating that resolution of the preelection misconduct
issues raised by the complaint in the unfair labor practice
case would be determinative of the issues in the election ob-
jections case. The Respondent, over whom the Board has al-
ready taken uncontested jurisdiction in the representation
case, again admits that its operations are in commerce and
affect commerce, but it denies all wrongdoing.
I have studied the record and the posttrial briefs filed by
the General Counsel and the Respondent. I have considered
the performance of the witnesses as they testified, and have
assessed the probabilities inhering in the undisputed sur-
rounding circumstances. Based on all of that, and, more par-
ticularly, on my findings and reasoning below, I will con-
clude that the Respondent violated Section 8(a)(1) of the Act,
substantially as alleged in the complaint, but that its dis-
charge of Iwerson was not a violation under Section 8(a)(3)
or (1). I will find that certain 8(a)(1) violations in the critical
preelection period require that the election be set aside and
a new one conducted after the Respondent remedies all of its
unfair labor practices.
FINDINGS AND CONCLUSIONS
I. OVERVIEW
The Respondent operates a plant in Omaha where it manu-
factures a variety of house exterior products, such as siding,
windows, doors, and patio covers. It uses telephone solicitors
(communicators is the company term, and I will use it here-
after) to generate ‘‘leads’’ for customers for its products. The
communicators work from ‘‘booths’’ in a ‘‘phone room.’’2
While the Respondent operates satellite phone rooms in other
cities in Nebraska, its main phone room is in Omaha, in an
office building across the street from the plant. It was the
roughly 23 nonsupervisory communicators at the Omaha
phone room who made up the eligible voters in the March
20 election.
The communicators generally sell products in only one of
five product ‘‘departments’’ (e.g., siding, windows), and they
report their leads to and take their instructions from a spe-
cific department supervisor.3 These supervisors report to
Mike Dean, Omaha telemarketing manager, who reports to
Peter Danielson, vice president and general manager. Train-
ing Manager Ross Herink is another admitted supervisory
agent of the Respondent, and his function appears evident
from his title, although it is otherwise unclear where he
might fit on the Respondent’s table of organization.
Brian Iwerson was one of about nine communicators in the
siding department; he earned $6 an hour, plus 2.8 percent of
any closed sale for which he produced the lead.4 In late Jan-
uary, communicators in the siding department began to com-
plain in meetings with their then supervisor, Neil Langer,
about the fact that many of them were carrying ‘‘red bal-
ances’’5 while ‘‘the higher-ups were getting a bigger slice of
the pie.’’ This dissatisfaction eventually ripened into open
union talk. In a department meeting on January 28, Iwerson
told his fellow siding communicators—and Langer—that he
would ‘‘contact a union.’’ Within a day or two, Iwerson met
for lunch with the Union’s representative, Richard Hawkins.6
Thereafter, from February 4 to 15, Iwerson openly passed out
prounion pamphlets and buttons furnished by Hawkins, and,
on February 15, he solicited a number of employee signa-
tures on authorization cards for the Union. He also served as
the Union’s election observer in the March 20 election.
On February 19, the day the Union filed the election peti-
tion, the Respondent issued the first in a series of preelection
campaign letters to voting unit communicators, all signed by
‘‘Pete’’ Danielson. Danielson also conducted two ‘‘formal’’
campaign meetings in the Omaha telemarketing offices, one
on March 11, the other on March 13, attended by all commu-
nicators and telemarketing supervisors and managers. At each
of these meetings, Danielson played videotapes to the assem-
bled group, and then made informal remarks and responded
to questions. Nothing in Danielson’s campaign letters nor in
the video presentations at the March 11 and 13 meetings is
called into question by the complaint or by the outstanding
objections. I will mention details below about these written
and video communications only insofar as they may be rel-
evant to the more specific acts attacked by the complaint and
the objections.
516 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Shepherd was no longer employed by the Respondent when he
appeared as the General Counsel’s witness at the trial.
8 The closest the Respondent’s counsel came to this point was in
his oblique question at Tr. 212, ‘‘Did you ever indicate to any em-
ployee it’s all right to talk in favor of the union on company
time?’’—to which Johnson replied, ‘‘No. Because we’re not sup-
posed to do that.’’ I do not treat this as fairly testing the factual
point suggested by Shepherd, that Johnson had quickly become mol-
lified when Andriesen had explained that this particular ‘‘union’’
talk only amounted to an effort to persuade Shepherd to reject the
Union.
9 P. 1, second para.:
Remember that we are perfectly willing to discuss any and all
questions, and any person who tells you that you shouldn’t ask
The Respondent discharged Iwerson on March 26, under
circumstances closely linked to Iwerson’s announcement ear-
lier that day to his new supervisor, Mark Schmahl, that he
would be looking for other work because he was not making
enough to feed his family. For at least a month before
Iwerson was fired, he had been well-known to the Respond-
ent’s supervisors and managers as the central in-house orga-
nizer for the Union.
II. ALLEGED 8(A)(1) VIOLATIONS
A. Prepetition Discharge Threat by Ross Herink
(Iwerson)
1. Facts
This is Iwerson’s account, in substance: On February 15,
Iwerson was passing out union authorization cards to fellow
communicators gathered in Iwerson’s booth. Training Man-
ager Herink approached and asked Iwerson what he was
doing; Iwerson replied that he was passing out union cards.
Herink ‘‘kind of smirked,’’ and then, as he walked away,
turned briefly and asked Iwerson ‘‘where [he] was going to
be working next week.’’ Herink claims no recollection of
any such transaction, and effectively denies that anything re-
sembling it ever took place.
2. Credibility and Conclusions
Subject to exceptions noted below, Iwerson generally
seemed to exhibit care for the truth, and a reasonably good
memory of pertinent context. Nothing in his testimony about
this incident seemed strained or unnatural. Herink struck me
as uncomfortably wooden when he denied any recollection of
such an incident; he also seemed suspiciously improvisatory
in other aspects of his testimony. I credit Iwerson in this in-
stance. I have no difficulty finding in his credited account
that Herink conveyed a message that Iwerson was risking his
job by soliciting authorization cards, and, therefore, that the
Respondent, through Herink, violated Section 8(a)(1).
B. Postpetition Incidents
1. March 1 Scott Johnson ‘‘no union talk’’ statements
(Shepherd)
a. Facts
Robert Shepherd, then a prounion communicator in the
window department,7 testified that on March 1, Shepherd
was talking with a work neighbor, Andriesen, ‘‘about the
Union,’’ when Window Department Supervisor Scott John-
son walked up and said, ‘‘There’s no talking about the union
while you’re on the clock, do that on breaks.’’ Shepherd
states that Andriesen then replied, ‘‘I was just trying to talk
him out of it,’’ to which ‘‘Scott just pretty much said, [‘]oh,
okay[’] and walked away and that was it.’’
Supervisor Johnson’s version is in some ways similar,
thus:
Well . . . what I said was, [‘‘]come on guys, you know
you’re not supposed to be talking about this stuff at
work, okay[?] So go ahead and get back to work[’’],
and I walked away.
Johnson was not invited specifically to deny the other ele-
ments in the exchange reported by Shepherd (Andriesen’s
explanation, ‘‘I was just trying to talk him out of it,’’ and
Johnson’s farewell, ‘‘oh, okay’’ statement).8
b. Credibility, Supplemental Findings, and Conclusions
I credit Shepherd’s version concerning the tone and de-
tails; I base this on his apparently sincere demeanor, con-
trasted to Johnson’s generally awkward presentation, noting
also that Shepherd is no longer employed by the Respondent
and seemingly has no personal stake in the outcome. I also
find it significant that the Respondent does not claim to have
maintained, much less previously enforced, any general rule
prohibiting employees from nondisruptive talking with work
neighbors during work time. Neither did any testimony sug-
gest that the Shepherd-Andriesen conversation was disruptive
or otherwise unusual in the workplace. Neither has the Re-
spondent sought to show that some special, exigent cir-
cumstances prevailed which might justify a special ban dur-
ing the preelection campaign on chitchat between workers
having a ‘‘union’’ content. And, in fact, the Respondent af-
firmatively encouraged employees in campaign literature to
‘‘discuss this matter openly’’—apparently meaning to ‘‘dis-
cuss’’ it ‘‘openly’’ with the company vice president or with
one of his subordinate managers. Thus, in ‘‘Pete’’
Danielson’s initial campaign letter to ‘‘All Communicators,’’
dated February 19, employees were told, inter alia:
I have received notification that a number of you
have signed cards requesting that an election be held so
that communicators may become represented by a
union. In my opinion, union representation would be a
major error for our phone room employees with no sub-
stantial benefits to anyone involved.
. . . .
I want to let you know that anyone . . . is free to dis-
cuss this matter openly. I would encourage you to talk
with me or any of the telemarketing managers about
your thoughts and concerns . . . . Rest assured that we
welcome your questions and there will be no adverse
consequences or retaliation for sharing your thoughts
with us.
And a March 15 campaign letter from Danielson was brack-
eted by similar entreaties to employees to bring their ‘‘ques-
tions’’ and ‘‘concerns’’ about the union matter to their super-
visors and managers.9
517PACESETTER CORP.
questions about the union matter is not giving you good advice
or acting in your best interests.
P. 4, last para.:
Don’t forget, if you have questions which are bothering you,
let’s talk about them.
10 E.g., Wilshire Foam Products, 282 NLRB 1137, 1158 (1987),
and cases cited.
11 Herink: ‘‘I said, Brian . . . it’s all right to talk about this stuff
if you’re on break or at lunch but now everybody’s supposed to be
in your booth.’’ He acknowledged that Iwerson replied, ‘‘I know my
rights,’’ and says he then repeated the same admonition just quoted.
12 Rossmore House, 269 NLRB 1176 (1984), enfd. sub nom. Hotel
& Restaurant Employees Local 11 v. NLRB, 760 F.2d 1006 (9th Cir.
1985).
13 Collins testified that he wore a union button to work on Feb-
ruary 15, and again on the day before the election. Herink stated that
he was unaware of Collins’ union sympathies and had not been
aware that he had worn a union button on February 15.
I do not find it unreasonable to presume in these cir-
cumstances that the Respondent would have found no fault
if any employee had chosen to leave his or her work station
and travel to a management office to unburden him/herself
of union-related questions or concerns. And certainly, the Re-
spondent did not intend to suggest by these wide-open invita-
tions that employees could only unburden themselves to their
supervisors when they were ‘‘off-the-clock.’’
An employer’s attempt to ban ‘‘union talk’’ facially inter-
feres with the exercise of organizational rights protected by
the statute; it may be privileged on a special showing never
made in this case.10 It aggravated the interference in this
case that Johnson’s attempt to ban ‘‘union talk’’ was doubly
discriminatory: First, Johnson appeared to excuse the ‘‘union
talk’’ once Andriesen had explained that he was trying to
persuade Shepherd to reject the Union; second, the Respond-
ent was simultaneously encouraging employees in campaign
tracts to ‘‘discuss this matter openly’’ with company higher-
ups, with ‘‘no adverse consequences for sharing your
thoughts with us.’’ Clearly, the Respondent operated under
no ‘‘business’’ need to prevent union-content discussions
from taking place. I thus conclude that in this instance, the
Respondent, through Johnson, violated Section 8(a)(1).
2. Late February-early March Ross Herink ‘‘no union
talk’’ statements (Iwerson)
a. Facts
Iwerson described an experience with Training Manager
Herink which was similar to Shepherd’s encounter with
Johnson, above. Thus, Iwerson testified that in late February
or early March, Herink approached as Iwerson was ‘‘talking
. . . about the union’’ with two other communicators, an-
swering their questions, all this during some ‘‘idle time’’
when the ‘‘computers were down.’’ According to Iwerson,
Herink,
asked me if I was talking about the union on company
time. . . . I told him I knew what my rights were, not
to intimidate me, that anytime I had free time to talk
about the weather, fishing, my family, I could talk
about the union; . . . and what he told me is . . .
[‘‘]well, I better not hear you again[’’]; and . . . I told
him not to try to intimidate me, that I knew what my
rights were. And as he walked off, he said, [‘‘]well,
you heard what I said.[’’]
Herink recalled a similar incident, in which, like Super-
visor Johnson, he claims to have made far less confrontative
remarks, but ones obviously intended to convey to the em-
ployees that talk with ‘‘union’’ content should be limited
only to ‘‘break’’ or ‘‘lunch’’ time.11 He also denied that the
‘‘computers were down’’ at the time of this transaction.
b. Credibility and Conclusions
I credit Iwerson’s more convincingly uttered account for
the tone and details. It is reasonably clear from Herink’s ac-
count in any case that Herink was conveying to employees
that the Respondent would not permit ‘‘union’’ talk during
‘‘company time,’’ even while the Respondent was blatantly
inviting employees in campaign publications to take the time
to talk ‘‘openly’’ about the Union with their supervisors and
managers. Consistent with my analysis above at B,1, I con-
clude that when Herink warned Iwerson against talking about
the union except on break or lunchtime, the Respondent vio-
lated Section 8(a)(1).
3. ‘‘Early March’’ interrogation by Herink (Collins)
a. Facts
Timothy Collins, formerly a communicator whose last date
of employment with the Respondent was on March 11, testi-
fied that in ‘‘early March,’’ Herink called Collins into his of-
fice and then,
He asked me how I felt about the union and I never
gave him any direct response on it. I said I didn’t
know. And he asked me what we felt we could accom-
plish by getting the union and I . . . again—didn’t give
him any direct answer . . . I just said I wasn’t sure.
And from there on, we started talking about work.
Herink claimed never to have had any such conversation.
He acknowledged that, ‘‘every Monday I had a conversation
with all employees on an individual basis . . . we went over
their performance and also any problems that they had with
the job.’’ He allowed that, in some of these ‘‘performance’’
meetings in the preelection period, employees may have
brought up the subject of the Union on their own, but he said
that he never originated the subject. Moreover, he claims no
recollection of any union-related discussions with Collins.
Collins, called on rebuttal, was asked if the meeting in ques-
tion occurred on a ‘‘Monday.’’ He replied, ‘‘Not to my
knowledge, no.’’ Asked then if the meeting in question was
‘‘to discuss your recaps’’ (i.e., sales performance sheets
maintained by Herink), Collins replied, ‘‘No, it was not.’’
b. Credibility and conclusions
I credit Collins, because he gave this testimony with ap-
parent sincerity and was no longer employed by the Re-
spondent when he testified, and because Herink did not here
or elsewhere impress me as being candid. Herink interro-
gated Collins. Collins was not shown to be an ‘‘open’’ or
‘‘active’’ union supporter within the meaning of Rossmore
House12 when Herink initiated the interrogation.13 That case
teaches that mere ‘‘casual’’ questioning by a supervisor of a
518 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
14 269 NLRB at 1177.
15 277 NLRB 1217 (1985), expanding Rossmore House teachings
even where employees being questioned are not ‘‘open and active
union supporters.’’ Ibid.
16 277 NLRB at 1217; my emphasis. And see following passages
(id. at 1217–1218), wherein the majority embraced the principles an-
nounced by the Board in Blue Flash Express, 109 NLRB 591
(1954).
17 In addition to Danielson, the Respondent called two tele-
marketing supervisors (Mark Schmahl and Scott Johnson) and two
managers (Michael Dean and Ross Herink). Only Danielson was in-
vited to testify about his remarks at the group meetings. One other
employee-witness called by the General Counsel, former communi-
cator Robert Shepherd, was not asked about any such meetings, but
he testified that his terminal date of employment with the Respond-
ent was ‘‘March 11,’’ making it likely that he attended neither of
the acknowledged ‘‘formal’’ meetings on March 11 and 13, de-
scribed below.
18 The complaint does not allege that the Respondent traded on or
otherwise abused the Board’s imprimatur or authority.
19 The General Counsel equivocates about Collins’ testimony in
this regard. In her factual narration (Br. 2–3), she appears to em-
brace Collins’ claim that a ‘‘February 20’’ meeting was conducted
by Danielson where he spoke of work transfers. However, in her
concluding discussion of the issue, she states (Br. 10):
The credible evidence establishes that Respondent threatened to
close the Omaha communicators’ facility and transfer the work
to other satellite offices on March 11[.]
self-identified union adherent about union-related matters
will not alone violate Section 8(a)1); rather, the Board will
take ‘‘all the circumstances’’ into account in deciding,
‘‘[w]hether . . . the interrogation reasonably tends to re-
strain, coerce, or interfere with rights guaranteed by the
Act.’’14 In any case, under Sunnyvale Medical Clinic,15
which applied Rossmore House more expansively, even an
employee whose union sympathies are unknown may be in-
terrogated about union-related matters by a company agent,
under certain ‘‘case-by-case’’ circumstances; thus, the Sunny-
vale Medical Board interpreted Rossmore House as,
. . . signal[ing] disapproval of a per se approach to al-
legedly unlawful interrogations in general, and to re-
turn to a case-by-case analysis which takes into account
the circumstances surrounding an alleged interrogation
and that does not ignore the reality of the workplace.16
Obviously, we are discouraged from ‘‘per se’’ approaches,
and we must not ‘‘ignore the realities of the workplace.’’
In finding this interrogation to be unlawfully coercive, I
am influenced by the fact that Herink’s questioning of Col-
lins was not shown to have been a natural outgrowth of some
casual conversation, but apparently was his first order of
business before turning to ‘‘work’’ subjects. In addition, the
interrogation occurred in Herink’s office, a locus of manage-
rial authority, to which Collins had been summoned. I thus
conclude that when Herink interrogated Collins, the Re-
spondent violated Section 8(a)(1).
4. Danielson’s statements to employees in
group meetings
a. Introduction
The complaint alleges in pertinent part:
5.
(a) On or about February 20, 1991, and March 11,
1991, [Danielson] . . . threatened to close the facility
if the employees selected the Union . . . .
(b) On or about March 11 . . . and March 13 . . .
[Danielson] . . . informed its employees that it would
be futile for them to select the Union as their bar-
gaining representative.
Both of these counts address General Manager Danielson’s
remarks in group meetings. Testimony about those remarks
was offered by Iwerson, by (former) communicator Collins,
and by Danielson, himself.17 While this testimony is diverse
and mostly fragmentary, there is no dispute among these wit-
nesses about certain features, and they provide the basis for
these findings: Danielson conducted ‘‘formal’’ campaign
meetings on March 11 and 13, attended by all communica-
tors and telemarketing supervisors and managers. At each of
these meetings, Danielson played videotapes to the assem-
bled group, and then made informal remarks and responded
to questions from the communicators. Iwerson and Danielson
substantially agree that the video presentation at the March
11 meeting was titled ‘‘About the Union’’ (Iwerson), or
‘‘about the decline of unionism’’ (Danielson), and that the
video title at the March 13 meeting was ‘‘About Collective
Bargaining’’ (Iwerson), or ‘‘What’s the Process of Collective
Bargaining?’’ (Danielson). All three witnesses agree, finally,
that in (at least) one ‘‘video’’ meeting, Danielson discussed
the possibility that the Respondent might transfer the work
of the Omaha communicators to one of the satellite oper-
ations in Nebraska, and that in one of the meetings, Daniel-
son made some remark to the effect that ‘‘bargaining starts
from scratch’’ and that employees could ‘‘lose benefits.’’
I also find it useful as a preliminary matter to identify
those disputes which I find to be of marginal significance:
Iwerson and Collins recall that Danielson said that the
tapes were produced by the ‘‘NLRB.’’ Danielson denies this,
saying that, in fact, the tapes had been produced by some-
thing called the ‘‘Labor Relations Institute,’’ and that this is
what he reported in the meeting when a question of author-
ship was raised from the floor. The General Counsel em-
braces the ‘‘NLRB’’ version, but does not claim that this in-
volved any illegality.18 My assessment of the likelihoods is
that Iwerson and Collins were genuinely mistaken in recall-
ing that Danielson had said ‘‘NLRB.’’
I dismiss as unreliable Collins’ claim that Danielson con-
ducted a first meeting on ‘‘February 20,’’ where he made
work transfer threats. None of this was corroborated by
Iwerson nor by communicator Shepherd. Rather, Iwerson at-
tributes the work transfer remarks to Danielson only in the
March 11 meeting, and Danielson agrees that he made such
a reference in only one of the ‘‘video’’ meetings (although
he said that this was in the March 13 meeting).19 I regard
the latter discrepancy as insignificant. It will not affect the
lawfulness of Danielson’s remarks whether he made them at
the first, or the second ‘‘video’’ meeting.
b. The alleged ‘‘closure’’ (work transfer) threat
Iwerson recalls (corroborated by Collins on central points)
that on March 11, after the conclusion of the video, one em-
ployee asked who had narrated it, and Iwerson himself asked
519PACESETTER CORP.
20 International Automated Machines, 285 NLRB 1122, 1123
(1987), overruling Wayne Construction, 259 NLRB 571 fn. 1 (1981),
‘‘to the extent it is inconsistent.’’ 285 NLRB at 1123 fn. 5. See also
Auto Workers (Gyrodyne Co.) v. NLRB, 459 F.2d 1329, 1336–1337
(D.C. Cir. 1972).
21 The record does not affirmatively show that the Respondent pos-
sessed or had easy access to copies of those videotapes at the time
of this trial, but I would presume that one or the other was true, for
the tapes were shown to have been once in its possession, and were
never shown to have left its possession thereafter. Similarly, the
tapes were once shown to have been available to the Respondent for
employer campaign purposes from an organization about which it
had apparently unique knowledge, the ‘‘Labor Relations Institute.’’
Continued
whether the union being depicted was the ‘‘Steelworkers.’’
Danielson replied to both questions that he did not know.
Then, according to Iwerson,
Mr. Danielson said, [‘‘]. . . see, there you have it, . . .
we don’t have to deal with the union, . . . as a matter
of fact, we could . . . close up this shop here and di-
rect . . . the work you’re doing here elsewhere to some
of our other satellite offices and let the other satellite
offices pick up the slack where you guys would leave
off, if you were to vote the union in.[’’]
Collins, recalling the same meeting, testified that Danielson
said,
. . . the company didn’t have to deal with the union,
if it came to that. . . . the company could transfer our
business out . . . if it came to that.
Danielson, claiming that his remarks on this subject were
made on March 13, testified as follows in response to ques-
tions from his attorney:
Q. Do you recall . . . discussing the possibility of
work being transferred under certain circumstances?
A. Yes, I do.
Q. And what were those circumstances?
A. The circumstances, if we had a strike and we had
to deliver the leads, I still had 50 sales reps and I had
to put them, possibly, to other locations; I still had 50
sales people to take care of. . . . And if I had to, I
would move my locations at that particular time to still
service my sales personnel.
Later, Danielson claimed that he had not even raised the sub-
ject of a ‘‘strike,’’ but, rather, that someone in the audience
had raised some question about a ‘‘strike.’’ Both Iwerson
and Collins specifically denied that Danielson made these re-
marks in the context of what would happen in the event of
a ‘‘strike.’’
c. The alleged ‘‘futility’’ of collective-bargaining
statements
The General Counsel relies on remarks made by Danielson
after the March 13 video presentation, as described by
Iwerson, to wit:
After the film, stuff was mentioned about the bargain-
ing. [‘‘]Well, we don’t’ have to deal with the union,[’’]
again was mentioned by Mr. Danielson. Basically,
[‘‘]all negotiations would start at scratch, zero.[’’] Also,
that, you know, again, if we did it, if we did vote the
union in, we could lose wages, benefits, and vacations.
Iwerson’s account here was obviously summary in character,
and it is doubtful that he quoted Danielson with anything
near literal accuracy. But Danielson’s own testimony on this
point was even more impressionistic, generalized, and heav-
ily shaped by leading questions from his counsel; thus:
Q. Did you discuss the concept of collective-bar-
gaining as far as the process of give-and-take, which
had been shown in the videotape?
A. I referred back to the tape as it said that collec-
tive bargaining everything starts from scratch and be-
tween management and persons in the union they
would have to come together and they could build
whatever plan was acceptable to both parties.
Q. Did you say that things would be taken away
from employees if—
A. I said there’s a possibility, as the tape stated, that,
yes, things could be removed as far as they have cur-
rent, yes. That was stated in the film.
Q. Or things could also become better?
A. That’s correct.
d. The Respondent’s March 15 letter
On March 15, the Respondent distributed a campaign letter
which stated, inter alia:
Q. If the union wins the election, would the com-
pany close its Omaha operation?
A. Absolutely not. We think we can handle anything
that comes along including union representation. How-
ever, if during union negotiations it would appear that
there would be a possibility of a strike or if there was
a strike, there is no question but that the company
would have the right to suspend operations in Omaha
and transfer telemarketing work to one of the com-
pany’s other operations. Obviously, how long this
would last and whether or not it would be permanent
or temporary are questions that cannot be predicted in
advance.
e. Credibility and Conclusions
Obviously, context and detail can make an important dif-
ference to the lawfulness of employer statements concerning
work transfers and possible loss of wages and benefits as a
consequence of unionization. Yet there is precious little con-
text or detail to be found in the testimony of the three wit-
nesses. Neither did we hear from all the potential witnesses.
Thus, the Respondent apparently deemed it not useful to its
case to invite four of its managerial witnesses called for
other purposes (Schmahl, Johnson, Dean, and Herink) to give
their own versions of what Danielson had said at these meet-
ings, which they were elsewhere shown to have attended. An
appropriate inference is that these company agents would
have failed to corroborate Danielson’s versions.20 Moreover,
the videotapes are not in evidence, and the record thus lacks
arguably important surrounding contextual information, under
circumstances where it is the Respondent who stresses ‘‘con-
text’’ in its defense. Thus, a similar adverse inference is war-
ranted from the Respondent’s failure to introduce the tapes.21
520 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Moreover, the Respondent’s counsel at one point (Tr. 42:14–15) pro-
fessed to be personally familiar with the contents of the videos.
These are all reasonable bases for inferring that the tapes would
have been introduced by the Respondent if the Respondent believed
that they would corroborate Danielson’s claims about the context
within which he made the remarks in question. (As we have seen,
Danielson’s own account of his ‘‘bargaining from scratch’’ and re-
lated statements stressed that he was simply repeating what had been
‘‘stated in the film.’’)
22 In disagreement with the Respondent’s counsel on brief, I do
not find that a contrary credibility resolution is required simply be-
cause 2 days after Danielson’s final ‘‘video’’ meeting, the Respond-
ent distributed the above-quoted campaign letter. In my judgment,
this post facto publication does not make it more or less likely that
Danielson’s version of his remarks in the video meeting(s) was more
reliable than Iwerson’s and Collins’ counterversion.
23 An employer or its agent may not lawfully predict a plant shut-
down as a consequence of unionization unless such predictions are
‘‘carefully phrased on the basis of objective fact to convey an em-
ployer’s belief as to demonstrably probable consequences beyond his
control.’’ NLRB v. Gissel Packing Co., 395 U.S. 575, 618–619
(1969). See also, e.g., Harrison Steel Castings Co., 293 NLRB 1158,
1159 (1989); Crown Cork & Seal Co., 255 NLRB 14 (1981).
Iwerson’s credited account shows that Danielson attempted no such
‘‘careful phrasing.’’
24 The Respondent does not argue that the March 15 letter quoted
above constituted an adequate ‘‘disavowal’’ of Danielson’s remarks
on the subject. I could not so find in any case. The letter contained
no acknowledgment that Danielson had previously stated unlawfully
that shutdowns and work transfers could be used by the company
to avoid having to ‘‘deal’’ with the Union. Cf. Passavant Memorial
Area Hospital, 237 NLRB 138, 139 (1978). Neither did Danielson’s
‘‘work transfer’’ remarks ‘‘occur in an atmosphere otherwise free of
unfair labor practices.’’ Cf. Farm Fresh, Inc., 305 NLRB 887
(1991). Moreover, whatever ‘‘reassurance’’ employees might have
experienced from the first quoted passage in the March 15 letter
must have been diluted by the surrounding passages in which the
Respondent emphasized, in effect, that if it judged that a ‘‘strike’’
were even a ‘‘possibility,’’ it would ‘‘suspend’’ (i.e. ‘‘shut down’’)
its Omaha office and transfer the unionized communicators’ work to
satellite operations.
25 That Iwerson’s ‘‘performance’’ had in some sense recently de-
clined does not appear to be in question. Indeed, Iwerson qualifiedly
conceded that ‘‘maybe, to some extent,’’ his ‘‘production so far as
sales achieved and demos was, in fact, down in March from a pre-
vious high or a previous average.’’ Company production statistics
(R. Exhs. 2, 3, and 5) paint a confusing picture, but suggest that
Iwerson had recently dropped below previous performance levels in
terms of ‘‘production rate,’’ and ‘‘sales,’’ (see R. Exh. 5), and that
he was the ‘‘lowest’’ among his fellow siding communicators in
terms of ‘‘Issue’’ percentage, in the week ending March 14. (See R.
Exh. 3). Not directly disputing this, the General Counsel made a lim-
ited effort to show that at least one other communicator in a dif-
ferent department, P.D. Pistulka, had a performance record worse
than Iwerson’s, but was not discharged. I will not get into further
details. The record is too vague to be able to identify what the Re-
spondent considered to be an ‘‘acceptable’’ or ‘‘unacceptable’’ level
of performance by a communicator. And if the Respondent’s defense
depended solely on its persuading me that Iwerson’s performance
had dropped to intolerably low levels, I would resolve doubts against
the Respondent, who bore the burden of making a clearer presen-
tation on these points than it did. But, as I note above and below,
the Respondent does not attempt such a claim, but merely cites a
recent—and perhaps otherwise tolerable—decline in Iwerson’s per-
formance as an additional consideration auguring against keeping
him on the job in the light of his announced decision to look else-
where for work. And, on the record made here, Dean’s and
Schmahl’s claimed belief that Iwerson had recently dropped off in
terms of profit-yielding sales leads does not appear to be merely a
post facto invention on their part, but a reasonable and credible be-
lief based on essentially undisputed facts.
Considering all this, but with remaining doubts about the
completeness of Iwerson’s narrations, I credit Iwerson as to
all points in conflict.
As to the shutdown/work transfer statements, I find that
Danielson made an unqualified threat to transfer Omaha bar-
gaining unit work to a satellite office in order to avoid hav-
ing to ‘‘deal’’ with the Union.22 This was tantamount to a
‘‘closure’’ threat.23 I thus find that when Danielson made
this statement, the Respondent violated Section 8(a)(1).24
As to the targeted ‘‘futility’’ statements, while Iwerson’s
account is sketchy, he is firm in declaring that Danielson
stated summarily that the Respondent would not have to
‘‘deal’’ with the Union, and that if the employees voted in
the Union, they could lose wages, or benefits, or vacations,
somehow tying this into the assertion that ‘‘bargaining starts
from scratch.’’ These statements cumulatively implied that
the Respondent could deal with a union election victory by
taking away employee wages or benefits, and requiring the
Union to bargain those takeaways back, ‘‘from scratch.’’
Thus, I find that Danielson tried indeed to implant in the
communicators’ minds a sense of the ‘‘futility’’ of collective
bargaining, and, by those statements, the Respondent violated
Section 8(a)(1).
III. IWERSON’S MARCH 26 DISCHARGE
A. Immediate Facts
The central participants (Iwerson, his supervisor, Mark
Schmahl, and Omaha telemarketing manager, Mike Dean) do
not disagree about most of the circumstances: At mid-
morning on March 26, Iwerson told Schmahl that he could
not feed his family on his earnings in his present job, and
would therefore be looking for other work. Schmahl thanked
Iwerson for the information and said that he would expect
some advance ‘‘notice’’ (Iwerson recalls ‘‘a few days’’;
Schmahl recalls he mentioned a ‘‘week’s’’ notice) from
Iwerson before he were actually to quit his job. Schmahl tes-
tified that Iwerson also said during these exchanges that he
might be a little late for work the next day because he was
scheduled to have a job ‘‘interview.’’ Iwerson insistently de-
nies that he said this, or that he had any such scheduled
interview. I will not resolve this latter conflict; such details,
whatever they were, would not affect my ultimate analysis,
largely because Dean and Schmahl do not claim that this
supposed ‘‘interview’’ had any particular impact on their de-
cision to discharge Iwerson, described next.
Later that day, Schmahl and Dean met in Dean’s office,
where they claim to have decided between them that the
Company would be better off firing Iwerson now, rather than
waiting for him to leave at his own chosen time. They claim
that they reached this judgment after considering that
Iwerson’s jobseeking and his current ‘‘unhappiness’’ would
probably distract him from ‘‘focusing’’ on selling the Re-
spondent’s products, and thus the company probably could
not expect much profit from Iwerson’s efforts in the future.
In making this judgment, they reviewed Iwerson’s recent per-
formance statistics, and observed that he had dropped below
his previous performance levels in key areas.25 They each
521PACESETTER CORP.
26 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982); see also NLRB v. Transportation
Management Corp., 462 U.S. 393 (1983), affd. Wright Line tests.
27 251 NLRB at 1089.
28 Ibid. And see fn. 14, appended to the above-quoted text:
in those instances where . . . the employer has been unable to
carry its burden, we will not seek to quantitatively analyze the
effect of the unlawful cause once it has been found. Whether
that ‘‘cause’’ was the straw that broke the camel’s back or a
bullet between the eyes, if it were enough to determine events,
it is enough to come within the proscription of the Act.
explain further, however, that these were genuinely cumu-
lative reasons, and that they would not necessarily have
reached the same decision if Iwerson’s production statistics
had been the same, but he had not indicated any intention
of quitting his job. Indeed, their testimony suggests overall
that their primary concern was that Iwerson’s ‘‘unhappi-
ness’’—and his likely near-term departure for greener pas-
tures—would be incompatible with the Respondent’s busi-
ness need for communicators who were ‘‘positively’’ moti-
vated enough to convey enthusiasm for the Respondent’s
products during their critical telephone contacts with poten-
tial customers.
Whether these reasons were, in fact, the ones—and the
only ones—which figured in the discharge decision are im-
portant ultimate questions, to which I shall return in my con-
cluding analyses. For now, I note that Iwerson and Schmahl
substantially agree that Schmahl echoed these reasons when
he informed Iwerson still later, between 5 and 6 p.m., that
he was being discharged. And Iwerson and Dean substan-
tially agree that Dean repeated these same reasons when
Iwerson left Schmahl’s office to protest to Dean that he
should not be discharged.
But there are potentially significant conflicts about other
features of the Iwerson-Dean meeting. Thus, while Iwerson
and Dean agree that Iwerson asked Dean if his ‘‘union ac-
tivities’’ had anything to do with his discharge, they disagree
about how Dean replied to this question. Dean testified that
he simply replied that ‘‘it [union activities] didn’t have any-
thing to do with it at all.’’ But Iwerson testified—and Dean
specifically denied—that, in replying to Iwerson’s union ac-
tivities query, Dean stated:
[H]e [Dean] could care less what happened or how it
happened, but the corporate office, across the street, did
know I carried a big torch. And I did not say anything
in return. I didn’t ask him what he meant by it, and I
left.
I note that Iwerson purported to describe the entire conversa-
tion with Dean in this initial account. But in his answers to
a followup series of leading questions by counsel for the
General Counsel, Iwerson amended and elaborated this testi-
mony somewhat, most notably in the following exchange:
Q. And did Mr. Dean tell you who was making the
decision?
A. He didn’t mention any names. He just had men-
tioned that the people across the street . . . knew that
you did carry a big torch and it was coming down from
higher than him is what he told me.
I found Iwerson flatly unconvincing in his second and
more elaborate recapitulation, particularly in the underscored
emendations of his original account, where he suggested for
the first time that Dean sought to distance himself from re-
sponsibility for the decision. I think Iwerson was gilding the
lily. There is no independent evidence that Dean was only
the conduit for a decision made higher-up; indeed, the only
‘‘higher-up’’ on this record was Danielson, himself, and
Danielson credibly testified that he was not consulted before
Dean and Schmahl decided to fire Iwerson, and that, in fact,
he was ‘‘on vacation’’ during this period. Thus, I find in
summary that Schmahl and Dean told Iwerson in firing him
that his decision to look elsewhere for work, coupled with
a recent decline in his production, had caused Schmahl and
Dean to agree that he should be terminated now. And while
I find that Dean acknowledged to Iwerson that his union ac-
tivities were well-known to the ‘‘people across the street,’’
I find that Dean specifically denied to Iwerson that those
union activities played any role in the decision to fire him.
Finally, I find that, in fact, only Dean and Schmahl were in-
volved in the decision to fire Iwerson.
B. Analysis, Supplemental Findings, and Conclusions
The General Counsel’s central claim is that the Respond-
ent would have allowed Iwerson to remain in its employ
until he located other work, absent its hostility to his union
activities. Under Wright Line,26 for the General Counsel to
prevail on this claim, he must first make,
. . . a prima facie showing sufficient to support the in-
ference that protected conduct was a ‘‘motivating fac-
tor’’ in the employer’s decision.27
But,
Once this is established, the burden will shift to the em-
ployer to demonstrate that the same action would have
taken place even in the absence of the protected con-
duct.28
I find that the General Counsel established a prima facie
case of unlawful motivation: Thus, I have found that the Re-
spondent’s key actors were aware of Iwerson’s union activi-
ties before the decision to fire him was reached, and, indeed,
that Herink impliedly threatened Iwerson that he would be
out of a job because of those activities. And Iwerson was
discharged, without prior warning, soon after the Union lost
the election. Finally, with ‘‘knowledge’’ and ‘‘timing’’ thus
clearly established, I recall that the Respondent’s agents
committed numerous independent violations of Section
8(a)(1), including by discriminatory attempts to interfere with
Iwerson’s presumptive right to engage in prounion discus-
sions with his fellow employees, and thus exhibited ample
antiunion ‘‘animus.’’ With these typical prima facie elements
firmly in place, I have no difficulty concluding under Wright
Line that it became the Respondent’s burden to ‘‘dem-
onstrate’’ that Iwerson’s announced decision to look else-
where for work, considering as well his recent decline in
productivity, would have caused the Respondent to discharge
him even if he had never been involved in the union drive.
This is a close case, but I find that the testimony of
Schmahl and Dean, largely corroborated by Iwerson himself,
was enough to sustain the Respondent’s burden. The key
points are that I believe Schmahl and Dean in their harmo-
522 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
29 I take this opportunity to comment on points made, respectively,
by the General Counsel and the Respondent on brief. I agree with
the General Counsel that Schmahl’s and Dean’s versions of the spe-
cific circumstances under which they met and reached a decision to
discharge Iwerson are in some respects inconsistent. But I regard
these inconsistencies (precise timing of their meeting; how it was
that Schmahl found himself in Dean’s office) as collateral, and not
enough to warrant discrediting those central features of their ac-
counts which are entirely harmonious. Separately, I ascribe relatively
little weight to Danielson’s claims that, shortly after the election, he
issued instructions to all his supervisors and managers that there was
to be,
. . . no retaliation against Mr. Iwerson. He would be judged on
his perform[ance] and his performance only.
This testimony was again uncorroborated, and even if true, does not
in my view make it significantly less likely that Schmahl or Dean
would have been influenced by Iwerson’s union activities when they
decided to fire him.
30 The Respondent attempted to show through Schmahl’s testi-
mony and a companion exhibit (R. Exh. 4) that the Respondent had
likewise terminated an employee named Frischenmeyer in November
1990, after Frischenmeyer had given a week’s notice of his intent
to quit. In fact, the exhibit does not corroborate Schmahl’s testi-
mony; it shows only that Frischenmeyer had ‘‘left voluntarily to go
back to Kansas.’’ The implication is that he had simply ‘‘quit,’’ but
had not been discharged.
31 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.
nious claims that it was Iwerson’s announced decision to lo-
cate another job, coupled to his recent performance decline,
which genuinely and alone formed the basis for their deci-
sion to fire him.29
I am influenced by my sense of the ‘‘realities of the work-
place,’’ articularly this workplace. In a different setting, such
as in a manufacturing operation, it might be seen as unusual
for an employer to fire an employee from his or her routine
job on the widget line simply because that employee had in-
dicated a wish to look elsewhere for work. One might reason
that the employer in that case might still expect to realize a
profit from the employee’s time spent on the line. But we
are dealing with a telephone sales boilerroom operation,
where Iwerson’s value to the employer lay solely in his abil-
ity consistently to generate enough customer leads that turn
into actual sales to make his employment profitable to the
Respondent. And merely putting in time on the phone is not
enough in that setting. The communicator must do more than
deliver a scripted pitch; he must do so with enthusiasm, in
a sales business where the typical motivator for such enthu-
siasm is an expectation on the communicator’s part that he
will earn decent money in commissions if he ‘‘sells’’ well
enough, but will not find it acceptable merely to draw
straight base pay. Indeed, one of the more widely known as-
pects of the door-to-door or telephone sales business is that
such salespersons are expected to be ‘‘motivated’’ enough to
generate as much or more in profits for their employer than
they are paid in guaranteed flat pay rates. And a corollary
to this generalization is that employers of such salespersons
are quick to fire sales personnel who do not consistently
carry their own weight in the operation, and particularly so
when they no longer show any real enthusiasm for the job,
such as by complaining that they aren’t earning enough, and
intend to seek work elsewhere. Indeed, most salespeople
know better than to give voice to such thoughts, because of
the likely employer reaction.
Thus, in this setting, it strikes me as entirely plausible that
when Schmahl and Dean took the time to reflect on
Iwerson’s declared dissatisfaction with his job and his inten-
tion to locate another one, they would quickly conclude that
his likely future value to the Respondent would be marginal.
And I deem it equally plausible that Iwerson’s recent decline
in sales performance, however forgivable in a different con-
text, would have been seen by Schmahl and Dean as simply
an additional indicator that Iwerson would not likely generate
any future profits for the company, but would simply put in
his time and draw a flat hourly rate while saving his enthu-
siasm and energy for his seeking of work elsewhere. There
is no obvious evidence of ‘‘disparate treatment,’’ indeed, it
appears that Iwerson’s precise situation was unprecedented.30
I have considered other facts urged by the General Counsel,
and find them to be largely irrelevant to these central points.
I treat this as a case where the prima facie appearance that
Iwerson’s union activities motivated the Respondent’s deci-
sion to fire him have been overridden by a critical inter-
vening event, Iwerson’s announcement of his decision to
seek other work, thus plausibly triggering a sufficient inno-
cent reason on the Respondent’s part to terminate him.
I therefore conclude as a matter of law that the Respond-
ent did not violate Section 8(a)(3) or (1) when it fired
Iwerson.
THE REMEDY
Concerning the representation case, I find that the Re-
spondent’s unfair labor practices as found above in section
II,B,1–4, all shown to have occurred within the critical pe-
riod between the filing of the petition on February 19 and
the election on March 20, was, a fortiori objectionable con-
duct tending to interfere with a free and fair election. Dal-
Tex Optical Co., 137 NLRB 1782 (1962). Thus, my rec-
ommended Order includes provisions for setting aside the
election and conducting another one after the Respondent
remedies its unfair labor practices.
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 post a remedial notice.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended31
ORDER
The Respondent, Pacesetter Corporation, Omaha, Ne-
braska, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Coercively interrogating employees about their union
activities or sympathies, or seeking to prevent them from
talking about the Union among themselves, or threatening
employees with adverse consequences for selecting a union,
or otherwise seeking to impress upon employees the futility
of collective bargaining.
(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.
523PACESETTER CORP.
32 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.’’
(a) Post at its telemarketing offices and phone room in
Omaha, Nebraska, copies of the attached notice marked
‘‘Appendix.’’32 Copies of the notice, on forms provided by
the Regional Director for Region 17, after being signed by
the Respondent’s authorized representative, shall be posted
by the Respondent immediately 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 RECOMMENDED that the election conducted
in Case 17–RC–10640 is to be set aside, and a new election
conducted at such point as the Regional Director determines
that the Respondent has remedied its unfair labor practices
by complying with the remaining provisions of this Order.