Roemer Industries

National Labor Relations Board - Administrative Judge Opinions

Sep 24, 2018

08-CA-188055 (N.L.R.B. Sep. 24, 2018)

JD–64–18
Masury, Ohio
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ROEMER INDUSTRIES, INC.
Respondent Cases 08-CA-188055
08-CA-192702
and 08-CA-204521
UNITED STEEL, PAPER & FORESTRY,
RUBBER MANUFACTURING, ENERGY
ALLIED INDUSTRIES AND SERVICES
WORKERS INTERNATIONAL UNION,
AFL-CIO, CLC
Charging Party
Kelly Freeman, Esq.,
for General Counsel
Keith L. Pryatel and Matthew D. Austin, Esqs.,
for Respondent
Anthony Resnick, Esq.,
for Charging Party Union
DECISION
STATEMENT OF THE CASE
Sharon Levinson Steckler, Administrative Law Judge. This case was tried in
Cleveland, Ohio on April 24-26, 2018. Charging Party United Steel, Paper, & Forestry, Rubber
Manufacturing, Energy Allied Industries and Services Workers International Union, AFL-CIO,
CLC (Union) filed the charge in Case 08-CA-188055 on November 14, 2016 and amended the
charge on December 1, 2016; the Union filed the charge in Case 08-CA-192702 on February 8,
2017 and amended it on March 29, 2017; the Union filed the charge in case 08-CA-204521 on
August 17, 2017. General Counsel issued the Order Consolidating Cases, Consolidated
Complaint on April 27, 2017, and issued an Order Further Consolidating Cases, Second
Consolidated Complaint and Notice of Hearing (Complaint) on November 30, 2017.
Respondent filed timely answers.
General Counsel, Charging Party and Respondent filed timely briefs. On June 7, 2018,
General Counsel filed a motion to strike 6 portions of Respondent’s brief. I ordered Respondent
to show cause why I should not grant General Counsel’s Motion. Respondent provided a timely
response to the Order to show cause but responded to only 3 of the 6 areas General Counsel
proposed to strike. I grant the motion as Respondent misrepresented portions of the transcript
and/or included facts in its brief that were not in the transcript. Nor is this the first time that
Respondent and its attorney have claimed information in its brief not supported by the hearing
record. See Roemer Industries, Inc., 362 NLRB No. 96, slip op. at 4 fn. 7 (2015), enfd. 688 Fed.
JD–64–18
Masury, Ohio
2
Appx. 340 (6th Cir. 2017). Some of these are discussed in more detail below in the appropriate
section of the decision.1
On the entire record, including my observation of the demeanor of the witnesses,2 and
after carefully considering the briefs, I make the following5
FINDINGS OF FACT
I. JURISDICTION
10
Respondent, an Ohio corporation, is engaged in the manufacture and non-retail sale of
custom graphic industrial identification products at its facility in Masury, Ohio, where it annually
sells and ship products, goods and materials valued in excess of $50,000 directly from points
outside the State of Ohio. Respondent admits, and I find, that Respondent is an employer
engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the 15
Union is a labor organization within the meaning of Section 2(5) of the Act.3

1 Unsupported in the record is whether O’Toole had a foot injury and where he had to park or access
the stairs. Also unsupported is whether the Union has filed a surface bargaining or bad faith bargaining
charge against Respondent, and furthermore the information is irrelevant to the allegations in this case.
Nor was there any evidence that O’Toole was “frustrated” with the Union for cancelling and refusing to
schedule bargaining dates. These references in the brief are struck.
2 Although I have included citations to the record to highlight particular testimony or exhibits, my
findings and conclusions are not based solely on those specific record citations, but rather upon my
review and consideration of the entire record for this case. My findings of fact encompass the credible
testimony, evidence presented, and logical inferences. The credibility analysis may rely upon a variety of
factors, including, but not limited to, the context of the witness testimony, the weight of the respective
evidence, established or admitted facts, inherent probabilities, and reasonable inferences that may be
drawn from the record as a whole. Double D Construction Group, 339 NLRB 303, 303–305 (2003);
Daikichi Sushi, 335 NLRB 622, 623 (2001) (citing Shen Automotive Dealership Group, 321 NLRB 586,
589 (1996)), enfd. 56 Fed. Appx. 516 (D.C. Cir. 2003). Credibility findings regarding any witness are not
likely to be an all-or-nothing determination and I may believe that a witness testified credibly regarding
one fact but not on another. Daikichi Sushi, 335 NLRB at 622.
When a witness may reasonably be assumed to be favorably disposed to the party, an adverse
inference may be drawn regarding any factual question on which the witness is likely to have knowledge.
International Automated Machines, 285 NLRB 1122, 1123 (1987), enfd. 861 F.2d 720 (6th Cir. 1988).
This is particularly true where the witness is the Respondent’s agent. Roosevelt Memorial Medical
Center, 348 NLRB 1016, 1022 (2006). Testimony from current employees tend to be particularly reliable
because it goes against their pecuniary interests when testifying against their employer. Gold Standard
Enterprises, 234 NLRB 618, 619 (1978); Federal Stainless Sink Division, 197 NLRB 489, 491 (1972);
Gateway Transportation Co., 193 NLRB 47, 48 (1971); Georgia Rug Mill, 131 NLRB 1304, 1305 fn. 2
(1961).
3 The Union local representing the employees has changed its number due to mergers in the area.
Respondent does not challenge that the Union remains the bargaining representative.
JD–64–18
3
II. RESPONDENT ROEMER’S MANAGEMENT AND OPERATIONS
Respondent’s owner is Joe O’Toole. His management team consists of: Anna Fraley,
the production manager; Connie Bistarkey, administrative services and custodian of records; 5
Amanda Shinkovich, the quality manager; Jill Palumbo, engineer; and Mike Farmer, general
manager.
Fraley is a long-time employee. She initially worked in the bargaining unit before
eventually being promoted to production manager. She reports directly to O’Toole. 10
Bistarkey works in administrative services. She maintains records, including disciplinary
records and employee appraisals. She apparently has a role in making sure pay is correct.
Shinkovich, a 3-year employee at the time of hearing, maintains the quality management 15
system, handles customer complaints and driver questions, and assists Fraley with her duties,
particularly when related to the parts manufactured. She can discipline employees at the lower
levels of discipline, but cannot suspend or terminate them. However, if Fraley is on vacation,
she can issue a suspension.
20
The facility, including the parking lot, is equipped with cameras that have been in place
for 10 years. O’Toole and Fraley have access to the camera feed through their computers.
However, the collective bargaining agreement precludes using the information from the cameras
for certain types of discipline.
25
III. HISTORY OF UNIONIZATION AND RECENT BARGAINING
The facility has been unionized since 1973. The Union currently represents
Respondent’s 17 to 21 production and maintenance employees.4 The facility has only one
maintenance employee, Harold Hrabowy. The parties’ last collective-bargaining agreement was 30
in effect from February 22, 2013 until its expiration date of April 22, 2016. (GC Exh. 2.)
The parties’ collective-bargaining agreement was in effect from February 22, 2013
through April 22, 2016. In March 2016, before the collective-bargaining agreement expired, the
parties began negotiating for the successor collective-bargaining agreement. Throughout the 35
negotiations, the parties exchanged versions of proposals and revisions utilizing the red-line
method. As the parties continued, they marked certain proposals with “TA”---tentative
agreement. However, those portions were tentative only and subject to further negotiations
In the negotiations, Respondent was represented throughout negotiations by attorney 40
Matthew Austin; sometimes O’Toole attended. The Union was represented by Jose Arroyo and
Ron Merrick. Arroyo is the current Union staff representative, a position he held for three years.
Merrick5 is the Unit chairperson.6

4 Respondent’s answer denies that the long-standing bargaining unit is inappropriate. Because
Respondent adduced no evidence to support its answer and the collective-bargaining agreement contains
the bargaining unit description, I find that Respondent failed to demonstrate that the long-standing unit is
inappropriate.
5 General Counsel called Merrick in her case-in-chief. Respondent declined to cross-examine Merrick
and, after General Counsel closed her case, called Merrick in its case-in-chief. Only then did Respondent
request Merrick’s affidavits from General Counsel. General Counsel objected and I sustained the
objection based upon Section 102.118(b) of the Board’s Rules and Regulations. That rule restricts
JD–64–18
4
Throughout negotiations, Respondent maintained that the union shop and dues checkoff
provisions could no longer be included in the collective-bargaining agreement. O’Toole stated
that he believed it would be an impediment to selling the company.
5
On November 21, 2016, the Union offered proposal #14 to strike the term “successor”
from the portion of the agreement that bound any one or entity should O’Toole sell the
company. However, this offer was limited to Respondent withdrawing its proposals on union
security and checkoff. (GC Exh. 11.) By this time, the Union was clear that it rejected
Respondent’s wage proposals and countered with its own. It also discussed withdrawing its 10
proposal on overtime should Respondent withdraw a proposal on overtime.
On November 28, the Union offered its proposal #15. The Union revised its proposal
regarding use of the cameras, including limiting the number of cameras in each production area
to a single camera. (GC Exh. 12.)15
By this hearing, the parties had not concluded negotiations. Outstanding issues
included wages and union security and dues checkoff. Despite the prior collective-bargaining
agreements maintaining union security and dues checkoff, Respondent insisted that it could not
include those provisions because it believed it could damage prospects for selling the operation. 20
IV. ON JANUARY 3, 2017, O’TOOLE, SHIMKOVICH AND FRALEY MEET
WITH THREE EMPLOYEES
A. Facts25
On January 3, 2017, after their first break, employee Hrabowy and two operators were
called to a meeting with O’Toole, Shimkovich and Fraley. None of these employees were on
the bargaining team.
30
O’Toole asked the employees for ideas to propel contract negotiations and that he
wanted to discuss these ideas with his attorney, Matt Austin. O’Toole stated that Arroyo
probably lost his bargaining notes and talked of Austin’s notes. O’Toole told the employees that
Austin was a “union busting attorney.”7 Hrabowy asked O’Toole if he really thought he needed
“one of those.” (Tr. 101.)35
Hrabowy told O’Toole he should take the open shop proposal off the table. O’Toole said
no to that idea. O’Toole then asked Fraley and Shimkovich whether they wanted to continue to
work there. Both said yes. He then asked the employees whether they wanted to continue to
works there. One employee stated he wanted a contract so that they could continue working. 40
The other employee was quiet.

release of the affidavit only when the witness has testified and the statement will be used to cross-
examine the witness. The Board finds that the plain language of the rule is specific to the limitation for
purposes of cross-examination. Wal-Mart Stores, Inc., 339 NLRB 64 (2003). Despite Merrick’s status as
an adverse witness who already testified, the purpose of Respondent’s examination was a direct
examination, not cross-examination. Film Inspection Service, 144 NLRB 1040, 1041 fn. 1 (1963).
6 Merrick was a discriminatee in a previous Board case involving Respondent. Roemer Industries,
Inc., 362 NLRB No. 96, fn. 7 (2015), enfd. 688 Fed.Appx 340 (6th Cir. 2017).
7 Despite Respondent’s assertions in brief, no record evidence supports Respondent’s contention that
employees were using that term.
JD–64–18
5
B. Analysis
General Counsel alleges that, within this conversation, O’Toole coercively stated that he
hired a union busting attorney and threatened the employees’ jobs in violation of Section 8(a)(1)
and additionally violated Section 8(a)(5) by directly dealing with the employees. Respondent 5
contends that the “union busting attorney” statement is protected by Section 8(c) of the Act.
Hrobowy’s testimony was clear, straightforward, detailed, and uncontroverted.
Respondent did not ask Fraley any questions regarding this meeting and did not call O’Toole or
Shimkovich in its case in chief. I take an adverse inference because these Respondent 10
witnesses would have had knowledge of this meeting and “reasonably be assumed to be
favorably disposed to the party.” Grimmaway Farms, 314 NLRB at 73, fn. 2, citing Property
Resources Corp., 285 NLRB 1105 fn.2 (1987), enfd. 864 F.2d 964 (D.C. Cir. 1988).
Statements that have a reasonable tendency to interfere, restrain or coerce employees 15
in the exercise of their Section 7 rights, when taken in context, violate Section 8(a)(1). Erickson
Trucking Service, Inc., d/b/a Erickson’s Inc., 366 NLRB No. 171, slip op. at 2 fn. 6 (2018)
(Pearce, dissenting). The statement is assessed in the context in which it is made and whether
it tends to coerce a reasonable employee. Westwood Health Care Center, 330 NLRB 935, 940
fn. 17 (2000). The standard for assessing alleged 8(a)(1) threats is objective, not subjective. 20
Mutli-Add Services, 331 NLRB 1226, 1228 (2000), enfd. 255 F.3d 363 (7th Cir. 2001). Any
subjective interpretation from an employee is not of any value to this analysis. Miami Systems
Corp., 320 NLRB 71 fn. 4 (1995), enfd. in rel. part 111 F.3d 1284 (6th Cir. 1997).
I find the threatening question about whether the employees wanted to continue to work 25
at Respondent’s facility violates Section 8(a)(1). O’Toole, Respondent’s owner, had called in
three employees, who faced three managers. O’Toole disparaged the Union during the
conversation. The implication is the wrong answer will get the employees fired—the labor
equivalent of capital punishment.
30
Regarding O’Toole stating that he hired a “union busting attorney,” Respondent is not
protected by Section 8(c). The conversation included Respondent’s highest ranking official
questioning whether the employees wished to continue their employment while bragging he
hired a “union busting attorney.” Calling someone “union busting” is not unlike putting together
two different words to create a specific meaning, like “Hulk” and “smash.” Put together, the 35
words mean that Hulk, a well-known hero in the Marvel Comic Universe, is about to smash
something to bits. In context, O’Toole, the highest ranking officer, threatened to get rid of the
Union while impliedly threatening the employees’ livelihoods. See generally Treanor Moving &
Storage Co., Inc., 331 NLRB 371, 373 (1993). Also see NLRB v. Thill, Inc., 980 F.2d 1137,
1142 (7th Cir. 1992) (the Act is concerned with, inter alia, unwarranted union busting) 8 40
In distinguishing the statement from Springfield Hospital, 281 NLRB 643, 681 (1986),
General Counsel differentiates whether the statement is hyperbole or telling employees he
wants to get rid of the Union. General Counsel cites Pratt (Corrugated Logistics), LLC, 360
NLRB 304, 312 (2014), in which the consultant agent who was noted as a “union buster” also45
violated the Act by soliciting grievances. Similarly here, O’Toole bragged intent of union busting
with a threat about continued employment.

8 I pass no judgment on O’Toole’s claim that Austin is a union busting attorney.
JD–64–18
6
This situation is also differentiated from Erickson Trucking, supra. In Erickson, the
company president called the union business manager “the most arrogant son-of-a bitch I’ve
ever met” and said the business manager ran the union like Hitler. While “flip and intemperate,”
the Board found the statement contained no threats or otherwise interfered with employees’
Section 7 rights; it was a lawful expression of opinion under Section 8(c). Erickson, 366 NLRB 5
No. 171, slip op. at 2. In contrast, O’Toole’s statement conveyed a threat to interfere with
employees’ rights to act collectively through their selected bargaining representative.
For direct dealing, the long-held three-part test is:
10
(1) Respondent communicated directly with employees represented by a Union, for the
purpose of
(2) Setting or changing wages, hours, and conditions of employment or undercutting the
Union; and,
(3) The communication excluded the Union. 15
Southern California Gas Co., 316 NLRB 979 (1995).
O’Toole specifically asked or the employees for collective-bargaining proposals, without
the Union present. Bargaining for a successor collective-bargaining agreement was still in 20
process. Thus, elements 1 and 3 are met. Regarding whether O’Toole undermines the Union,
General Counsel notes, and I agree, that O’Toole’s statement about Arroyo and his notes were
disparaging per Thill, Inc., 298 NLRB 669, 670-671 (1990), enfd. in rel. part. 980 F.2d 1137 (7th
Cir. 1992). O’Toole, who made comments about Arroyo’s bargaining notes, had no intent
except to undermine the Union. O’Toole’s requests for bargaining proposals indeed was 25
unlawful direct dealing. El Paso Electric Co., 355 NLRB 544 (2010).9
V. THE UNION MAKES AN INFORMATION REQUEST REGARDING THE CAMERAS
(COMPLAINT ¶¶12-13)
30
A. Facts
In the letters of understanding attached to the expired collective-bargaining agreement,
the parties include Item 5, which addresses the use of electronic video at the facility:
35
The use of electronic video (video, electronic data collection, et al), may be
collected, without audio equipment, within the operation. This will continue and
not be limited by number or technology in the future. In the use of this
technology, no disciplinary action will be taken, except for material theft, sexual
or physical harassment, or fraud, safety violations or insubordination.40
For all other disciplinary procedures, the Company and the Union agree not to
use or refer to the cameras or use of cameras throughout the grievance
procedure including arbitration. The use of or reference to cameras in the
grievance procedure or arbitration will grant the grievance as requested by the
Union or withdraw the grievance as requested by the Company.45

9 Respondent implies that the Union refused to continue to bargain and interact with Respondent. (R.
Br. at 41.) He cites no record evidence to support this conclusion and I find no record evidence shows
such. In addition, Respondent claims the statements do not violate Section 8(a)(3). (R. Br. at 40-42).
However, General Counsel did not allege the statements violate that section of the Act.
JD–64–18
7
(GC Exh. 2.)
The Union made several proposals to eliminate or reduce the scope of the surveillance
cameras. Union Proposal #2, dated June 28 or 29, 2016, proposed elimination of the cameras
entirely. On November 28, the Union offered its proposal #15. The Union revised its proposal 5
regarding use of the cameras, including limiting the number of cameras in each production area
to a single camera. (GC Exh. 12.) Nonetheless the cameras continued to be at issue in
negotiations.
On May 8, 2017, during a caucus, Arroyo emailed Austin that he had an information 10
request for him. (GC Exh. 13.) They met and Arroyo handed him the information request,
which was a pattern inquiry about cameras. (GC Exh. 14.) Arroyo testified, without
controversion, that when he handed the information request to Austin, Austin stated Arroyo
would have to file a charge to obtain the information. (Tr. 317). Arroyo said he would do it.
15
The information requested was:
1. .What is the total number of cameras currently in the plant?
2. Does the company have further plans to install additional cameras?
3. Are the cameras operational as yet?20
4. Who has access to these cameras?
5. Where are these cameras monitored from? What are the make and model numbers of
the monitors?
6. Are these cameras able to record? If so, who has access to the recording?
7. Do the cameras have remote access?25
8. Why were these cameras installed? For security? For discipline? For strike
possibilities?
9. Please provide information on any and all security breaches [sic] we have had in the
last 5 years.
10. Why are the cameras pointed in the direction they are?30
11. Who decided on the locations?
12. What field of view does each camera have?
13. What is the resolution of each camera?
14. Do the cameras pan.or zoom? if the cameras pan or zoom, list which ones do.
15. If they pan or zoom, how is it controlled? By who? And where is this accomplished?35
16. Do we have the access to do this in case we possibly think that someone shouldn't
be in the plant?
17. Will the local live access to view these cameras to verify the information provided
from this request?
18. What is the cost of this surveillance project and is there any annual upkeep 40
associated with this service? If so, who is doing it?
19. Has the company done a study on the need for such a project? If so, please provide
the study results in whole.
20. Are the video feeds being sent elsewhere?
45
(GC Exh. 14.)
On June 14 and June 16, 2017, Arroyo emailed Attorney Austin about dates for
upcoming negotiations and asked that Respondent fulfill the outstanding information request
regarding the surveillance cameras. Arroyo testified that he wanted the information to assist 50
JD–64–18
8
with negotiations. (Tr. 318). Respondent never requested to limit the scope of the information
request and the Union never withdrew the information request.
The Union never received the information. None of Respondent’s witnesses for
Respondent testified otherwise, and no documents reflect any response from Respondent. For 5
the hearing, General Counsel subpoenaed, “Any and all documents reflecting communications
between Roemer and the Union regarding the Union’s May 8, 2017 information request related
to Roemer’s use of surveillance cameras” and bargaining notes. (GC Exh. 33.) Respondent
produced no documents in response to these subpoena requests.
10
B. Analysis
1. Applicable law for information requests
When the certified bargaining agent of the employees requests information, an employer 15
can fulfill its “bargaining obligation under Section 8(a)(5) of the Act” by providing relevant
information. Diponio Construction Co., Inc., 357 NLRB 1206, 1217 (2011), citing United Aircraft
Corp., 192 NLRB 382, 389 (1971). The rationale for Section 8(a)(5)’s requirement is:
Employees' certified representative is entitled to information that “will enable[ ] 20
the union to negotiate effectively and to perform properly its other duties as
bargaining representative.” Oil, Chemical & Atomic Workers Local Union No.6–
418 v. NLRB, 711 F.2d 348, 358 (D.C. Cir. 1983) (internal quotes omitted). The
information requested must be relevant to the union's representation, but the
threshold for relevance is low. See NLRB v. Acme Industrial Co., 385 U.S. 432, 25
437–38 (1967). Information related to the wages, benefits, hours, working
conditions, etc. of represented employees is presumptively relevant to collective
bargaining. See Oil, Chemical & Atomic Workers, 711 F.2d at 359.
Country Ford Truck, Inc. v. NLRB, 229 F.3d 1184, 1191-1192 (D.C. Cir. 2000), enfg. 330 NLRB 30
328 (1999).
Once an initial showing of relevance is made, an employer has a burden of proof to
demonstrate the lack of relevance or give sufficient reason(s) “’as to why he cannot, in good
faith, supply such information.’” ATV/Vancom of Nevada Ltd. Partnership, 326 N2LRB 1432, 35
1434 (1998), citing San Diego Newspaper Guild Local 95 v. NLRB, 548 F.2d 863 (9th Cir.
1997). When information is clearly relevant, the Board is not required to determine whether all
of it is relevant. Hughes Tool Co., 100 NLRB 208, 210 (1952). The requesting party is not
required to demonstrate a”[a]all possible ways in which the requested information may be
useful” because not all potential uses “may not be foreseen.” Bacardi Corp., 296 NLRB 1220, 40
1222-1223 (1989), citing Acme Industrial Co., 385 U.S. at 437. Respondent is required to make
a reasonable effort to provide the information or otherwise explain why it did not present it. See
generally Hanson Aggregates BMC, Inc., 353 NLRB 287 (2008).
2. Respondent failed to provide necessary and relevant information45
An employer might be required to provide information requested by the Union when the
information has a probability of relevance and it will be of use to the union as it executes its
statutory duties. National Steel Corp. v. NLRB, 324 F.3d 928, 934 (7th Cir. 2003), enfg. 335
NLRB 747 (2001). An employer has an obligation to provide relevant information to a union for 50
contract negotiations. ATV/Vancom, 326 NLRB at 1434.
JD–64–18
9
Surveillance cameras are a mandatory subject of bargaining. Colgate-Palmolive Co.,
323 NLRB 515 (1997). A mandatory subject is one that is “plainly germane to the ‘working
environment’” and “not among those ‘managerial decision, which lie at the core of
entrepreneurial control . . . .” Brewers and Maltsters, Local Union No. 6 v. NLRB, 414 F.3d 36, 5
41 (D.C. Cir. 2005), quoting Ford Motor Co. v. NLRB, 441 U.S. 488, 498 (1979) (additional
quotation marks deleted).
The expired collective-bargaining agreement contains provisions regarding cameras and
their usage regarding discipline. Because the collective-bargaining agreement contains 10
provisions regarding the cameras, Respondent recognizes the relevance of this topic. Detroit
Newspaper Agency, 317 NLRB 1071, 1071 (1995). Respondent may have hidden cameras
that are not apparent to the employees. The Union has an interest in determining not only the
placement of the cameras, but the technical requirements. The information is germane to the
union’s statutory duties and should be provided. National Steel Corp. v. NLRB, 324 F.3d at 15
934-935. That one mechanic may have some knowledge of the cameras does not relieve
Respondent of its duty to provide the requested information. Detroit Newspaper Agency, 317
NLRB at 1072 (having an alternative source of information does not excuse employer from
providing information).
20
Attorney Austin immediately told Arroyo that he would have to file a charge to obtain the
information. (Tr. 317). However, Respondent’s brief, citing this transcript page, contends that:
During discussion at the table and in the hallway, the undersigned [Austin]
informed Arroyo that the request was too broad, sought information that the 25
union already knew or can easily ascertain, sought information that the Union is
not entitled to receive, and unless USW restricts the scope of the letter, the
Company is not going to give the Union all this information. From that, Arroyo
deduced, he "would have to file a charge to get this information." HT 317.
Respondent’s version of the facts is not supported on that page or anywhere else in the 30
record. Austin, who wrote the brief and was present throughout the hearing, never testified.
Respondent provided no record evidence to show it objected to the information request in the
detail Respondent’s brief claims.10
Respondent further shoots itself in the foot when it argues no testimony demonstrated
that the cameras changed, that there are too many cameras, that the video was used for 35
unlawful purposes, or that Respondent could not afford them. (R. Br. at 47.) Indeed, some of
the information requested asked for the same information. For example, whether Respondent
intends to install more cameras remains relevant and per Hughes Tool, supra, the Board is
therefore not required to determine the entire relevance here. Because Respondent failed to
answer the information request regarding the cameras at all, Respondent violated Section 40
8(a)(5) of the Act.11

10 I grant General Counsel’s motion to strike this portion of Respondent’s brief.
11 Respondent also argues that the Union was bargaining in bad faith and cancelling sessions. As
the Union made the request during a meeting and continued to ask for the information, Respondent has
no evidence of bad faith bargaining that would excuse it from providing the requested information.
JD–64–18
10
VI. RESPONDENT GIVES UNILATERAL PAY INCREASES, THEN TAKES THEM AWAY BECAUSE THE
UNION PURSUED A BOARD CHARGE (COMPLAINT ¶¶ 8(D), 14(A), 14(B), 14(E), 14(F))
A. Facts
5
On May 10, 2017, O’Toole gave all employees, including the bargaining unit employees,
a pay increase of 6 percent. He also ordered the certification and advancement program pay
(CAP) to be increased by 15 cents. Employees advised Union Chair Merrick that they saw pay
increases in their checks. Merrick went to HR Manager Bistarkey and asked her about it.
Bistarkey said O’Toole told her to give everyone (not just bargaining unit) a 6 percent raise; 10
those with certification and advancement program (CAP) pay received a 15 cent raise.
Respondent never gave a previous mid-year raise.
On May 16, 2017, Arroyo wrote to O’Toole about the wage increases and proposed an
additional 6 percent increase in the collective-bargaining negotiations. He demanded that 15
Respondent bargain in good faith immediately over these issues; otherwise the Union “will seek
relief under any and all available legal options.” (GC Exh. 20.) At this time, the parties had not
reached any interim agreement on wages. (Tr. 372, 379.) On June 22, 2017, Arroyo, on behalf
of the Union, filed a charge that Respondent violated Section 8(a)(5) by circumventing the
Union, failing to provide information and “refusing to bargain over mandatory subjects.” (GC 20
Exh. 22.)
On July 7, 2017, O’Toole ordered Bistarkey to rescind the bargaining unit’s pay increase.
O’Toole also conducted an employee meeting about the rescission. Fraley also instructed
employees to meet in the break area during break time. Approximately 19 to 20 people, 25
including managers, were in attendance. O’Toole was the only manager that spoke. O’Toole
first discussed some of his health issues and then moved to the recent pay raise. He
announced he was rescinding the pay raise, and, citing Arroyo and Merrick by name, the reason
was because the Union was pursuing Board charges. Hrabowy testified that O’Toole said that
he did not know whether the employees would have to pay back the money from their raises. 30
(Tr. 103.)
The employees’ next paychecks proved O’Toole meant what he said: The 6 percent
increase was gone. On August 17, 2017, the Union filed charge 08-CA-204521 regarding the
unilateral implementation of the wage increases and the unilateral and retaliatory rescission of 35
the wage increases in July. Respondent restored the bargaining unit employees’ pay increases.
B. Analysis
General Counsel alleges Respondent violated Section 8(a)(1) by O’Toole telling 40
employees the Union caused Respondent to take away the pay increases. General Counsel
also alleges that the pay decrease violated Section 8(a)(4), and the pay increase and decrease
violated Section 8(a)(5). None of Respondent’s managers testified about this meeting, so the
General Counsel witness testimony is unchallenged. Respondent also provides no evidence
that it notified the Union of its plans for the pay increase or decrease. I find Respondent 45
violated the Act as alleged.
The relevant inquiry under Section 8(a)(1) is an objective one: Whether the employer's
statements or actions would tend to coerce a reasonable employee and chill the exercise of that
employee’s Section 7 rights. See Wyman-Gordon Co. v. NLRB, 654 F.2d 134, 145 (1st Cir. 50
1981); Idaho Pacific Steel Warehouse Co., 227 NLRB 326, 331 (1976). I find that O’Toole’s
JD–64–18
11
statement to the employees that he was rescinding the wage increase because the Union is
pursuing charges is a threat. O’Toole’s statement reflects getting even with the employees as a
threat of reprisal for the Union acting to protect its bargaining role. The statement violates
Section 8(a)(1) of the Act. Anheuser-Busch, Inc., 337 NLRB 3, 15 (2001), enfd. 338 F.3d 267
(4th Cir. 2003), cert. denied 541 U.S. 973 (2004). Also see Erickson Trucking, supra, 366 NLRB 5
No. 171, slip op. at 2 fn. 5 (per Member Emanuel, statement expressly identifying the Union as
the cause for respondent’s adverse action is unlawful on its face). The Board recently reminded
that a statement is not an action. Green Apple Supermarket of Jamaica, Inc., 366 NLRB No.
124, slip op. at 1, fn. 2 (2018). Here, O’Toole made good on his threat, and in doing so, violated
Section 8(a)(4) and (5). 10
Section 8(a)(5) and Section 8(d) define the duty to bargain collectively, which requires
an employer “to meet . . . and confer in good faith with respect to wages, hours, and other terms
and conditions of employment.” NLRB v. Katz, 369 U.S. 736, 742-743 (1962). A violation of
Section 8(a)(5) does not require a finding of bad faith. Id. at 743 and 747. The Act prohibits an 15
employer from unilaterally changing wages and pay, which are mandatory subjects of
bargaining.
A unilateral change acts no differently than a “flat refusal” to bargain by skipping the
union’s input when the union has so requested to do so. Id. at 743. An unlawful unilateral 20
change “frustrates the objectives of Section 8(a)(5),” because such a change “’minimizes the
influence of organized bargaining’ and emphasizes to the employees ‘that there is no necessity
for a collective bargaining agent.’” Pleasantview Nursing Home v. NLRB, 351 F.3d 747, 755
(6th Cir. 2003) (quoting Katz, supra at 744, and Loral Defense Systems-Akron v. NLRB, 200
F.3d 436, 449 (6th Cir. 1999)); Mercy Hospital of Buffalo, 311 NLRB 869, 873 (1993). 25
Respondent had a duty to notify the Union and, upon request, meet and confer before
granting or rescinding pay raises or pay decreases. Instead it made changes without
notification to or entering into bargaining discussions with the Union, which is textbook “fait
accompli.” Tesoro Refining & Marketing Co., 360 NLRB 293, 295 fn. 10 (2014). The wage 30
increase and decrease both are unlawful unilateral changes, violating Section 8(a)(5).
The July pay decrease violates Section 8(a)(4) of the Act. Section 8(a)(4) prohibits
discrimination against employees because of access to the Board processes. I find no need to
rely on the Wright Line analysis, which is reserved for mixed motive cases. O’Toole made 35
crystal clear he had a single, straightforward motive: He rescinded the pay increase because
the Union, the employees’ exclusive bargaining representative, filed a Board charge to redress
Respondent’s unlawful unilateral change of the May pay increase. Although Respondent later
restored the pay increase, doing so did not resolve the unfair labor practice under the
conditions set forth in Passavant Memorial Area Hospital, 237 NLRB 138 (1978). See Mohawk 40
Liqueur Co., 300 NLRB 1075 fn. 1 (1990). To be an effective repudiation, notice would be
timely, unambiguous, specific in nature to the coercive conduct and free from other proscribed
illegal conduct. Boch Imports Inc. v. NLRB, 826 F.3d 558, 566 (1st Cir. 2016), citing, inter alia,
Passavant, supra. Respondent provides no evidence that reinstatement of the pay increases
was accompanied by repudiation or disavowal of coercive conduct that Respondent would not 45
interfere with employees’ Section 7 right, much less any publication of a repudiation of unlawful
conduct. Sequoyah Spinning Mills, Inc., 194 NLRB 1175, 1192 (1972); Passavant, 237 NLRB
at 138-139.
50
JD–64–18
12
VII. IN MID-JUNE 2017, OWNER O’TOOLE THREATENS AN EMPLOYEE (COMPLAINT ¶8(C))
A. Facts
In about mid-June 2017, a few days after a union meeting, Production Manager Fraley 5
directed employee and Unit chair Ron Merrick to meet with O’Toole and Bistarkey. Throughout
the meeting, O’Toole repeated that there would be a “closed shop” over his dead body.
In the meeting, O’Toole asked Merrick whether the union had taken a strike vote at the
recent meeting. Merrick said yes. O’Toole demanded to know the results. Merrick told him that 10
the ballots were locked in an office. O’Toole then said to Merrick that the employees were
gullible, that no one trusted him [Merrick] and nobody liked him. O’Toole, as before, said that
over his dead body would there be a “closed shop.”12
O’Toole said that if Arroyo pursued more than a 15 cent raise for the CAP program, he 15
would eliminate the program. O’Toole then asked Merrick if he believed him and again made
his comments about having the “closed shop” over his dead body. Merrick just shrugged his
shoulders. O’Toole, referring to elimination of the union shop provision, demanded to know
what it would cost to get “that.”
20
B. Analysis
General Counsel alleges that O’Toole’s statement to Merrick regarding elimination of the
certification bonus violates Section 8(a)(1). Merrick’s testimony is uncontroverted and was
open. Merrick also is a prior discriminatee in a Board proceeding. Roemer, 362 NLRB No. 96. 25
He testified in the face of the same respondent: His employer, the entity controlling his
paycheck, previously suspended him for union activity. Respondent’s failure to call witnesses
under its control, Bistarkey and O’Toole, demonstrates that they likely would have testified
adversely to Respondent. Ryder Student Transportation Services, Inc., 333 NLRB 9, 13 (2001);
Champion Rivet Co., 314 NLRB 1097, 1105 (1994). Here, I fully credit Merrick.30
The statement, taken in context, is a threat to remove part of the wage structure in
response to the Union’s bargaining demands. The circumstances were coercive: two
managers, one of whom was the company owner, were talking to one employee. O’Toole’s
repeated statements about keeping a “closed shop” over his dead body, indicated O’Toole was 35
“dead serious” about his threat. O’Toole’s diatribe berated and personally attacked Merrick. I
find that this statement violates Section 8(a)(1) of the Act.
VIII. RESPONDENT UNLAWFULLY SUSPENDED AND DISCHARGED HAAS
40
A. Facts
1. Respondent’s claimed desire for efficiency

Management employees apparently are familiar with the “Theory of Constraints,” which 45
outlines certain concepts and practices to promote efficiency. Fraley testified that she became
acquainted with the “Theory of Constraints” when she joined the management team and left the
bargaining unit. O’Toole gave her a book describing the theory. The collective-bargaining

12 Although O’Toole testified that the provision was a “closed shop,” the collective-bargaining
agreement contains lawful union shop and dues checkoff provisions.
JD–64–18
13
agreement has no reference to the “Theory of Constraints” but requires employees to work
efficiently. Direction on a job comes through training and supervision, but Respondent never
trained the bargaining unit employees about the “Theory of Constraints.”
To assist employees with processing jobs, Respondent’s engineering department 5
determines the most efficient way to move from one job process to another. Employees receive
training and are supervised to promote efficiency. Work instructions are available on the
computers. In addition, the employees have job travelers, which are written router instructions
for each job. The job travelers go with each order in employee envelopes, moving with the work
to the next phase in the production process. The job traveler includes, for example, the part to 10
be made, what size and/or paint. The name of the customer is on the front page of the
envelope and the job traveler itself. The work envelopes also include whether the job is a rush
job. The envelopes are kept for at least 7 years after the work is performed, sometimes longer.
2. The collective-bargaining agreement mandates progressive discipline15
Disciplinary records are kept on forms entitled “employee warning notice.” The
employee warning notice classifies disciplinary offenses in at least one of three areas:
attendance; quality of work; and intolerable offense. Quality of work offenses include, but are
not limited to, “carelessness, unsatisfactory work performance and failure to follow work 20
instructions, etc.” Intolerable offenses include, but are not limited to, “theft, violence,
insubordination, inappropriate behavior, damage/destruction of company property, violation of
safety policies or rules, violation of company procedures, Union business on company time,
vacating work area/not working.”
25
The collective-bargaining agreement contains a provision requiring Respondent to notify
the Union and the employee during the suspension if Respondent decides to terminate the
employee. (GC Exh. 2, Art. IV, at p. 6.)
3. Respondent’s disciplinary system30
Bistarkey keeps the employee warning notices. Any manager wishing to discipline an
employee pursuant to progressive discipline must call Bistarkey to determine what level of
disciplinary action would be appropriate based upon prior discipline. The disciplinary records
are kept in the employee’s personnel file for one year as long as the employee does not receive 35
a write-up for the same offense. (Tr. 156.)
O’Toole testified differently about how long the discipline remained in the file. O’Toole
testified he retains discretion over terminations. He also testified that he has the authority to
throw out the disciplinary system. (Tr. 63-64.) He also testified that he disciplines employees 40
immediately if he sees a violation.
Regarding writing any other records of discipline or incidents that might require
discipline, Production Manager Fraley rarely keeps any anecdotal notes for employee discipline.
For insubordination offenses, Fraley testified that employees are usually sent home 45
immediately. (Tr. 580.) Indeed, in 2015, O’Toole changed a one–day suspension for employee
Mike Robertson to a 3 day suspension for a first instance of insubordination. (Tr. 580-583; GC
Exhs. 50-52.) On May 12, 2015, O’Toole decreed that anyone with a first incident of
insubordination must be sent home immediately.
50
JD–64–18
14
4. Haas’s history at work and union activities
Haas had been an employee with Respondent for 42 years. He worked in the
fabrication, where he ran machines such as dies, grinders, punch presses and shears. Since
2006, Fraley supervised him. On October 11, 2016, Respondent terminated him. 5
During the summer of 2016, Haas displayed the “Fair Contract Now” sign in his car and
continued to do so. Haas had a special parking spot in the front of the south lot, near the
entrance, for having over 25 years of service. Others, including Hrabowy, displayed the sign as
well.10
In August 2016, Haas asked Shinkovich whether the stress levels in the office were as
high as in the shop due to the extended contract negotiations. Shinkovich said she thought the
office was okay. (Tr. 193.) The next day, Bistarkey retrieved Haas and made him repeat the
question he asked of Shinkovich. Owner O’Toole then directed Haas to repeat the question in 15
front of Bistarkey, Attorney Austin, and Manager Farmer. O’Toole also ordered Haas, with
Bistakrey’s escort, to go to each and every employee in the office area and asked if they were
stressed over the contract negotiations, which of course they did.
Haas took it upon himself to procure and distribute a special sticker about the 20
negotiations, addressing in particular the union shop issue. He contacted his niece to make “No
Open Shop” stickers. Once he received them, Haas passed them out to employees in the south
parking lot before work and left them in his car for others to take between mid-September to late
into the month. He had about 24 made and about half were left in the car. He displayed the
“No Open Shop” sticker in his car’s rear window, with the “Fair Contract No” sign. Hrabowy also 25
displayed the “No Open Shop” sticker on his motorcycle.
When Haas distributed the sticker is controverted. Merrick thought the distribution took
place about two months before Haas’s termination. Haas testified that he received and
distributed the “No Open Shop” stickers about mid-September 2016. Hrabowy testified that 30
Haas distributed the stickers about two weeks before the termination. Hrabowy stated he was
still riding his motorcycle at the time instead of driving a vehicle, and although he sometimes
rode his motorcycle in January, it did not occur in January.
Fraley denied seeing the “No Open Shop” stickers before October 11, 2018. The 35
employees park in the south parking lot. In addition, O’Toole and Fraley park in the same lot
and enter through the same entrance as the employees. However, Fraley and O’Toole both
park in that lot and apparently must pass Haas’s car, parked in its special spot, to enter or exit.
In addition, Fraley usually arrives before anyone else at the facility. Both she and O’Toole have
live camera feed from the parking lot. Shinkovich had seen the stickers in employee cars; she 40
had no recollection of when she saw them.
5. Respondent suspends, then terminates Haas
a. Haas twice carries sheared parts from the machine to a rack45
On September 14, 2016, Haas was shearing metal pieces and hand-carried some of his
completed work from the machine to a shelf. The parts were flat aluminum rectangles. O’Toole
noticed Haas carrying the parts and chided him for not using a cart to transport the parts.
50
JD–64–18
15
Later that day, Fraley heard O’Toole telling Haas to use a cart to transport the parts.
Fraley testified that she came out of her office and into the shop area, where Haas was carrying
“several” parts, which she later said was “20” to the rack. Fraley said Haas was bent over about
30 degrees, with his hands down around his knees, carrying the parts. Fraley testified that the
unsheared parts were aluminum, flimsy and weighed about one pound each. She never 5
testified to the weight or size of the products Haas sheared, which Haas testified were
significantly smaller. Haas testified no cart was nearby, that the order was a rush and he was
trying to get the parts to the racks so that the next person could begin the next phase of
processing. Fraley testified she was able to grab a nearby cart and directed Haas to follow
O’Toole’s instructions. Fraley denied that the order was a rush. Haas received no discipline 10
that day.
Fraley testified that at the end of the day, she told O’Toole that Haas should be written
up and mentioned nothing about insubordination. Fraley agreed that Haas was not sent home
immediately for insubordination, as O’Toole previously decided and she could not recall that 15
O’Toole previously directed the management team to send home immediately any insubordinate
employee with a 3-day suspension. (Tr. 580-583.)
b. Respondent suspends Haas
20
On September 30, 2016, Haas was presented with an employee warning notice from
Shinkovich, who was acting supervisor in Fraley’s absence. The notice, which had been written
by O’Toole himself, marked that Haas’s quality of work was at issue on September 14, 2016,
between 10:38 a.m. and 12:48 p.m. It cites an order and parts number and described Haas’s
conduct as:25
Not utilizing “Theory of Constraints” methodology. Specifically, hand carrying, in
a piecemeal manner, work to a shelf near next work station instead of using an
available cart, one trip and using said cart as an in-processing storage device.
30
Haas testified that he responded that the disciplinary action was harassment and wrote
his disagreement on the form: “It would have taken me longer to find empty carts than to move
parts in two handfuls.” The 5-day suspension was scheduled to begin after Haas’ vacation, on
October 10, 2016 through October 14, 2016.13 Haas did not sign, but Merrick did. (GC Exh. 5.)
The disciplinary record contains nothing about insubordination or that Haas was to be 35
terminated.14 The first step grievance was handled at the same time, from Shinkovich’s notes.

13 This incident was not the only time Respondent scheduled suspensions in advance.
14 Respondent’s brief states, “O’Toole had left town again prior to September 30, 2016.” Respondent
further contends, “Fraley testified that Company President Joe O’Toole was in fact, not at the facility.”
Fraley’s last day to work was September 27, 2016, and left for Las Vegas the following day. The
testimony that Respondent cites to support its factual statement is as follows:
Q. And then, we know you go on your --
you take off work on September 27th to depart for Vegas on the 28th, correct?
A. Yes.
Q. Now -- so, you were in the following week of the 14th, right? Or whatever week that would have
been. That would have been the week of September 19th?
A. Yes.
Q. Okay. Was Mr. O'Toole in that week?
A. I don't believe so. I didn't see him.
Q. Do you know where he was?
A. No, I do not.
JD–64–18
16
On October 4, 2016, Fraley returned from vacation and noticed Haas was not present.
Fraley asked Shinkovch about Haas’ whereabouts. Shinkovich informed her that Haas was on
vacation and then serving a suspension. (Tr. 557.)
5
c. Respondent terminates Haas
At some unknown point between October 4 and October 11, Respondent decided to
terminate Haas. Respondent’s witnesses gave inconsistent versions of how that decision was
made. O’Toole testified that he conducted a meeting with his management team, but did not 10
know which members of the team were present for the meeting. He claimed he listened to what
the team had to say and “Everybody wanted him terminated.” (Tr. 69.) When asked why,
O’Toole testified:
Because he’s a pain in the ass. He didn’t follow orders, he did things his 15
way, he was not a well-liked employee as far as his output and work. And the
reason I get the group together is because I do not spend that much time on the
shop floor, and I learn a lot of things that I didn’t know.
(Tr. 69-70). 20
Neither Fraley nor any other management team member corroborates O’Toole’s version
about a management meeting. Fraley testified that, upon her return from vacation, O’Toole
asked her what to do about Haas and she said he should not be brought back. Then Fraley
admitted that she first testified in an affidavit that she “did not remember” having a role in 25
deciding to terminate Haas and did not testify anywhere in the affidavit she told O’Toole not to
bring Haas back. (Tr. 593.) In an ironic tone of voice Fraley testified, “If you know my owner, he
makes his own decisions.” (Tr. 597.)
On October 13, 2016, Haas went to the plant for a free flu shot. Upon seeing him, 30
Bistarkey told him he could not be present at the plant. When asked why, Bistarkey told Haas
he was terminated by letter two days before. The termination letter, dated October 11, 2016
and signed by Bistarkey, contained no reasons for Haas’s termination. (GC Exh. 24.)
The Union filed a timely grievance regarding the termination and processed it through 35
the third step. The Union offered to arbitrate the matter, but could not force the matter because
the collective-bargaining agreement expired and O’Toole declined the offer.
O’Toole also testified that Haas was insubordinate in a subsequent incident by failing to
make a timely entry into a maintenance request log. Upon further questioning, O’Toole 40
admitted that he did not learn about that incident until months later and the incident played no
role in determining to terminate Haas. (Tr. 70-71.) As no further disciplinary records were
presented for Haas after the September 14, 2016 incident, Respondent apparently failed to
suspend Haas immediately for his alleged insubordination.
45

(Tr. 558).
Fraley’s testimony conveys she was unsure of where O’Toole was and that she returned to work
on October 4. This portion of Respondent’s brief unsupported in the record, that O’Toole was out of town.
I therefore grant General Counsel’s motion to strike this portion of the brief.
JD–64–18
17
6. Haas’ disciplinary record and performance appraisals
a. Haas’s disciplinary record
Haas has a long disciplinary history. Respondent presented his disciplinary actions from 5
1990 to his 2016 termination and O’Toole mentioned the claimed additional incident of
insubordination for which Haas received no discipline. Haas did not agree with all the
disciplinary actions, but he admitted to some. Some of the disciplines were for incorrectly
following instructions; others were for failing to correctly process orders and insubordination.
10
Merrick told Respondent that Haas was not going to change; it is not clear whether
Merrick made this statement on September 30, 2016 or at another time. I highlight only a few
of the more recent disciplinary actions.
In 2008, Haas received a 5-day suspension pending discharge for allegedly letting a job 15
continue when he knew the job was set up incorrectly. Haas returned to the job.
On about September 4, 2009, Haas received discipline for an alleged safety violation.
About October 25, 2009, Haas received a verbal warning for allegedly failing to follow
instructions to wash hands when he entered the building the previous day. 20
In September 2010, Haas received a written warning for questioning why he had to work
on an order when he thought other people were available. Less than a month later, about
October 12, 2010, he received another written warning for making a part that had to be
scrapped and reprinted. On about October 22, 2010, O’Toole gave Hass a verbal warning for 25
taking too long at lunch and break.
About seven months later, about May 5, 2011, Respondent gave Haas a 3-day
suspension for insubordination and disruptive behavior. According to Respondent’s
documentation, Haas slammed down product and began to sand it incorrectly, when he was 30
corrected. He yelled and said he would go home, which he did. Respondent’s records show no
response from Haas.
About August 22, 2011, Respondent gave Haas a one-day suspension for failing to
verify a set-up, which caused incorrect product. 35
About May 23, 2013, Respondent gave Haas a verbal warning for “wasting time” and
taking more steps than Respondent expected, plus not having carts around him to minimize the
steps. Haas disagreed with Respondent’s assessment. A little over a month later, about May
28, 2013, Respondent gave Haas a written warning for causing waste by incorrectly shearing 40
product. A week later, about June 28, 2013, Respondent assessed that Haas was “wasting
time & motion” walking around a cart that could have been moved instead and gave him a one-
day suspension. Haas disagreed, saying he needed to stretch his back and legs instead of
standing in 1 place for 8 hours. On about September 4, 2013, Haas received a 3-day
suspension for alleged variance on shear strips. 45
In July 2015, Respondent gave Haas a verbal warning for making parts that did not
conform to customer needs, resulting in customer rejection of the order. Haas agreed. Less
than 4 months later, about November 4, 2015, Haas received a 1-day suspension for creating
90% scrap. Haas again agreed. 50
JD–64–18
18
In April 2016, about 5 months after the previous discipline, Haas agreed to a one-day
suspension for bad parts. On the same day, he received a 3-day suspension for another set of
badly made parts. Haas again agreed.
5
During the summer of 2016, O’Toole observed Haas by camera for allegedly talking to a
UPS driver too long and gave him discipline. The Union grieved the discipline, ostensibly as the
discipline assessed violated the collective-bargaining agreement.
b. Haas’s performance appraisals10
Haas’ last three performance appraisals were presented. Fraley documents her
perceptions of the employee’s performance on Respondent’s forms, then gives them to
Bistarkey to give to O’Toole. O’Toole then changes to what he believes the ultimate
performance appraisal should be and adds his own comments. The forms show various items 15
that rated on a scale of 1 to 4. A rating of 4 is excellent and 3 is “as expected, good.”
The performance appraisals reflect that Fraley routinely rated Haas higher than O’Toole;
ironically at one point O’Toole complained that Haas should have all 4s because of his seniority,
instead of 3s. In 2015, O’Toole included negative comments, such as “Get the lead out” and 20
complained of Haas’s lack of efficiency. Yet in 2014 and 2015, Haas had no rating lower than 3,
and most of his ratings in efficiency were at 4. (GC Exhs. 53, 55).
Shenkovich, the quality manager, testified consistently with performance appraisals
about Haas’s work. She stated he could be relied upon to show up when scheduled. He had 25
his own way of performing work, but was knowledgable about his work and “he would let you
know if he wanted to do it a different way.” (Tr. 84.)
7. Discipline of others
30
On November 28 2016, employee Richard Ellison received documentation of a partial
day suspension on November 23, 2016, after he questioned O’Toole, apparently on his own
time. O’Toole, who signed the disciplinary action, labeled the question an “intolerable offense”
of insubordination. (GC Exh. 7.) This partial suspension occurred after O’Toole required
immediate suspension for any instance of insubordination.35
Consistent with O’Toole’s claim that he would throw out the disciplinary system if he
desired, employee Shane Merchant received a written warning for Quality of Work, yet less than
a year later, gave him a verbal warning for the same type of discipline. Had the progressive
disciplinary system been followed, the punishment would have been more severe, not less 40
severe.
Otherwise Respondent’s response to the subpoena presented no additional evidence to
demonstrate it consistently applied the disciplinary system for such an offense.
45
50
JD–64–18
19
B. Analysis
1. Credibility
I partially credit Haas’s testimony.15 Haas admitted that he sheared the parts and carried 5
them to the rack. He also admitted that he stated it would make no sense to look for a cart. He
made mistakes in testimony, such as no having discipline for creating scrap. He also
sometimes was inconsistent on details on who was present during events.
I also credit Hrabowy, particularly regarding the timing of when Haas distributed the “No 10
Open Shop” stickers. Despite Respondent trying to insist that it could have been at any time,
Hrabowy stuck to his guns, that it was about 2 weeks before Haas’s termination. Thus, the
timing corroborates Haas’s claim that the distribution took place in mid to late September.
The weight of the parts and whether the order was a rush job are controverted. 15
Respondent presented the unfinished aluminum plate, but did not present an exemplar of the
unfinished plate. Assuming that Fraley was correct that the unfinished plate was about 1 pound,
she never testified how much the sheared product weighed.
Fraley testified contradictorily when she stated she came out to see Haas carrying parts 20
“down to his knees” and then stated she did not observe him. She first said he was carrying
several parts, yet then estimated 20. Sseveral usually does not reach 20. She talked about the
unfinished parts but never stated how large the sheared parts were. Given how small the
sheared parts were and how light the aluminum pieces are, I find it improbable that Haas was
hunched over carrying the parts, much less that it was a heavy load. 25
Regarding these questions about the order and whether the order was a rush job,
Respondent could have presented the job traveler and its work envelope to contradict Haas did
not do so. Respondent maintained these records but did not present them. I take an adverse
inference that the job was as heavy as Fraley testified, much less a regular order. I credit 30
Haas’s testimony over Respondent’s version.
Fraley also contradicted herself about being able to suspend someone immediately for
insubordination, but did not immediately suspend Haas for insubordination. Fraley also was
discredited whether she made a recommendation about terminating Haas. When confronted 35
with her affidavit testimony, Fraley admitted she never testified that she told O’Toole not to bring

15 Haas testified that O’Toole told him that he knew about his role with the “No Open Shop” stickers
about the third week in September 2016. General Counsel suggests that I credit this testimony because
O’Toole never controverted it; in the alternative, the statement is not necessary to establish knowledge.
Haas never raised the statement in his affidavit or during his direct testimony, and I therefore cannot
credit it. It plays no role in my analysis. Toll Manufacturing Co., 341 NLRB 832, 835 (2004) (public interest
in vindicating Act outweighed evil of insignificant trespass on the trust when administrative law judge
found the false testimony was a small part of otherwise credible testimony and plays no part in outcome
of the case). Also see Sunrise Senior Living, Inc. v. NLRB, 183 Fed. Appx. 326, 333-334 (4th Cir. 2006),
enfg. 344 NLRB 1246 (2005).
Regarding this statement, Respondent suggests that I find Haas perjured himself. At hearing,
Respondent demanded that, based upon the Casehandling Manual, I order General Counsel to pursue
proceedings against Haas for perjury. The Casehandling Manual is not binding upon the Board. As I
pointed out at hearing, even the preface to the Casehandling Manual makes that statement. If I found
Haas perjured himself, then I would also have to find the same of Respondent’s witnesses who testified
contradictorily or were discredited on the stand. I decline to do find perjury on any witness and limit the
scope of my determinations to credibility.
JD–64–18
20
back Haas. (Tr. 593, 597-598.) O’Toole, Fraley and Shinkovich were externally inconsistent
about how they ultimately discussed Haas’ termination. O’Toole maintains he conducted a
management meeting. Fraley testified O’Toole “approached her” after she returned from
vacation and asked what to do with Haas; she testified she said to terminate him, which was
inconsistent with her affidavit. Shinkovich was very tentative about attending a meeting with 5
O’Toole and could not recall who else attended such a meeting or when it occurred. She took
no notes and had no recollection of what was discussed. Shenkovich also previously testified
that she had no role in Haas’s termination. I therefore discredit Fraley and Shinkovich about
recommending Haas’s termination or participating in a management meeting.
10
O’Toole’s performance appraisal statement, that he knows better than an employee
how things should be done, further undermines his claim that he knows little of events on the
shop floor and relies upon his management team: He changed ratings and added a number of
negative comments to Haas’s appraisals. Fraley’s statement, with her ironic tone of voice,
about her boss making his own decisions, was quite credible and telling. NLRB v. So-White 15
Freight Lines, Inc., 969 F.2d 401, 407 (7th Cir. 1992), enfg. 301 NLRB 223 (1991) (credibility is
not only what witness says, but how said). Due to these inconsistencies and Fraley’s
statement, I find it inherently likely that Fraley had nothing to do with the decision and O’Toole
made his own decision to terminate Haas.
20
O’Toole statement that he has full authority to change the disciplinary system at his
whim is credited only to the extent he believes it and acts upon it, which does not change the
language of the collective-bargaining agreement. The inconsistent applications of discipline,
such as with Merchant, support O’Toole’s belief he can do what he pleases with discipline.
25
O’Toole’s application of the “Theory of Constraints” and complaints about efficiency are
also questionable. He complained about the method Haas used to carry parts, yet when it
suited his purposes, instead of having Haas work, in August 2016, he instructed Bistarkey to
drag Haas around the office to ask 12 office staff about whether they too were stressed, in front
of a manager no less. Obviously, this incident does not promote efficient use of an employee’s 30
time on production. The unrefuted testimony of this incident, O’Toole’s imperious demeanor at
hearing, the 8(a)(1) violations and personal attacks described above, and O’Toole’s description
of his personal authority to change the disciplinary system as he pleases, all convince me that
O’Toole brooks no challenge to his authority.
35
I also consider that O’Toole raised a new, undocumented incident of Haas’s alleged
insubordination while testifying. This incident allegedly occurred after the September 14
incident but before termination. O’Toole testified later that he did not rely upon this discipline as
he had no knowledge of it at the time. Such testimony is an effort to pack on irrelevant
information and I discredit any import Respondent claims with it. 40
2. Applicable Law
Section 8(a)(3) prohibits employers from discriminating in regard to an employee’s
“tenure of employment . . . to encourage or discourage membership in any labor organization.” 45
An employer violates Section 8(a)(3) by disciplining employees for antiunion motives. Equitable
Resources, 307 NLRB 730, 731 (1992). To establish a violation of Section 8(a)(3) and (1) in
cases where a discipline and discharge is alleged, General Counsel has the burden to prove
that the disciplinary action or discharge was motivated by employer antiunion animus.
50
JD–64–18
21
In determining whether adverse employment actions are attributable to unlawful
discrimination, the Board applies the analysis set forth in Wright Line, 251 NLRB 108 (1980),
enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). The Wright Line
framework requires proof that an employee's union or other protected activity was a motivating
factor in the employer's action against the employee. 251 NLRB at 1089. The elements required 5
to support such a showing are union or protected concerted activity, employer knowledge of that
activity, and union animus on the part of the employer. Fremont-Rideout Health Group, 357
NLRB 1899, 1902 (2011); Consolidated Bus Transit, 350 NLRB 1064, 1065 (2007), enfd. 577
F.3d 67 (2d Cir. 2009).
10
Proof of animus and discriminatory motivation may be based on direct evidence or
inferred from circumstantial evidence. Robert Orr/Sysco Food Services, 343 NLRB 1183, 1184
(2004); Purolator Armored, Inc. v. NLRB, 764 F.2d 1423, 1428–1429 (11th Cir. 1985). Because
direct evidence of unlawful motivation is seldom available, the General Counsel may rely upon
circumstantial evidence to meet the burden. See Naomi Knitting Plant, 328 NLRB 1279, 1281 15
(1999). Circumstantial evidence is used frequently to establish knowledge and animus because
an employer is unlikely to acknowledge improper motives in discipline and termination. NLRB v.
Health Care Logistics, 784 F.2d 232, 236 (6th Cir. 1986), enfg. in part 273 NLRB 822 (1984). A
showing of animus need not be specific towards an employee’s union or protected concerted
activities. Colonial Parking, 363 NLRB No. 90, slip op. at 1, fn. 3 (2016). 20
An employer does not satisfy its burden merely by stating a legitimate reason for the
action taken, but instead must persuade by a preponderance of the credible evidence that it
would have taken the same action in the absence of the protected conduct. Manno Electric, Inc.,
321 NLRB 278, 280 fn. 12 (1996); T & J Trucking Co., 316 NLRB 771 (1995).25
3. Applying Wright Line
a. Haas’ Union Activities and Respondent’s Knowledge of the Union
Activities30
Haas engaged in a number of union activities. He invoked the collective-bargaining
agreement by filing grievances. One of his grievances was the underlying issue in Roemer,
supra, so it would be difficult for Respondent to deny knowledge of the grievances.
35
O’Toole testified that Haas was terminated because he was a pain in the ass. Haas
often “complained,” according to Fraley’s testimony and O’Toole’s statements on Haas’
performance appraisals. When asked what complaints Haas made, Fraley’s testimony was
general and never specified what the complaints were about. O’Toole did not testify to what the
statements on the appraisals referred. Some of Haas’s complaints, however, were about 40
working conditions and O’Toole himself.
Haas also engaged in union activities regarding the “Fair Contract” signs, which Merrick
distributed as well as his own “No Closed Shop” stickers. Similar to circulating a list of
concerns, Haas reached out to fellow employees regarding Respondent’s bargaining proposal 45
of the open shop when he offered the stickers, which some employees accepted. Haas’
conduct was concerted and protected. NLRB v. So-White Freight, 969 F.2d at 406.
Beyond the events of No Closed Shop” stickers, O’Toole and the management staff
knew of Haas’s union sympathies and views. In August 2016, O’Toole also took great offense 50
when Haas asked Shinkovich about any stress level in the office staff due to the negotiations.
JD–64–18
22
O’Toole made him repeat the question to him and the management staff, and then directed
Bistarkey to take Haas to each and every member of the office staff to ask the same question.
It is this event that demonstrates both Respondent’s knowledge of Haas’s union sympathies
and, as seen below, its antipathy to his position.
5
To demonstrate Respondent’s knowledge of Haas last union activities—distribution of
the “no open shop” stickers---General Counsel uses small plant doctrine. Small plant doctrine is
an inference from the size of the plant16 and its usage has been debated for some time. The
implication of the doctrine is not a presumption. NLRB v. Health Care Logistics, Inc., 784 F.2d
at 236-237. The application of small plant doctrine “rests on the view that an employer at a 10
small facility is likely to notice union activities at the plant because of the closer working
environment between management and labor.” Health Care Logistics, 734 F.2d at 236 (internal
quotes and cites omitted). The appropriate application is that the size of the plant is only one
factor to give rise to an inference of knowledge of union activity. Almet, Inc., 305 NLRB 626 fn.
5 (1991). The doctrine should not be used as the “sole basis for finding knowledge.” Basin 15
Frozen Foods, Inc., 307 NLRB 1406, 1408 (1992).
Small plant doctrine applies when the facility is small and open, the workforce is small,
the employees make no great effort to conceal their union activities, and management
personnel are located in the immediate vicinity of the protected activity, which increases 20
likelihood of knowledge. NLRB v. Mid State Sportswear, Inc., 412 F.2d 537, 540 (5th Cir. 1969).
I concur with General Counsel, in light of other evidence of knowledge, that Respondent knew
of Haas’ union activities, including distributing the “no open shop” stickers. I do not rely upon
small plant doctrine alone, as Haas testified without contradiction about O’Toole questioning him
about the statement of stress due to negotiations and then directing Bistarkey to drag him from 25
office employee to office employee to ask the same question.
b. Evidence of animus in general and towards Haas
Determining the employer’s motivation for termination is a fact-based inquiry and 30
evidence may be direct or circumstantial. SCA Tissue North America LLC, 371 F.3d 983, 988-
989 (7th Cir. 2004), enfg. 338 NLRB 1130 (2003). Factors which may support an inference of
antiunion motivation include employer hostility toward unionization, other unfair labor practices
committed by the employer contemporaneous with the adverse action, the timing of the adverse
action in relation to union activity, the employer's reliance on pretextual reasons to justify the 35
adverse action, disparate treatment of employees based on union affiliation, and an employer's
deviation from past practice. Purolator, 764 F.2d at 1429; W.F. Bolin Co. v. NLRB, 70 F.3d 863,
871 (6th Cir. 1995), denying rev. 311 NLRB 1118 (1993). Respondent’s conduct demonstrates
animus towards union activities not only a general level, but also specifically to Haas.
40
1) Evidence of general animus
General animus is seen through Respondent’s conduct in the prior Board decision and
the findings above after Haas’ termination. In Roemer, 362 NLRB No. 92, the Board findings
show Respondent’s history of animus, which is considered background evidence of animus for 45

16 Size may vary. See, e.g.: Custom Wood Interiors, Inc., 248 NLRB 187, 189 (18 persons); Famet,
Inc., 202 NLRB 409 (1973), enfd. 490 F.2d 293 (9th Cir. 1973) (9 employees with supervisors or
managers almost working continuously around the employees); Wiese Plow Welding Co., Inc. 123 NLRB
616, 619 (13 employees). Small plant size has its limitations. Springfield Garment Mfg. Co., 152 NLRB ,
1054 (1965) (400 employees, noting Board also refused to apply in 275-employee plant in a small
community).
JD–64–18
23
this case. Grand Rapids Press of Booth Newspapers, Inc., 327 NLRB 393, 395 (1998), enfd.
215 F.3d 1327 (6th Cir. 2000). The prior case, after the Sixth Circuit affirmed the Board’s
decision in 2017, was not closed on compliance until August 20, 2018, months after this
hearing. Respondent’s certification of posting in the prior case was not received until June 1,
2018.17 Thus, the prior unfair labor practices were not resolved until after the hearing. I do not 5
give “independent and controlling weight” to events occurring before the 10(b) period, but such
evidence may be considered to give background on a “respondent’s motivation for conduct
within the 10(b) period.” Grimmaway Farms, 314 NLRB 73, 74 (1994), enfd. in part 85 F.3d 637
(9th Cir. 1996). In addition, the the Board may rely upon events “long passed” to identify the
motivation behind a termination. SCA Tissue, 371 F.3d at 989 10
Respondent, without citing any case law, contends that I cannot take administrative
notice of that case because the charge was filed 4 years ago, the case was “resolved” and is
irrelevant to the case at hand. Respondent is incorrect for two reasons. First, the decision was
enforced by the Sixth Circuit in 2017 and the case therefore remained open during events at 15
hand. The case was not “resolved” until about June 1, 2018, when Respondent supplied its
certification of notice posting. Secondly, the Board is entitled to take administrative notice of its
own proceedings. Metro Demolition Co., 348 NLRB 272 fn. 3 (2006).18 The evidence here is not
used to prove a time-barred unfair labor practice but instead provides information about the
“true character” of events within the time period here. Machinists Lodge 1424 (Bryan Mfg. Co.) 20
v. NLRB, 362 NLRB 411, 416 (1960). This information is not the only basis for making this
determination and therefore is permissible. Id. at 417-418.
After Haas’ termination, Respondent’s statements and conduct in 2017 demonstrated
additional animus. In January 2017, Respondent directly dealt with employees and made 25
coercive statements. When O’Toole told employees he hired a union busting attorney, he told
employees how much he disliked the Union. Aliante Gaming, LLC d/b/a Aliante Casino and
Hotel, 364 NLRB No. 78 fn. 5 (2016) (even if statement was a lawful expression of opinion
against a union, it could support a finding of animus). Since March 2016, Respondent’s so-
called “union busting” attorney was negotiating for a successor agreement, months before 30
Haas’s termination.
Respondent also made fait accompli unilateral changes regarding pay and coercively
told employees that the removal of a pay raise was because the Union sought to exercise its
right to file charges before the Board. These events also provide significant evidence of 35
motivation. SCA Tissue, 371 F.3d at 990.

17 This information is available through the NLRB’s public website at www.nlrb.gov/case/08-CA-
124110. Fed. R. Evid. 201(b) permits judicial notice of a fact that is not subject to reasonable dispute
when it is either: (1) generally known within the court’s jurisdiction; or, (2) can be readily determined from
an indisputably accurate source. Fed, R, Evid. 201(c) permits a court to take judicial notice on its own.
Federal government websites are a frequent source of information for judicial notice. U.S. v. Garcia, 855
F.3d 615, 621-622 (4th Cir. 2017). Here, the source is the Agency’s website.
18 Respondent’s brief restates its version of the events in the earlier case, but without any case cites
to show where these findings are supported in Roemer, 362 NLRB No. 96. (R. Br. at 47-48.)
Respondent’s version was neither credited by the judge nor relied upon by the Board or Sixth Circuit.
Respondent did not present these facts to this tribunal and, in any event, would have been precluded
from doing so as a waste of resources. Voith Industrial Services, Inc., 363 NLRB No. 109, slip op. at 1 fn.
2 (2016). I therefore disregard Respondent’s self-serving and inaccurate rehash of Roemer, 362 NLRB
No. 96.
JD–64–18
24
2) Evidence of animus towards Haas
O’Toole testified that a reason for terminating Haas was that Haas was a pain in the ass.
O’Toole statement “provide[s] a nexus for evaluating the true causation of [the] discharge.”
Boston Mutual Life Insurance Co., 259 NLRB 1270, 1281 (1982), enfd. 692 F.2d 169 (1st Cir. 5
1982) (pain in the ass). The term “pain in the ass,”19 taken with other anti-union statements
from an employer, demonstrates animus towards an alleged discriminatee. USF Dugan, Inc.,
332 NLRB 409, 413 (2000) (pain in the butt). Also see United States Steel Corp., 279 NLRB 16
fn. 1 (1986) (in context, use of term “troublemaker” showed animus). The statement also
reflects O’Toole’s “subjective evaluation of the merits of the complaints,” that Haas made 10
throughout his employment, which are not controlling. Arrow Electric Co., Inc., 323 NLRB 968,
970-971 (1997), enfd. 155 F.3d 762 (6th Cir. 1998). Haas’s employment history is pocked with
O’Toole complaining about Haas’s complaints about management (usually O’Toole) and
working conditions.
15
Animus can be inferred from the relatively close timing between an employee’s
protected concerted activity and his discipline. Corn Brothers, Inc., 262 NLRB 320, 325 (1982)
(timing of discharge within a week of union organizing meeting evidence of antiunion animus);
Sears Roebuck & Co., 337 NLRB 443, 451 (2002) (timing of discharge, several weeks after
employer learned of protected concerted activities, indicative of retaliatory motive); La Gloria Oil 20
& Gas Co., 337 NLRB 1120 (2002) (timing of discipline imposed 4 months after service on
bargaining team and ULP hearing appearance suspect). Even without the “No Open Shop”
stickers, Respondent displayed significant animus towards Haas in August 2016, within 2
months of such activity.
25
Respondent’s failure to claim “an asserted reason for adverse action at the time the
action is taken can indicate a discriminatory motive.” Royal Development Co. v. NLRB, 703
F.2d 363, 372 (9th Cir. 1983). Shifting reasons for Respondent’s action also support finding
unlawful motivation. Scientific Ecology Group, Inc., 317 NLRB 1259, 1259 (1995). Also see
NLRB v. Aquatech, Inc., 926 F.2d 538, 547 (6th Cir. 1991), enfg. 297 NLRB 711 (1990) 30
(inconsistencies in proferred reason and employer’s actions lead to inference of anti-union
animus). Respondent inconsistently claimed that Haas was insubordinate, yet the disciplinary
action taken on September 30 made no such claim. Fraley was discredited regarding her claim
that she recommended action for insubordination, particularly because O’Toole required
insubordinate employees to be sent home immediately: That did not happen here. 35
Animus also can be inferred by previously terminating an employee and taking him back.
Garvey Marine, Inc. v. NLRB, 245 F.3d 819, 825 (D.C. Cir. 2001), enfg. 328 NLRB 991 (1999).
A final conclusion that an employer is ultimately exhausted by an employee’s bad behavior is
not persuasive. Id. at 825-826. Haas was taken back before, and eight years later Respondent 40
wants to impress that Haas’s actions now warrant termination.
4. Pretext
Respondent is required to demonstrate show it would have taken the same action for a 45
legitimate reasons even in the absence of the protected activity. Monroe Mfg., 323 NLRB 24, 27

19 “In informal English, if you call someone or something a pain or a pain in the neck, you mean that
they are very annoying or irritating. Expressions such as a pain in the arse and a pain in the backside in
British English, or a pain in the ass and a pain in the butt in American English, are also used, but most
people consider them offensive.” Collins English Dictionary. at
www.collinsdictionary.com/us/dictionary/english/a-pain-in-the-arse (August 16, 2018).
JD–64–18
25
(1997); T & J Trucking Co., 316 NLRB 771, 771 (1995), enfd. 86 F.3d 1146 (1st Cir. 1996)
(Table). “. . . [A] finding of pretext necessarily means that the reasons advanced by the
employer either did not exist or were not in fact relied upon, thereby leaving intact the inference
of wrongful motive established by the General Counsel.” Limestone Apparel Corp., 255 NLRB
722, 722 (1981), enfd. 705 F.2d 799 (6th Cir. 1982). A number of factors point out that 5
Respondent’s defenses are pretextual, and Respondent therefore failed to meet its responsive
burden.
Shifting explanations for Respondent’s disciplinary actions constitute strong evidence
that Respondent’s asserted reasons are pretextual. See, e.g., Lucky Cab Co., 360 NLRB 271, 10
274 (2014). According to O’Toole’s May 2015 edict, any employee who is insubordinate must
be immediately suspended, even if it is a first instance of discipline. Respondent was not
consistent in applying his own rules. With Haas, the timeline demonstrates O’Toole waited over
two weeks to suspend Haas and allowed him to continue to work. In other cases, Respondent
failed to enforce its own edicts on insubordination. O’Toole’s belated understanding that Haas 15
was insubordinate after his September 14 cart incident and before termination reinforces that
Respondent did not consistently require insubordinate employees to be sent home immediately.
Respondent’s after-the-fact claim that Haas was insubordinate again reflects a shifting defense
as well, and shows Respondent’s claims are pretextual. Kingman Regional Medical Center, 363
NLRB No. 145 (2016) (respondent’s shifting defenses implies grasping for reasons to justify 20
unlawful conduct) (cite omitted).
Also unsupported is O’Toole’s claim of Haas’s insufficiencies and poor work quality. His
performance appraisals reflect ratings in good or excellent and Shinkovich, the quality manager,
did not present any complaints at hearing about his performance. Haas admitted mistakes when 25
he made them and took the discipline. However, Respondent tolerated Haas’s performance
and rated his as good or excellent on most items. Thus, Respondent’s complaints regarding his
performance are pretextual.

The level of discipline Respondent gave to Haas was not in proportion to the offense:30
It has been held that a trier of fact is not permitted to substitute his or her
judgment for that of the employer with regard to discipline imposed. Super Tire
Stores, 236 NLRB 877 fn. 1 (1978); Liberty House Nursing Home, 245 NLRB
1194 fn. 2 (1979). However, “if the employee is a good worker and his breach of 35
the work rules trivial, the more rational explanation for discharge may be
invidious motivation.” Neptune Water Meter Co. v. NLRB, 551 F.2d 568, 570 (4th
Cir. 1977). See also Flowers Baking Co., 240 NLRB 870, 870-872 (1970). And
“overreaction to a violation of a rule or accepted standard may itself be an
indication of pretext.” Sea-Land Service, 240 NLRB 1146, 1147 (1979).40
Bell Halter, Inc., 276 NLRB 1208, 1222 (1985).
Respondent applied the “Theory of Constraints” when it suited its purposes. First,
Respondent never instructed employees in the bargaining unit about the “Theory of 45
Constraints.” Secondly, Respondent makes much of the need for efficiency, including working
in the most efficient manner. However, O’Toole required Haas, with a manager present, ask
each and every person in the office about whether they were stressed about collective-
bargaining agreement negotiations. This canard not only cost Haas’s production time, but it
also cost the manager’s time and caused interruptions to each and every person in the office. 50
Such action is not consistent with the efficiency O’Toole claims he requires in his operations.
JD–64–18
26
As suggested above, the rule violation for carrying parts is trivial compared to O’Toole’s reaction
to Haas’s question about stress in the office. It also demonstrates that O’Toole’s vindictiveness
when it came to the Union and pending negotiations.
O’Toole stated a reason for terminating Haas was that he was not changing. 5
Respondent presented a lengthy history of Haas’s discipline, dating back to the 1990s, to show
how bad of an employee Haas was. Given Haas’s frequent flier status for discipline, surely
O’Toole and Respondent knew years ago that Haas was not going to change. No doubt, Haas
had a significant disciplinary history. He had been up and down the progressive disciplinary
ladder numerous times, including a 5-day suspension pending termination in 2008, and he had 10
not been terminated. O’Toole, who stated he could change the disciplinary system at his whim,
decided this time to terminate Haas. Respondent tolerated Haas for many years before this
time. Similarly, Respondent’s documentation noted that it believed Haas was a chronic
complainer and to take action after years of complaining smacks of pretext. Because
Respondent tolerated for Haas’ alleged poor performance and complaining for years, 15
Respondent’s reasons are pretextual. Andronaco, Inc. d/b/a Andronaco Industries, 364 NLRB
No. 142, slip op. at 13 (2016), citing Phillips Petroleum Co., 339 NLRB 916, 919 (2003).
Nor did Respondent consistently apply the progressive disciplinary system. As O’Toole
noted he could do what he wanted when he wanted, the suspension and termination also point 20
to pretext.
5. Completion of the Wright Line test
General Counsel established a prima facie case for Haas’ suspension and termination.25
Respondent was well aware of Haas’s union sympathies and views in August 2016 and O’Toole
clearly was angered by Haas’s question. The “no open shop” stickers, by timing, also infer that
Respondent took action because of Haas’s union views.
Many of Respondent’s reasons for its actions contradictory and unsupported, further 30
demonstrating animus and pretext. Respondent failed to satisfy its burden under Wright Line to
show that it would have suspended and terminated Haas even in the absence of his protected
concerted and union activities.
35
CONCLUSIONS OF LAW
1. Respondent Roemer Industries, Inc. is an employer within the meaning of Section 2(2),
(6), and (7) of the Act.
40
2. The following are Respondent’s supervisors within the meaning of Section 2(11) and/or
agents within the meaning of Section 2(13) of the Act:
a. Joe O’Toole owner/president
b. Mike Farmer general manager
c. Anna Fraley production manager45
d. Amanda Shinkovich quality manager
e. Connie Bistarkey administrative services and custodian of records
3. The United Steel, Paper & Forestry, Rubber Manufacturing, Energy Allied Industries and
Service Workers International Union, AFL-CIO, CLC (Union) is a labor organization 50
within the meaning of Section 2(5) of the Act, representing:
JD–64–18
27
All production and maintenance employees of the Company except those
individuals occupying watchman, confidential clerical, salaried or supervisory
positions of assistant foreman level or above.
5
4. Respondent, by Joe O’Toole, violated Section 8(a)(1) of the Act, by:
a. On January 3, 2017, impliedly threatening the employees’ continued
employment.
b. On January 3, 2017, telling employees that he hired a union busting attorney.
c. About June 15, 2017, threatening employees with eliminate the CAP if the Union 10
pursued increased wages in bargaining.
d. About July 2017, told employees that the Union was the reason it was rescinding
a wage increase.
5. Respondent violated Section 8(a)(3) and (1) of the Act by suspending Bruce Haas on 15
September 30, 2016 and terminating him on October 11, 2016.
6. Respondent violated Section 8(a)(4), (3) and (1) of the Act in July 2017 by rescinding
wage increases after the Union sought relief before the National Labor Relations Board.
20
7. Respondent violated Section 8(a)(5) of the Act by:
a. By O’Toole, on January 3, 2017, directly dealing with employees.
b. Since May 8, 2017, failing and refusing to provide information regarding
surveillance cameras, which is necessary and relevant to the Union’s role as the
exclusive collective-bargaining representative of the Unit.25
c. On May 19, 2017, unilaterally implementing wages increases without first
notifying or giving the Union an opportunity to bargain.
d. On about July 14, 2017, unilaterally implementing wage decreases without first
notifying or giving the Union an opportunity to bargain.
30
8. The unfair labor practices committed by Respondent affect commerce within the
meaning of Section 2(6) and (7) of the Act.
REMEDY35
Having found that Respondent Roemer Industries, Inc. has engaged in certain unfair
labor practices, I find that it must be ordered to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of the Act.
40
Respondent, having unlawfully discharged Bruce Haas, must offer him 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 previously enjoyed. The Respondent
shall make Bruce Haas whole for any loss of earnings and other benefits suffered as a result of
the discrimination against him. The make whole remedy shall be computed in accordance with 45
F.W. Woolworth Co., 90 NLRB 289 (1950), with interest at the rate prescribed in New Horizons,
283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356
NLRB 6 (2010). In accordance with King Soopers, Inc., 364 NLRB No. 93 (2016), the
Respondent shall compensate Bruce Haas for search-for-work and interim employment
expenses regardless of whether those expenses exceed his interim earnings. Search-for-work 50
and interim employment expenses shall be calculated separately from taxable net backpay, with
JD–64–18
28
interest at the rate prescribed in New Horizons, supra, compounded daily as prescribed in
Kentucky River Medical Center, supra. In accordance with Don Chavas, LLC d/b/a Tortillas Don
Chavas, 361 NLRB 101 (2014), the Respondent shall compensate Bruce Haas for the adverse
tax consequences, if any, of receiving lump sum backpay awards, and, in accordance with
AdvoServ of New Jersey, Inc., 363 NLRB No. 143 (2016), the Respondent shall, within 21 days 5
of the date the amount of backpay is fixed either by agreement or Board order, file with the
Regional Director for Region 8 a report allocating backpay to the appropriate calendar year for
each employee. The Regional Director will then assume responsibility for transmission of the
report to the Social Security Administration at the appropriate time and in the appropriate
manner. The Respondent shall also be required to remove from its files any references to the 10
unlawful discharge of Bruce Haas and to notify him in writing that this has been done and that
the discharge will not be used against him in any way
Respondent, having unlawfully changed the terms and condition of employment, shall
rescind the changes that was/were unilaterally implemented in mid-July 2017, and make all 15
affected employees whole for any loss of earnings and other benefits suffered as a result of the
unilateral changes. The make-whole remedy shall be computed in accordance with Ogle
Protective Service, 183 682 (1970), enf’d. 444 F.2d 502 (6th Cir. 1971), with interest as
prescribed in New Horizons, 283 NLRB 1173 (1987), and compounded daily as prescribed in
Kentucky River Medical Center, 356 NLRB 6 (2010). In accordance with Don Chavas, LLC 20
d/b/a Tortillas Don Chavas, 361 NLRB No. 10 (2014), the Respondent shall compensate any
employees adversely affected by the unlawfully changed policies for the adverse tax
consequences, if any, of receiving lump sum backpay awards, and in accordance with
AdvoServ of New Jersey, Inc., 363 NLRB No. 143 (2016), Respondent shall, within 21 days of
the date the amount of backpay is fixed, either by agreement or Board order, file with the 25
Regional Director for Region 8 a report allocating backpay to the appropriate calendar year for
each employee. The Regional Director will then assume responsibility for transmission of the
report to the Social Security Administration at the appropriate time and in the appropriate
manner.
30
Respondent shall post an appropriate informational notice, as described in the attached
appendix. This notice shall be posted in the Respondent's Masury, Ohio facility or wherever the
notices to employees are regularly posted for 60 days without anything covering it up or
defacing its contents. In addition to physical posting of paper notices, notices shall be distributed
electronically, such as by email, posting on an intranet or an internet site, and/or other electronic 35
means, if Respondent customarily communicates with its employees by such means. In the
event that, during the pendency of these proceedings, 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 employees employed by
the Respondent at any time since September 30, 2016. When the notice is issued to 40
Respondent, it shall sign it or otherwise notify Region 8 of the Board what action it will take with
respect to this decision.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended2045

20If no exceptions are filed as provided by Section 102.46 of the Board’s Rules and Regulations, the
findings, conclusions and recommended Order shall, as provided in Section 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed waived for all purposes due under the
terms of this Order.
JD–64–18
29
ORDER
Respondent Roemer Industries, Inc., located in Masury, Ohio, its officers, agents, successors,
and assigns shall:
5
1. Cease and desist from:
a. Threatening employees with termination because of the union support.
b. Terminating employees for union and/or protected union activity.
c. Threatening employees because unfair labor practices charges were filed on
their behalf.10
d. Unlawfully suspending and terminating employees for union and/or protected
concerted activity.
e. Unilaterally changing wages, hours and terms and conditions of employment.
f. Bypassing the Union and directly dealing with employees regarding wages, hours
and terms and conditions of employment.15
g. In any like or related manner interfering with, restraining, or coercing employees
in the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act:
a. Within 14 days from the date of this Order, offer Bruce Haas full reinstatement to 20
his former jobs, or, if that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other rights or privileges
previously enjoyed.
b. Make Bruce Haas whole for any loss of earnings and other benefits suffered as a
result of the discrimination against him, in the manner set forth in the remedy 25
section of this decision.
c. Compensate Bruce Haas for the adverse tax consequences, if any, of receiving a
lump-sum backpay award and file with the Regional Director for Region 8 within
21 days of the date the amount of backpay is fixed, either by agreement or board
order, a report allocating the backpay award to the appropriate calendar year for 30
Haas.
d. Within 14 days from the date of this Order, remove from its files any reference to
the unlawful discharge and within 3 days thereafter, notify Bruce Haas in writing
that this has been done and that the discharge will not be used against him in
any way.35
e. On request, bargain with the Union as the exclusive collective-bargaining
representative of the employees in the following appropriate unit concerning
terms and conditions of employment and, if an understanding is reached,
embody the understanding in a signed agreement:
40
All production and maintenance employees of the Company except those
individuals occupying watchman, confidential clerical, salaried or
supervisory positions of assistant foreman level or above.
f. Upon request of the Union, rescind the charges in the terms and conditions of 45
employment for its unit employees that were unilaterally implemented on mid-
July 2017 and May 2017.
g. Furnish to the Union in a timely manner the information requested on May 8,
2017.
h. Preserve and, within 14 days of a request, or such additional time as the 50
Regional Director may allow for good cause shown, provide at a reasonable
JD–64–18
30
place designated by the Board or its agents, all payroll records, social security
payment records, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under the terms of this Order.
i. Within 14 days after service by the Region, post at its Masury, Ohio facility 5
copies of the attached notice marked “Appendix.”21 Copies of the notice, on
forms provided by the Regional Director for Region 8, after being signed by
Respondent’s authorized representative, shall be posted by Respondent and
maintained for 60 consecutive days in conspicuous places, including all places
where notices to employees are customarily posted. In addition to physical 10
posting of paper notices, notices shall be distributed electronically, such as by
email, posting on an intranet or an internet site, and/or other electronic means, if
Respondent customarily communicates with its employees by such means.
Reasonable steps shall be taken by Respondent to ensure that the notices are
not altered, defaced, or covered by any other material. If Respondent has gone 15
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 employees employed by the Respondent at
any time since September 30, 2016.
j. Within 21 days after service by the Region, file with the Regional Director for 20
Region 8 a sworn certification of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges violations of the
Act not specifically found.25
Washington, DC, September 24, 2018
__________________________30
Sharon Levinson Steckler
Administrative Law Judge

21 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."
j4hvolt )‘01.i.#-7J7;*-e.zee._
JD–64–18
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 federal labor law and has
ordered us to post and abide by this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT interfere with, restrain or coerce our employees in the exercise of these rights,
guaranteed to them by Section 7 of the National Labor Relations Act.
WE WILL NOT impliedly threaten you about your continued employment with us.
WE WILL NOT by telling you we have hired a “union busting” attorney.
WE WILL NOT threaten to change wages, hours and terms and conditions of employment due
to the Union’s position in collective-bargaining agreement negotiations.
WE WILLL NOT coerce you by telling you we changed terms and conditions of employment
because the Union sought assistance from the National Labor Relations Board.
WE WILL NOT threaten you with changes in wages, hours and terms and conditions of
employment because of your union and/or other protected concerted activities.
WE WILL NOT suspend or discharge you because you engaged in Union and/or protected
concerted activities.
WE WILL NOT changes wages, hours and other terms and conditions of employment because
charges have been filed with the Board on your behalf.
WE WILL NOT refuse to bargain in good faith with the United Steel, Paper and Forestry,
Rubber, Manufacturing, Energy, Allied Industrial and service Workers International Union, AFL-
CIO in the following appropriate unit by unilaterally changing your terms and conditions of
employment, including but not limited to changes in your wages, without first providing the
Union with notice and an opportunity to bargain. The bargaining unit is:
All production and maintenance employees of the Company except those
individuals occupying watchman, confidential clerical, salaried or supervisory
positions of assistant foreman level or above.

JD–64–18
WE WILL NOT withhold from the Union that is necessary and relevant to its responsibilities as
exclusive-bargaining representative of the above bargaining unit.
WE WILL NOT bypass the Union and deal directly with our employees in the above-described
bargaining unit concerning your wages, benefits, or other terms and conditions of employment.
WE WILL NOT, in any like or other related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed to you by Section 7 of the Act.
WE WILL offer Bruce Haas immediate and full reinstatement to her former job, or if that job no
longer exists, to a substantially equivalent position, without prejudice to his seniority or any other
rights and privileges she previously enjoyed.
WE WILL remove from our files all references to the suspension and discharge of Bruce Haas
and WE WILL notify him in writing that this has been done and that the suspension and
discharge will not be used against him in any way.
WE WILL pay Bruce Haas for the wages and other benefits he lost, with interest, because of our
unlawful suspension and termination of him.
WE WILL, before implementing any changes in wages, hours or other terms and conditions of
your employment, notify and on request, bargain with the Union as your exclusive collective-
bargaining representative.
WE WILL, to the extent we have not already done so, upon request by the Union, rescind any
changes in terms and conditions of employment for the unit employees that we unilaterally
unilaterally implemented beginning May 2017 and mid-July 2017, including changes to our unit
employees’ rates of pay.
WE WILL make our unit employees whole for any losses they sustained due to the unlawfully
imposed changes to their terms and conditions of employment, with interest.
WE WILL compensate affected employees for the adverse tax consequences, if any, of
receiving lump-sum backpay awards, and WE WILL file with the Regional Director for Region 8,
within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a
report allocating the backpay awards to the appropriate calendar years for each employee.
WE WILL provide the Union with the information requested on May 8, 2017 regarding the
camera system.
Roemer Industries, Inc.
(Employer)
Dated By
(Representative) (Title)
JD–64–18
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
1240 East 9th Street, Room 1695, Cleveland, OH 44199-2086
(216) 522-3715, Hours: 8:15 a.m. to 4:45 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/08-CA-8055 or by using the QR code
below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations
Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND
MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS
CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE
REGIONAL OFFICE’S COMPLIANCE OFFICER, (216) 303-7399.
13 D