Saginaw Control & Engineering, Inc.

National Labor Relations Board - Board Decisions

Jul 11, 2003

339 N.L.R.B. 541 (N.L.R.B. 2003)

SAGINAW CONTROL & ENGINEERING, INC. 541
Saginaw Control and Engineering, Inc. and United
Steelworkers of America, AFL–CIO. Cases 7–
CA–43177(1), (2), 7–CA–43773(1), (2), (4), and 7–
CA–44021(1), (2), (3)
July 11, 2003
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND WALSH
On July 17, 2002, Administrative Law Judge Earl E.
Shamwell Jr. issued the attached decision. The Respon-
dent filed exceptions and a supporting brief, and the
General Counsel filed an answering brief.1
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions in
part, to reverse them in part, and to adopt the recom-
mended Order as modified and set forth in full below.2
This case involves a newly certified union. The elec-
tion was held on June 8, 2000, in a unit of about 223
production and maintenance employees. The Union was
certified on June 16, 2000. The parties bargained from
late July 2000 to June 2001, but were unable to reach an
agreement. On June 18, 2001, the Respondent withdrew
recognition from the Union, relying on an employee peti-
tion signed on June 13–15, 2001.
The alleged violations began during the Union’s orga-
nizing campaign and continued throughout the certifica-
tion year. The judge found that the Respondent unlaw-
fully withdrew recognition from the Union and commit-

1 There are no exceptions to the judge’s findings that the Respondent
violated Sec. 8(a)(1) by maintaining an overly broad no-distribution
rule, discriminatorily enforcing a no-solicitation/no-distribution rule,
and interrogating and making coercive statements to employee James
Sperry during his interviews and orientation. Furthermore, there are no
exceptions to the judge’s findings that the Respondent violated Sec.
8(a)(5) by unilaterally granting a wage increase, increasing the starting
wage, and revising its merit evaluation system; unilaterally reducing
work hours and relocating certain unit employees; and failing to pro-
vide a timely response to the Union’s request for a seniority list, wage
information, and a list of unit employees who had received raises since
June 1, 2000. Finally, there are no exceptions to any of the unfair labor
practice allegations dismissed by the judge.
The Respondent has excepted to some of the judge’s credibility find-
ings. The Board’s established policy is not to overrule an administra-
tive law judge’s credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Stan-
dard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d
Cir. 1951). We have carefully examined the record and find no basis
for reversing the findings.
2 We shall modify the judge’s conclusions of law, remedy, and rec-
ommended Order and substitute a new notice to conform to our find-
ings and to the Board’s standard remedial language.
ted multiple other violations of Section 8(a)(1), (3), and
(5). His recommended remedy included an affirmative
bargaining order. We adopt his findings and conclusions
except as set forth below.
A. Alleged Solicitation of Employee Patrick Maziarz to
Persuade Other Employees to Vote Against the Union
The judge found that the Respondent, through its
president and CEO, Fred May, violated Section 8(a)(1)
by soliciting employee Patrick Maziarz to persuade other
employees to vote against the Union in the June 8, 2000
election. We disagree.
On the morning of the election, May and Maziarz met
to discuss Maziarz’ concerns about his pay. At the end
of the meeting, May brought up the subject of the Union.
He expressed his opinion that a union would be bad for
the Company and told Maziarz to let the other employees
know to vote against the Union. Maziarz replied that the
employees had already made up their minds, and telling
them to vote no would only cause conflict. May then
changed his mind, agreed with Maziarz, and told him not
to say anything.
Under Section 8(a)(1), an employer may not “interfere
with, restrain, or coerce employees” in the exercise of
their Section 7 rights. An employer violates Section
8(a)(1) if its conduct “would tend to coerce a reasonable
employee.” Madison Industries, 290 NLRB 1226, 1229
(1988); Without Reservation, 280 NLRB 1408, 1414
(1986). In determining whether an employer’s statement
violates Section 8(a)(1), the Board considers the “totality
of the relevant circumstances.” Ebenezer Rail Car Ser-
vices, 333 NLRB 167 fn. 2 (2001); see also John Wyke,
Inc., 245 NLRB 9 (1979) (supervisor’s statement to an
employee, “when viewed in the totality of the circum-
stances,” did not violate Section 8(a)(1)).
Under this standard, we cannot view May’s initial re-
quest to Maziarz—to let other employees know to vote
no—in isolation. Considering the totality of the circum-
stances, and placing May’s request in context, we do not
agree with the judge that it violated Section 8(a)(1). Al-
most immediately after asking Maziarz to tell others to
vote no, May expressly withdrew that request. May’s
statements, taken as a whole, would not tend to coerce a
reasonable employee in the exercise of Section 7 rights.
We therefore reverse the judge and find that May did not
unlawfully solicit Maziarz to persuade employees to vote
against the Union.
B. The Respondent’s February 8, 2001 Letter
Discussing Potential Strike
About February 2001, the Union considered calling a
strike. About February 8, 2001, the Respondent distrib-
uted a letter to employees discussing procedures in the
339 NLRB No. 76
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 542
event of a strike. Among other things, the letter in-
formed employees, without further explanation, that the
Respondent “will immediately take steps to permanently
replace” strikers (emphasis in original). After several
additional paragraphs discussing the cessation of em-
ployee benefits and other procedures the Respondent
would follow during a strike, the letter concluded:
“Make no mistake about it—if you value your job and
your continued future at Saginaw Control & Engineering
you must come to work regardless of a strike!” (Empha-
sis in original.)
We agree with the judge that the letter violated Section
8(a)(1), but only because we find that the letter effec-
tively prohibited employees from striking and made a
veiled threat that they would lose their jobs by doing so.
We do not rely on the judge’s alternative findings that
the letter unlawfully failed to distinguish between eco-
nomic and unfair labor practice strikers, or unlawfully
stated that the Respondent would assume that employees
were participating in the strike if they did not report for
work.
Permanently replaced economic strikers who make un-
conditional offers to return to work have the right to full
reinstatement when positions become available and the
right to be placed on a preferential hiring list until that
time. See Laidlaw Corp., 171 NLRB 1366, 1368–1370
(1968), enfd. 414 F.2d 99 (7th Cir. 1969), cert. denied
397 U.S. 920 (1970). An employer may lawfully inform
employees that they are subject to permanent replace-
ment in the event of an economic strike, without fully
explaining employees’ reinstatement rights under Laid-
law. See, e.g., Eagle Comtronics, 263 NLRB 515, 515–
516 (1982). However, an employer must not threaten
that, as a result of a strike, employees will be deprived of
their rights in a manner inconsistent with Laidlaw. See
id. at 516.
Pursuant to Eagle Comtronics, supra, the Respondent
had the right to inform employees that they would be
subject to permanent replacement in the event of an eco-
nomic strike. The Respondent’s letter, however, did
more. It warned each employee that “if you value your
job and your continued future . . . you must come to
work regardless of a strike!” Thus, the letter prohibited
employees from striking and made a veiled threat that
employees who did so would lose their jobs. Because
the letter threatened that employees would be deprived of
their rights in a manner inconsistent with Laidlaw, supra,
we find that it violated Section 8(a)(1).
C. Alleged Removal of Union Posters from Employee
Greg Kennedy’s Locker
The judge found that the Respondent violated Section
8(a)(1) by asking employee Kennedy to remove prounion
posters from his company locker. The judge noted that
the Respondent allowed employees to display other
nonwork-related materials on the lockers. For example,
employees displayed posters of racecar driver Dale Earn-
hardt, as well as posters supporting political views or
organizations such as Right to Life and the National Ri-
fle Association.
We agree with the judge that the Respondent’s re-
moval of the posters violated Section 8(a)(1). In doing
so, we note that the Respondent discriminatorily re-
moved union posters while allowing the other, nonwork-
related posters described above. See, e.g., J. C. Penney,
Inc., 322 NLRB 238, 239 (1996), enfd. in relevant part
123 F.3d 988 (7th Cir. 1997) (respondent violated Sec-
tion 8(a)(1) by removing union stickers from company-
owned work cart while allowing other nonwork-related
stickers). Accordingly, we agree with the judge that the
Respondent violated Section 8(a)(1) by asking Kennedy
to remove the prounion posters from his locker.3
D. Alleged Denial of Overtime Opportunities
to Employee Kennedy
The judge found that the Respondent violated Section
8(a)(3) and (1) by denying overtime opportunities to em-
ployee Greg Kennedy because of his union activity. We
reverse.
Until August 2, 2000, Kennedy worked as a local de-
livery driver. He regularly worked more than 40 hours
per week, including occasional Saturdays. On July 31,
2000, Kennedy was suspended for 1 day for using a
company truck to do personal and union business during
worktime. The written discipline notice informing Ken-
nedy of his suspension also stated: “Your position as a
local driver will be reviewed by your supervisor and
plant manager to determine if your poor performance
warrants removal from your driving duties.” Kennedy
returned from suspension on August 2, 2000. On that
date, Kennedy’s supervisor, Jack Binder, notified Ken-
nedy that he was being removed from his driving duties
indefinitely. Kennedy testified that Binder told him that
his new work hours were 7 a.m. to 3:30 p.m., and that he
would now be classified as a “general laborer.” Simi-
larly, Binder testified that after Kennedy was removed

3 Chairman Battista and Member Schaumber agree that the Respon-
dent violated Sec. 8(a)(1) by permitting employees to put any kind of
information other than Sec. 7-related communications on company
lockers assigned to them. They therefore do not reach the issue
whether, absent disparate treatment, the Respondent would have to
show special circumstances for requiring removal of union posters on
the lockers.
In addition to the reason set forth above, Member Walsh would find
that the Respondent violated Sec. 8(a)(1) because it failed to show
special circumstances for requiring Kennedy to remove the union post-
ers. See Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945).
SAGINAW CONTROL & ENGINEERING, INC. 543
from his driving duties, “he was then put on general la-
bor and eight hours [per day].” After August 2, 2000,
Kennedy was scheduled for, and worked, 40 or fewer
hours per week.4
About September 2000, after hearing that all other em-
ployees would be required to work on a particular Satur-
day, Kennedy asked another supervisor, Mike Pagano, if
he should work that Saturday too. After conferring with
Binder, Pagano said that Kennedy knew his schedule and
that he was “out.”
The General Counsel alleged two violations relating to
Kennedy’s work schedule: first, that the Respondent
violated Section 8(a)(3) and (1) by changing Kennedy’s
driving schedule and work assignment; second, that the
Respondent violated Section 8(a)(3) and (1) by denying
Kennedy overtime opportunities. With respect to the
change in driving schedule and work assignment, the
judge found that the Respondent would have removed
Kennedy from his local truck driving duties and changed
his work assignment to “general labor” regardless of his
union activity, because Kennedy had misused the com-
pany truck. Therefore, the judge dismissed this allega-
tion. There are no exceptions to the dismissal.
With respect to overtime opportunities, the judge ex-
pressly declined to find that the Respondent actually had
overtime hours available for Kennedy. Nevertheless, the
judge found that the issue was whether Kennedy was
denied the opportunity for overtime. Relying largely on
Pagano’s comment that Kennedy was “out,” the judge
found that whatever overtime the Respondent may have
had available, Kennedy was not considered for it. The
judge found that the Respondent violated Section 8(a)(3)
and (1) by denying Kennedy daily overtime opportunities
since August 2, 2000, and Saturday overtime opportuni-
ties since September 2000.
We reverse. We find that Kennedy did not receive
overtime after August 2 because he had been removed
from driving and placed on a fixed 8-hour schedule as a
general laborer, as part of his discipline for misusing the
company truck. It is clear from Kennedy’s discipline
notice and the judge’s findings that Kennedy was re-
moved from driving and reassigned to general labor be-
cause he misused the truck. There are no exceptions to
the judge’s findings that this reassignment was lawful.
Furthermore, it is clear from Kennedy’s and Binder’s
testimony, described above, that Kennedy’s new reduced
work schedule was simply one more facet of his disci-
pline. Pagano’s statement to Kennedy that “you know
your schedule and you’re out” also supports this conclu-

4 About a year later, around August or September 2001, Kennedy
again began working more than 40 hours per week.
sion: Kennedy was “out” of consideration for Saturday
overtime because he had been given a new work assign-
ment and schedule, all as a result of his misuse of the
truck. Under these circumstances, we find that the Re-
spondent would have denied Kennedy overtime opportu-
nities regardless of his union activity. We therefore find
that the denial of overtime opportunities did not violate
Section 8(a)(3) and (1).
E. October 16, 2000 Performance Evaluation
of Employee Kennedy
The judge found that the Respondent violated Section
8(a)(3) and (1) by giving Kennedy a poor performance
evaluation because of his union activity. For the reasons
stated by the judge, we agree.
The Respondent correctly notes that Kennedy’s misuse
of the company truck (for which the judge found that
Kennedy was lawfully disciplined) occurred during this
evaluation period. However, the written comments on
Kennedy’s evaluation form do not mention the truck in-
cident. We therefore reject the Respondent’s argument
that, because of the truck incident, Kennedy would have
received the same evaluation even in the absence of his
union activity.
F. August 4, 2000 Discipline of Employees Charles
(Nick) Herzberg, Wayne Tornberg, and Maziarz
for Talking
The judge found that the Respondent violated Section
8(a)(3) and (1) by issuing written discipline to employees
Nick Herzberg, Wayne Tornberg, and Patrick Maziarz on
August 4, 2000, for talking. For the reasons stated by the
judge, we agree. In doing so, we note that all three em-
ployees were open union supporters. Herzberg testified
that he wore a union T-shirt beginning the week after the
election, which took place on June 8, 2000. Tornberg
was on the bargaining committee and testified that he
wore union T-shirts and buttons after the election.
Maziarz testified that he talked to many employees about
the benefits of unionization during the organizing drive,
ran for a bargaining committee position, and, just a few
hours before the discipline at issue here, complained to
management about an antiunion flyer that another em-
ployee had distributed in the work area. Therefore, we
agree with the judge that the Respondent had knowledge
of these employees’ union activity.
G. Alleged Failure to Provide Information on
Incidents of Discipline for Talking
On February 23, 2001, the Union made a written re-
quest for information from the Respondent. Among
other things, the Union requested documentation of all
discipline for “‘talking’ or any similar offense” since
January 1, 1998. The judge found that the Respondent
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 544
violated Section 8(a)(5) and (1) by failing to provide this
information.
The Respondent excepts. The Respondent argues that
at the time of the request, the Union had already filed a
charge alleging that the Respondent had unlawfully dis-
ciplined employees for talking. Therefore, the Respon-
dent contends that the Union’s request was an improper
attempt to obtain discovery to support its unfair labor
practice charge. We find merit in this exception.
An employer, on request, must provide a union with
information that is necessary and relevant to carrying out
its statutory duties and responsibilities in representing
employees. Detroit Edison Co. v. NLRB, 440 U.S. 301,
303 (1979); NLRB v. Acme Industrial Co., 385 U.S. 432,
435–436 (1967); NLRB v. Truitt Mfg. Co., 351 U.S. 149,
152 (1956); Shoppers Food Warehouse, 315 NLRB 258,
259 (1994). It is well established, however, that the
Board’s procedures do not include pretrial discovery.
For that reason, the Board has held that when informa-
tion is sought that relates to pending 8(a)(3) charges, it
generally will not find that a refusal to provide that in-
formation violates Section 8(a)(5). Pepsi-Cola Bottling
Co., 315 NLRB 882 (1994), enfd. mem. in part 96 F.3d
1439 (4th Cir. 1996); Union-Tribune Publishing Co., 307
NLRB 25, 26 (1992), enfd. 1 F.3d 486 (7th Cir. 1993).
“Any other rule would, in effect, impose a discovery
requirement where none otherwise exists.” 307 NLRB at
26.
In the present case, the Union made its information re-
quest on February 23, 2001. Well before that time, the
Union filed a charge, and the General Counsel issued a
complaint, alleging that the Respondent had violated
Section 8(a)(3) and (1) by disciplining employees Ken-
nedy, Herzberg, Tornberg, and Maziarz. The alleged
unlawful discipline of each of these employees was for
talking.
By letter dated February 26, 2001, the Respondent
asked the Union to explain the purpose of its information
request, and asked whether the request “relate[d] to a
current unfair labor practice charge.” The Union re-
sponded in a letter dated March 6, 2001, acknowledging:
“There is currently a charge against the company alleg-
ing that it has engaged in discriminatory application of
its work rules.” The letter also stated that the Union
“may, or may not, introduce a proposal designed to ad-
dress [the talking] issue.”
At the hearing, the Union’s lead negotiator testified
that he requested the information because employees had
been “complaining that they were being disciplined be-
cause they were involved with the union or for [no] good
cause and we . . . wanted to see . . . what the flow was of
discipline to all the employees so we’d have a better feel
of who was getting disciplined and if some of the claims
that were being told had any validity.”
Thus, the union representative essentially conceded
that he requested the information to buttress claims that
employees were being discriminatorily disciplined. The
Union made its request at a time when a complaint had
already issued alleging the unlawful discipline of four
employees for talking. Under these circumstances, we
find that the Union sought the information in order to
support its 8(a)(3) charges. See Pepsi-Cola, supra, 315
NLRB 882 (based on the timing of the 8(a)(3) charge and
information request, “the inference is plain that the in-
formation was sought because of its relationship to the
8(a)(3) charge”). Therefore, the Respondent did not vio-
late Section 8(a)(5) and (1) by refusing to provide the
information.
H. Alleged Failure to Provide Sample Collective-
Bargaining Agreements
Also in its February 23, 2001 information request, the
Union requested copies of “any first-contract, collective
bargaining agreements in the manufacturing sector, of
which you are aware and to which you have access, that
have a duration of less than two years.” The judge found
that the Respondent violated Section 8(a)(5) and (1) by
failing to provide this information. We disagree.
As stated above, an employer, on request, must pro-
vide a union with information that is necessary and rele-
vant to carrying out its statutory duties and responsibili-
ties in representing employees.5 Where the request is for
information pertaining to unit employees’ wages, hours,
and terms and conditions of employment, the information
is deemed presumptively relevant, and must be provided.
F. A. Bartlett Tree Expert Co., 316 NLRB 1312 (1995).
However, where the requested information concerns mat-
ters outside the bargaining unit, the burden is on the un-
ion to demonstrate the relevance of and necessity for the
information. Tri-State Generation & Transmission
Assn., 332 NLRB 910 (2000); Public Service Electric &
Gas Co., 323 NLRB 1182, 1186 (1997), enfd. 157 F.3d
222 (3d Cir. 1998). Although that burden “‘is not an

5 Our dissenting colleague argues that the Board may treat the rele-
vance issue as conceded. We disagree. “The first question in [an in-
formation] case is always one of relevance. If the information re-
quested has no relevance to any legitimate union collective bargaining
need, a refusal to furnish it could not be an unfair labor practice.”
Emeryville Research Center v. NLRB, 441 F.2d 880, 883 (9th Cir.
1971). And, as set forth above, the burden is on the General Counsel
and Union to prove the relevance of the instant nonunit information.
The judge found that the burden was met, and that the failure to supply
the information violated the Act. The Respondent has clearly excepted
to the judge’s finding that its failure to provide the sample contracts
violated the Act. Therefore, we find that the issue of relevance must be
addressed.
SAGINAW CONTROL & ENGINEERING, INC. 545
exceptionally heavy one,’ it does require a showing of
‘probability that the desired information is relevant and
. . . would be of use to the union in carrying out its statu-
tory duties and responsibilities.’” Tri-State, supra (quot-
ing Public Service Electric, supra at 1186).
In the present case, the Union requested sample collec-
tive-bargaining agreements “in the manufacturing sector”
with a duration of less than 2 years. On its face, the re-
quested information concerns matters outside the bar-
gaining unit. The General Counsel, therefore, has the
burden to establish that the requested information is rele-
vant.
Contrary to our colleague, we find that the General
Counsel has failed to carry that burden. The Union’s
request encompasses agreements between other employ-
ers and other unions, completely unrelated to the negotia-
tions between the Union and the Respondent. The Union
claimed that it needed the information because the Re-
spondent had proposed a 1-year agreement, which the
Union considered uncommon. However, there is no evi-
dence that the Respondent, in making its proposal,
claimed to have surveyed the duration of other agree-
ments in the industry, asserted that 1-year agreements
were common practice, or otherwise relied in any way on
the existence of such agreements in the industry. Indeed,
the Union was the party that made the claim that 1-year
agreements were uncommon. If the Union asserted this
claim, it presumably had the evidence to back it up.
Moreover, the Union’s request is not even limited to 1-
year agreements, but encompasses agreements of any
duration less than 2 years. Under the circumstances, the
General Counsel has not proved that the requested in-
formation is relevant. We therefore find that the Re-
spondent’s failure to provide the information did not vio-
late Section 8(a)(5) and (1).6

6 Contrary to his colleagues, Member Walsh agrees with the judge
that the Respondent violated Sec. 8(a)(5) and (1) by failing to provide
the requested information. As the judge found, the Respondent stated
in negotiations that it was only interested in a 1-year collective-
bargaining agreement, which, in the experience of the Union’s lead
negotiator, was uncommon. The Union therefore requested information
on agreements of less than 2 years’ duration of which the Respondent
was aware. The existence, or nonexistence, of such agreements was
relevant and necessary to the Union in evaluating the Respondent’s
proposal. Accordingly, Member Walsh would find that the General
Counsel has carried his burden to show that the information was rele-
vant.
In any event, the Respondent appears to concede that the requested
information was relevant. The Respondent contends only that it would
be unfair to find the alleged violation, because the Union refused the
Respondent’s information request for sample agreements on certain
other issues, and then settled the resulting unfair labor practice charge
filed by the Respondent. Member Walsh would reject this argument for
the reasons stated by the judge.
I. The Respondent’s June 18, 2001 Withdrawal
of Recognition
On June 18, 2001, the Respondent withdrew recogni-
tion from the Union, relying on a petition and cards
signed on June 13–15, 2001, by a majority of unit em-
ployees. The petition and cards stated that the employees
no longer wished to be represented by the Union. The
judge found that the withdrawal of recognition violated
Section 8(a)(5) and (1).
We agree with the judge, for the reasons stated in his
decision, that the employee petition was tainted by the
Respondent’s numerous unremedied unfair labor prac-
tices. These unfair labor practices would tend to weaken
employees’ support for the Union and cause the em-
ployee disaffection reflected in the petition. Conse-
quently, the Respondent cannot rely on the petition as a
basis for withdrawing recognition. See, e.g., Wire Prod-
ucts Mfg. Corp., 326 NLRB 625, 627 (1998), enfd. mem.
210 F.3d 375 (7th Cir. 2000); Master Slack Corp., 271
NLRB 78, 84 (1984); Olson Bodies, Inc., 206 NLRB
779, 784–785 (1973). Therefore, we agree with the
judge that the withdrawal of recognition violated Section
8(a)(5) and (1).7
The judge recommended an affirmative bargaining or-
der to remedy the unlawful withdrawal of recognition.
For the reasons fully set forth in Caterair International,
322 NLRB 64 (1996), we agree with the judge that an
affirmative bargaining order is warranted. We adhere to
the view, reaffirmed by the Board in Caterair, supra, that
an affirmative bargaining order is “the traditional, appro-
priate remedy for an 8(a)(5) refusal to bargain with the
lawful collective-bargaining representative of an appro-
priate unit of employees.” Id. at 68.
In several cases, however, the U.S. Court of Appeals
for the District of Columbia Circuit has required that the
Board justify, on the facts of each case, the imposition of
such an order. See, e.g., Vincent Industrial Plastics v.
NLRB, 209 F.3d 727 (D.C. Cir. 2000); Lee Lumber &
Building Material v. NLRB, 117 F.3d 1454, 1462 (D.C.
Cir. 1997); and Exxel/Atmos, Inc. v. NLRB, 28 F.3d 1243,
1248 (D.C. Cir. 1994). In Vincent, supra, the court stated
that an affirmative bargaining order “must be justified by
a reasoned analysis that includes an explicit balancing of
three considerations: (1) the employees’ Section 7
7 The judge found the withdrawal of recognition unlawful for the ad-
ditional reason that the employee petition was signed during the Un-
ion’s initial certification year. See Chelsea Industries, 331 NLRB 1648
(2000), enfd. 285 F.3d 1073 (D.C. Cir. 2002) (employer may not with-
draw recognition based on an antiunion petition circulated and pre-
sented to the employer during the certification year). Chairman Battista
and Member Schaumber do not pass on this rationale.
Contrary to his colleagues, Member Walsh agrees with the judge
that the withdrawal of recognition was also unlawful under Chelsea.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 546
rights; (2) whether other purposes of the Act override the
rights of employees to choose their bargaining represen-
tatives; and (3) whether alternative remedies are adequate
to remedy the violations of the Act.” 209 F.3d at 738.
Consistent with the court’s requirement, we have ex-
amined the particular facts of this case as the court re-
quires, and we find that a balancing of the three factors
warrants an affirmative bargaining order.8
(1) An affirmative bargaining order in this case vindi-
cates the Section 7 rights of the unit employees who were
denied the benefits of collective bargaining by the Re-
spondent’s unlawful withdrawal of recognition. At the
same time, an affirmative bargaining order does not un-
duly prejudice the Section 7 rights of employees who
may oppose continued union representation, because its
status is temporary.
Moreover, we have adopted the judge’s findings that
the Respondent committed numerous other unfair labor
practices in addition to unlawfully withdrawing recogni-
tion. These include threatening to retaliate against union
supporters; interrogating employees about their union
activity; surveilling employees’ union activities and giv-
ing the impression that those activities were under sur-
veillance; threatening employees with job loss in the
event of a strike; telling employees they could no longer
talk on the job in response to the union election; making
various other coercive statements to employees about
their union activity; maintaining an overly-broad no-
distribution rule; disparately enforcing a no-solicitation/
no-distribution rule; requiring an employee to remove
union posters from his locker; issuing discipline and poor
performance evaluations to employees because of their
union activity; failing to provide the Union with a timely
response to certain requests for information; and making
unilateral changes in terms and conditions of employ-
ment. The Respondent’s unfair labor practices began
before the union election and continued throughout the
initial certification year. Therefore, employees have not
yet had an opportunity to assess for themselves, without
any undue interference from the Respondent, the Union’s
effectiveness as collective-bargaining representative.
Under these circumstances, it is only by restoring the
status quo ante and requiring the Respondent to bargain
with the Union for a reasonable period of time that em-
ployees will be able to fairly decide for themselves

8 Chairman Battista and Member Schaumber do not agree with the
view expressed in Caterair International, supra, that an affirmative
bargaining order is “the traditional, appropriate remedy for an 8(a)(5)
violation.” They agree with the District of Columbia Circuit Court of
Appeals that a case-by-case analysis is required to determine if the
remedy is appropriate. See Eden Gardens Nursing Home, 339 NLRB
71, 72–73 fns. 9 and 10 (2003). On the facts of this case, they find a
bargaining order is warranted.
whether they wish to continue to be represented by the
Union.
(2) The affirmative bargaining order also serves the
policies of the Act by fostering meaningful collective
bargaining and industrial peace. That is, it removes the
Respondent’s incentive to delay bargaining in the hope
of further discouraging support for the Union. It also
ensures that the Union will not be pressured, by the pos-
sibility of a decertification petition, to achieve immediate
results at the bargaining table following the Board’s reso-
lution of its unfair labor practice charges and issuance of
a cease-and-desist order.
(3) A cease-and-desist order, without a temporary de-
certification bar, would be inadequate to remedy the Re-
spondent’s violation, because it would permit a decertifi-
cation petition to be filed before the Respondent had af-
forded the employees a reasonable time to regroup and
bargain through their representative in an effort to reach
a collective-bargaining agreement. Such a result would
be particularly unfair in circumstances such as those
here, where several of the Respondent’s unfair labor
practices were of a continuing nature and were likely to
have a continuing effect, thereby tainting any employee
disaffection from the Union arising during that period or
immediately thereafter. We find that these circumstances
outweigh the temporary impact the affirmative bargain-
ing order will have on the rights of employees who op-
pose continued union representation.
For all the foregoing reasons, we find that an affirma-
tive bargaining order with its temporary decertification
bar for a reasonable period of time is necessary in this
case to fully remedy the Respondent’s unlawful with-
drawal of recognition.
AMENDED CONCLUSIONS OF LAW
1. Substitute the following for the judge’s Conclusions
of Law 3, 5, 16, and 28:
“3. By maintaining in its employee handbook (at p. 25
thereof) and enforcing an overly broad no-distribution
rule against its employees, the Respondent violated Sec-
tion 8(a)(1) of the Act.
“5. By telling its employees in response to the Union
election that they may no longer talk while working, the
Respondent violated Section 8(a)(1) of the Act.
“16. By issuing a notice/letter to its employees in-
forming them that they were required to report for work
regardless of a strike if they valued their employment,
the Respondent violated Section 8(a)(1) of the Act.
“28. By withdrawing recognition from the Union on
June 18, 2001, the Respondent violated Section 8(a)(5)
and (1) of the Act.”
2. In the judge’s Conclusion of Law 13, substitute “no-
distribution” for “no-trespassing.”
SAGINAW CONTROL & ENGINEERING, INC. 547
3. Delete the judge’s Conclusions of Law 6, 20, 27,
31(d), and 31(e), and renumber the remaining paragraphs
accordingly.
AMENDED REMEDY
In addition to the remedy provided for in the judge’s
decision, we shall order the Respondent to rescind the
discriminatory performance evaluations issued to em-
ployees Greg Kennedy, Ronald Martin, Derek Dukarski,
and Steve Coughran, remove from its files any reference
to those discriminatory evaluations, and notify Kennedy,
Martin, Dukarski, and Coughran that this has been done
and that the evaluations will not be used against them in
any way.
We shall further order the Respondent, if requested to
do so by the Union, to rescind its unilateral wage in-
crease, change in the starting wage, change in the merit
evaluation system, reduction of unit employees’ work
hours, and relocation of unit employees. To the extent
that these changes have improved the terms and condi-
tions of employment of unit employees, the Order set
forth below shall not be construed as requiring the Re-
spondent to rescind such improvements unless requested
to do so by the Union.
ORDER
The Respondent, Saginaw Control and Engineering,
Inc., Saginaw, Michigan, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Maintaining in its employee handbook (at p. 25
thereof) and enforcing an overly broad no-distribution
rule against its employees.
(b) Threatening its employees with physical harm and
unspecified adverse actions in retaliation for their sympa-
thies, support, and activities on behalf of United Steel-
workers of America, AFL–CIO.
(c) Telling employees in response to the union election
that they may no longer talk while working.
(d) Coercively interrogating employees with respect to
their support for the Union.
(e) Creating the impression that its employees’ union
activities are under surveillance.
(f) Telling employees they are or have become poor
workers and bad employees because of their involvement
with and support of the Union.
(g) Threatening employees with a reduction in over-
time work hours and transfer to another department be-
cause of their support of or involvement with the Union.
(h) Surveilling employees and telling them that the Re-
spondent knows of their support for the Union.
(i) Advising employees to refrain from associating
with union activists.
(j) Disparately enforcing an overly broad no-
solicitation/no-distribution rule against employees sup-
portive of the Union, while not enforcing this rule against
employees opposed to the Union.
(k) Coercively instructing employees not to converse
with supporters of the Union and informing them that the
Union would no longer represent them in the near future.
(l) Implying to employees that wearing a union T-shirt
could or would have a detrimental impact on their
performance evaluations.
(m) Threatening employees that if they value their jobs
and their continued future with the Company, they must
come to work regardless of a strike.
(n) Requiring employees to remove posters supportive
of the Union from their lockers while allowing other
nonwork-related posters and materials to remain posted.
(o) Discriminatorily issuing written discipline to em-
ployees in retaliation for or because of their union sym-
pathies or activities.
(p) Discriminatorily issuing performance evaluations
that adversely impact employees’ opportunities for pay
increases in retaliation for or because of their union sym-
pathies or activities.
(q) Unlawfully withdrawing recognition from the Un-
ion and refusing to bargain with it as the exclusive col-
lective-bargaining representative of the employees in the
unit described below.
(r) Failing, refusing, and delaying furnishing the Union
with the information requested in items 1, 2, and 3 of the
Union’s letter of February 23, 2001, which information is
necessary and relevant to the Union’s duties as the exclu-
sive bargaining representative of employees in the unit
described below.
(s) Unilaterally granting a wage increase to unit em-
ployees, increasing the starting rate for new unit employ-
ees, and revising its merit evaluation system for unit em-
ployees, without giving the Union notice and an oppor-
tunity to bargain.
(t) Unilaterally reducing the work hours of and relocat-
ing unit employees without giving the Union notice and
an opportunity to bargain.
(u) In any like or related manner interfering with, re-
straining, 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) Rescind the unlawful no-distribution rule on page
25 of the employee handbook, remove the rule from the
handbook, and advise employees, in writing, that the rule
is no longer being maintained.
(b) Rescind the discipline issued to employee Greg
Kennedy about June 21, 2000, and the discipline issued
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 548
to employees Charles (Nick) Herzberg, Patrick Maziarz,
and Wayne Tornberg about August 4, 2000.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discipline of
Kennedy, Herzberg, Maziarz, and Tornberg, and within 3
days thereafter notify Kennedy, Herzberg, Maziarz, and
Tornberg in writing that this has been done and that the
discipline will not be used against them in any way.
(d) Rescind the discriminatory performance evalua-
tions issued to employees Greg Kennedy, Ronald Martin,
Derek Dukarski, and Steve Coughran.
(e) Within 14 days from the date of this Order, remove
from its files any reference to the discriminatory per-
formance evaluations of Kennedy, Martin, Dukarski, and
Coughran, and within 3 days thereafter notify Kennedy,
Martin, Dukarski, and Coughran in writing that this has
been done and that the evaluations will not be used
against them in any way.
(f) Make Greg Kennedy, Ronald Martin, Derek Dukar-
ski, and Steve Coughran whole, with interest, for any
loss of earnings and benefits suffered by them as a result
of the discriminatory performance evaluations issued to
them, in the manner set forth in the remedy section of the
decision.
(g) Issue nondiscriminatory performance evaluations
to Kennedy, Martin, Dukarski, and Coughran, with any
appropriate wage increases that may be due them effec-
tive nunc pro tunc to the date of their performance
evaluations as stated in this decision, plus any applicable
interest as set out in the remedy section of the decision.
(h) Recognize and, on request, bargain with the Union
as the exclusive representative of the employees in the
following appropriate unit concerning terms and condi-
tions of employment and, if an understanding is reached,
embody the understanding in a signed agreement:

All full-time and regular part-time production and
maintenance employees including coordinators, pro-
grammers, draftsmen, shipping clerks, warehouse em-
ployees and truck drivers employed by the Respondent
at its facility located at 95 Midland Road, Saginaw,
Michigan; but excluding all office clerical employees,
guards and supervisors as defined in the Act.

(i) To the extent it has not already done so, provide the
Union in a timely manner with the information requested
in items 1, 2, and 3 of the Union’s letter of February 23,
2001.
(j) If requested by the Union, rescind the changes
made to unit employees’ wages, the starting wage for
new unit employees, and the merit evaluation system,
and reinstate the terms and conditions of employment in
these areas that existed before the unlawful unilateral
changes.
(k) If requested by the Union, rescind the unilateral re-
duction in unit employees’ work hours and the unilateral
relocation of unit employees, reinstate the terms and
conditions of employment in these areas that existed be-
fore the unlawful unilateral changes, and make the unit
employees whole for any losses attributable to its unlaw-
ful conduct, in the manner set forth in the remedy section
of the decision.
(l) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords 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.
(m) Within 14 days after service by the Region, post at
its facility in Saginaw, Michigan, copies of the attached
notice marked “Appendix.”9 Copies of the notice, on
forms provided by the Regional Director for Region 7,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since April 20, 2000.
(n) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply with this Order.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.

9 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
SAGINAW CONTROL & ENGINEERING, INC. 549
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist any union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT maintain in our employee handbook (at
p. 25 thereof) and enforce an overly broad no-
distribution rule.
WE WILL NOT threaten employees with physical harm
and unspecified adverse actions in retaliation for their
sympathies, support, and activities on behalf of United
Steelworkers of America, AFL–CIO.
WE WILL NOT tell employees in response to the union
election that they may no longer talk while working.
WE WILL NOT coercively interrogate employees with
respect to their support for the Union.
WE WILL NOT create the impression that employees’
union activities are under surveillance.
WE WILL NOT tell employees they are or have become
poor workers and bad employees because of their in-
volvement with and support of the Union.
WE WILL NOT threaten employees with a reduction in
overtime work hours and transfer to another department
because of their support of or involvement with the Un-
ion.
WE WILL NOT surveil employees and tell them that we
know of their support for the Union.
WE WILL NOT advise employees to refrain from associ-
ating with union activists.
WE WILL NOT disparately enforce an overly broad no-
solicitation/no-distribution rule against employees sup-
portive of the Union, while not enforcing this rule against
employees opposed to the Union.
WE WILL NOT coercively instruct employees not to
converse with supporters of the Union and inform them
that the Union will no longer represent them in the near
future.
WE WILL NOT imply to employees that wearing a union
T-shirt could or would have a detrimental impact on their
performance evaluations.
WE WILL NOT threaten employees that if they value
their jobs and their continued future with our Company,
they must come to work regardless of a strike.
WE WILL NOT require employees to remove posters
supportive of the Union from their lockers while allow-
ing other nonwork-related posters and materials to re-
main posted.
WE WILL NOT discriminatorily issue written discipline
to employees in retaliation for or because of their union
sympathies or activities.
WE WILL NOT discriminatorily issue performance
evaluations that adversely impact employees’ opportuni-
ties for pay increases in retaliation for or because of their
union sympathies or activities.
WE WILL NOT unlawfully withdraw recognition from
the Union and refuse to bargain with it as the exclusive
collective-bargaining representative of the employees in
the unit described below.
WE WILL NOT fail, refuse, and delay furnishing the Un-
ion with the information requested in items 1, 2, and 3 of
the Union’s letter of February 23, 2001, which informa-
tion is necessary and relevant to the Union’s duties as the
exclusive bargaining representative of employees in the
unit described below.
WE WILL NOT unilaterally grant a wage increase to unit
employees, increase the starting wage rate for new unit
employees, and revise our merit evaluation system for
unit employees, without giving the Union notice and an
opportunity to bargain.
WE WILL NOT unilaterally reduce the work hours of and
relocate unit employees without giving the Union notice
and an opportunity to bargain.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL rescind the unlawful no-distribution rule on
page 25 of the employee handbook, remove the rule from
the handbook, and advise employees, in writing, that the
rule is no longer being maintained.
WE WILL rescind the discipline issued to employee
Greg Kennedy about June 21, 2000, and the discipline
issued to employees Charles (Nick) Herzberg, Pat
Maziarz, and Wayne Tornberg about August 4, 2000.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 550
WE WILL, within 14 days from the date of this Order,
remove from our files any reference to the unlawful dis-
cipline of Kennedy, Herzberg, Maziarz, and Tornberg,
and WE WILL, within 3 days thereafter, notify Kennedy,
Herzberg, Maziarz, and Tornberg in writing that this has
been done and that the discipline will not be used against
them in any way.
WE WILL rescind the discriminatory performance
evaluations issued to employees Greg Kennedy, Ronald
Martin, Derek Dukarski, and Steve Coughran.
WE WILL, within 14 days from the date of this Order,
remove from our files any reference to the discriminatory
performance evaluations of Kennedy, Martin, Dukarski,
and Coughran, and WE WILL, within 3 days thereafter,
notify Kennedy, Martin, Dukarski, and Coughran in writ-
ing that this has been done and that the evaluations will
not be used against them in any way.
WE WILL make Greg Kennedy, Ronald Martin, Derek
Dukarski, and Steve Coughran whole, with interest, for
any loss of earnings and benefits suffered by them as a
result of the discriminatory performance evaluations is-
sued to them.
WE WILL issue nondiscriminatory performance evalua-
tions to Kennedy, Martin, Dukarski, and Coughran, with
any appropriate wage increases that may be due them
effective nunc pro tunc to the date of their performance
evaluations, plus any applicable interest.
WE WILL recognize and, on request, bargain with the
Union as the exclusive representative of the employees in
the following appropriate unit concerning terms and con-
ditions of employment and, if an understanding is
reached, embody the understanding in a signed agree-
ment:

All full-time and regular part-time production and
maintenance employees including coordinators, pro-
grammers, draftsmen, shipping clerks, warehouse em-
ployees and truck drivers employed by us at our facility
located at 95 Midland Road, Saginaw, Michigan; but
excluding all office clerical employees, guards and su-
pervisors as defined in the Act.

WE WILL, to the extent we have not already done so,
provide the Union in a timely manner with the informa-
tion requested in items 1, 2, and 3 of the Union’s letter of
February 23, 2001.
WE WILL, if requested by the Union, rescind the
changes made to unit employees’ wages, the starting
wage rate, and the merit evaluation system, and reinstate
the terms and conditions of employment in these areas
that existed before the unlawful unilateral changes.
WE WILL, if requested by the Union, rescind the unilat-
eral reduction in unit employees’ work hours and the
unilateral relocation of unit employees, reinstate the
terms and conditions of employment in these areas that
existed before the unlawful unilateral changes, and make
the unit employees whole for any losses attributable to
our unlawful conduct.

SAGINAW CONTROL AND ENGINEERING,
INC.

Gary Saltzgiver and Dynn Nick, Esqs., for the General Counsel.
E. Louis Ognisanti, Esq. (Braun Kendrick, Finkbeiner, P.L.C.),
of Saginaw, Michigan, for the Respondent.
DECISION
STATEMENT OF THE CASE
EARL E. SHAMWELL JR., Administrative Law Judge. These
consolidated cases were heard before me on November 7, 8,
and 9, 2001, and January 15 and 16, 2002, in Saginaw, Michi-
gan, pursuant to an original charge in Case 7–CA–43177(1)
filed on June 20, 2000, by the United Steelworkers of America,
AFL–CIO (the Union) against Saginaw Control and Engineer-
ing, Inc. (the Respondent); an original charge in Case 7–CA–
43177(2) filed by the Union against the Respondent on August
23, 2000; an original first amended charge in Case 7–CA–
43177(1) filed on September 22, 2000, by the Union against the
Respondent; and an original second amended charge in Case 7–
CA–43177(1) filed on October 30, 2000, by the Union against
the Respondent. On October 31, 2000, the Regional Director
for Region 7 of the National Labor Relations Board (the Board)
issued an order and consolidated complaint and notice of hear-
ing based on the aforementioned charges.1
On February 22, 2001, the Union filed original charges in
Case 7–CA–43773(1) and an original charge in Case 7–CA–
43773(2) against the Respondent; an amended charge in Case
7–CA–43773(2) was filed by the Union against the Respondent
on April 17, 2001.
On May 24, 2001, an original charge in Case 7–CA–
43773(4) was filed by the Union against the Respondent. An
original charge in Case 7–CA–44021(2) and an original charge
in Case 7–CA–44021(3) were filed on June 12 and 21, 2001,
respectively, by the Union against the Respondent. On June 29,
2001, the Regional Director for Region 7 issued an order con-
solidating these aforementioned cases in a second amended
consolidated complaint and notice of hearing. On August 31,
2001, the Regional Director for Region 7 issued his order con-
solidating these cases, a third amended consolidated complaint
and notice of hearing. On September 28, 2001, the Regional
Director for Region 7 issued his order consolidating cases, a
fourth amended consolidated complaint and notice of hearing.2

1 The hearing on these consolidated cases was postponed by the Re-
gional Director on January 30, 2001, and a new hearing date was set.
2 At the hearing, the General Counsel moved to amend par. 25 of the
fourth amended consolidated complaint to include a reference to par.
22. There was no objection by the Respondent’s counsel, and inas-
much as the amendment was merely to correct a clerical omission, I
granted the motion. The General Counsel filed a motion to correct
transcript on March 28, 2002. The Respondent filed its response to
SAGINAW CONTROL & ENGINEERING, INC. 551
All references to the complaint in this matter will refer to this
last amended and consolidated complaint.
The fourth amended complaint alleges that the Respondent
violated Section 8(a)(1) of the National Labor Relations Act
(the Act) by maintaining an overly broad no-solicitation rule;
threatening employees with adverse actions in retaliation for
engaging in union activities; telling employees not to discuss
the Union during working hours; soliciting employees to per-
suade other employees to vote against the Union; coercively
interrogating employees with respect to their support of the
Union; creating an impression among its employees that their
union activities were under surveillance; stating to employees
that union supporters were disloyal and poor workers; threaten-
ing employees with written discipline and reduction of over-
time because of their support for the Union; surveilling em-
ployees to discover union supporters; advising employees to
refrain from associating with union supporters; coercively stat-
ing its negative reaction to the filing of charges by the Union
with the Board; disparately enforcing its overly broad no-
solicitation rule against union supporters; coercively informing
employees that the Union would no longer represent them;
implying to employees that wearing union T-shirts would have
a detrimental effect on their performance evaluations; inform-
ing employees that they were required to work during a strike if
they valued their jobs, and that employees’ failure to report for
work during a strike and/or participate in picketing would be
considered being on strike and would subject them to perma-
nent replacement; disparately requiring union supporters to
remove posters supportive of the Union while allowing other
posters to remain posted; and lending its support to an effort to
solicit employees’ signatures in support of a petition to decer-
tify the Union.
The consolidated complaint further alleges that the Respon-
dent violated Section 8(a)(1) and (3) of the Act by discrimina-
torily and retaliatorily changing the driving schedules and regu-
lar work assignments of and issuing written disciplines to em-
ployee Gregory Kennedy; issuing written discipline to employ-
ees Nick Herzberg, Pat Maziary, and Wayne Tornberg; denying
daily and Saturday overtime work opportunities to Kennedy;
issuing performance evaluations adversely affecting opportuni-
ties for a pay increase to employees Ronald Martin, Derek Du-
karski, Steve Coughran, Scott Cronkright, and Kennedy.
The consolidated complaint also alleges that the Respondent
violated Section 8(a)(1) and (5) by withdrawing recognition of
the Union and advising the Union that it would no longer en-
gage in collective bargaining with the Union, based on decerti-
fication petitions coercively solicited in the presence of a su-
pervisor and solicited and signed by unit employees prior to the
expiration of the certification year in a Board representation
case,3 and in spite of the existence of unremedied unfair labor
practices as alleged in the complaint; by reducing the working

General Counsel’s motion to correct transcript on April 3, 2002. The
Respondent opposed the corrections requested by the General Counsel
in only one particular which will be discussed later in this decision. I
have otherwise granted the General Counsel’s motion.
3 The representation case is described in the consolidated complaint
as Case 7–RC–21809.
hours of and relocating certain unit employees; and by refusing
to furnish the Union with certain information deemed relevant
and necessary to the Union’s performance of its collective-
bargaining duties.
The Respondent timely filed answers in which, while admit-
ting to some aspects of the charges, generally denied violating
the Act in any way.
On the entire record, including my observation of the de-
meanor of witnesses, and after considering the briefs filed by
the General Counsel and the Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a Michigan corpora-
tion, with an office and place of business at 95 Midland Road,
Saginaw, Michigan, has been engaged in the manufacture and
nonretail sale of electrical control boxes. The Respondent ad-
mits, and I find, that in conducting its business operations dur-
ing each of the calendar years ending December 31, 1998, and
December 31, 2000, it derived gross revenues in excess of
$500,000. The Respondent admits, and I find, that in conduct-
ing its business operations during each of the calendar years
ending December 31, 1999, and December 31, 2000, it pur-
chased and received at its Saginaw facility goods valued in
excess of $50,000 directly from points outside the State of
Michigan. The Respondent further admits, and I find, that it is
an employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED AND THE
APPROPRIATE UNIT OF EMPLOYEES
The Respondent admits, and I find, that at all material times,
the Union has been a labor organization within the meaning of
Section 2(5) of the Act.
The Respondent admits, and I find, that the following em-
ployees engaged its Midland Road facilities constitute a unit
appropriate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.

All full-time and regular part-time production and mainte-
nance employees including coordinators, programmers,
draftsmen, shipping clerks, warehouse employees and truck
drivers employed by [Saginaw Control and Engineering] the
Respondent at its facility located at 95 Midland Road,
Saginaw, Michigan; but excluding all office clerical employ-
ees, guards and supervisors as defined in the Act.
III. THE UNFAIR LABOR PRACTICE ALLEGATIONS
A. Background Facts
The Respondent operates as a fabricator of electrical control
enclosures and precision sheet metal products, such as beverage
and food vending cabinets. Its main facility is located in
Saginaw, Michigan. Fred May serves as president and chief
executive officer for the Company, and Jerry Simms is the plant
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 552
manager of the Saginaw facility.4 The Respondent employs
about 275 employees of which 235 are hourly workers. The
Respondent’s hourly workers are assigned to various depart-
ments and perform welding, laser cutting, painting, assembly,
and packing and shipping functions. Each department is
headed by a shift supervisor. The Respondent operates on a
two-shift basis. The first shift begins at 6:30 a.m. and ends at
3:30 p.m.; second shift hours are 3:30 p.m. to 11:30 p.m.
The Respondent has continuously maintained an employee
handbook since about October 1999.5 This handbook, distrib-
uted or otherwise made available to all employees when they
are initially hired, provides general background of the Com-
pany’s policies and procedures as well as a listing of specific
work rules and benefits.
In January or February 2000, the Union initiated a campaign
to organize the Respondent’s hourly work force. Shortly after
the commencement of this campaign, certain employees, with
the Union’s assistance, formed a plant organizing committee.
Committee members distributed literature around the plant,
held off-premises meetings with employees, and distributed and
collected union authorization cards. Employee Gregory Ken-
nedy was a major player in the organizing effort.
The Respondent became aware of the organizing campaign
early on and in response retained the services of a labor man-
agement consulting firm and took various steps to oppose the
Union’s efforts.6
On April 28, 2000, the Union filed a petition for certification
of representation in Case 7–RC–218097 and, on June 8, 2000,
an election was held which the Union won.8 On June 16, 2000,
the Board certified the Union as the exclusive bargaining repre-
sentative of the Respondent’s employees and determined the
appropriate unit of the employees.
Shortly after the Board’s certification, the Union held elec-
tions among the unit employees for positions on the newly
established bargaining committee. Around July 24–26, 2000,
the Union and the Respondent commenced a series of negotiat-
ing sessions to arrive at a collective-bargaining agreement. At
the initial session, the Respondent was informed by the Union
that certain of the employees, namely Greg Kennedy, Michael

4 The Respondent admits, and I find that, May and Simms are super-
visors and/or agents of the company within the meaning of Sec. 2(11)
and (13) of the Act.
5 The handbook is contained in GC Exh. 34.
6 May testified that he became aware of the organizing campaign
around February 2000 when organizers appeared at the entrances of the
plant and passed out literature. May identified the consulting firm of
Craft Barrasi as the entity hired by the Company to guide it through the
campaign. May stated that the firm instructed management on the dos
and don’ts of the electoral process and specifically instructed that su-
pervisors should not threaten, interrogate, make promises, and surveil
employees. May stated that he convened a meeting with the employ-
ees, with the Craft Barrasi personnel in attendance, in which he pro-
vided information about the election process, made a presentation about
company benefits, and received and answered questions from the em-
ployees.
7 See GC Exh. 2.
8 See GC Exh. 3, the tally of ballots.
Leach, and Wayne Tornberg,9 were duly elected members of
the Union’s bargaining committee; that Robert Madden, the
Union’s staff representative, would be the lead negotiator. The
Respondent advised the Union that management’s team would
be composed of May, Sims, and its attorney, Robert Kendrick.
The parties engaged in several negotiation sessions but were
unable to arrive at an agreement; the last bargaining session
took place on about June 12, 2001.
On June 18, 2001, relying on petitions and individually
signed cards submitted by 154 of 223 bargaining unit employ-
ees who indicated their desire not to have the Union represent
them, the Respondent, by letter, withdrew recognition of the
Union and advised the Union that it would no longer engage in
collective-bargaining negotiations with it.
B. The 8(a)(1) Allegations
The complaint in paragraph 8 contains in 12 subparagraphs
(a–l), separate violations of Section 8(a)(1) of the Act. I will be
discussing these violations in terms of whether the alleged
unlawful act occurred prior to or after the election.
1. The preelection allegations
a. The Respondent’s no-distribution rule
(subparagraph 8(a))
The complaint alleges that since around October 1999, the
Respondent has maintained in its employee handbook and en-
forced an overly broad no-distribution rule.
The allegedly offending rule appears at page 25 of the hand-
book and states, among other working rules:

Distributing written or printed matter of any description on
company premises without written management permission.10

The General Counsel contends that this rule, in effect, unlaw-
fully bars any distribution of union literature by employees in
nonworking areas of the plant during worktime without man-
agement’s prior authorization. He further argues that the Re-
spondent enforced this rule and cites an example, an incident
taking place in August 2000 wherein three employees were
accused of trespassing, while attempting to distribute notices of
a union meeting in the company parking lot, and ordered off the
premises.11
The Respondent counters, arguing that its no-distribution
rule is not overly broad, because it is modified, ameliorated,
and circumscribed by a corresponding solicitation and distribu-
9 Tornberg left the Company around December 2000 and was re-
placed on the committee by Nick Herzberg.
10 See GC Exh. 34, which includes the handbook in its entirety. The
Respondent admits that the language of the rule is contained in the
handbook and that it has been in existence since around October 1999.
I note that the handbook includes a page whereon the employee
acknowledges having read and understood the handbook and contains a
place for his or her signature. I credit May’s testimony that all employ-
ees are either given a copy of the handbook or that it is otherwise made
available to them before they commence employment with the Respon-
dent.
11 This incident serves as a separate charge of a violation of Sec.
8(a)(1) in the complaint and will be discussed later under a separate
section.
SAGINAW CONTROL & ENGINEERING, INC. 553
tion rule located at page 18 of the handbook. This section enti-
tled “Solicitation and Distribution” in pertinent part states:

Soliciting of any kind, during working time, is not
permitted. Working times does not include paid breaks,
but only paid time when work is expected of you.
The distribution of literature or items in a manner
which litters is not permitted.

Thus, the Respondent argues that any purported overbreadth of
its distribution policy is cured by the limitations of this latter
provision.
However, the Respondent admits that certain of its supervi-
sors on the one occasion in August 2000 did erroneously en-
force the rule on page 25 without consideration of its page 18
counterpart, when they forbade employees from distributing
literature in the company parking lot after completion of their
shift in the company parking lot. The Respondent submits that
this was a singular event and that there was no proof adduced
by the General Counsel that it would not otherwise grant em-
ployees permission to distribute material if requested. Accord-
ingly, the Respondent suggests that an appropriate remedy here
would be to order it to enforce its no-distribution rule on page
25, but only in conjunction with the modification thereof on
page 18 of the handbook.
As noted by the General Counsel, the Board in Bay Metal
Cabinets, 302 NLRB 152 (1991), affirmed the judge’s determi-
nation that a no-distribution rule virtually identical to the one at
issue here on page 25 of the handbook was overbroad. As
such, in my view, Bay Metal is on point here and, based
thereon, a violation could be found. However, the Respondent
claims that its allegedly offending rule has been mitigated
and/or corrected, as it were, by the page 18 modification, factu-
ally a point not covered by the Board in Bay Metal.
I have considered the Respondent’s argument and would
conclude that the no-distribution rule on page 25, even when
read together with the no-solicitation rule on page 18 of the
handbook, is unlawful as overly broad because the rule requires
employees to seek written permission from management to
engage in protected activity—either soliciting or disturbing
materials—while (anywhere) on company property, irrespec-
tive of whether the distribution takes place in breakrooms,
lunch areas, or in the parking lot. That the Respondent’s rule
on page 18 arguably purports to rein in the reach of the page 25
rule to working time, defined as when work is expected of em-
ployees, and work areas; nonetheless, employees must obtain
written permission to engage in otherwise protected activity.
The Board law is clear, employees do not need the Respon-
dent’s permission, written or otherwise, to engage in protected
activities. Brunswick Corp., 282 NLRB 794, 798 (1987); and
Baldor Electric Co., 245 NLRB 614 (1979). Accordingly, this
rule may not stand, as it violates, in my view, Section 8(a)(1) of
the Act. I would find a violation of the Act.
b. Romanelli’s April 20 threats of retaliation
(subparagraph 8(b))
The Respondent, as alleged in the complaint, through one of
its admitted agents/supervisors, Vince Romanelli, threatened
employees with unspecified adverse actions in retaliation for
their union activities and support.
Testifying in support of this charge was former welding de-
partment employee, Matt Heimberger.12 Heimberger stated that
on April 20, around his last 2 weeks with the Respondent, while
working the second shift, he and his supervisor, Romanelli,
were engaged in general conversation; at some point, Ro-
manelli directed the conversation to the Union’s ongoing orga-
nizing efforts at the plant. According to Heimberger, Ro-
manelli indicated that management was having problems with
the Union which led Romanelli to voice his opinion about some
of the employees who supported the Union. One employee
mentioned by Romanelli was Greg Kennedy. According to
Heimberger, Romanelli said Kennedy was one of the biggest
problems with the union effort, that Romanelli wished he could
just kick Kennedy’s ass and get him fired. Heimberger also
stated that Romanelli mentioned other employees who he
thought supported the union cause, but was unsure where they
stood on the Union. According to Heimberger, Romanelli said
he would try to convince these employees to be procompany or
(failing that) find a way to fire them and eliminate the Union as
a problem.
The Respondent called Romanelli to rebut these charges.13
Romanelli testified that he knew Heimberger, whom he su-
pervised, but only vaguely, as Heimberger was a short-term
employee. Romanelli recalled having a discussion at his desk
with Heimberger in April 2000 in which Heimberger expressed
his desire to transfer from the second shift to first shift. Ac-
cording to Romanelli, Heimberger offered to give Romanelli
information about the involvement of certain employees with
the Union in exchange for a transfer to first shift. Romanelli
stated that he told Heimberger he was not interested in the
proposition. Romanelli stated that in spite of his rejection of
the proposition, Heimberger mentioned the names of certain
employees who were supposedly involved in the union effort.14
Romanelli said that Kennedy was not mentioned by Heimber-
ger in this conversation. Romanelli said that he did not in cal-
endar year 2000 supervise Kennedy, who did not come under
his direct supervision in the assembly department until August
2001. Romanelli specifically denied saying to anyone that he
wanted to do anything physical to Kennedy or any other em-
ployee. Romanelli claimed that although he knew some of the
employees who supported the Union, he did not know at the
time of his conversation with Heimberger that Kennedy sup-
ported the Union.

12 Heimberger worked for the Respondent from around November
1999 through a period in April 2000 on the first shift and later to the
second shift. According to Heimberger, he voluntarily left the Respon-
dent’s employ for a better job.
13 Romanelli has been employed by the Company for about 8 years.
At the time of the hearing, he supervised the assembly department.
During calendar year 2000, Romanelli was a supervisor in the welding
department.
14 Notably, Heimberger stated that Romanelli named James Brabau,
Walter French, and a few other employees whom Romanelli said he
would either persuade to the employer’s side or try to fire. Romanelli
said that Heimberger disclosed employees Brabau, Keith Nephew, Pat
Chupp, and Scott Langhorne as union supporters.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 554
Resolution of this allegation depends in the main on resolv-
ing the credibility issues presented by the conflicting testimony
of Romanelli and Heimberger.
The Respondent argues that Romanelli’s version of the April
2000 conversation should be credited over Heimberger. The
Respondent essentially portrays Heimberger as a person who
was disloyal to the Union when employed at the Respondent’s
plant; then departed for a job with a union employer. The Re-
spondent submits that at the hearing, expecting to have his dis-
loyalty exposed, Heimberger provided factually inaccurate
testimony to cover his perfidy.
The General Counsel contends that Heimberger’s account of
the conversation is the more plausible and, therefore, should be
credited, especially when considered with the totality of Ro-
manelli’s antiunion behavior and attitude with respect to other
employees and incidents in this litigation.
I agree with the General Counsel and would credit Heimber-
ger’s version of their accounts over that of Romanelli. I note
that, indeed, it seems implausible that Heimberger would, as
Respondent put it, “rat out” the union supporters to get a trans-
fer to the first shift. First, there was no testimony adduced
suggesting that Heimberger was unhappy with his second-shift
assignment in April 2000. It seems to me that Heimberger
evidently had made plans to leave the Respondent’s employ,
and a transfer to the first shift would be meaningless. Also,
while the Respondent criticizes Heimberger’s letter15 prepared
at the behest of Kennedy in August for lack of completeness, it
nonetheless generally corroborates Heimberger’s testimony.
Heimberger testified, in my mind, forthrightly and sincerely,
and in my view, truthfully. Having credited Heimberger’s ver-
sion of the conversation with the Respondent’s agent and su-
pervisor, I conclude that the Romanelli statements constituted
unlawful threats to harm physically an employee and retaliate
against other employees because of their support for the Union,
in violation of the employee’s rights guaranteed by Section 7 of
the Act. Medic One, Inc., 331 NLRB 464 (2000).
c. Fred May’s June 8, 2000 solicitation
(subparagraph 8(d))
The complaint alleges that on June 8, 2000, the Respondent’s
president and chief executive officer, Fred May Jr., solicited an
employee to persuade other employees to vote against the Un-
ion. The General Counsel called current employee Patrick
Maziarz16 to establish this charge.
Maziarz testified that once he became aware of the Union’s
organizing campaign, he took an active interest in the effort,
including attending union meetings, signing an authorization
card, talking to a “lot of employees about the benefits of union-
ism,” and otherwise explaining to them his reasons for support-
ing the union cause.
Maziarz stated that the day before the election (June 7,
2000), Fred May, accompanied by one of the consultants hired

15 See R. Exh. 15. Heimberger wrote a short “to whom it may con-
cern” letter memorializing his conversation with Romanelli. This letter
is undated.
16 Maziarz has been working for the Respondent for around 16-1/2
years, the last 7 of which as a job processor and data entry worker.
Maziarz works the first shift.
by the Company, held a meeting with the employees and, using
charts, spoke to them about the benefits, specifically raises
given to all employees the previous year that the Respondent
had provided to them. According to Maziarz, he responded to
the remark by telling May that he for one had not received a
raise.17 May thereupon told him he would look into the matter.
Maziarz said that the next day in the morning (around 8–9 a.m.)
before the election,18 May called him to May’s office and dis-
cussed the raised issue with him. According to Maziarz, May
presented a chart individualized for him indicating specifically
the increases Maziarz had received yearly and the dates on
which he received them. Maziarz stated that May further ad-
vised him that he (Maziarz) would have to do more to get a true
merit raise as opposed to the general cost of living increases
accorded to all employees.
Maziarz stated that, after covering the raise issue, May then
directed the conversation to another topic. According to
Maziarz, May said that employees have left the Company to
work for other companies, but merely wind up getting laid off
in 89 days (presumably just shy of completing a 90-day proba-
tion period). According to Maziarz, May told him that his
(Maziarz) best bet would be to stay with the Respondent, that
he had never been laid off and would not be laid off, that he
should not worry about layoff.19 May also said, according to
Maziarz, that a union would be bad for the Company and if
those guys want a union, they can start their own damn com-
pany—have their own union. Maziarz stated that May then
said that when he went back to work to tell the employees to
vote no or against the Union.20 Maziarz said that he told May
that the workers already had their minds made up and if he
were to tell them to vote no, this was just going to cause more
conflict and problems on the job. According to Maziarz, May
agreed with him and said to keep your mouth shut and don’t
say anything. Maziarz thereupon returned to work.
17 Maziarz stated that he told May that he had not, in fact, received a
raise the last year and the year before.
18 The election was scheduled for around 2–3 p.m. that day.
19 Maziarz acknowledged that some of the persons who leave for the
prospect of greener employment pastures do, in fact, get laid off in the
fashion described by May.
20 Maziarz, on direct examination at Tr. 591, LL. 22–23, is quoted
“[a]nd when you go back to work, let the other employees to vote no
for the Union.” Maziarz also at Tr. 606, LL. 21–22, on cross-
examination, said, “[a]nd when you go back to work, let the employees
to vote no for the Union.” The General Counsel, in his motion to cor-
rect transcript, requests the word “know” to be inserted between the
words “employees” and “to” in both places. The Respondent, in its
opposition to the motion, argues that the requested insertion would
totally change the meaning of Maziarz’ testimony, and that it is
unlikely the court reporter would repeat a “mistake” twice. The Re-
spondent submits the requested correction is simply an attempt by the
General Counsel to obtain a more favorable reading of the transcript.
I have concluded that the transcript will remain uncorrected in these
places. Based on my recollection of Maziarz’ testimony, including his
demeanor, inflection, and context on the point, I have concluded also
that irrespective of what is printed in the transcript, the gist of Maziarz’
testimony is that May told him to “tell” the employees to vote no, or
against the Union.
SAGINAW CONTROL & ENGINEERING, INC. 555
May testified about the meeting with his assembled employ-
ees and acknowledged that among the several June 2000 meet-
ings he had with the employees prior to the election, was one
occurring on June 7 which covered a presentation on company
benefits, including general or blanket pay increases given by
the Company in past years to the workers. According to May,
the June 7 meeting followed his usual format of presenting
information regarding benefits, utilizing a flip chart which
showed current company-provided benefits and a history of pay
increases at the plant. At the end of the presentation, employ-
ees, as was customary, were allowed to ask questions. May
acknowledged he was asked by Maziarz about the raises given
employees. According to May, Maziarz stated that he had not
received a raise in 3 years. May said that he could not accept
this as fact and said he told Maziarz that he would get back
with him on this matter.
According to May, he investigated Maziarz’ complaint and
later that day prepared a chart of Maziarz’ wage history at the
plant for the period covering April 1985 through October 15,
1998.21 May stated that on the morning of June 8, election day,
he called Maziarz to his office.22 May stated that at this meet-
ing, he presented Maziarz with the chart and accused him of
making a false statement because the chart indicated Maziarz
had received raises over the years. According to May, Maziarz
appeared embarrassed and replied that he was speaking of merit
increases as opposed to general increases.
According to May, Maziarz then asked him about merit in-
creases and May said he was not prepared to talk about this—
that Maziarz should speak to his supervisor who evaluates him
and determines what he needed to do to get a merit raise.
May also stated that Maziarz told him that he was contem-
plating leaving the Respondent to work for other employers as
had about 20–25 of the Respondent’s employees. According to
May, Maziarz asked him his opinion of such a move. May
stated that he told Maziarz that these companies hire lots of
people and, within 89 days, lay them off. He stated that he told
Maziarz the grass is always greener (in another’s pasture) and
that Maziarz always had a stable job at the Respondent and the
Company planned on keeping it that way. The meeting, which
lasted about 15–20 minutes according to May, ended on that
note.
May emphatically denied interrogating or surveilling em-
ployees to determine whether they supported the Union, that
day or any other days prior to the election. In fact, according to
May, he was very careful about his behavior, having been
coached on what he could and could not say. May stated that
he was wary because he did not know whether Maziarz was

21 See R. Exh. 24.
22 May stated that he was aware of the prohibition against election-
eering within the 24-hour period before an election and was unsure of
how to handle Maziarz’ concerns. According to May, he asked his
consultants whether it was permissible to speak to May. May said the
consultants advised that it was permissible to speak to Maziarz about
the issue. However, be that as it may, the Respondent is not charged
with any violation of the 24-hour rule nor did the General Counsel
address this aspect of the Respondent’s conduct with regard to this
violation involving Maziarz. Accordingly, I make no finding on this
point.
trying to entrap him. May also denied that he tried to persuade
Maziarz to vote against the Union, or telling him to tell the
other employees to vote against the Union. May acknowledged
at the hearing that he did not want his employees to vote for the
Union.
The General Counsel submits that May went far beyond his
stated purpose of simply correcting the record regarding
Maziarz’ opinions about raises. He submits May’s strident
statements suggesting that employees start their own “damn”
company if they wanted a union, coupled with his request that
Maziarz, a long-term employee with possible influence with the
workers, tell the employees to vote against the Union that was
“bad” for the Company, were coercive and constitute an unlaw-
ful interference under the Act.
The Respondent essentially argues that May did not ask
Maziarz to vote or solicit him to tell the other workers to vote
against the Union. The Respondent argues that, arguendo, even
if Maziarz’ testimony were credited, May, at most, only offered
a prediction on the vote and, in fact, agreeing with Maziarz’
concerns, May actually instructed him not to tell the other em-
ployees to vote against the Union.
The resolution of this charge, like most of the charges in this
litigation, redounds to credibility determinations. Here, the
question is, did May solicit Maziarz’ assistance in persuading
the other employees to vote against the Union; and, if so, did
this solicitation, under the circumstances, reasonably tend to
interfere with the free exercise of the employee’s Section 7
rights?
I note that Maziarz is a current employee and has been em-
ployed with the Respondent for a fairly long time; he also
seemed to be regarded as a good employee by the Company.
As I observed him, Maziarz seemed to be forthright and
straightforward in his testimony when examined by either
party; he did not embellish and seemed to have no axe to grind
with the Respondent although he was an admitted supporter of
the Union. I believe he testified truthfully regarding what hap-
pened at the meeting, and I credit his testimony. This is not to
say that I viewed May’s testimony to be wholly untruthful. For
instance, May, I believe, acting in good faith, wanted to correct
what he believed was Maziarz’ mistaken idea of the raises he
claimed not to have received, and, perhaps, he wanted Maziarz
to correct this with the other employees before the election.23
However, as will be evident in another section of this decision,
May was truly and adamantly antiunion, and I believe he took
the opportunity with Maziarz to get his point across. Clearly,
May could have, consistent with his purpose, given Maziarz the
chart with his raises, disabused him of his mistaken notions
about his raises, and have been done with the matter. This
would have taken at most a few minutes—not the 15–20 min-
utes May said the meeting lasted.
Again, Maziarz seemed genuine in his relating of the meet-
ing’s conversation, even to the point of telling May he did not
think it advisable to try to change the workers’ minds—in ef-
fect refusing his boss’ solicitation. However, under the circum-
23 May testified that Maziarz did not offer at the meeting to tell the
other workers that he and May were talking about different types of
wages—a communication problem.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 556
stances, I would conclude May’s solicitation was unlawfully
coercive. I note that the meeting was a one-on-one meeting in
the office of the highest ranking official at the Company; that
May’s tone and language was strident and somewhat threaten-
ing; and that May coupled his solicitation for Maziarz’ assis-
tance with his fellow workers with a reminder of his never hav-
ing been laid off and an implied promise that he would not be
in the future. In my view, these circumstances, coupled with
the offending solicitation, reasonably tended to interfere with
Maziarz’ and his fellow employees’ rights under the Act. Sal-
vation Army Residence, 293 NLRB 944 (1989), enf. granted
923 F.2d 846 (2d Cir. 1990).
2. The postelection 8(a)(1) allegations
a. Romanelli’s June 2000 imposition of a nonunion
discussion rule (subparagraph 8(c))
The complaint alleges that the Respondent violated Section
8(a)(1) by and through supervisor/agent, Romanelli’s telling
employees they could not discuss the Union during work hours.
The General Counsel called a former employee, Steven
Coughran, a welder, to establish this charge.
Coughran testified that his welding department supervisor,
Romanelli, held a meeting with the employees a couple of days
after the election.24
After convening the group, Coughran stated that Romanelli
began the meeting with a statement that things have changed a
little as we all know the Union was voted in. Romanelli then
proceeded to say that the Company did not want the Union and
that it was going to be tough, and like a double-edged sword
and both sides could be jabbed. According to Coughran, Ro-
manelli was very blunt and said that the Company was going to
do everything it could to get the Union out or would fight it.
Also, according to Coughran, Romanelli then stated that he
wanted to show the employees what having a union was going
to do, that if the employees wanted to be treated like a union, he
would treat them like a union. Romanelli then announced that,
henceforth, the welders were to stay at their benches and
needed parts would be retrieved for them by the coordinators or
floor truckdrivers. Coughran also said that Romanelli also told
the workers that he did not want any talk between us, to keep
that union stuff out of the shop; it was not wanted. Romanelli,
according to Courghran, said no talk at all.
Coughran stated that prior to this meeting, shop practice al-
lowed employees to leave their benches at their discretion to
get parts as long as they were working. Also, prior to Ro-
manelli’s announcement, the employees were allowed to talk
among themselves while performing their jobs.25 In the after-

24 Coughran stated that he is not currently employed by the Respon-
dent, having been called to active duty with the Michigan National
Guard because of the September 11, 2001 attack on the United States.
Coughran could not recall the precise date of the election or the meet-
ing in question, which was one of the two postelection meetings he
could recall that Romanelli convened. Coughran acknowledged that he
was and still is a member of the Union.
25 Notably, another employee, Ed Jarvella, an assembly department
employee, testified that he has had nonwork-related conversations even
with supervisors such as Jack Binder and Mike Pagano, as well as other
coworkers. He had never been disciplined for this behavior.
math of the meeting, Coughran said that all the welders re-
mained at their benches, and only when the coordinator or the
floor truckdriver were not available would they get parts for
themselves.26 Also, according to Coughran, any workers
caught talking at their benches while waiting for parts were
written up.
Romanelli admitted that he held a meeting of his welding
department crews after the Union was voted in because there
was so much “distraction”27 prior to the election, and he wanted
to let the employees know that he was going to do everything
he could to eliminate distractions occurring before the vote,
including the bickering between those on opposite sides of the
union issue and to encourage a focus on work. Romanelli ac-
knowledged that Coughran was among those in the meeting.
Romanelli stated he told the workers to restrict the nonwork-
related talk to their breaks and lunches. Romanelli said that he
told his workers that on his time, they were to make sure that
they only conducted business and talked only about business.
Romanelli stated that he specifically told the workers not to talk
about the Union except during breaks and lunches. (Tr. 927.)
However, Romanelli denied forbidding the employees from
talking at all while they were working,28 but still he wanted to
eliminate distracting conversations. He felt that forbidding
employees from going to each other’s benches helped elimi-
nate, in his view, opportunities for distracting conversations.
Thus, for this reason, according to Romanelli, he instituted the
practice of having parts delivered to the benches.
The General Counsel essentially contends that the new no-
talk rule promulgated and enforced within days of the Union’s
election by Romanelli, along with his contemporaneously an-
nounced new rule requiring welders in his department to stay at
their benches, was nothing more than the first attack by the
Respondent on the Union and the employees’ rights guaranteed
by the Act. The General Counsel asserts that the focus of these
rules were clearly on the Union or the recently concluded union
organizing campaign since Romanelli pointedly told the weld-
ers he wanted to keep the “union stuff” out of his department,
and all complained of “distractions” were related to the union
campaign.
The Respondent counters and contends that Romanelli sim-
ply reemphasized an already existing shop rule against non-
work-related talking during worktimes. It asserts that the rule
was predicated on halting discussions and eliminating bickering
26 Coughran stated that he had been employed with the Respondent
for the last 3 years and had gotten his own parts, which were kept in a
different part of the plant. After Romanelli’s meeting, workers were
required to stay at their benches and contact a coordinator who would
direct the floor truckdrivers to return the needed parts. According to
Coughran, under this system, often welders were standing idle at their
benches awaiting the delivery of parts.
27 On cross-examination by the General Counsel, Romanelli de-
scribed “distraction” as people preoccupied with what was or was per-
ceived as going on at the plant; he claimed that talk around the plant
had gotten to a distracting level and talking was interrupting the flow of
work in his view.
28 In answer to the following question posed by the Respondent’s at-
torney, “Did you forbid them from talking at all while they were work-
ing,” Romanelli answered, “no sir.” (Tr. 896.) He did not elaborate.
SAGINAW CONTROL & ENGINEERING, INC. 557
during worktimes; that Romanelli was equally clear in inform-
ing the workers that, as before, they could talk about nonwork-
related topics during breaks and lunch.
First, there seems to be little reason to doubt Coughran’s ver-
sion of what happened at the meeting in question. In my view,
he testified honestly and sincerely, and without acrimony or
embellishment. He even insisted on his recalled version in the
face of an artful cross-examination. Moreover, he also expects
to return to the Respondent after service to his country and, of
course, by testifying, put himself at possible economic risk. I
would credit his version of the Romanelli meeting. Flexsteel
Industries, 316 NLRB 745 (1995).
Turning to the Respondent’s defense, I note that the Respon-
dent’s handbook, which sets forth rather comprehensively a
long list of work rules, among other things, prohibits employees
from interfering with any employee’s performance of duties by
talking or other distractions.29 However, the handbook does not
list a rule prohibiting talking—about the Union or any non-
work-related topic—except during lunch and breaktimes. Thus,
the proof of this preexisting rule, as asserted by the Respon-
dent, comes mainly from Romanelli who, I have previously
found preelection, threatened union supporters.30 Notably, the
working rule in the handbook does not specifically or literally
inform employees that they may talk about nonwork-related
topics during lunch and break. I recognize that the Respondent
has a legitimate business concern about disruptive arguing and
bickering among employees. However, I agree with the Gen-
eral Counsel that Romanelli’s announcement of the no-talk rule
under the circumstances, especially the recent successful con-
clusion of the election, unreasonably interfered with the em-
ployees’ Section 7 rights. In fact, specifically, I conclude that
Romanelli’s announcement was directed at clamping down on
the Union and possibly getting rid of it. Prohibiting the em-
ployees from discussing the Union among themselves was sim-
ply one of the first steps toward that end. I would find a viola-
tion of the Act. Opryland Hotel, 323 NLRB 723, 731 (1997).
b. Romanelli’s July 13, 2000 interrogation and creation
of surveillance of employees (subparagraph 8(e))
The General Counsel called current employee31 Ronald
James Martin as a witness for this charge.
Martin testified that Romanelli supervised him and gave him
his job performance evaluation on two occasions—July 13,
2000, and January 11, 2001.32 Martin stated that on July 13,
2000, Romanelli and he met at the loading dock to discuss his
evaluation. However, according to Martin, Romanelli initiated
the discussion by stating that he knew that the guys he (Martin)

29 See GC Exh. 34, the SCE employee’s handbook, at p. 26.
30 Another employee, James Martin, testified that he knew that em-
ployees were allowed to talk about work-related matters during work-
time, but not nonwork-related topics. Martin claimed he was written up
for talking 2 months before the hearing.
31 Martin has been employed by the Respondent for 6-1/2 years as a
welder on the first shift.
32 These performance evaluations also are the subject of alleged vio-
lations of Sec. 8(a)(3) and will be discussed later in a separate section.
hung around with were all “union pushers,”33 that Romanellli
did not know where Martin stood at the time, that is whether he
was hanging around them to find out information. Martin
stated that he told Romanelli that he associated with those
workers because he, too, was for the Union. Martin stated that
he wore union buttons on his hat every day after the election.
According to Martin, Romanelli also said in this conversation
that he had seen him hanging around those guys on your break-
time. Martin said he felt that Romanelli’s questions and
claimed observations were designed to determine whether he
was simply hanging around the workers to get more informa-
tion about the Union or to find out if he himself supported the
Union. Martin stated that he was puzzled by Romanelli’s ques-
tion. Since he wore union buttons daily, it was clear he was a
union supporter.
Romanelli, called on to meet this charge, stated that he met
with Martin at his workbench to discuss his July 2000 evalua-
tion and went over Martin’s performance elements point-by-
point. According to Romanelli, the Union and its members
were not mentioned, although he acknowledged that he and
Martin did discuss people with whom Martin was associating.
Romanelli not only denied using the term “union pusher,” but
also stating to Martin that he knew Martin was hanging around
union supporters. Romanelli stated that in the context of the
evaluation, he was merely being “creative” and suggested that
Martin make positive changes in his work routine and his
choice of associates.
There is no dispute that on July 13, 2000, Martin received his
semiannual performance evaluation, the results of which would
undoubtedly determine whether he received in the short term a
raise but, in the long term, could affect possibly affect his fu-
ture raises as well as his continued successful employment with
the Respondent. Also, one cannot overlook the Union’s having
only recently won a tough election. Then, there is manage-
ment’s antipathy toward the Union, and Romanelli’s previous
unlawful conduct (as previously found by me) before and im-
mediately after the election.
The Respondent contends that Romanelli’s version of this
July 13, 2000 meeting is the more credible and asserts his ver-
sion is corroborated by Romanelli’s comments about Martin on
his performance evaluation.34 By contrast, the Respondent
asserts that Martin’s testimony is uncorroborated.
I note that in point of fact, Romanelli, on July 13, 2000, did
not make any written comments on Martin’s performance
evaluation; his written comments about Martin were made on
January 12 and July 26, 2001. So, in terms of what was said at
the July 13 meeting, each witness must be evaluated on his
word at the trial.
33 According to Martin, Romanelli mentioned the names of employ-
ees Mike Doyle, Scott Cronkright, and Mike Leach. Martin stated that
Leach was elected as a bargaining unit representative after the election;
Cronkright was one of his best friends and a known union supporter
who wore union shirts and buttons on the job; Doyle was also a friend,
who supported the Union but was low key in his support and did not
wear buttons and other union gear.
34 Martin’s performance evaluations covering the period of his em-
ployment—December 19, 1995, through July 26, 2000—are contained
in GC Exh. 43.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 558
I have decided to credit Martin’s testimony over Ro-
manelli’s. First, Martin, a current employee, testified in a
straightforward, clear fashion without acrimony or embellish-
ment. Second, he freely admitted he was a union supporter and
agreed that in terms of his July 13 evaluation, Romanelli ap-
proved the wage increase to which he was entitled. He bore no
grudge against Romanelli. He also insisted that Romanelli
made the statements to him, which he concluded did not make
sense to him. Romanelli, on the other hand, while denying the
offending statements, claimed he was in effect trying to en-
courage Martin merely to make changes in his choice of associ-
ates. He provided little or no explication of what he meant by
this. In my view, this version did not ring true, especially in
view of Martin’s claim that Romanelli’s comments focused on
three known union supporters. Martin reasonably could inter-
pret Romanelli’s comments to mean that he should avoid those
union supporters if he expected favorable performance evalua-
tions in the future or valued his job with the Company.
In my view, Romanelli clearly coercively interrogated Mar-
tin on July 13, 2000, during his performance evaluation and
also created an impression that he had been surveilling Martin
about and because of his involvement with the Union, as well
as his association with other suspected union adherents, all in
violation of Section 8(a)(1) of the Act.
c. The July 28, 2000 Binder statements
(subparagraph 8(f)(1–5))
The complaint alleges that the Respondent, through one of
its supervisors, Jack Binder, violated the Act essentially by
surveilling, interrogating, and making coercive statements to, as
it turns out, one employee at a meeting on July 28, 2000. The
employee, Robert Stack, was called by the General Counsel to
testify about his encounter with Binder.35
Stack stated that he became aware of the Union’s organizing
campaign in early April 2000. Stack said that Binder asked to
speak with him privately in the conference room early (around
6:15 a.m.) on the morning of July 28, 2000. According to
Stack, Binder appeared very upset and began the conversation
by throwing his safety glasses across the table, and then stated
that he was upset and pissed off seeing Stack and a group of
employees standing around bullsh—g before the bell and prior
to the end of the day. Binder also said he was sick and tired of
seeing him standing around wasting time and did not want to
see him talking to Greg Kennedy,36 or any other employee at
any time in a group or during company time. According to
Stack, Binder said that since the election, Stack had been talk-
ing to Kennedy about what Binder assumed was union business
on company time.
Binder said if he caught Stack talking with Kennedy or any
other employee in a group or at any time, that this meant Stack
obviously had too much time on his hands. Binder said he

35 Stack stated he has been employed by the Respondent for around 7
years in its packaging and shipping department. He works on the first
shift (6 a.m.–4:30 p.m.) and has been supervised by Binder the entire
time.
36 Stack testified that during the organizing campaign he became
aware of Kennedy’s central role with the Union; Kennedy was regarded
as the one to see about the Union.
would cut Stack’s hours from 10 to 8 hours per day or transfer
him to another department.37 According to Stack, Binder said
that he knew where Stack stood regarding the Union, that he
was prounion, and that the Company recognized this fact; and
that the Company also knew Kennedy was for the Union.
Stack said he tried to explain that he was not talking about the
Union but Binder said the Company knew where he stood nev-
ertheless. Stack also stated that Binder told him that his
(Stack’s) work performance had gone down; that he had be-
come a bad employee.
According to Stack, Binder also said that he was going to try
to protect Stack but that Stack had better just stay busy; he had
better look busy. Stack said he asked Binder what he needed
protection from; Binder gave no response but merely ended the
meeting by saying that he had gotten everything off his chest,
shook Stack’s hand, and left.38
The Respondent called Binder39 to refute these charges.
Binder acknowledged that he once met Stack in the confer-
ence room to discuss Stack’s performance evaluation and, be-
cause he needs his glasses to read, denied throwing his glasses
in the meeting.40 According to Binder, he only discussed
Stack’s performance evaluation but he could not with confi-
dence recall whether the Union came up in the discussion.
According to Binder, if the Union as a topic was raised in the
meeting, it was initiated by Stack’s asking him if his evaluation
would be affected by his (Stack’s) union activity. Binder stated
that he told Stack that the evaluation would not be affected by
union activities. Binder acknowledged that he knew that Stack,
Kennedy, and several other workers were union activists either
before or after the election.41
According to Binder, during Stack’s performance evaluation,
Kennedy’s name did not come up and he specifically denied
saying anything about those with whom Stack associated, or
surveilling Stack or other employees. Binder also denied mak-
ing any inquiries of Stack as to who was or was not in the Un-
ion; and he denied advising Stack to refrain from associating
with union activists.
Binder also denied telling Stack (or any other employee) of
the Company’s negative reaction to the filing of the unfair labor
practice charge with the Board. Binder stated that he never
interrogated any employees regarding their reasons for support-
ing the Union. Binder could not recall in any meeting with
employees, including Stack, telling them they were disloyal or
poor workers; and he said he never threatened Stack or anyone
else with written discipline or reduction of overtime hours be-
cause of their support of the Union.
37 Stack stated that Binder told him that he knew Stack was the sole
support of his family. Binder said he would have no problem cutting
Stack’s hours to 8 hours per day or transferring him if things kept up
the way they were.
38 According to Stack, this meeting lasted about 1-1/2 hours.
39 Binder testified that he has been employed by the Respondent for
about 32 years; his current duties include supervising the packaging and
shipping department which he has done for 15 years.
40 Binder did not provide a date or other timeframe for this meeting.
41 Binder also mentioned Wayne Tornberg, Mike Leach, and a Mr.
French as employees known to him as union activists.
SAGINAW CONTROL & ENGINEERING, INC. 559
Binder noted that the Respondent had hired consultants to
advise management about the rights of the employees and em-
ployer during the organizing campaign. He felt that he was
well versed in the dos and don’ts of this process, and had also
experienced an earlier organization drive by the Teamsters at
the Respondent’s facilities. Accordingly, Binder said he never
spoke to employees in a group or individually with regard to
the Union or to find out information about the Union.
The General Counsel contends that Stack’s version of the
Binder meeting offers clear evidence of the Respondent’s viola-
tion of the Act. He suggests that Binder’s version consisted of
general denials made in response to leading questions of the
Respondent’s counsel and, therefore, should not be credited
over the specific and direct testimony of Stack.
The Respondent argues that Stack exhibited such poor recall
and confusion in his testimony that he should not be believed.
On the other hand, the Respondent contends that Binder was a
longtime supervisor with the Company who had prior experi-
ence with a prior union organizing campaign and had received
training for the latest union campaign—he was well aware of
the rules pertaining to employee rights. Accordingly, his deni-
als, the Respondent submits, should be credited, especially
since the General Counsel offered no corroboration to what
amounts to a one-man’s word against another situation.
While Stack did exhibit some confusion about the hours he
worked, it seemed to me his confusion was based on the shift-
ing number of hours called for by his schedule over the past
years. I have also taken notice that Stack also made statements
about the July 28, 2000 meeting in a handwritten memoran-
dum42 and in an affidavit43 he provided to the Board agent, both
of which contained information somewhat inconsistent with his
trial testimony. These documents were offered by the Respon-
dent and admitted by me for impeachment only. However, in
spite of some minor inconsistencies, I do not believe that
Stack’s testimony was unreliable. Rather, in the main, these
documents offer substantial corroboration of his testimony at
the hearing. It should be noted that, according to Stack, he was
basically subjected to a tirade by Binder, a veritable fusillade of
invective and threats. Perhaps, it was simply beyond Stack to
capture with pinpoint accuracy Binder’s comments delivered
over the course of an hour and a half. On the witness stand,
Stack, however, was steadfast, sincere, and confident in relating
the incident. I would credit his version of the encounter.
By the same token, Binder’s version of the meeting seems
lacking. First, he provided no timeframe for a purported per-
formance evaluation meeting with Stack—an important event.
Also, Binder did not elaborate on this performance evaluation.
According to Binder, the performance evaluation simply took
place and he denied that he made the offending statements at-
tributed to him. As will be discussed later in this decision, the

42 See R. Exh. 17. Stack said that after the meeting with Binder, he
jotted down some notes about the meeting. These were not produced at
the hearing. Stack said that because of his visual impairment and mi-
graine problems, which prohibit writing at length, his wife helped him
prepare the memorandum and he signed it.
43 See R. Exh. 18. It would appear that the complaint allegations are
derived from this affidavit.
Respondent’s managers follow a fairly set procedure for
employee performance evaluations, including an interview and
a performance evaluation document that is signed by the super-
visor and the employee. There was no documentation adduced
by the Respondent to corroborate this purported evaluation of
Stack. I believe that Binder simply was not telling the truth
about the purpose of the meeting on July 28, 2000, as well as
what transpired there.
Therefore, I would find and conclude that Binder, on July 21,
engaged in unlawfully coercive and interfering conduct in the
following particulars: by stating to Stack that he was a poor or
bad employee and threatening to reduce his overtime because
of his support for and involvement with the Union or its sup-
porters; by surveilling Stack and telling him that he and the
Company knew he was a union supporter and that he was seen
talking to other union supporters; by advising Stack to refrain
from associating with union activists; and by threatening to
transfer him to another department, all in violation of Section
8(a)(1) of the Act.44
d. The August 16, 2000 disparate enforcement of a
no-trespassing rule by the Respondent’s agents
(subparagraph 8(g))
The complaint alleges essentially that on August 16, 2000,
the Respondent, through Romanelli, accompanied by fellow
admitted supervisors, Troy Henk and Todd Hall, told union
supporters distributing union meeting notices after work hours
in the company parking lot that they were trespassing and or-
dered them off the premises; that this overly broad no-
trespassing rule was not similarly enforced against employees
who opposed unionization at the Respondent’s facilities.
The General Counsel called Greg Kennedy, Wayne Torn-
berg, and Michael Leach as witnesses regarding the August 16
incident.45
Kennedy testified that on August 16, 2000, at about 4:30 to 5
p.m. after completing their shifts, he, Mike Leach, and Wayne
Tornberg were distributing fliers reminding workers of an up-
coming union meeting46 outside the facilities in the back park-
ing lot near the main door to all employees as they were leaving
work or coming to work for the next shift. According to Ken-
nedy, he noticed Assembly Supervisor Todd Hall nearby ob-
serving them and using a hand-held radio. A few minutes later,
Romanelli and Paint Department Supervisor Troy Henk47 ap-
44 Contrary to the General Counsel and the complaint, I do not find
that Binder either impliedly or expressly told Stack he was a disloyal
worker or that he would be given a written discipline because of his
union involvement. I do not believe the record supports a finding of a
violation on these points. I would dismiss these aspects of the com-
plaint. Likewise, I would dismiss the allegations charging the Respon-
dent with Binder’s coercively telling Stack of the Company’s negative
reaction to a filing of a charge with Board or coercively interrogating
stack about his reasons for his support of the Union. The record does
not support these charges.
45 On about July 8, 2000, Kennedy was elected chairman and Torn-
berg and Leach were elected to the employee bargaining committee.
46 See GC Exh. 15, a copy of the reminder notice for a meeting
scheduled for August 20, 2000, at the union hall, that Kennedy and the
others were distributing.
47 Henk’s name is misspelled in the complaint as Hank.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 560
peared on the scene. According to Kennedy, Romanelli ap-
proached them and said they had to leave the premises as they
were trespassing. Tornberg, according to Kennedy, protested,
saying that the three worked at the plant and questioned the
trespassing charge.
Kennedy said that Romanelli said that the three were indeed
trespassing, that he did not want any trouble, and again asked
them to leave, and they did.
Tornberg and Leach both testified about the August 16 en-
counter and essentially corroborated Kennedy’s account.48
Tornberg also testified that on other occasions he had re-
turned to the plant after punching out and had never been con-
fronted with a trespassing charge or otherwise told that he
could not return to come inside the premises. Tornberg also
related a time when he met coworkers on plant property after
his shift as they were also gathering for the day to participate in
a gambling outing and, in fact, went inside the building and
spoke to two supervisors on this occasion. Tornberg related
other occasions when he had forgotten personal items and re-
turned to the plant after his shift to retrieve them without inci-
dent.49 He also recalled seeing Romanelli and an antiunion
employee, named Scott Keyser, dressed in short pants, obvi-
ously off work, conversing while sitting on a guardrail outside
the plant. Tornberg stated that he had seen Plant Manager Jerry
Simms’ and Romanelli’s wives visiting the plant at lunchtime,
as well as wives and girlfriends of various employees on vari-
ous occasions.
Leach testified that prior to August 16, and even afterwards,
he quite often—about 25 or 30 times—left the plant and then
returned to retrieve personal items. According to Leach, the
August 16, 2000 incident was the only time management had
said anything to him about being on company property after
punching out, and ordering him off the property. Nothing of
this sort has been said since that time.
The General Counsel called witnesses Charles Jarvela, Derek
Dukarski, and Stack regarding the Respondent’s discriminatory
enforcement of the no-trespassing rule.
Jarvela50 testified that around mid-June 2001, at around 5:50
a.m. at the beginning of his first_shift assignment, he observed
three employees, Mike Sopcak, Jerry Childs, and another
man,51 standing outside of the plant’s main employee entrance
approaching other employees as they were entering the build-
ing. According to Jarvela, the three men appeared to be hand-
ing manilla folders to employees who appeared to be signing
the folders. Later that same morning (around 9:50 a.m.), while
on break, Jarvela stated that he saw the same three employees
at the front employee entrance with the folders and again ap-
proaching and obtaining signatures from employees leaving for

48 Leach also said that he told Romanelli that he had just punched
out a few minutes before.
49 Tornberg said one such occasion took place on September 18,
2000. Tornberg also said that employees are allowed to eat lunch in
their cars on premises when they are “off the clock.”
50 Jarvela had been employed with the Respondent since April 1995
but was laid off around the first week of January 2002. His last job
with the Respondent was an assembly department crib attendant.
51 Jarvela did not know the third person.
and coming back from their breaks.52 On both occasions, ac-
cording to Jarvela, Paint Department Supervisor Henk was
standing with the three, perhaps about 5 feet away53 from them,
just outside the main door of employee entrance near Henk’s
parked motorcycle. Jarvela stated that he could not say for sure
that Henk was talking with the three employees, but Henk did
not appear to be soliciting signatures.
Derek Dukarski, employed by the Respondent for about 2-
1/2 years as a packing clerk, testified that some time in mid-
June 2001 at around 5:45–5:55 a.m., as he was reporting for
work, he observed Sopcak and another employee, whose name
he did not know, standing on the sidewalk within 5 to 10 feet of
the employee entrance door near the parking lot, with clip-
boards in hand. According to Dukarski, he saw the two men
approaching the arriving employees and was told by the uni-
dentified man that he and Sopcak were asking employees to
sign a petition to oust the Union. Dukarski later heard the so-
licitations being made, although he himself was not asked to
sign the petition. Dukarski also stated that he observed Troy
Henk, the second-shift supervisor, standing on the sidewalk at
the entrance within 5 to 10 feet of Sopcak and the other men.
According to Dukarski, Henk appeared to be watching the
workers to see if they would sign; he appeared to be glaring at
them. During the 10 minutes he observed those activities, Du-
karski stated that Sopcak and the other men approached around
20 people and that about 10 signed.54
Stack testified that he knew Sopcak as a nonsupervisory
worker in the Respondent’s programming department. At
about 5:50 a.m. around mid-June 2001, he too, saw Sopcak and
another man (and perhaps a third man) with clipboards, stand-
ing at the employee’s entrance. According to Stack, Sopcak
approached him and asked if he would sign a petition to get the
Union out of the shop. Stack said he told him no but decided to
observe the activities. According to Stack, at around this
time—5:40 to 5:45 a.m., Henk pulled up on his motorcycle and
parked at the front entrance. According to Stack, Henk stood
behind and between Sopcak and the other man, about a foot
away from them, and appeared to be watching them but did
nothing more. Stack said he observed the two men approaching
and speaking to the employees;55 and some employees stopped
to sign the petition. Stack stated that when he punched in at
around 6 a.m., Sopcak and the other men were still at the en-
trance.
The Respondent submits (as it has argued previously) that
while any distribution of written or printed matter on the com-
pany premises may not be done without first obtaining man-
agement’s written permission (p. 25 of the handbook), that
solicitation is permitted on nonworking time (as stated on p. 18
of the handbook). Accordingly, the Respondent contends its
no-trespassing rule is not overly broad. The Respondent argues
52 Jarvela says he was not approached by the three.
53 I note that this witness had some difficulty in judging distances.
54 Dukarski identified himself as a union supporter who showed his
support for the Union by wearing union T-shirts with the union logo at
least as early as August 2000. He also admitted that he was asked by
fellow employee Robert Stack to observe Sopcak’s activities.
55 Stack stated that Jarvela and Dukarski were among the employees
coming to work at this time.
SAGINAW CONTROL & ENGINEERING, INC. 561
that it did not treat the union supporters disparately on August
16 because, in June 2001, none of its managers knew that em-
ployees opposed to the Union were circulating a decertification
petition.
Inasmuch as the Respondent does not contest the fact that
even under its own interpretation, it misapplied the no-
solicitation rule as to Kennedy, Leach, and Tornberg, and I
have previously found for the reasons stated herein that the no-
solicitation rule in question is overbroad, the only question is
whether there was disparate treatment of the prounion employ-
ees.56
The Respondent called Henk who admitted that on the day in
question, he arrived for work57 on his motorcycle and saw a
group of employees at the main entrance of the plant engaging
in some activity. According to Henk, he saw three employees58
with clipboards but he had no idea what they were doing, and
he did not hear them speaking although he was about 8 feet
away. Henk stated that he was smoking a cigarette for about a
minute next to his motorcycle and then proceeded to the build-
ing and punched in for work. Henk stated that he never ap-
proached or said anything to the employees with the clipboards
for the short period he was in the parking area and that he did
not see them approach other employees. Henk initially stated
that he customarily takes his break at 1:50 p.m., and not before;
however, on the morning in question, he did take a morning
break at which time he saw no employees with clipboards, only
employees mulling about and talking.
Henk stated that the next day, he came to work and saw the
same people with clipboards standing out in front of the main
entrance. However, once more Henk stated he said nothing to
them, nor did he stand by them. Henk claimed that he was not
really watching these activities but was unconformable with
what was going on, and so did not want any involvement. He
did not know that the clipboard held petitions.
Contrary to the assertion of the Respondent, I conclude that
based on the clear and obvious circumstances as related by the
General Counsel’s witnesses, it did, in all likelihood, know that
the other employees were, at the least, soliciting their fellow
employees on company property. I further would find and
conclude that the Respondent, in all likelihood, knew that the
employees were soliciting signatures to decertify the Union in
mid-June 200159 and, with this knowledge, purposely did not
enforce its no-trespassing/no-solicitation rule against these
employees.60 I note that Henk was one of the three supervisors

56 The Respondent, on p. 16 of its posthearing brief, stated that the
appropriate remedy for the misapplication of its no-solicitation rules is
an order to stop enforcing the p. 25 rule without reference to the p. 18
rule.
57 Henk acknowledged that, as a first-shift supervisor, his day starts
at around 5 a.m.; that, often, he arrives earlier than his employees.
58 Henk recognized Mike Sopcak and Jerry Childs as two of the three
employees he observed; he did not know the third man.
59 There seems little doubt on this record that the dates of the solici-
tation efforts took place on June 13 and 14, 2001. I would so find.
60 While the complaint characterizes the rule as a no-trespassing rule,
basically the rule in question to me is the same no-solicitation/no-
distribution rule previously discussed. The Respondent’s handbook
makes no reference to trespassing, and it seems to me that trespassing
who confronted unionists Kennedy, Tornberg, and Stack in
August and was present when Romanelli ordered them off of
the premises for soliciting. Here, Henk, by his own admission,
saw employees with clipboards approaching the employees
and, while somewhat uncomfortable, said nothing and did noth-
ing over a 2-day period in the matter; he did not want to be
involved. I find this incredible considering how quickly the
Respondent’s agents acted on August 16, 2000, when the three
union supporters, for a short period, were distributing fliers
about the union meeting. It seems clear to me, based on the
credible testimony of Jarvela, Dukarski, and Stack which is
frankly unrebutted, and the extant circumstances the Respon-
dent’s management, including Henk, were fully aware of what
was going on with Sopcak and his colleagues in the parking
area.61 Henk’s claim that he turned a blind eye and deaf ear to
the goings-on is simply not believable. It seems implausible
that he would be uncomfortable about something about which
he knew nothing. Accordingly, I conclude that the Respon-
dent’s no-solicitation/no-distribution rule is overly broad and
was disparately and discriminatorily enforced on August 16,
2001, against the union supporters in violation of the Act.
e. The September 2000 interrogation of James Sperry
(subparagraph 8(h))
The complaint alleges that two of the Respondent’s agents,
its personnel director and a supervisor in its fabrication depart-
ment, some time in September 2000 in preemployment inter-
views, coercively interrogated a prospective employee about
his union sympathies and support, informed him that the Union
would no longer represent its employees in the near future, and
subsequently instructed him not to converse with union sup-
porters.
The General Counsel called James Sperry62 to establish the
charge. Sperry testified that he responded to an ad for a job at
the Respondent and was interviewed by Doug Sandula, whom
he thought was the personnel director,63 around the first week
of September 2000. According to Sperry, Sandula, while re-
viewing Sperry’s application, asked him if his former employer
was a Teamsters (union) shop. Sperry said he said no, but that
the employer was a UAW (shop). Sandula then explained,
saying that he was asking because there was a union trying to
get in at the Respondent, and how would Sperry feel about
working at the Company if there was a union. Sperry said that
he told Sandula he was neutral; he could take it or leave it.
According to Sperry, Sandula then said it probably did not mat-

was the term used by Romanelli to intimidate or coerce the union sup-
porters to leave the property with an implied threat of police involve-
ment or other serious consequences.
61 The Respondent merely attacks the credibility of those witnesses
based on what I consider insignificant discrepancies in their testimony
and/or, as in the case of Jarvela, his being Kennedy’s roommate.
I also conclude that, based on this record, the Respondent knew that
Sopcak was known by it to be antiunion.
62 Sperry worked for the Respondent from September through No-
vember 9, 2000; he said that he left because of dissatisfaction with his
rate of pay and long hours at the Respondent.
63 The Respondent admits that Sandula is and was employed as its
personnel director and that he is one of its agents/supervisors. Sandula
did not testify at the hearing.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 562
ter because (essentially) so many union supporters had left the
Respondent for other jobs that he was quite sure the Union
would be ousted.
According to Sperry, Sandula called him sometime after this
interview concluded and set up a second interview. Sperry was
interviewed a second time, later that same day, this time by Len
Harrington64 who, according to Sperry, identified himself to
Sperry as a supervisor in the Respondent’s fabrication depart-
ment.
Sperry said that he met with Harrington who explained the
fabrication department’s operations and what his duties would
be if he were hired. According to Sperry, Harrington also
asked him what he felt about unions and advised that specifi-
cally a union was trying to get in at the time. Sperry said he
told Harrington that he was neutral, and again, he could take a
union or leave it. Sperry said that Harrington said that he
thought the Union would probably be ousted because most of
the union supporters, whom Harrington described as trouble-
makers, had left for other employment.
Sperry was hired around September 18 and received an ori-
entation by Sandula who, among other things, went over com-
pany benefits. According to Sperry, Sandula warned him that
when he got on the work floor, there were going to be some
workers for and some against the Union. He advised Sperry
not to talk to either side, just walk away from them; that he did
not have to talk to anyone.65 Sperry stated that Sandula did not
threaten him with discipline if he talked about the Union with
another worker.
Because neither Sandula nor Harrington testified at the hear-
ing, Sperry’s testimony is for all practical purposes unrebutted.
While the Respondent at the hearing attempted to impeach
Sperry, I believe it was not successful. In my view, Sperry
testified consistently and without exaggeration; he insisted that
his version of the contacts with the Respondent’s agents and
supervisors happened as he testified. On bottom, he was a
highly credible witness in my view. I would credit his testi-
mony.
The issue then becomes whether, under the circumstances,
the statements by the Respondent’s agent and supervisor to
Sperry reasonably tended to coerce or interfere with the free
exercise of his rights as an employee under the Act. Rossmore
House, 269 NLRB 1176 (1984), enf. sub nom. Hotel & Restau-
rant Employees Local 11 v. NLRB, 760 F.2d 1006 (9th Cir.
1985).
The General Counsel argues that Sandula’s and Harrington’s
interrogations about Sperry’s feelings about the Union consti-
tute illegal interrogation under the Act, and Sandula’s advice
not to associate with either union or nonunion supporters was
unreasonably coercive, as was his statement that the Union
would soon be ousted.

64 The Respondent admits that Harrington was employed as a super-
visor in its enclosure fabrication department. Harrington did not testify
at the hearing.
65 Sperry stated that at the two preemployment interview sessions, he
met with Sandula and Harrington alone. At the orientation session,
there was another new hire, whom Sperry did not know, in attendance.
The Respondent submits that Sandula, in the first interview,
was merely inquiring whether Sperry could handle working in a
union environment after having been laid off by a union em-
ployer. Since Sperry indicated he could, the Respondent sub-
mits that Sandula simply made a prediction that the Union
would be ousted and hired Sperry in spite of his saying he
could (indeed) “take the union.” The Respondent further sub-
mits that the comments66 made to Sperry in the orientation
session were in the nature of a reminder of the workplace rules
prohibiting nonwork-related conversation on the shop floor
during worktime; that Sandula’s reminder of the rule was ap-
propriate in context, given the ongoing controversy among the
workers about the Union on the shop floor and the potential for
nonwork-related conversation taking place.
I note first that since neither Sandula nor Harrington testi-
fied, the Respondent’s argument is just that, an argument con-
structed in its brief, and, as such, is not persuasive given the
legal standards applicable to an 8(a)(1) violation.
Second, the circumstances or context of the offending con-
duct and/or statements are controlling, not the motives or ra-
tionale of the Respondent. Here, Sperry, a prospective em-
ployee was interrogated on two occasions by management
about his feelings about the Union. On each occasion, he pro-
fessed neutrality. However, under Section 7 of the Act, an
employee is, broadly, free to support or not support a union; he
does not have to be neutral. When asked about his feelings
about the Union at his first interview, Sperry could reasonably
have felt that he had to be careful about his answer. At the
second interview, he was asked a similar question and, having
given Sandula his neutral position, Sperry reasonably may have
felt he had to give the same response to Harrington. Clearly,
any reasonable person could conclude, having been asked the
same question twice by management personnel with the power
to decide his employment status, that the union and his feelings
about it were important to his prospective employer; that the
answer given could not only affect his getting the job but could
influence his future with the Company if he were hired. Nota-
bly, both Sandula’s and Harrington’s volunteered view, that the
union supporters (troublemakers) were leaving or were gone
and that Union would be ousted, indicates hostility to the Un-
ion. Sperry’s decision to be “neutral” reasonably could have
been influenced by these statements. Finally, Sandula’s orien-
tation advice (masquerading as a warning in my view) could
reasonably tend to coerce and interfere with Sperry’s right as an
employee to support or not support the Union or engage in
concerted activities for his and other employees’ mutual aid and
protection. Sandula’s advising Sperry not to talk to either side
is in total context an unreasonable interference with Sperry’s
Section 7 rights. I would find that the Respondent violated the
Act in its dealings with Sperry. Little Rock Electrical Contrac-
tors, 336 NLRB 146 (2001).
66 In its brief, the Respondent does not accurately deal with Sperry’s
second interview with Harrington. Rather, it attributes to Harrington
Sandula’s comments made to Sperry in the orientation session. The
Respondent, therefore, has omitted its argument with respect to the
statements Sperry said were made to him by Harrington in the second
interview.
SAGINAW CONTROL & ENGINEERING, INC. 563
f. The implied detrimental impact on employee evaluations
for wearing a union T-shirt (subparagraph 8(i))
The General Counsel called Dukarski who testified that
Binder, as his immediate supervisor for the entire time he has
been with the Company, gave him his semi-annual performance
evaluations. According to Dukarski, Binder’s usual practice at
evaluation time was to pull him aside to a private area of the
plant, usually the breakroom, and discuss his performance for
any given past 6-month period. In the end, Binder would give
him for his and Binder’s signature a performance evaluation
form that stated his ratings in 11 performance-related areas.
Based on the evaluation by Binder, Dukarski stated he would
be given a wage change, usually for him a raise, derived from a
predetermined available amount.
Dukarski said that he was due for a performance evaluation
on or about August 31, 2000, and Binder, following his usual
procedure asked to meet with him in the breakroom to discuss
the matter. On the way to the breakroom, Binder told him that
he (Dukarski) had gotten so close to his evaluation, but then he
had worn “that union T-shirt” and he (Binder) could not do
anything more for him for that evaluation. According to Du-
karski, he made no response to the statement and the evaluation
session then took place. While discussing the categories indi-
vidually, Binder told him that his excessive talking with other
employees had affected his evaluation. Dukarski admitted that
he had been spoken to about talking during work on two previ-
ous occasions by management.
Dukarski said that he felt that he received a lower raise on
the evaluation67 because he had worn a union T-shirt to work to
show his support for the Union about a week before the evalua-
tion, that he had worn it all day that day.
Binder denied making the statements attributed to him by
Dukarski. Binder acknowledged that he had seen various em-
ployees wearing T-shirts and buttons supportive of the Union;
however, he could not remember whether Dukarski wore a T-
shirt.68 However, Binder said that he had never told any em-
ployee that they could not wear these items, nor were they ever
disciplined for wearing them. Binder stated that he knew that
basing an employee’s evaluation on whether he had worn a
union T-shirt was illegal.
The General Counsel argues that the Respondent, through
Binder, violated the Act in his dealings with Dukarski much as
he did in the incident with Stack, since here, too, his remarks to
Dukarski reasonably tended to interfere with Dukarski’s Sec-
tion 7 rights.
The Respondent, stressing Binder’s credibility over Dukar-
ski’s, argues that Binder did not make the offending remarks,
that there was no corroborating proof that Dukarski even wore

67 Dukarski’s August 31, 2000 evaluation is one of several of his
evaluations covering the period May 27, 1999, through September 11,
2001. See GC Exh. 36.
Dukarski received a raise of 26 cents out of an available amount of
50 cents on August 31, 2000.
68 Binder claimed that Dukarski was not really one to wear T-shirts
and pins as compared to employees Stack and Kennedy, who regularly
wore union paraphernalia.
a union T-shirt, and that Dukarski did not suffer any detrimen-
tal impact on his performance evaluation.69
As before, I would first credit Dukarski’s testimony and con-
clude that Binder made the remarks Dukarski attributed to
him.70 Regarding 8(a)(1) violations, the Board’s test for deter-
mining such violations does not turn on the employer’s motive,
or the success, or failure of the attempted coercion. Rather, the
test is bottomed on whether the employer engaged in conduct,
regardless of intent, which reasonably tends to interfere with
the free exercise of employee rights under the Act. American
Freightways Co., 124 NLRB 146 (1959); and Roadway Ex-
press, Inc., 250 NLRB 393 (1980). I conclude that the remarks
by Binder conveyed the message to Dukarski that if he had not
worn the union T-shirt the week before his evaluation, Binder
could have done more for him in the performance evaluation.
The statement implied that by wearing the T-shirt, Dukarski’s
evaluation was adversely affected and possibly he received a
lower raise because of his wearing of the union T-shirt. I
would conclude that Binder’s comments were coercive and,
under the circumstances, reasonably tended to violate Dukar-
ski’s rights under the Act.
g. The February 8, 2001 strike letter to employees
(subparagraph 8(j))
The complaint alleges that the Respondent issued a letter to
its employees essentially informing them that they were re-
quired to report for work regardless of a strike if they valued
their employment and that the employee’s failure to report for
work during a strike, and/or even not participating in picketing,
would be considered by the Respondent to be engaging in the
strike and subject them to permanent replacement.
It is undisputed that on or about February 8, 2001, the Re-
spondent posted and distributed a notice to its employees enti-
tled “If There Is a Strike”71 at its plant facilities. The notice in
69 The Respondent points out that Dukarski received from Binder in
the prior 6 months’ evaluation—February 28, 2000,—essentially the
same percentage wage increase as he did in August 2000. I do not find
this point persuasive for purposes of the 8(a)(1) charge in question. It
is the coercive nature of the statement, not the results, that controls the
issue.
70 I note that Binder stated that the main factor (in the evaluation
process) is attendance, and “there were several different classifications
in the performance of how that individual performs.” (Tr. 861.) How-
ever, he did not explain how these or other factors were applied to
Dukarski to justify the evaluation he gave him. Thus, in view of his
prior conduct with Stack, and this somewhat inchoate explanation of
Dukarski’s evaluation, I found his denials regarding Dukarski’s having
worn the union T-shirt unpersuasive.
71 See GC Exh. 21, which includes the notice in its entirety. The no-
tice was printed on the Respondent’s letterhead and was signed by Fred
May Jr., as president. Note also that the Respondent mailed a letter to
all employees and their spouses about a week after the February 8
notice. (GC Exh. 22.) Among other things, this latter letter indicated
that the Union threatened the Respondent with a strike if no agreement
was reached by February 1, 2001. The letter goes on to say “if a strike
occurs [the Respondent] will continue to operate—employees will be
encouraged to work and strikers will be permanently replaced.” It
should be noted that this latter letter is not the subject of any complaint
allegation.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 564
pertinent (excerpted) part provided the following information to
the Respondent’s employees:

1. The Company will continue to operate.
2. Employees who wish to work will be encouraged to
cross the Union’s picket line.
3. NOTICE TO STRIKERS
The Company will immediately take steps to perma-
nently replace you with a new worker.
When you go on strike all of your company provided
benefits (including health care) will stop immediately!
Current COBRA rates for striking employees to continue
health care are
[Rates provided for families, couples, and singles]
You will not be entitled to unemployment benefits
while you are on strike.
. . . .
5. If a strike occurs all vacations will be cancelled
immediately. If you do not come to work, and even if you
do not participate in any picketing, you will be considered
to be on strike and be subject to replacement. Exceptional
circumstances could result in an excused absence, but only
if you seek specific approval from [the personnel director]
. . .
6. Make no mistake about it—if you value your job
and your continued future at Saginaw Control [amper-
sand] Engineering you must come to work regardless of a
strike!

The Act, of course, confers upon employees the right to or-
ganize in Section 7 and the right to strike in Section 13.
The General Counsel argues that the Respondent’s posting
and distribution of this notice was violative of the Act because
the notice goes beyond mere predictions of what may happen in
the event of a strike, but actually threatens employees in an
overly broad fashion with permanent loss of their jobs by im-
plication and reasonable inference even if they are engaging in
an unfair labor practice strike as opposed to an economic strike.
The General Counsel also submits that given the number of
unfair practices committed by the Respondent prior to the post-
ing, its unqualified statement that it would immediately and
permanently replace any striking (both actual and perceived)
employee constitutes an unlawful coercive threat to employees
who may be off of work with approved leave and/or for legiti-
mate cause and/or who may not even have received a copy of
the notice.
The Respondent counters, arguing that the notice in pertinent
part is protected speech under Section 8(c) of the Act inasmuch
as the language deemed offensive contained no threats of repri-
sal, force, or promise of benefit. The Respondent, in essence,
argues that the notice was consistent with the extant Board
precedent governing permissible employer speech in the con-
text of an economic strike to which action the notice was di-
rected.
It should first be noted the notice does not make any clear
distinction between economic and unfair labor practice strikes.
Throughout the letter, which I have carefully considered, there
are numerous references to the word “strike” but nowhere is
there a qualifying reference to economic strikes or strikers.
There likewise is no reference to unfair labor practice strikes or
strikers. Reduced to its essence, to me, the clear thrust of the
Respondent’s (explicit and implicit) message in the notice is if
a worker strikes, irrespective of the reason, or even by his ab-
sence from work appears to be striking, he will be replaced
permanently. Thus, the Respondent’s notice does not in my
view limit itself to economic strike scenarios. Therefore, the
principal case relied upon by the Respondent, Eagle Comtron-
ics, Inc., 263 NLRB 515 (1982), is inapposite.72 In my view,
the instant notice in effect tells employees that they cannot or
better not strike for any reason; and this is patently illegal.
Caterair International, 309 NLRB 869 (1992). The notice
also, in its overbreadth, to me, goes one step further by inform-
ing employees that the employer, not they or the Union, will
determine whether they are indeed on strike because their mere
absence from work during a strike will be deemed by the
Respondent to be strike participation. Any exceptions would in
likewise be determined by the Respondent. Thus, in effect, the
Respondent here, has deemed itself the arbiter of rights con-
ferred by the Act on employees or their representatives. It is
hard to imagine a more coercive or egregious interference with
employee rights than this notice, especially in the context of the
many unfair labor practices committed by the Respondent prior
to its promulgation. I would find a violation of the Act.73
h. Plant Manager Simms’ removal of union posters
while allowing the posting of other materials
(subparagraph 8(k))
The complaint essentially alleges that admitted supervi-
sor/agent and Respondent’s plant manager, Jerry Simms, re-
quired employees to remove union posters from their lockers
while allowing other materials to remain posted.
Kennedy was called to support this allegation. Kennedy re-
called an incident with Simms and stated that around the begin-
ning of May 2001, he was asked by Simms to remove three
posters affixed to three sides of his locker. The posters pro-
claimed, “We Support the United Steelworkers.” Kennedy
stated that he had put these posters up around the end of April

72 Baddour, Inc., 303 NLRB 275, 279 (1991). The employer in Ea-
gle Comtronics, supra, had stated “that in the case of an economic
strike . . . present employees could be replaced with applications on
file.” In Eagle Comtronics, the Board held that an employee does not
violate the Act by truthfully informing employees that they are subject
to permanent replacement in the event of an economic strike “[u]nless
the statement may be fairly understood as a threat of reprisal against
employees or is explicitly coupled with threats.” Moreover, basically,
as long as the employer’s statements on job status after an (economic)
strike are consistent with the law, they cannot be characterized as re-
straining or coercing employees in the exercise of their rights under the
Act. Here, the Respondent’s notice does not meet this crucial point of
Eagle Comtronics.
73 I agree with the General Counsel’s contention that even if the no-
tice could, arguendo, be construed to be referring solely to an economic
strike, nonetheless it clearly tells employees that not only may they be
replaced but threatens unlawfully to discharge them as a result of strike
activity. Contrary to the Respondent, I would conclude that the Re-
spondent has not satisfied the requirements of Laidlaw Corp., 171
NLRB 1366 (1968), enfd. 414 F.2d 99 (7th Cir. 1969), cert. denied 397
U.S. 920 (1970), which I believe governed in substantial part the issue
here. See also Consec Security, 325 NLRB 453, 457 (1998).
SAGINAW CONTROL & ENGINEERING, INC. 565
2001 but also had previously posted stickers supporting the
Union. Kennedy stated that during this time other employees
had posted National Rifle Association, Right to Life, and (race-
car driver) Dale Earnhardt stickers and posters on their lockers.
According to Kennedy, he questioned Simms about the re-
quest and was told by him that he (Simms) wanted to keep out
any signs supportive of or against the Union; that he was order-
ing everyone to take down these posters as he did not want
them in the shop. According to Kennedy, Simms told him if
you guys want to battle it (the union issue) outside of the shop,
that would be fine with him, but not in the shop. Kennedy
stated that Simms was polite to him and he complied with
Simms’ request. However, Kennedy said that he told Simms
that he (Kennedy) would check on the legality of Simms’ re-
quest because he thought it was his right to support the Union
in this fashion. Kennedy also stated that Simms did not ask the
employees to remove other nonunion-related signs or stickers
from their lockers.74
Simms readily admitted that he requested Kennedy to re-
move the union posters in question from his locker but denies
telling or ordering him to do so. Simms also acknowledged
that over the past couple of years, he has had employees re-
move procompany as well as prounion paraphernalia from dif-
ferent locations in the plant. According to Simms, he actually
ordered removal of procompany materials because he thought
he was at liberty legally to do this. However, he always asked
or requested that prounion materials be removed because he
was unsure of the law on this point. Simms stated that, gener-
ally, he ordered removal of any items he deemed controversial
enough to affect production.75 According to Simms, Dale
Earnhardt stickers were not controversial, although he admitted
that even these could become controversial if, for example,
employees believed Jeff Gordon (another popular stock car
driver) was a better racer.
It is well established by the Board and the Courts76 that in
the interest of maintaining production and workplace discipline,
employers can lawfully impose restrictions on workplace com-
munications among employees. However, where employers
allow workers to post items of interest, it may not impose con-
tent-based reductions that discriminate between postings of
Section 7 matters and other postings. Vons Grocery Co., 320
NLRB 53, 55 (1995). Furthermore, the employer may not re-
move union literature while leaving other posted items of a
personal and/or non-business nature. Kroger Co., 311 NLRB

74 According to Kennedy, around 2 months before the November
2001 hearing, employees’ lockers were moved from a work area to the
break area. Since the move, employees continue, without objection
from management, to keep the Earnhardt and other stickers on their
lockers.
75 Simms cited as examples of controversial matters, provocatively
illustrated calendars, and the controversy over the 2000 presidential
election which caused him to step in and control the employees’ behav-
ior. According to Simms, when controversy affects production, he
believes it is his place to step in and eliminate it.
76 See Republican Aviation Corp. v. NLRB, 324 U.S. 793, 804
(1945); National Steel Corp. v. NLRB, 415 F.2d 1231 (6th Cir. 1969);
and see also Container Corp. of America, 244 NLRB 318 fn. 2 (1979).
Unions have no statutory right to post notices on employers’ premises.
1187 (1993). Moreover, the Board has held employers liable
under Section 8(a)(1) by restricting the distribution or posting
of materials they consider libelous, defamatory, scurrilous,
abusive, or insulting, or which would tend to disrupt order,
discipline, or production in the plant as they could be construed
as applying to union literature. National Steel Corp. v. NLRB,
625 F.2d 131 (6th Cir. 1980).
The Respondent does not take issue with Kennedy’s version
of the incident with Simms. Rather, it argues that Simms
merely requested, did not order, Kennedy to remove the posters
and politely explained to him his reasons—the posters were so
controversial that they would have disrupted production in the
work areas where Kennedy’s locker happened to be located.
Accordingly, the Respondent argues that there was no viola-
tion; that Simms was even justified in his actions even if he had
ordered Kennedy to remove the posters. However, he did not,
and Kennedy complied with his request.
The General Counsel argues that, irrespective of Simms’
purported polite request, Kennedy was unlawfully coerced to
remove his union posters and, accordingly, his Section 7 rights
were interfered with.
I would agree with the General Counsel and would find a
violation. I note that the Board requires a showing of objective
evidence, that of special circumstances, that would support the
employer’s belief that a ban (on employee postings) was neces-
sary to maintain production, decorum, and discipline in the
workplace. Midstate Telephone Corp., 262 NLRB 1291, 1292
(1982); and United Aircraft Corp., 134 NLRB 1632 (1961).
Here, clearly, the Respondent allowed the posting of various
nonbusiness-related posters and stickers on the employees’
lockers. It reserved to itself the right to remove so-called “con-
troversial” matter deemed to affect adversely production.
However, the record here does not support any finding of spe-
cial circumstances justifying Simms’ action.
Simms did not specifically speak to ongoing incidents or
scenarios at the plant that could serve as objective evidence
(special circumstances) that Kennedy’s posters did or could
have caused or was causing specific production problems. He
merely deemed the posters controversial and, therefore, in his
view, production could be affected. That he interceded in the
past when provocative calendars were posted and on the occa-
sion of the Bush–Gore election (which surely was controversial
by any standard), does not establish that production at the plant
is affected by deeming certain matters controversial, especially
when the Respondent appoints itself as the sole arbiter of what
is or may be controversial. I am also not impressed by Simms’
having requested as opposed to ordering Kennedy to remove
the posters. In agreement with the General Counsel, Simms as
plant manager, and Kennedy’s ultimate supervisor, in context
was coercive in spite of Simms’ choice of words or even his
polite demeanor. Moreover, Kennedy may have complied with
Simms’ request, but he did so only reluctantly. Hardly can it be
said that there was no element of coercion in Simms’ behavior
under the circumstances. I would find a violation in this in-
stance.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 566
i. The alleged coercive surveillance of union activities
by Troy Henk (subparagraph 8(l))
The complaint essentially charges that on or about June 13
and/or 14, 2001, Henk coercively surveilled employees en-
gaged in union activities, and by his presence lent his—and the
Respondent’s—support to an effort by employees to decertify
the Union as the exclusive collective-bargaining representative
of the Respondent’s employees.
[By way of prefatory note, this allegation relates to a previ-
ously discussed allegation charging the Respondent with dis-
parately enforcing its no-trespassing charge on August 16,
2000. Accordingly, I will not restate the factual scenario, ex-
cept in a limited way.]
It may be recalled that employees Jarvela, Dukarski, and
Stack, as well as Henk, testified about events of June 13 and 14,
2001. It is beyond dispute that there was a decertification effort
being undertaken by certain of the Respondent’s employees
who opposed the Union. The question is whether admitted
Supervisor Henk, who clearly was on the scene on both occa-
sions, was or could be said to be surveilling union activities of
the employees and/or by his mere presence lent the Respon-
dent’s support to the decertification effort.
The General Counsel argues that Henk knew, in spite of his
denials, that Sopcak and the others with the clipboards were
gathering signatures for the decertification effort and, by stand-
ing within about 5 feet from them, not only surveilled employ-
ees presumably making decisions to sign or not sign the peti-
tions, but also lent the Respondent’s support to the decertifica-
tion effort.77
The Respondent contends that Henk, following his personal
habit, was merely smoking a cigarette on both days before
punching in for work, and noticed something was going on but
was not sure. Henk was uncomfortable about the goings-on
and left the area. The Respondent submits that Henk was nei-
ther surveilling nor lending his support to what turned out to be
a decertification effort by certain employees.
First, I do not believe Henk’s denials of knowledge of the
nature of the activity he observed on June 13 and 14. It seems
clear and unavoidably so that anyone observing Sopcak and the
others with the clipboards (on two occasions) would know what
they were about. The question remains whether the few min-
utes Henk spent smoking and watching the scene is tantamount
to an unlawful surveillance; and whether his presence for these
short periods could reasonably be construed to be lending sup-
port to the decertification effort, and thereby unlawfully inter-
fering with the employees’ right to organize.
I am inclined to agree with the Respondent that Henk’s con-
duct on the day in question does not constitute unlawful sur-
veillance. The Board test for determining whether an

77 I should note that the General Counsel actually did not address this
charge much at all in his brief. However, he argues most forcefully that
Henk and, hence, the Respondent knew of the decertification effort.
However, as I read his brief, nothing is said about surveillance and
lending support to the effort. Nonetheless, based on the General Coun-
sel’s brief in its entirety and his generally postulated theory of the case,
I have chosen to articulate his position as stated above.
employer has created an impression of surveillance or indeed is
surveilling employees is whether the employee(s) would rea-
sonably assume from the behavior that their union activities had
been placed under surveillance. Fred’K Wallace & Son, Inc.,
331 NLRB 914 (2000). United Charter Service, 306 NLRB
150 (1992). That test, in my view, has not been met with re-
spect to Henk’s involvement in the collection of signatures by
the antiunion employees.
Also, even crediting the testimony of the three employees,
Jarvela, Dukarski, and Stack, I do not believe that Henk, by
standing near the collectors of signatures, engaged in the type
of conduct that would constitute lending support to the decerti-
fication effort. It seems clear that Henk, although close to the
group of collectors, did nothing overt to encourage employees
to sign the petition. I believe at most he was merely present at
the scene and, without more, mere presence at or near the scene
of the collection of decertification signatures, cannot reasona-
bly be construed to be lending support for purposes of Section
8(a)(1). I would recommend dismissal of this aspect of the
complaint.78
C. The 8(a)(3) Allegations
The complaint alleges, in paragraph 9, nine separate viola-
tions of Section 8(a)(3) by the Respondent in calendar year
2000. Before discussing these charges, it is helpful first to
discuss the legal principles applicable to 8(a)(3) violations un-
der the Act.
Section 8(a)(3) of the Act makes it an unfair labor practice
for an employer to discriminate in regard to hire or tenure of
employment, or any term of condition of employment, to en-
courage or discourage membership in any labor organization.
29 U.S.C. §158(a)(3).
Preliminary to determining whether an employer has dis-
criminated against an employee in violation of Section 8(a)(3)
or (1) of the Act, the Board has held that the General Counsel
must first make a prima facie showing sufficient to support the
inference that the protected activity(ies) of the employee was a
motivating factor in the employer’s decision affecting any term
or condition of the employees’ employment. If this is estab-
lished, the burden then shifts to the employer to demonstrate
that the action would have occurred irrespective of whether the
employee was engaged in protected activity. Wright Line, 251
NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981).
It is also well settled, however, that when an employer’s stated
motives for its actions are found to be false, the circumstances
may warrant an inference that the true motive is one that the
employer desires to conceal. The motive may be inferred from
the total circumstances proved. Moreover, under certain cir-
cumstances, the Board will infer animus in the absence of direct
evidence. That finding may be inferred from the record as a
whole. Fluor Daniel, Inc., 304 NLRB 970 (1991).
A prima facie case is made out where the General Counsel
establishes union activity, employer knowledge of that activity,
78 As I have previously found, I believe management was informed
of the signature collection, in all likelihood, by Henk and disparately
and discriminatorily did not invoke the “trespassing” rule against the
collectors. This finding, in my view, has a more appropriate applica-
tion to the 8(a)(5) violations and will be discussed later.
SAGINAW CONTROL & ENGINEERING, INC. 567
animus, and adverse action against those involved, which has
the effect of encouraging or discouraging union activity.
Farmer Bros. Co., 303 NLRB 638, 649 (1991). Inference of
animus and discriminatory motivation may be warranted under
all the circumstances of a case, even without direct evidence.
Evidence of suspicious timing, false reasons given in defense,
failure to adequately investigate alleged misconduct, departures
from past practices, tolerance of behavior for which the em-
ployee was allegedly fired, and disparate treatment of the dis-
charged employees, all support inferences of animus and dis-
criminatory motivation. Adco Electric, 307 NLRB 1113, 1123
(1992), enfg. 6 F.3d 1110 (5th Cir. 1993); Electronic Data
Systems Corp., 305 NLRB 219 (1991); Bryant & Cooper Steak-
house, 304 NLRB 750 (1991); Visador Co., 303 NLRB 1039,
1044 (1991); and In-Terminal Services Co., 309 NLRB 23
(1992).
Once the General Counsel has made a prima facie case, the
burden shifts back to the employer. That burden requires a
respondent “to establish its Wright Line defense only by a pre-
ponderance of evidence.” The respondent’s defense does not
fail simply because not all of the evidence supports it, or even
because some evidence tends to negate it. Merilat Industries,
307 NLRB 1301, 1303 (1992).
With these legal principles serving as a backdrop, we turn to
the allegations, the witness testimony and my conclusions re-
garding each.
1. The Greg Kennedy allegations
In subparagraphs 9(a), (b), (d), and (i) of the complaint, the
Respondent is charged with committing violations of Section
8(a)(3) of the Act against Kennedy over a period covering
about June 9 through October 16, 2000. Kennedy testified
about these matters.
Kennedy stated that the day after the election, Binder as-
signed a local delivery to him at around 7 a.m. Kennedy said
he returned to the plant at around 9:30 a.m., whereupon Binder
told him to report to the assembly department. According to
Kennedy, in the succeeding days, he did less and less local
driving and it was clear to him that the other drivers who cus-
tomarily did the long distance deliveries—the stake truck and
semidrivers—were making the local deliveries in his place.
Kennedy said that prior to the election, the only time other
drivers made local deliveries was when he was not available;
he, alone, usually made the local deliveries daily.79 According
to Kennedy, after the election, Binder assigned him some local
deliveries but other drivers were regularly given this assign-
ment. Kennedy stated that he made only five deliveries be-
tween June 9 and July 5, 2000. However, after July 5, Binder
gave him more deliveries on a regular basis. Kennedy stated
that after August 2, he made no deliveries.80 According to

79 Kennedy stated that during the period covering February 1999–
June 8, 2000, he was the exclusive driver for local deliveries except
when he was not available or when on vacation; he drove 5 days per
week. Kennedy admitted that on most occasions during this time, he
did not drive a full day and, when not driving, he worked mainly in the
shipping, packaging, or assembly departments.
80 Kennedy’s testimony on this point is somewhat confusing and in-
consistent inasmuch as he also testified that “[on] July 5 [2000] I was
Kennedy, prior to the election, Binder never assigned anyone
else to make local deliveries when he (Kennedy) was present
and available.
Kennedy testified that on June 20, 2000, he was formally
written up by Binder for allegedly violating the Company’s
work rules.81 He explained the circumstances of the writeup.
According to Kennedy, he had just returned to the shop at
around 4:23 p.m., having picked up another driver who had left
a company truck at a repair shop. He stated that he was wash-
ing his hands at the paint area restroom sink when several
painters82 standing nearby asked him what was the Union’s
next move (its having won the election). Kennedy said he told
them that they would be receiving an explanatory letter from
the union bargaining committee. Then, the paint line supervi-
sor, Steve Walker, approached the group and asked the painters
to come with him. According to Kennedy, he saw Walker
speaking to Binder at about 4:27 p.m. and heard him say to
Binder that Kennedy had been talking to the guys at the sink.
Later the next day, Kennedy said Binder approached him at
his locker and handed him the writeup. Kennedy stated he told
Binder he disagreed with the alleged violation and wrote a re-
sponse on the form.
Kennedy testified that his tour of duty ended at 4:30 p.m. and
it was customary before June 20 for employees to wash up at
the end of their shift and converse with one another about non-
work-related matters. Moreover, according to Kennedy, super-
visors, including Pagano, Brian Peterson, Walker, and even
Binder, off and on have been present on these occasions.83
Kennedy said he had previously never been reprimanded or
disciplined about nonwork-related conversations at the sink nor
had anyone else to his knowledge.
Kennedy stated that at about 8 a.m. on August 2, 2000, he
and Binder were on the loading dock and Binder asked him
about the dates he and other union representatives were to at-
tend a union convention. In the course of this conversation,
according to Kennedy, Binder said that he was sure that he
(Kennedy) knew the Company was against unions, that the
Company would do what it had to do to protect itself. Binder
asked whether he (Kennedy) had thought about the conse-
quences of his actions. Kennedy said he told Binder that he
had.

pretty much reinstated back to driving.” (Tr. 129.) Also, Kennedy
admitted that Binder, after the election, scheduled him for truckdriving.
(Tr. 221.)
81 See GC Exh. 14. This writeup accused Kennedy of violating the
following rules: refusal to observe department working hour schedul-
ing; loafing or sleeping or other abuse of time during working hours;
interfering with any employee’s performance of duties by talking or
other distractions; and delaying or restricting production or coercing
others to delay or restrict production. These rules appear in the Respon-
dent’s handbook.
82 Kennedy identified the painters as Dave Unger, Rob Henry, Alan
Thousand, and Larry Value. Kennedy noted that there was a wash sink
in his assembly area; but he sometimes used the paint area sink.
83 Kennedy cited as example conversations he had with the Ware-
house Supervisor Peterson about automobiles; Binder and he talked
about vacations; Walker about hunting, and Mike Pagano about bowl-
ing.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 568
Then, another driver pulled into the dock and asked Binder
whether Kennedy was going to continue being the local truck-
driver. According to Kennedy, Binder said as far as he was
concerned, Kennedy would be the local driver.
Kennedy said he made his deliveries that morning and re-
turned to the plant at about 11 a.m. On his return, Kennedy
said that Binder asked to speak with him privately in the freight
area. According to Kennedy, Binder said that he had bad news
for him—the Company was removing him from the pickup
truck duties because of a conflict of interests. Binder explained
that management determined that Kennedy could not represent
the Company (by driving the truck, which had the company
logo affixed) and also represent the Union. Kennedy said
Binder asked him to turn in the keys to the truck and put his
uniform in his locker. Binder then informed him that his new
hours were 7 a.m. to 3 p.m.; he would be classified as a general
laborer-loader.
According to Kennedy, his usual hours were 6 a.m. to 4:30
p.m. when he was driving and he usually picked up some over-
time, especially on Saturdays. After he was removed from
driving, he earned no overtime.
Kennedy said that on about September 2, 2000, he spoke to
Mike Pagano84 about overtime. According to Kennedy, he had
heard an announcement that all workers were required to work
overtime that Saturday. Kennedy said he asked Pagano if he
was required to work, as he had not heretofore been getting
overtime assignments. Pagano said he would check with
Binder and proceeded to Binder’s office. According to Ken-
nedy, Pagano returned to him and said that Binder had said that
he (Kennedy) knew what his schedule was and he was not al-
lowed any overtime.
On about October 16, 2000, Kennedy was given a perform-
ance evaluation by Binder, as a result of which he received no
raise for the period covered by the evaluation.85 Kennedy
stated that especially he did not agree with Binder’s written
comments that he had been in areas of the plant where he was
not assigned and interfered with the work of other employees.86
Kennedy stated he also disagreed with Binder’s comments that
he had been warned about excessive talking in the past. Ac-
cording to Kennedy, the only talking-related discipline he had
received was the June 20 matter at the painters’ wash sink.87

84 Pagano was and is an admitted supervisor in the Respondent’s as-
sembly department. Pagano did not testify at the hearing.
85 Kennedy’s October 16, 2000 evaluation is contained in GC Exh.
16. The evaluation period covered roughly April–October 2000. Ac-
cording to the evaluation form, Kennedy was not entitled to any avail-
able moneys for a wage increase; his current wage is $11.60 per hour.
Kennedy received other performance evaluations; that is, on April 20,
2000 (GC Exh. 17), he received an 8 cents raise; on October 8, 1999, he
received a 27 cents raise (GC Exh. 18); and April 21, 1999, he received
a 29 cents raise (GC Exh. 19).
86 Kennedy admitted prior disciplines for sexual harassment. How-
ever, on cross-examination, he admitted that he had received a writeup
from Binder on January 24, 2000 (which he signed with no response),
charging him with interfering with other employees by excessive talk-
ing. Binder warned him then that continued behavior could result in
suspension or worse. (See R. Exh. 4.)
87 Kennedy also acknowledged that he had a conversation with Plant
Manager Simms about a week before the June 21 writeup wherein
Kennedy disagreed with the entire evaluation, complaining that
the top wage rate for his laborer’s job was $12.88 per hour and
yet the evaluation form indicated there was no money available
to him for a raise.
For purposes of Wright Line, supra, in my view, little need
be said as to whether the General Counsel had met his initial
burden to establish a prima facie case of unlawful discrimina-
tion or retaliation against Kennedy.
Beyond a doubt, and conceded by the Respondent as well,
Kennedy’s support of, status and involvement with the Union,
and the Respondent’s knowledge thereof, cannot be assailed.
That the Respondent, including Kennedy’s supervisor, Binder,
exhibited hostility to the Union pre and postelection, in my
view, is also amply demonstrated on this record.88 To be sure,
Kennedy, at least prima facie, suffered detriments to the terms
and conditions of his employment with the Respondent. I
would conclude, therefore, that the General Counsel has met his
Wright Line burden with respect to the Kennedy allegations.
We turn to the Respondent’s defense.
The Respondent concedes that Kennedy was removed from
his pickup truck driving but that he was removed because he
used the company truck for nonwork-related reasons during
work hours. The Respondent submits that his union status and
involvement had no part in this decision.
The Respondent points to three occasions on which Kennedy
abused the Respondent’s trust in the use of the vehicle. Binder
admitted that he wrote Kennedy up on July 31, 2000, based on
one of his supervisor’s observations of Kennedy’s misusing the
company truck on July 27, 2000, and advised him in the written
warning that he and the plant manager would review his per-
formance to determine if he should be removed from the local
driver position.89 According to Binder, Kennedy denied the
accusation. However, Binder stated that this was not the first
time Kennedy had misused the truck. Binder stated that on one
prior occasion, the company truck was observed at a residence
later determined to be the home of Kennedy’s sister. Accord-
ing to Binder, Kennedy at first denied this charge also but later

Simms “got in his face,” but denied he was warned about excessive
talking.
88 As noted, I have previously found many instances of violation of
Sec. 8(a)(1) by the Respondent by and through its agents and supervi-
sors. These findings alone, in my view, serve as strong evidence of the
Respondent’s animus. Of course, there are other instances specific to
Kennedy, such as the president of the Respondent being overheard by
an employee, Michael Leach, in September 2000, saying that as soon as
the Union was gone [Kennedy] would be gone too (Tr. 748–49); and
Kennedy’s being reportedly described as a troublemaker by one of the
Respondent’s attorneys in the context of contract negotiations in 2001.
89 The write-up is contained in R. Exh. 25. It should be noted that
Kennedy was observed operating the vehicle on July 27, 2000, by an-
other supervisor, Romanelli, who testified at length about the circum-
stances of his following Kennedy, who was ostensibly on the clock, and
discovering that Kennedy was meeting another man at a (Bay City,
Michigan) strip shopping mall which happened to be where the union
hall was located. Binder stated that Kennedy should have been making
a delivery in an entirely different place from where he was seen.
SAGINAW CONTROL & ENGINEERING, INC. 569
admitted he was there and promised not to repeat this behav-
ior.90
Binder said that he discussed with Simms whether Kennedy
would continue driving locally and then later advised Kennedy
that the Company would reevaluate whether he was going to
continue in these duties. Binder admitted that Kennedy’s driv-
ing eventually ceased (in August) and he was assigned to an 8-
hour fixed schedule shift as a general laborer.91
Simms also testified about Kennedy’s removal. Simms
stated that he was involved in the decision, which was mainly
based on Kennedy’s being seen at the strip mall. According to
Simms, he and Binder decided in late July or August that it was
best to transfer Kennedy to another department. Simms noted
that the pickup duty was not a full-time position in any case, the
truck being used only on an as-needed basis. Consequently, he
now assigns someone to make these local deliveries on an ad
hoc basis.
The Respondent principally argues that Kennedy’s June 20
discipline was justifiably based on his standing at a wash sink
in the paint area—which was not Kennedy’s assigned work
area—discussing the Union during work hours, and not because
of his union status or involvement. The Respondent contends
that Kennedy’s claims, that he was simply using the most con-
venient bathroom and that it was a common practice of em-
ployees to converse while washing up at the end of the day,
offer no justification to essentially depriving the Company of
both his labor and that of the other workers with whom Ken-
nedy was conversing.92 The Respondent also points out that
this was the second time within a week that Kennedy had been
reminded about his excessive talking.
Regarding Kennedy’s being denied overtime opportunities
since August 2, 2000, by Binder and Pagano, the Respondent
contends that when Kennedy was removed from the truck driv-
ing assignment and was assigned to the laborer’s job, there
simply was not enough available work for Kennedy to be given
overtime in the assembly department.
Plant manager Simms testified on this point. According to
Simms, from the end of calendar year 2000 through the first
part of calendar year 2001, there was a decline in hours worked
by the employees93 because during this period, the Company

90 Binder actually stated that Kennedy had misused the truck on two
other occasions. He only recited this example, and he produced no
documentation to support the incident.
91 Although Kennedy admitted driving the company truck on July
27, he denied misusing the truck and specifically denied being seen at
the Bay City mall. Kennedy acknowledged that if he were doing union
business in the company truck on company time, this would present a
conflict of interest, the reason he was told he was being taken off local
driving by the Company.
92 The Respondent did not at the hearing, or in its brief, deal with
what discipline, if any, was received by the painters with whom Ken-
nedy was allegedly wasting time. I assume these individuals were not
disciplined.
93 Simms produced a document he prepares and uses as part of his
management duties at the plant. See R. Exh. 26. This document covers
the period November 2, 1995, through October 15, 2001. According to
Simms, each hash mark on this document represents 1 workweek in a
given month. He claimed that during this time there was a 5000–6000-
hour reduction per week in hours plantwide.
received fewer orders for enclosures. Simms also stated that
the Company purchased in December 2000 a new automatic
gasket machine which was put on line in January or February
2001. According to Simms, this machine produced significant
labor savings in the assembly department because it replaced
another manual gasket installation process. Simms stated that
in addition to the hourly labor savings realized by the new ma-
chine, some employees were redeployed in the plant. Simms
also stated that near the end of January 2001, the Company
installed a new automated welding machine that produced new
labor saving efficiencies in that area of the Company’s opera-
tion.94 Simms stated that the installation of these machines did
not happen at once, but was a phased operation. Accordingly,
workers were kept busy by reassignment to other jobs. Simms
noted that 2001 was, in spite of all this, still a down year for the
Respondent.95
Binder admitted that when Kennedy was driving prior to
August 2000, he was scheduled for and worked 10 hours per
day. However, according to Binder, when Kennedy was trans-
ferred to assembly (with no driving), his hours were indeed
reduced but only because the Company’s work load decreased;
that this turndown in work had commenced in the department
before Kennedy’s full-time and exclusive assignment there.
According to Binder, Kennedy worked only 8 hours per day
during the time he supervised him.96
Romanelli stated that he began his supervision of Kennedy
around August 20, 2001, when he was assigned from welding
to the assembly department. According to Romanelli, Kennedy
worked no more or less than any other employee in his depart-
ment, generally 45–50 hours per week. Romanelli stated that
these hours had fluctuated since August 2000, based on the
changes in the flow of work.
The Respondent submits that Binder credibly testified about
his performance evaluation criteria. Binder testified that the
main factors for evaluation were attendance and “several dif-
ferent classifications” in the performance of the worker.
Conceding that Kennedy’s October evaluation was rather
poor, the Respondent submits that it, nonetheless, was deserved
because of Kennedy’s 22 hours of missed work and 10 hours of
work lost due to discipline. Moreover, Kennedy received a very
low mark in attitude—”0”—a “1” in four other performance
categories, and he received a “2” in the remainder.”97 The Re-
94 Simms produced another document showing the total number of
hours in the welding department covering November 22, 1995, through
November 5, 2001. See R. Exh. 28. This document, according to
Simms, shows along the baseline a general decline from 5500 hours to
3300 hours per week. Here, too, according to Simms, these figures
reflect workload and efficiencies, including those produced by the new
welding equipment.
95 Simms produced a document he prepared showing the amount in
pounds of steel (used to make the enclosures) the Company purchased
and used in calendar year 2000 and 2001. See R. Exh. 27. By Decem-
ber 2000, the Company had used 19,883,000 pounds and, by the end of
December 2001, the Company had used 16,026,490 pounds of steel,
about 4 million pounds less. According to Simms, these amounts of
steel correlate to orders received by the Company.
96 Binder ceased supervising Kennedy around June 2001.
97 The performance evaluation form includes a grading scheme
which includes a 3 for exceeding expectations; a 2 for meeting expecta-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 570
spondent submits that Kennedy was fortunate that he retained
his current rate of pay and not given a decrease in his pay. The
Respondent points out that during the evaluation period in
question, Kennedy had been caught three times misusing the
company truck and was disciplined for this, and lied about his
involvement in two of the incidents, and was disciplined for
wasting time and interfering with other working employees.
Discussion and Conclusions of the
Kennedy Allegations
I would find and conclude the following.
That the Respondent did not unlawfully change Kennedy’s
driving schedule and regular work assignment.
As I have previously found, the General Counsel established
prima facie a violation of the Act with respect to this allegation.
Specifically, I have given considerable weight to Binder’s tes-
timony in which he stated that shortly after the election, he
decided to reevaluate Kennedy’s truck-driving duties and told
Kennedy as much. I believe this decision, coming about 1 day
after the successful union campaign in which Kennedy had an
open and well-known supporting and activist role, supplies the
necessary antiunion and discriminatory motive required by
Wright Line.98 However, it is clear, contrary to the complaint
allegation, Kennedy continued in his driving duties from June 9
through July 5, 2000, although in a reduced way. Then Ken-
nedy himself admitted that after July 5, he was “reinstated” to
his driving duties. In the meantime, even when not driving,
Kennedy said he performed his nondriving duties as usual in
the packaging and shipping department. So Kennedy was
clearly driving the pickup up to July 27, 2000, when he was
“caught” using the vehicle on that date for nonwork-related
(personal or perhaps union) business. In my view, the Respon-
dent had ample cause to take the driving duties from Kennedy
at that point, irrespective of Kennedy’s union activities and
status.
I note that I am not altogether convinced that Kennedy on
three occasions, as argued by the Respondent, had misused the
truck, but that is not controlling. Kennedy was not entitled to
use the truck, in my view, to go on a frolic of his own, even one
time. The Respondent was free to take that duty from him ei-
ther because it viewed his behavior as a conflict of interest or
simply as emblematic of his lack of trustworthiness. Accord-
ingly, I would conclude that the Respondent has met its Wright
Line defense, mainly that in spite of Kennedy’s union involve-
ment and status, it would have removed him from the local
truck driving assignment and, correspondingly, changed his
work assignment and schedule, his union activities notwith-
standing. I would recommend dismissal of this aspect of the
complaint.
That the Respondent did unlawfully and discriminatorily is-
sue a written discipline to Kennedy on June 20.
As to this charge, I note once more that the Union’s victory
was only weeks old, and Kennedy clearly was not liked by the
Respondent. Irrespective of whether, as Kennedy testified, he

tions, a 1 for below expectations; and 0 for unacceptable. The worker
is evaluated using these numbers in 11 performance areas.
98 See Tr. 865, Binder’s testimony regarding his testimony regarding
his proposed reevaluation of Kennedy’s driving duties.
was merely following his usual prepunchout ablutions at a con-
venient sink or whether he was talking about union or other
nonwork-related matters out of his assigned work area, wasting
time and what not, as argued by the Respondent, it is clear to
me that he, alone, and not the other workers with whom he was
talking, received a write-up, or any other discipline. This fact
fatally, in my view, undercuts the Respondent’s argument that
the discipline was justified or fairly issued to Kennedy. On this
ground alone, a case for disparate treatment because of union
activities and involvement is made out. I would find a violation
of the Act in this particular.
That the Respondent did unlawfully and discriminatorily
deny overtime work opportunities, including Saturday overtime
work opportunities, since about August 2 and September 2000,
respectively, to Kennedy.
I note that the Respondent offered a persuasive case for its
economic defense. It seems that the Respondent for the reasons
stated, essentially a lack of or diminution in orders and the
phased-in installation of new labor saving machinery, did have
less overall hours plantwide for its workers. As noted by the
Respondent, Kennedy, himself, as well as the other workers
were working generally the same number of hours during this
period and afterwards. However, the Respondent’s defense
overlooks a salient point. The complaint allegations charge that
Kennedy was discriminatorily denied overtime opportunities
based on a statement made by Binder and Pagano that clearly
suggested that whatever overtime was or may have been avail-
able during this period, Kennedy was not going to get any.
Notably, Binder did not deny that he made the statement, and
Pagano who, according to Kennedy, delivered the message, did
not testify. Thus, I have credited Kennedy’s testimony on the
question, mainly because it is unrebutted and Kennedy testified
confidently about this encounter and the statements made to
him.
Notably, the Respondent did not establish that there were no
overtime opportunities at its plant during the time in question.
Accordingly, again, given Kennedy’s active role in the success-
ful union campaign, his official status with the Union, the Re-
spondent’s hostility to the Union, and Kennedy in particular, I
would find and conclude that the Respondent discriminatorily
denied Kennedy the opportunity to earn daily overtime hours
since about August 2, 2000, and on Saturdays since September
2000.99
That the Respondent unlawfully and discriminatorily evalu-
ated Kennedy’s job performance in a way that adversely im-
pacted his opportunity for a pay increase.
It is clear that Kennedy was not a perfect employee although
he seemingly was considered a good employee by the Respon-
99 I am not making a finding that the Respondent actually had or
provided overtime hours to its workers during this period. The charge
and my finding go solely to opportunities that may or may not have
been available to the workers during the period in question. My order
on this point will order a cease and desist to denying Kennedy overtime
opportunities. I leave to the compliance stage of these proceedings to
determine whether there were appropriate opportunities during the
periods in question and what, if any, make-whole amount is appropri-
ate.
SAGINAW CONTROL & ENGINEERING, INC. 571
dent’s management. Examining Kennedy’s prior evaluations100
covering the period April 21, 1999, through April 2000, I note
that Kennedy’s supervisor, Binder, gave him raises when he
lost even more hours by missed days during those prior periods
and even lost hours for lateness. Yet, according to Binder, time
and attendance was a major component of the performance
evaluation. Notably, in October 2000, Kennedy, for the first
time in years, received probably his worst evaluation which
included, for the first time, time loss to disciplinary action and,
again for the first time in years, there was no wage increase
available to him and, consequently, he received absolutely no
wage increase. I do not believe, as argued by the Respondent,
that Kennedy was such a poor employee (all of a sudden) that
this evaluation was deserved. His poor evaluation, in my view,
was not a coincidence. I would find and conclude that the
evaluation Kennedy received on October 16, 2000, emanated
from the Respondent’s hostility toward the Union and deriva-
tively Kennedy, an active supporter and official. I would find a
violation of the Act in this regard.
2. The written disciplines of Herzberg, Maziarz, and
Tornberg on August 4, 2000
Charles Herzberg, Tornberg, and Pat Maziarz were em-
ployed by the Respondent during the relevant period as job
processing and data entry workers in its processing office.101
The General Counsel called the three as witnesses. Each man
stated that he received a virtually identical written discipline for
violating company work rules from their immediate (admitted)
supervisor, Kenneth (Ken) De Vroy, on August 4, 2000.102
Maziarz related the circumstances surrounding his discipline.
According to Maziarz, another processing office employee

100 Kennedy’s prior evaluations are contained in the following exhib-
its: GC Exh. 19, April 21, 1999; GC Exh. 18, October 8, 1999; and GC
Exh. 17, April 20, 2000. In these evaluations, Kennedy received all of
the wage increases available to him.
101 Herzberg, known as Nick, has been employed by the Respondent
for about 15 years, 6 years in the processing office where he processes
orders for company product and reviews blueprints and drawings for
correctness and completeness. Herzberg was aware of the union orga-
nizing campaign but was not heavily involved prior to the election.
After the election, he became involved with the Union and ran for a
bargaining committee position but lost.
Tornberg was employed by the Respondent from June 18, 1993,
through November 6, 2000. Tornberg was not involved in the organiz-
ing effort but after the election, he was elected to the union bargaining
committee around July 8, 2000. He gave the position up when he quit.
Maziarz has been employed by the Respondent for about 16-1/2
years, 7 years in job processing. Maziarz claimed to be prounion and
spoke to employees about the benefits of a union prior to the election.
After the election, as noted earlier, Maziarz said he openly wore union
paraphernalia.
All three men worked at desks adjacent to each other in the process-
ing office. Another employee, Mike Sopcak, was the fourth worker in
this department. As will be seen, Sopcak was opposed to the Union
and appeared to be a principal architect of the decertification effort.
102 Tornberg’s discipline is contained in GC Exh. 35; Maziarz’ is
contained in GC Exh. 40; and Herzberg’s is GC Exh. 38. Each disci-
pline identically states that the warned employee was “observed abus-
ing time during working hours and interfering [sic] other employees
performance by talking.”
(Mike Sopcak) came to his desk the morning of August 4 at the
beginning of his shift and gave him a copy of a flier highly
disparaging of the Union and its officials.103 Acting on Torn-
berg’s suggestion, Maziarz said that he complained to Sandula
in human resources and identified Sopcak as the distributor; he
provided Sandula with the copy of the flier. According to
Maziarz, Sandula asked him if Sopcak had physically given
him the flier. Maziarz said he told Sandula that Sopcak had not
only given the flier to him but also to his coworker, Herzberg,
and two other employees visiting the area.104 Maziarz said
about an hour later, he, Tornberg, and Herzberg were sum-
moned by their supervisor, De Vroy, and given written disci-
plines.
Maziarz then explained the circumstances directly leading to
the written disciplines. On August 4, Maziarz said that he was
casually talking to Herzberg during working hours about a
comical intoxicated man they had seen at a local drug store.
Herzberg, who was examining a blueprint, merely acknowl-
edged the query by saying, “uh-huh.” According to Maziarz,
Tornberg was present but was not involved in this discussion
except to turn towards him as he, Tornberg, was sipping a soda
pop. Maziarz said the conversation lasted around 15–20 sec-
onds.
According to Maziarz, Simms came in within a few mo-
ments and, addressing Maziarz, asked him if he were hard at it
(work). Maziarz said he responded with a “Yes Sir.” Simms
then said I suggest you get hard at it. Maziarz said he again
responded, “Yes Sir.”105 According to Maziarz, Simms did not
address Tornberg or Herzberg.
Maziarz stated that shortly after Simms left, his supervisor,
De Vroy, asked the workers to accompany him to the confer-
ence room. Maziarz said that Tornberg complained and said to
De Vroy that this was bullsh—t and you know it and that you
can go and get Simms, and that he would tell Simms the same.
According to Maziarz, De Vroy sheepishly left the room, mum-
bling under his breath, and fetched Simms. Simms came to the
conference room, at which time Tornberg repeated his
statement, saying the matter was essentially “bulls—t” and
maintaining that the three were not talking and laughing. In
fact, Maziarz said that he told Simms that he was the one talk-
ing, not Herzberg or Tornberg. However, Simms insisted he
had overheard them all laughing and talking. Maziarz said that
he had never received any discipline for talking prior to August
4, 2000, or since, and, in fact, had never received any written
discipline in 16 years with the Company.
Maziarz also stated that prior to this incident with Simms,
nonwork-related conversation took place daily among and be-
tween both hourly workers and supervisors as well, without
consequence. Maziarz said that he has talked on the job about
golf and other sports, hunting, and life in general with De Vroy,
Simms, and even May, on various occasions throughout his
career. According to Maziarz, De Vroy was well aware that
these kinds of conversations were a staple in the processing
103 This flier is contained in GC Exh. 20.
104 Sopcak also worked in the processing section.
105 Maziarz stated he did not recall saying (sarcastically) to Simms
“having a nice day, Jerry” or “how’s Jerry today?”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 572
shop. In fact, Maziarz said that De Vroy, in particular, when he
came to his office several times a day with work, would con-
verse about nonwork-related topics. Maziarz also admitted that
he had on prior occasions talked to Tornberg, Herzberg, and
Sopcak about the Union in their shared office area during work-
ing hours. Maziarz stated that in protest, he, Tornberg, and
Herzberg refused to sign the writeup.
Herzberg and Tornberg, with minor variance, corroborated
Maziarz’ version of the events leading to their receiving the
written disciplines on August 4, 2000, as well as the Respon-
dent’s general allowance of talking about nonwork-related mat-
ters during work hours.106
Simms stated that on the day in question before the
lunchbreak, as he was walking into the job processing area of
the plant, he overheard an “overabundance” of laughter and
wondered what was going on.107 According to Simms, Torn-
berg, and Herzberg have very distinctive laughs and he heard
them both laughing at a story Maziarz was telling about an
inebriated person at a party store—or pharmacy. When he
walked in on the men, Simms stated that Tornberg was pushed
back from his desk facing Maziarz and, on seeing him, Torn-
berg immediately turned back around to his desk. Herzberg,
according to Simms, appeared to be the only one of the three in
a position to be working although he was not actually working
at anything Simms could see. Simms said that Maziarz did not
immediately see him and continued giving the interpretation of
the drunken person’s behavior. According to Simms, Maziarz
evidently seeing the reaction of Tornberg and Herzberg—
suddenly not laughing and resuming work—turned to Simms.
Simms said he asked if Maziarz was working hard. Maziarz
replied that he was.
Simms said that he then left the area and found the three
workers’ supervisor, De Vroy, and apprised him of what he had
observed. According to Simms, De Vroy reminded him that he
(Simms) had warned the men several times about talking and
being boisterous, and setting a bad example for the other em-
ployees in the plant since they were kind of looked up to by the
workers.108 According to Simms, he said to De Vroy that per-
haps it would be advisable to give them a written warning,
which he did.
The General Counsel argues essentially that the discipline of
the three was motivated by the Respondent’s hostility to the
Union and especially to those employees like Tornberg and
Herzberg, who not only supported the Union but wanted to

106 For example, Herzberg and Tornberg remembered different time
frames for the event; Tornberg said that De Vroy did not merely mum-
ble something when he made his comment about the matter, he said,
“this is f—ked,” expressing disgust with the incident. Herzberg recalls
that Maziarz said after Simms confronted them, “So, how is Jerry to-
day;” Simms said, “just fine” and walked out, and then proceeded to
speak to De Vroy. There were other minor variances, but none mean-
ingful enough to make a difference in my view. I note that neither
Tornberg nor Herzberg addressed Sopcak’s distribution of the antiunion
flier.
107 Simms utilized a diagram of the processing office area in the
plant to explain how he came to overhear the workers.
108 De Vroy did not testify at the hearing; no reason was given by the
Respondent for his nonattendance at the hearing.
serve in official capacities with it, and Maziarz, who was
openly supportive of the Union.
The Respondent argues that the written discipline was justi-
fied because the three had been warned verbally before.
I would conclude that the Respondent violated the Act in
giving Maziarz, Tornberg, and Herzberg written disciplines on
August 4, 2000. First, there again is little doubt that the Re-
spondent harbored animus against the Union and its supporters.
Herzberg ran for a bargaining committee position and clearly
was a union supporter. While direct evidence of his union in-
volvement is not established, in my view, given the Respon-
dent’s record of surveilling unionists, I infer that the Respon-
dent knew he was a union supporter.109 As to Tornberg and
Marziarz, the record supports a finding that the Respondent
knew of their support of or involvement with the Union.
Second, I have credited Maziarz’ (and Tornberg’s and Herz-
berg’s) version of the incident as well as their testimony regard-
ing the evident common practice of their and their supervi-
sors’—De Vroy, Simms, and May—conversing about non-
work-related topics during work hours. I also have credited
Maziarz’ testimony that he reported Sopcak’s worktime distri-
bution of the antiunion fliers to management and, evidently, no
discipline was imposed on him.110 However, within an hour or
so of Maziarz’ complaint about Sopcak, Simms is in Maziarz’
area and a discipline of the three ensues. I view this as highly
suspect and, again, smacks of the Respondent’s tendency to
surveil union supporters.
I have also considered Simms’ testimony regarding the mat-
ter and did not find it persuasive. First, Simms’ conversation
with De Vroy was not corroborated—De Vroy did not testify.
Second, I found it somewhat incredible that Simms would have
to be reminded by De Vroy that he (Simms) had previously
verbally reprimanded the three for similar conduct. On bal-
ance, I believe that the behavior for which the three were writ-
ten up was minor and insignificant, lasting only for perhaps a
minute or less, and was not dissimilar to other nonwork-related
conversation of other employees generally in the shop. More-
over, a more serious—in the Respondent’s scheme—and con-
temporaneous distribution of literature during work hours by a
known person (who happened to be antiunion) was not acted on
by the Respondent. It is clear to me on this record that the three
were discriminatorily disciplined because of their union support
and involvement. I would find a violation of Section 8(a)(3) as
charged in the complaint.
109 I note that the Respondent does not argue that it did not know of
Herzberg’s union activities.
110 Kennedy identified the same flier that was circulating around late
July 2000. Kennedy said he saw the flier in the shop area, on the re-
frigerator in the assembly department, by the bathrooms, on the walls in
shipping areas, and near the bathroom in the wield area. He also stated
he reported this to Binder who did not offer to take them down. The
Respondent adduced no evidence regarding its handling Maziarz’ com-
plaint about Sopcak’s distribution of this flier. I presume Sopcak was
not disciplined.
SAGINAW CONTROL & ENGINEERING, INC. 573
3. The July 13, 2000, and January 11, 2001,111 evaluations
of Ronald Martin by Romanelli
[The July 13, 2000 evaluation session has been previously
discussed earlier herein in some detail. Notably, I concluded
that the Respondent, through Romanelli, has violated Section
8(a)(1) of the Act in the course of this evaluation.]
Martin stated that in the July 13 evaluation session, he told
Romanelli that the 9-cents raise was a slap in the face. Accord-
ing to Martin, Romanelli agreed with him and said that he
hoped that he (Martin) would not quit, that Romanelli valued
him as an employee. Martin stated that Romanelli also stated
that this evaluation was a “great” evaluation and he ought to be
happy with the 9-cents raise.
Turning to the January 2001 evaluation, Martin said that
Romanelli told him he had a bad attitude toward the Company
and his job. Martin said that Romanelli told him that his work
was not fast enough in the new department to which he had
been assigned. Martin said he expressed his disagreement with
Romanelli’s assessment. According to Martin, Romanelli in
response said he was faster than some of the other welders.
Martin said he was perplexed by Romanelli’s seemingly con-
tradictory comments and asked him where he was coming
from. Martin stated that his confusion in part stemmed from
the comments on the form that he was talking excessively; this
was a first. Romanelli told him that he (Martin) had a problem
of talking in his area.112 Romanelli also stated that it seemed to
him that Martin’s performance dropped dramatically, contem-
poraneous with his wearing union buttons and shirts. Martin
said he disagreed with the evaluation and wrote at the end in
the comments section of the form that he felt the evaluation was
based on his open support of the Union, not his abilities.
Romanelli stated that with respect to Martin’s July 2000
evaluation, he said nothing to him other than that it was satis-
factory. According to Romanelli, Martin said the 9-cents raise
was a slap in the face. However, Romanelli said that he dis-
agreed with that remark. [As noted previously, Romanelli
stated the Union did not come up in this evaluation.]
Directing himself to the January 2001 evaluation, Romanelli
stated he informed Martin that improvement was needed; how-
ever, he (Romanelli) said that he made no reference to or men-
tion of the Union.113 According to Romanelli, Martin brought
up the Union in this session and told him that he wanted Ro-
manelli to know that he (Martin) was not with the Union. Ro-
manelli said he responded by telling Martin that his involve-

111 Martin’s evaluations are contained in GC Exh. 43 and cover the
period December 20, 1995, through July 26, 2001. Martin received a 9-
cents raise on July 13, 2000; this was the maximum available to him
according to the form.
112 Martin acknowledged that he knew that employees were allowed
to talk about work-related matters during worktime, but not about non-
work-related topics. He admitted that he was written up for excessively
talking about 2 months before the hearing, but not before the July 2000
and January 2001 evaluations.
113 As noted earlier, Martin said he made no secret of his support for
the Union, including wearing union buttons on his hat in Romanelli’s
presence every day after the election. However, Martin admitted that
the Union was not specifically discussed in the evaluation session by
either Romanelli or himself.
ment with the Union made no difference to him. Romanelli
acknowledged that Martin disagreed with the evaluation and
refused to sign it. Accordingly, he asked another supervisor,
Lynn Harrington, to sign as a witness to the presentation of the
evaluation to Martin.114
The General Counsel argues that Martin, at the time of the
July 13 evaluation, was the unknowing victim of the Respon-
dent’s unlawful surveillance; and the 9-cents raise, the lowest
raise Martin had received to that point in his career, reflected
the Respondent’s hostility to his association with known union-
ists. He further argues that the next evaluation in January 2001
was essentially a continuation of that hostility; Romanelli’s
negative attitude comments were merely a cover designed to
give an even lower evaluation and, in fact, a more reduced
wage increase (as compared with the amount then available).115
The Respondent essentially argues that Martin received a fa-
vorable evaluation on July 13 along with the maximum wage
increase then available. However, in January 2001, by which
time the Respondent had moved Martin to a production role in
welding, it contends that Martin was simply not as fast in this
assignment. Yet and still, because he was considered by Ro-
manelli to be a good worker, he was given a 9-cents raise. The
Respondent contends that there was no antiunion sentiment in
the decision by Romanelli to give him this raise in January
2001.
In resolving these charges, I have considered Martin’s
evaluations for periods prior to the ones in question. In each
prior period, Martin received a raise based on some available
amount.116 Thus, the Respondent’s methodology or formula for
granting wage increases has been in place for some time, cer-
tainly years before the advent of the Union. Also, in spite of
having the opportunity to question witnesses who may have
known about the wage increase formula, to wit, May and
Simms, the General Counsel did not adduce evidence on this
point. Contrary to the General Counsel, I cannot conclude that
the Respondent’s wage increase formula is suspect or some
device to reward antiunion sentiments and punish union sup-
porters.
Turning to the July 2000 evaluation, it appears, thus, that
Martin received all that he was entitled to by way of a wage
increase. Also, as compared to his other evaluations by cate-
gory, the evaluation was comparable in practically all evalua-
tion areas—basically “meeting expectations.” Martin did not
114 Martin claims that he asked Harrington to witness the evaluation
so that he could get a copy of it; he felt the Company would destroy it
because of his comments about the connection of the evaluation with
his support for the Union.
115 The General Counsel submits that the Respondent did not dis-
close its formula for determining the “available” pay increases and how
performance relates to raises. He argues that the Respondent’s wit-
nesses who said simply the “computer figures it out” was a device to
reward antiunion workers and punish union supporters.
116 The Respondent, it appears, initiated placing the available wage
amount on the form around July 1999. Before that, it appears that the
Respondent indicated that the wage increase Martin received was based
on a percentage of the available amount; for example, on December 19,
1997, Martin received 100 percent of the amount of raise available—50
cents.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 574
complain about those preceding evaluations. The July 2000
evaluation was, as I have noted, accompanied by Romanelli’s
unlawful statements about the persons with whom Martin was
seen associating. However, contrary to the complaint allega-
tions and in spite of these comments, Martin, as I view the mat-
ter, did not receive an adverse impact on his opportunity for a
pay raise in July 2000. I would recommend dismissal of this
aspect of the complaint.
As to the January 11, 2001 performance evaluation, the pic-
ture of Martin’s performance changed dramatically; he re-
ceived, in 6 of the 11 performance categories, grades indicating
he was performing below expectations. Also, for the first time,
the Respondent (Romanelli) was moved to make negative
comments about him, including his attitude and excessive talk-
ing. Contrary to the Respondent’s assertion in its brief, Ro-
manelli, in my view, did not grade Martin on the basis of his
not adjusting well to the new order of business in the welding
department, being too slow and what not. I believe this defense
is pretextual. Moreover, as I have set out previously herein, the
Respondent’s hostility to the Union burgeoned in the months
after the election. I cannot believe it simply a matter of coinci-
dence that Martin’s January 2001 evaluation (which covered
this immediate postelection period) happened to be his first
poor evaluation, especially since Romanelli, in the previous
period, made the remarks about Martin’s associations with
unionists. It is clear to me that Martin’s support for the Union
impacted adversely his opportunity to receive a higher pay
increase in January 2001, and I would find a violation of the
Act in regard to this part of the complaint.117
4. The September (August 31) 2000 performance
evaluation of Derek Dukarski by Binder
It may be recalled that Dukarski’s August 31, 2000 perform-
ance evaluation was discussed earlier in this decision in the
context of an alleged violation of Section 8(a)(1) of the Act. I
would find and conclude that based on my findings of a viola-
tion of Section 8(a)(1) of the Act by Binder, who, in my view,
tied Dukarski’s evaluation and associated wage increase to his
wearing of a union T-shirt, that the Respondent also violated
Section 8(a)(3) of the Act in rendering this evaluation.
Because the complaint allegations are couched in terms of
lost opportunity to get what amounts to a greater increase than
Dukarski actually received as a result of the tainted evaluation,
I recommend that the quantification of the loss be determined at
the compliance stage of these proceedings.
5. The September 28, 2000, performance evaluation
of Steve Coughran by Romanelli
Coughran stated that Romanelli evaluated his performance in
September 2000 pursuant to his usual procedure of first
discussing privately the performance elements verbally with
him and then giving him the form for his signature. Coughran

117 I note in passing I found Romanelli’s claim that Martin dis-
avowed any support of the Union in January 2001, completely incredi-
ble. Martin seemed to be an unwavering supporter of the Union on this
record. By reason of this fabricated testimony and other reasons stated
herein, I believe that Romanelli evaluated Martin with animus against
the Union and its supporters firmly in mind.
stated that his evaluation for the 6-month period preceding the
September 28, 2000 evaluation session was to him simply non-
sense because, for the first time, he had been marked down to
below expectations in six performance areas and rated unac-
ceptable in another (attitude).118 Coughran stated that he could
have received a 26-cents raise but, in fact, initially received a
negative 4-cents raise, which Romanelli did not implement.119
Coughran said he did not discuss this evaluation with Ro-
manelli at the time because he and other workers thought that
the Respondent was being very cooperative with the Union and
the general thought was that there would soon be a contract;
Coughran felt Romanelli was simply writing anything he could
on the employees for bargaining leverage. Coughran said he
had never received a recommendation for a negative in-
crease.120
The General Counsel contends that Coughran was simply
another union supporter the Respondent chose to punish by way
of the performance evaluation. Once more, as with Dukarski,
he asserts that Coughran’s negative attitude was instrumental in
his being downgraded to the point that he initially was deemed
only worthy of a pay decrease, a first for Coughran.
The Respondent counters, arguing that the probable reason
for Coughran’s recommended decrease was Coughran’s unac-
ceptable grade in attitude, as well as the below-expectations
grades in six other performance areas, combined with his loss
of 20 hours due to missed days and 6-1/2 hours lost to lateness
or leaving work early. The Respondent submits that
Coughran’s immediately prior evaluation (April 12, 2000) es-
tablishes that when he got better grades in every area and had
less hours lost time because of missed days and only 1/2 hour
was lost by lateness or leaving early, he received the full
amount of the available wage increase. The Respondent further
submits that Romanelli intervened to override the computer and
allowed Coughran’s wage rate to remain the same, demonstrat-
ing his lack of animus against Coughran for his support of the
Union. The Respondent also submits that when Coughran im-
proved his work performance in the evaluation period after the
September 28, 2000 evaluation, that is the April 19, 2001
evaluation, he again received the entire available wage in-
crease.121
Contrary to the Respondent, I would find and conclude based
on the credible testimony of Coughran that Romanelli harbored
animus against the Union and Romanelli knew that Coughran
118 Coughran’s performance evaluations are contained in GC Exh.
23. The evaluation covers his employment with the Company from
April 4, 1996, through October 9, 2001. Coughran’s last evaluation
was not discussed with him because of his callup for military service.
He was scheduled to receive a 7-cents raise as a result of this last
evaluation.
119 All of Coughran’s preelection performance evaluations, it should
be noted, indicate that he was rated meeting expectations in all areas
and he received from the Respondent’s raises based thereon anywhere
from around 80 percent—100 percent of the available raise.
120 Coughran’s evaluation includes a notation by Romanelli that his
wage rate would remain the same, instead of the recommended nega-
tive 4 cents.
121 The Respondent also points out that Coughran received the entire
available amount for his last evaluation—October 9, 2001—because, in
its view, he improved his performance.
SAGINAW CONTROL & ENGINEERING, INC. 575
was an outspoken union supporter. I note in this regard that
Coughran testified that, in the first meeting convened by Ro-
manelli after the election, he (Coughran) brought up the Union
and told Romanelli he was “pretty much” for the Union, that
the Union was going to get in here because the way things are
going [at the plant] it is not very good. (Tr. 82.) Coughran said
that he made this statement because of Romanelli’s statement
that the Company did not want the Union. In my view, it is
clear that Coughran’s “attitude” problems emanated from those
spoken sentiments.122
I have considered the Respondent’s defense and, in all can-
dor, find it unpersuasive. First, if his prior evaluations offer
any insight, Coughran evidently had no attitude problems prior
to the September 28, 2000 evaluation, which covered the period
after the election. Second, Romanelli did not, in my view, ade-
quately explain his evaluation of Coughran except to say
Coughran had a negative attitude, did not communicate very
well, and may have had some domestic problems causing his
performance to suffer between April 5, 2000, and September
28, 2000. This does not adequately explain Coughran’s dra-
matic downgrade.
In my view, Romanelli’s reasons do not hold water.
Coughran clearly was regarded by the Respondent as a good
worker and prior to September 28, 2000, received very good
evaluations. I note that he received his full wage increases in
several evaluations in spite of having missed hours comparable
to those missed for the September 28, 2000 period. In fact, in
the April 19, 2001 evaluation, he lost 31-1/2 hours—more than
ever before—because of missed days and yet received the full
amount available. It seems Coughran’s fortunes suffered only
under Romanelli’s supervision and, to be sure, Romanelli did
not approve of the Union. On balance, I would find and con-
clude that the Respondent violated the Act by discriminatorily
evaluating Coughran because of his support of the Union and,
as a consequence, adversely impacted his opportunity for a pay
increase on September 28, 2000.
6. The October 3, 2000 performance evaluation
of Scott Cronkright by Romanelli
Cronkright testified that he worked for the Respondent for
about 4 years as a welder and forklift truckdriver assigned to
the first shift at the time of hearing. Cronkright said he was no
longer employed by the Company, having been let go on about
May 8, 2001, for failing to report for work without a call-in (no
show, no call).
Cronkright stated that beginning in late 1999 and certainly
by calendar year 2000, his immediate supervisor was Ro-
manelli, who gave him his performance evaluations.123
Turning to his October 3, 2000 evaluation, Cronkright stated
that he told Romanelli that he felt that the remarks about his
bad attitude were unjustified; he, however, admitted to Ro-
manelli that his attendance was bad. According to Cronkright,

122 Prior to September 21, Coughran received meeting-expectations
grades in all of his performance evaluations.
123 Cronkright’s performance evaluations are contained in GC Exh.
41. Cronkright was supervised by Steve Drake from at least December
10, 1997, through the evaluation period covering September 27, 1999,
after which time Romanelli undertook his evaluations.
Romanelli said he had no control over the matter (evaluation),
it was Simms’ decision. Cronkright said that he and Romanelli
talked about favoritism at the plant and in the course of this
discussion, Romanelli said he respected Cronkright for showing
support for the Union and not hiding his support like some
other employees. Cronkright said Romanelli agreed with him
regarding the existence of favoritism at the plant, which led
Cronkright to ask why he did not get a raise.124 According to
Cronkright, Romanelli said that although he tried to get Cronk-
right a raise mainly because he had shown some improvement,
he (Romanelli) had no control over the raise issue. Cronkright
stated that he told Romanelli that the negative raise (loss) of 43
cents he was to receive was a first for him, and told Romanelli
that he felt that his support for the Union was the real reason.125
Romanelli stated that in evaluating Cronkright for October
2000, that he generally performed below expectations (a “1”);
Cronkright’s major problem was excessive talking, as well as
interfering with others in the performance of their duties (“his
biggest problem”) during working time. Romanelli also noted
that Cronkright’s attendance was an issue and, in fact, he later
lost his job because of poor attendance.
The General Counsel essentially contends that, like the other
union adherents at the company, Cronkright’s “negative atti-
tude” and hence his poor evaluation were based on his open
support for the Union. The Respondent argues that Cronk-
right’s severe attendance problem was the reason he was given
a poor evaluation and this attendance problem ultimately led to
his being discharged by the Respondent.126
It appears that around the time the Respondent was evaluat-
ing Cronkright, it was not pleased with him and wanted to get
rid of him.127 It is also fairly well established on this record
(there being no serious contrary argument from the Respon-
dent) that Cronkright’s support of the Union after the election
was open and enthusiastic, as evidenced by his daily wearing of
union pins, hats, and shirts. Moreover, in the course of his
evaluations, Cronkright credibly testified that Romanelli
124 Cronkright’s October 3, 2000 performance evaluation indicates
that he was going to receive a 43-cents per hour reduction in his wages.
Romanelli, however, changed this and allowed his current wage to
remain in place.
125 Cronkright testified that he began wearing his buttons proclaim-
ing “Proud to be Union” and “Support your Union,” and union T-shirts
at work immediately after the election and wore them daily. Also,
Cronkright said he spoke to supervisors Binder, Simms, and May while
wearing these union items. Cronkright, who evidently wore or dis-
played these items while working for Romanelli, stated he never argued
with Romanelli and got along with him fairly well. Cronkright specifi-
cally stated that Romanelli never bothered him or said anything to him
about the Union and never hassled him about the buttons. Cronkright
said that he, however, did see supervisors hassling Martin about his
wearing union buttons and shirts.
126 Cronkright’s discharge on May 8, 2001, is not the subject of the
instant complaint.
127 This point is amply established by the credible testimony of Mi-
chael Leach, who stated that he overheard Binder and May around
September 1, 2000, talking about the Union. According to Leach, May,
while observing Cronkright operate the forklift, said as soon as they
could find a reason, the Company was going to get rid of him. (Tr.
747.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 576
praised him for his courage in openly supporting the Union, not
hiding it as others were.
So, on its face, the General Counsel, in my view, established
discriminatory conduct by the Respondent in evaluating Cronk-
right on October 3, 2000.128 However, I believe that the Re-
spondent has persuasively demonstrated that Cronkright’s work
record for the period for which he was evaluated justified the
rating he received on that date. Towards that conclusion, I
examined Cronkright’s evaluations prior to October 3, 2000,
and it is clear that his attendance problems had previously cost
him raises. For instance, in his March 8, 2000 evaluation,
Cronkright received only 19 cents of 50 cents available to him.
During the period covered by this evaluation, Cronkright lost
30 hours due to missed days, 6 hours lost by lateness or leaving
early, although some improvement was noted from his prior
evaluation. That prior evaluation—September 27, 1999—
shows that Cronkright missed 90 hours due to missed days,
11.75 hours for lateness, and 10.50 hours lost by discipline; he
received a raise of only 18 cents of 50 cents available. The
evaluation prior to this one—March 30, 1999—shows 67.75
hours lost due to missed days and 4.50 hours lost due to late-
ness; the previous one to this—September 22, 1998—shows 70
hours lost to missed days; and the evaluation for March 10,
1998, shows 40 hours lost due to missed days and 3.75 hours
for lateness. In each of these latter three evaluations, Cronk-
right did receive a small raise but the forms do not indicate
what amount was available to him. I would note that for these
evaluations, Cronkright received good evaluations in the other
performance categories; essentially, he met expectations in all
categories. I note also that as Cronkright’s attendance prob-
lems worsened, his performance in other areas also dipped.
By October 3, 2000, Cronkright had lost 72 hours due to
missed days, 3.75 hours due to lateness, and 9.25 hours because
of discipline and he received in every performance category a
rating of below expectations and would have received a loss of
43 cents per hour. However, Romanelli interceded and kept
him at his current wage rate. Given Cronkright’s history and
the generally recognized importance of good attendance for
purposes of job retention and advancement in the United States,
it seems that Romanelli may have in the vernacular, cut Cronk-
right a break. Said another way, I do not see in the context of
Cronkright’s work history that his performance evaluation for
the period in question was adversely impacted in spite of the
Respondent’s antipathy to the Union and its supporters like
Cronkright. I would recommend dismissal of this aspect of the
complaint.129

128 I have previously determined that Romanelli harbored animus
against the Union and its supporters, and his making the statement
praising Cronkright for courageously and openly supporting the Union
in this particular instance provides grounds for determining, prima
facie, that Cronkright’s support of the Union was a motivating (in
whole or in part) factor in his performance evaluation.
129 I note in passing that Cronkright received the full amount of
available increase only on one occasion, December 10, 1997, when he
started with the Company. His attendance problems thereafter evi-
dently became chronic.
D. The 8(a)(5) Allegations
1. The Respondent’s withdrawal of recognition of the
Union on June 18, 2001
The complaint alleges (and the Respondent does not dispute)
that by letter130 dated June 18, 2000, the Respondent withdrew
recognition from the Union based on several petitions and indi-
vidually signed cards representing 154 of 223 bargaining unit
employees indicating that they no longer desired the Union to
represent them at the Company. Based on these, the Respon-
dent notified the Union that, henceforth, it would discontinue
engaging in collective-bargaining negotiations with it until
further notice.
The General Counsel essentially argues that the withdrawal
was violative of Section 8(a)(5) of the Act in two distinct ways.
First, the signatures supporting the decertification were solic-
ited during the Union’s certification year and, second, the sig-
natures were tainted by the apparent support of the Respondent
during their collection and the existence of unremedied unfair
labor practices, all of which impermissibly undermined the
Union.
The Respondent principally argues that it had no knowledge
that decertification petition signatures were being gathered on
June 13 and 14, 2001, dates it concedes were within the certifi-
cation year. The Respondent also contends that any unfair
labor practices it may have committed during the certification
year were relatively minor and affected only a few of its 200
plus employees. The Respondent goes so far as to contend that
even if it were found culpable for all of the 8(a)(1) and (3) re-
lated unfair labor practices as charged in the complaint, of the
200 plus employees, 100 would not have known about the vio-
lations as to affect their desire to support or not support the
Union.131
Legal Principles Applicable to the Withdrawal Issue
Under Section 8(d) of the Act, an employer and the represen-
tative of its employees must bargain collectively; that is, the
Act requires both parties to meet at reasonable times and confer
in good faith with respect to wages, hours, and other terms and
conditions of employment.
Section 8(a)(5) of the Act makes it an unfair labor practice
for an employer to refuse to bargain collectively with represen-
tatives of his employees.
Collective bargaining makes a union the exclusive represen-
tative of the employees. Toward that end, Section 9 of the Act
provides that “representatives designated or selected for the
purposes of collective bargaining by the majority of the em-
ployees in a union unit appropriate for such purposes shall be
130 This letter is contained in GC Exh. 6. The letter drafted by the
Respondent’s legal representative, Robert Kendrick, was addressed to
the Union’s staff representative. It should be noted that GC Exh. 6
includes copies of the individual decertification cards and petitions
cited by the Respondent in the letter and cover the dates June 13, 14,
and 15, 2001, as well as a letter from Kendrick dated June 27, 2001, to
Richard Yorke of the Board’s Region 7 office in Detroit, informing him
of the decertification.
131 The Respondent does not explain in its brief how it arrived at this
conclusion.
SAGINAW CONTROL & ENGINEERING, INC. 577
the exclusive representatives of all of the employees in such
unit for the purposes of collective bargaining in respect to rates
of pay, wages, hours of employment, or other conditions of
employment.
By long established precedent, there is an unrebuttable pre-
sumption of representation for the first year. Brooks v. NLRB,
348 U.S. 96 (1954). Said another way, a union enjoys an unre-
buttable presumption of continuing majority status for 1 year
after its certification; thereafter, the presumption is rebuttable.
Therefore, an employer may not refuse to bargain during the
12-month period even though the employer is confident that the
union has lost majority support. NLRB v. Lee Office Equip-
ment, 572 F.2d 704 (9th Cir. 1978). The application of this rule
even extends to situations where there is evidence that employ-
ees abandoned their certified union and allegations of union
misconduct. NLRB v. Burns Security Service, 406 U.S. 272,
279 fn. 3 (1972); Inter-Polymer Industries v. NLRB, 480 F.2d
631, 633 (9th Cir. 1973); and NLRB v. Holly-General Co., 305
F.2d 670, 674 (9th Cir. 1962). In short, during the certification
year, the employer is absolutely obligated to negotiate in good
faith with the properly elected or designated collective-
bargaining representative of its employees.
Notably, Brooks recognizes that unusual circumstances may
alter the irrebuttable presumption of majority status—
defunctness of the certified union, a schism within the certified
union and radical fluctuation in the size of the bargaining unit.
Id. at 98.132
Moreover, the Board has recently held that an employer does
not have the right, after expiration of the certification year, to
withdraw recognition from the Union on the basis of an anti-
union petition circulated and presented to the employees during
the certification year. Chelsea Industries, 331 NLRB 1648
(2000).
The Board has long held that (irrespective of the Brooks
rule) an employer may not withdraw recognition from a union
while there are unremedied unfair labor practices tending to
cause employees to become disaffected with the Union. Olson
Bodies, Inc., 206 NLRB 779, 780 (1973). The Federal courts
more recently have endorsed the principle holding that employ-
ers may not destroy a union’s majority status through unfair
labor practices and then justify its refusal to bargain on the
basis of the union’s lack of majority support.133 Generally,
then, a company may not avoid the duty to bargain by a loss of
majority status caused by its own unfair labor practices.134
The unfair labor practices, however, must be of a character
as to either affect the union’s status, cause employees’ disaffec-
tion or improperly affect the bargaining relationship itself. In

132 See also NLRB v. Lexington Cartage Co., 713 F.2d 190 (6th Cir.
1983), where the court, following the Brooks’ rule, noted there were no
“unusual circumstances” preventing application of the rule.
133 People’s Gas System, v. NLRB, 629 F.2d 35, 38 (D.C. Cir 1980).
See also NLRB v. Nu Southern Dyeing & Finishing, 444 F.2d 11, 16
(4th Cir. 1971), holding an employer is precluded from asserting a
good-faith doubt if its unfair labor practices significantly contribute to
such a loss of majority or to the factors upon which a doubt of such
majority is based.
134 NLRB v. Williams Enterprises, 50 F.3d 1280, 1288 (4th Cir.
1995).
short, the unfair labor practices must have a causal relationship
with the employees’ disaffection with the Union. Master Slack
Corp., 271 NLRB 78, 84 (1984).
Olson Bodies, supra, speaks to several factors useful for de-
termining whether such a causal relationship exists including
(1) the length of time between the unfair labor practices and the
withdrawal of recognition; (2) the nature of the illegal acts,
including the possibility of their detrimental or lasting effect on
employees; (3) any possible tendency to cause employee disaf-
fection from the union; and (4) the effect of the unlawful con-
duct on the employees’ morale, their organizational activities,
and membership in the Union.
Finally, withdrawal of recognition may be accomplished, but
generally only if the employer can affirmatively establish after
the 1-year certification period has passed either (1) that the
union no longer enjoyed majority status when recognition was
withdrawn, or (2) that the employer’s refusal to bargain was
predicated on a reasonably grounded doubts as to the union’s
continued majority status, which doubt was asserted in good
faith, based upon objective considerations and raised in a con-
text free of employer unfair labor practices. NLRB v. Windham
Memorial Hospital, 577 F.2d 805 (2d Cir. 1978); Retired Per-
sons Pharmacy v. NLRB, 519 F.2d 486 (2d Cir. 1975); NLRB v.
Dayton Motels, Inc., 474 F.2d 328 (6th Cir. 1973); and Harpeth
Steel, Inc., 208 NLRB 545 (1974).
Discussion and Conclusions
I would find and conclude, contrary to the Respondent, that
certain of its antiunion employees were engaged in soliciting
signatures from unit employees in the company parking lot on
June 13 and 14, 2001. I will also find that based on its own
interpretation of its no-solicitation policy in force at that time,
the Respondent discriminatorily allowed the antiunion employ-
ees to solicit the signatures on company property. Accordingly,
based on this conduct, the Respondent, in my view, in effect
lent its support to if not encouragement of the decertification
effort within the certification year in violation of Section
8(a)(5) of the Act.
It may be recalled that Henk and other supervisors prohibited
union committeemen from distributing union meeting notices in
August 2000 based on the Company’s no-solicitation rule.
Henk, of course, was present in the parking lot on the days the
antiunion employees were engaged in what most clearly was a
solicitation effort on June 13 and 14. Yet, on these occasions,
Henk claims ignorance of what was going on and, while feeling
uncomfortable, he did not, even out of normal curiosity, inves-
tigate the activities going on before his very eyes. I find his
denials not credible. I believe that just as Stack and Dukarski
were able to determine that Sopcak, Drake, and the other uni-
dentified man were soliciting signatures to decertify the Union,
Henk, in likewise, knew what the men were up to and pur-
posely did nothing to intercede because the decertification was
in keeping with the Respondent’s desires and plans to rid itself
to the Union. I find it difficult to believe that Henk did not
inform his supervisors of this activity. Thus, knowingly and
intentionally, not enforcing the no-solicitation rule in force at
the time, the Respondent, in my view aided and abetted an im-
proper (and unlawful) decertification of the Union through its
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 578
cooperating employees, like Sopcak, during the certification
year.135 For these reasons, I do not accept May’s on-record
denial of knowledge of the decertification effort until two em-
ployees (Sopcak and Drake no less) presented the petition to
him as a fait accompli. It is clear from the record that surveil-
lance of the employees’ union activities was not out of bounds
for the employer. It is highly unlikely, in my view, that the
Respondent (May in particular) did not know of the sentiments
and the activities of these self-same employees who opposed
the Union and were acting consistent with that stance in full
view on company property on June 13 and 14. Accordingly, I
would conclude that the Respondent did not accept the decerti-
fication petitions and cards in the good-faith belief that they
had been obtained after the 1-year certification period. In my
view, the Respondent knew they had been obtained about June
13 and 14 (and possibly 15), within the certification year.
Thus, in my view, the Respondent did not have a good-faith
doubt of the Union’s loss of majority status and was not justi-
fied in withdrawing recognition of the Union.
Regarding the existence of unremedied unfair labor prac-
tices, little need be said. I have previously found numerous
instances of unfair labor practices on the Respondent’s part
after the election. The question is whether these violations
caused or could be said to have caused the loss of majority
support of the Union.
I would conclude that the unfair labor practices, within the
meaning of causation as circumscribed by my reading of Board
authority, were causal in the loss of majority status of the Un-
ion. As noted, the clear objective of the Respondent almost
immediately after the election was to oust it. This plan, in my
view, was formed and implemented at the top of management’s
hierarchy (May) and percolated through to lower managers
such as Henk and included the harassment of key union sup-
porter such as Kennedy, Leach, Tornberg, and Herzberg, and
even ordinary supporters of the Union such as Coughran, Stack,
and Dukarski to name a few. So, although only a relative few
of the Respondent’s bargaining unit employees were directly
affected by the unfair labor practices, they were specifically
targeted, in my view, by the Respondent in order to effectuate
the ouster of the Union. Along those lines, for example, the
Respondent allowed the distribution of antiunion literature, not
union materials; union posters were ordered down but not other
nonwork-related items; union solicitors were considered tres-
passers but not those opposed to the Union; wage raises or op-
portunities therefore were diminished because of union support;
union supporters conversing about trivial nonwork-related mat-
ters were punished rather severely. This list goes on. In sum,
the Respondent sought to rid itself to the Union from the elec-
tion on, and the unfair labor practices, in my view, were by
design calculated to undermine the Union’s influence at the
plant and cause the bargaining unit employees to lose confi-
dence in the Union’s ability to represent them. Coupled with
the Respondent’s violation of the 1-year certification rule, I

135 Contrary to the complaint, I do not believe Henk’s presence at the
scene was itself coercive because it seems clear he did nothing of an
overt nature to aid the decertification effort. I will dismiss this aspect
of the complaint.
would conclude that it also violated Section 8(a)(5) of the Act
by withdrawing recognition of the Union and refusing to en-
gage in collective bargaining in spite of the existence of unre-
medied unfair labor practices.
2. The June 19, 2001, wage increase
The complaint (in par. 16) alleges that on or about June 19,
2001, the Respondent granted a wage increase to unit employ-
ees, increased the starting rate for new unit employees, and
revised its merit evaluation system for unit employees.
In its answer, the Respondent admitted that on June 19,
2001, by letter, it granted a wage increase to current and new
unit employees; and, further, that the Company’s merit evalua-
tion system was revised to make merit increases retroactive to
the employees’ 6-month anniversary date of hire.136 The Re-
spondent submits that these changes were based on the decerti-
fication petition and its subsequent withdrawal of recognition
of the Union. Since the Respondent determined that the Union
no longer represented its employees, the Respondent submits
that it was free to make these changes unilaterally.
Wages, hours, and benefits are mandatory subjects of bar-
gaining over which an employer must bargain with its employ-
ees’ exclusive collective-bargaining representative before insti-
tuting any changes unilaterally. Ford Motor Co. v. NLRB, 441
U.S. 488 (1979).137 The Respondent admits it did not engage in
bargaining and justifies its actions on the strength of its with-
drawal of recognition of the Union, conduct I have found
unlawful. Accordingly, having unlawfully withdrawn recogni-
tion of the Union, the Respondent, in my view, correspondingly
violated Section 8(a)(5) by granting the wage increases and
revising its merit evaluation system as alleged on June 19,
2001, and I would so find.
3. The reduction of working hours and relocation of certain
unit employees since January 2001
The complaint alleges that the Respondent, since about Janu-
ary 2001, reduced the working hours of and relocated certain
employees.
The General Counsel contends that around January 2001, the
Respondent transferred employees Scott Langhorne, Randy
Weir, and other employees in the unit without providing the
Union with advance notice or any opportunity to bargain over
these moves.
The General Counsel called Langhorne138 to testify about
these charges.
Langhorne stated that prior to January 2, 2001, he was em-
ployed as a welder in the stainless steel section, assigned to the
first shift; he had been in this assignment a little over 4 years.
136 See GC Exh. 6. The June 19 letter was distributed to all Saginaw
Control and Engineering, Inc. employees and was signed by May. The
letter incorporates the proposed increases and revision of the merit
evaluation system as alleged.
137 The Respondent admits that the wage increases for current and
new unit employees and any changes in its merit evaluation system
relate to wages, hours, and other terms and conditions of employment
of the covered unit of its employees and are mandatory subjects of
collective bargaining.
138 Langhorne has been employed with the Respondent for 9 years as
a welder.
SAGINAW CONTROL & ENGINEERING, INC. 579
According to Langhorne, around January 2, Romanelli, his
welding supervisor, convened a group of the welders, including
Randy Weir,139 Jim Merkle, Mike Posenelli (phonetic), and
himself, and informed them he was going to make some
changes in the department.140 These changes included transfer-
ring Weir and him from the stainless section and reassigning
them to the north weld line.141 Langhorne also testified that in
January 2001, he was working 50–56 hours per week; then,
around the second week of February 2001, his hours were cut
to about 40 hours per week. Thereafter, Langhorne said that
around the 8-hour mark in each day, a supervisor would tell
him to quit and go home. According to Langhorne, there were
about 12 employees on the north weld line and, although he
was told that there was not enough work beyond 8 hours for
Weir, two (unidentified) other workers, Pat Chubb and James
Brabau, and himself, Langhorne observed that other workers
were still allowed to remain on shift. On occasion when he was
sent home, Langhorne said he saw piles of metal that needed to
be worked on. According to Langhorne, he complained to May
about his hours when they dipped below 40 hours. May told
him that business was slow but he did not want any worker
receiving less than 40 hours and would speak to Simms about
the matter.
Langhorne stated that towards mid to late May 2001, he was
cut to 24 hours and this lasted until about the end of June 2001,
at which time his hours were increased and he received 56 hours
one week during this time.142 Langhorne noted that the in-
creases in his hours started right after the decertification petition
was filed. Langhorne also stated that around this time, the
Company’s monthly newsletter—“The Fabricator”—announced
that the Union had been ousted, that the employees were going
to receive a 3-percent wage, and work hours were going back to
normal.
Langhorne also stated that over the time his hours gradually
began to increase, he was merely told to stay beyond the usual
8 hours; Langhorne also said he would ask management
whether he should report to work the next day. After about a
week of this, he merely assumed he should come back to work
and did so.
Langhorne says that, currently, he is working back in
stainless but now assigned to the second shift.

139 Weir did not testify at the hearing, nor did any other employees
allegedly affected by the reduction in hours and reassignments.
140 Langhorne said that Weir and Merkle were assigned to stainless
and Posenelli was a coordinator there. Posenelli, according to Lang-
horne, was not transferred to the north line.
141 Langhorne described his job in stainless as a higher quality
skilled job that entailed working with individual stainless steel products
at his bench. The north weld job was to Langhorne a demotion because
it was essentially production line work usually assigned to new hires
and workers with lesser technical welding skills.
142 Langhorne said that when he was reduced to 24 hours, other
workers were receiving as many as 50 hours, and certainly over 40. He
stated that he knew this because when he punched out on these occa-
sions, other workers continued to work the line. Also, he sometimes
came to the plant on days he was not assigned hours and found that
certain employees were working.
Robert Madden was also called by the General Counsel.
Madden stated that he is employed as a staff representative
for the Union and in that capacity was responsible for negotiat-
ing initial contracts between employees represented by the
Union and employers. Madden stated that he was the Union’s
lead negotiator on the bargaining team which attempted to ne-
gotiate a contract with the Respondent; he attended all negotiat-
ing sessions with the Company, answered questions from and
handled various problems regarding the unit members at the
plant.143 According to Madden, the bargaining sessions started
around June 24–26, 2000, and ended around June 12–19,
2001,144 when the Company announced by letter that it would
no longer engage in collective bargaining because of the decer-
tification petition.
Madden stated that he knew Langhorne as one of the unit
employees and that the Respondent never told him anything
regarding his job, specifically that his job was being changed or
he was being reassigned; in likewise, Madden stated that no
company representative mentioned anything about Weir’s job.
Madden stated that as of the first quarter of 2001 (and thereaf-
ter), he could recall no bargaining with the Company about
relocation, reassignments, or transfers of any unit employees at
any time over the period negotiations were ongoing. Madden
specifically denied that the Union ever agreed to any relocation,
transfers, or reassignments of unit employees.
Madden acknowledged that during the period covering about
February through June 12, 2001, there was a discussion in bar-
gaining sessions regarding the Company’s proposed change in
the time of the lunch period. However, at no time did company
representatives raise the issue of any proposed or actual
changes of work hours of any individual unit employees, nor
was there any mention of reduction of hours.145
The Respondent admits that it reduced working hours, but
not because of the Union or the antiunion campaign, but be-
cause of economic reasons.146
The General Counsel submits that the Respondent’s de-
fense—its purchase of new equipment for the north weld line
and business turndown—is not relevant to the charge of failing
to bargain in good faith. I would agree that the Respondent’s
defense misses the point. An employer must bargain over
mandatory subjects such as the items covered by the charge
before unilaterally, and without notice to the Union, imple-
143 Madden stated that at the very first negotiating session with com-
pany officials, Fred May, Simms, its attorney, Robert Kendrick (Mad-
den mistakenly referred to him as Kennedy), and Union Representa-
tives Kennedy, Leach, and originally Tornberg and then Herzberg, he
informed all that he was the lead negotiator for the Union.
144 Madden said the last actual bargaining session was on June 12,
2001.
145 Madden stated that the union committee members discussed re-
duction of hours among themselves but that this was not discussed in
bargaining sessions with the company representatives present.
146 See p. 51 of the Respondent’s brief. Notably, the Respondent’s
discussion of this point, as set out in this section of its brief, does not
address the transfer or reassignment of unit employees. The economic
reasons cited by the Respondent are essentially those offered by
Simms. These economic reasons were previously discussed fully in
this decision and will not be repeated here.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 580
menting changes. Clearly, based on the credible (and unrebut-
ted) testimony of Madden and Langhorne, coupled with the
Respondent’s admissions, the Company, in my estimate, did in
fact reduce hours of certain unit employees and also reassigned
employees in the interest of achieving certain efficiencies and
savings in its operations and perhaps because of performance
problems of certain employees.147 However, the Respondent
did so without notice to the Union or without first offering to
bargain over these mandatory subjects with the Union. I would
find a violation of the Act in this conduct. Eugene Iovine, Inc.,
328 NLRB 294 (1999).
4. The Union’s February 23, 2001 request for information
The complaint alleges, and there is no dispute, that the Un-
ion, through its legal counsel, Arlus S. Stephens, on February
23, 2001, requested by letter through the Respondent’s legal
counsel, Robert Kendrick, certain information from the Com-
pany,148 as follows:

Re: Saginaw Control and Engineering
Information Requests

Dear Mr. Kendrick:

As you requested, the Union has reduced its informa-
tion requests to writing. Confirming what we requested on
February 14, 2001, the Union requests the following in-
formation from the company:

1) A current, up-to-date seniority list for all bar-
gaining-unit employees.
2) A current, up-to-date wage structure and list of
the wage the Company currently pays to each bargain-
ing-unit employee.
3) A list of every bargaining-unit employee who
the company has decided to give a raise to (and in
what amount) since June 1, 2000.
4) A list of all employees the company has disci-
plined, in whatever manner or degree, for the offense
of “talking” or any similar offense, since January 1,
1996. Please provide supporting documentation as
well.
5) A copy of any first-contract, collective bargain-
ing agreements in the manufacturing sector, of which
you are aware and to which you have access, that have
a duration of less than two years.

We will await receipt of your written information re-
quests and will respond as quickly as possible. We hope
we can expect the same from the company.

147 Romanelli stated that he relocated Langhorne and Weir to the
north weld line around January 2001 because each had performance
problems, which each man improved upon eventually with the result
that Weir and Langhorne were returned to stainless. Romanelli did not
address the reassignment of the other workers named by Langhorne.
Romanelli, it may be recalled, also said he instituted a change in the
welding department regarding the handling of parts to achieve some
efficiencies and eliminate nonwork-related conversations. It seems
there was no bargaining over this change in work procedure, but it is
not the subject of a complaint allegation.
148 The letter is attached as Exh. A to the complaint.
Please call with any questions or concerns.

Very truly yours,
/s/
Arlus J. Stephens
Assistant General Counsel

Madden testified about the Union’s request for this informa-
tion. According to Madden, the Union originally made the
request of Kendrick at a bargaining session on February 12,
2001. Kendrick asked that the request be reduced to writing;
and the Union complied.
Madden explained his reasons for each of the categories of
information listed in the letter. As to item 1’s request for an
up-to-date seniority list for all unit employees, Madden stated
that he and the Union determined that the Respondent experi-
enced a large turnover among its employees with a possible
corresponding effect on the seniority status of the remaining
unit employees. Basically, the Union wanted to know whom it
was representing and where each employee stood in terms of
plant seniority.
Regarding item 2, Madden noted that at the beginning of ne-
gotiations (in June 2000) with the Respondent, the starting rate
for unit employees was $6.96 per hour. The Company, in the
Union’s view, had arbitrarily increased the starting rate to
$7.10. Moreover, during negotiations, the Respondent granted
merit increases for different employees at different rates and
amounts. Some, according to Madden, however, received
“negative” increases. Madden said that the Union needed to
know what employees had received these adjustments since the
Union arrived. However, the Union did not have a firm grip on
the Company’s wage structure so as to make an intelligent as-
sessment of these adjustments and needed the requested infor-
mation.
According to Madden, item 3 reflects the Union’s concerns
raised in bargaining sessions with the Company about its merit
evaluation system. Madden said the Union repeatedly asked
company representatives how the system worked, who received
wage increases, and on what basis or criteria, but the answers
provided by management representatives, in the Union’s view,
were unsatisfactory.
Madden stated that item 4 of the letter was based on com-
plaints of a number of unit members who said they were being
disciplined for talking because of union involvement. The
Union wanted to assess whether these alleged disciplines for
talking or any similar offense were valid.
Regarding item 5, Madden stated that in the first bargaining
session, Kendrick told the Union that the Company was only
interested in a 1-year collective bargaining contract. According
to Madden, the Union’s response was to question this because
1-year contracts are simply not the rule. Therefore, the Union
requested that the Company supply copies of any initial con-
tracts applicable to the manufacturing sector with a duration of
less than 2 years that may be in the Company’s possession.
Madden said that by letter on February 26, 2001, Kendrick
responded to the Union’s attorney. Kendrick acknowledged
receipt of the Union’s letter and asked for an explanation of the
purpose of item 4, specifically whether it pertained to a current
unfair labor practice charge, and the significance of the date of
SAGINAW CONTROL & ENGINEERING, INC. 581
January 1, 1998. Kendrick stated that based on the Union’s
response to this letter, the Company reserved the right to pro-
vide the item 4 information.149
Madden stated that on March 6, 2001, the union attorney re-
sponded by letter to Kendrick and explained the Union’s need
for the requested information covered by item 4 of the earlier
letter as well as the purpose of using January 1, 1998.150
Madden stated that the Company provided a list of unit em-
ployees and their current wages to the Union at a bargaining
session some time before May 2001 in response to item 1 of the
Union’s February 23 letter.151 However, the Union did not
consider the list responsive to the request because the list of
employees was not a seniority list (with dates of hire) and,
based on the personal knowledge of the Union’s committee
members, some of the listed workers’ wages were not cur-
rent.152 Madden stated that the Union received no further re-
sponse from the Company regarding the other requested items,
but it still needs the information.
The Respondent argues first that regarding item 1 of the let-
ter sent by the Union on February 23, 2001, the list it provided
to Madden complied with the request for a seniority list and,
moreover, that this information was provided in the early bar-
gaining sessions. Second, the Respondent argues that the disci-
plinary information requested in item 4 of the Union’s letter
was an improper attempt to gather information to buttress an
unfair labor practice charge and not to further the collective-
bargaining process. The Respondent submits that it was not
required to provide this information under these circumstances
or for this purpose. It asserts that the request reflects bad faith
on the Union’s part.
Regarding the Union’s request for sample contracts of less
than 2 years’ duration (item 5), the Respondent argues that
since the Union refused to provide to the Company copies of
union (Steelworkers) contracts, it is within its right to withhold
these documents from the Union.153
The Respondent submits that it has complied with the re-
quest for the remaining items covered by the Union’s letter, that
is (presumably), the wage structure (item 2) and list of employ-
ees to whom the Company has given a raise since June 1, 2000
(item 3). On this point, the Respondent contends that Madden

149 See GC Exh. 9. This letter makes no reference to the other items
in the Union’s February 23, 2000 letter requesting the information.
150 This letter is contained in GC Exh. 8.
151 This employer provided list of employees and wage rates is con-
tained in GC Exh. 10. Madden stated that contrary to the notation on
the document, this information was not provided on May 8, 2001, but
some time prior to that date at one of the later bargaining sessions.
152 Madden stated that at the February 14, 2000 bargaining session,
the Union first orally made the request covered by item 1 to the Com-
pany; the Union sought a list of employees with seniority dates, ad-
dresses, job descriptions, and wage rates.
153 The Union, on October 29, 2001, entered into a settlement agree-
ment with the Acting Regional Director for Region 7 in which it
agreed, among other things, to provide copies of collective-bargaining
agreements requested pursuant to an information request of the Re-
spondent and review other contracts pursuant to this request. The Re-
spondent did not join in the agreement. See GC Exh. 11. The Respon-
dent viewed the agreement as a “sweetheart deal” with the Union and
the Region and objected to the proposed settlement.
was not even sure if he had received by June 20, 2001, the in-
formation from Stephens and cannot be relied upon on this
issue.154 On balance, the Respondent submits that the Union
simply wanted updates of information the Company has previ-
ously supplied. Moreover, the Respondent contends that the
Union had not bothered to read the information and index or
cross-reference it to the information it had previously received.
Legal Principles Applicable to the Duty to
Provide Information
An employer has a statutory obligation to provide a union,
on request, with relevant information needed by the Union for
the proper performance of its statutory duties as a collective-
bargaining representative. NLRB v. Truitt Mfg. Co., 351 U.S.
149, 152 (1956); NLRB v. Acme Industrial Co., 385 U.S. 432,
435–436 (1967); and Detroit Edison Co. v. NLRB, 440 U.S. 301
(1979).
Information deemed relevant must also be provided timely
by the employer in order to comply with the imposed obliga-
tion. Amersig Graphics, Inc., 334 NLRB 880 (2001); and Co-
lumbia University, 298 NLRB 941 (1990). The duty arises as
soon as the union becomes the employees’ collective-
bargaining representative and continues throughout the life of
any agreement reached. Sinclair Refining Co. v. NLRB, 306
F.2d 569 (5th Cir. 1962).
The duty to provide information encompasses not only mate-
rial necessary and relative for the purpose of contract negotia-
tions but also information necessary for administration of a
collective-bargaining agreement. Howard University, 290
NLRB 1006 (1988).
The Board has long considered data or information concern-
ing the employees’ wages, hours, and terms and conditions of
employment presumptively relevant and, on request, must be
provided to the collective-bargaining representative by the em-
ployer. Whitin Machine Works, 108 NLRB 1537 (1954), enfd.
217 F.2d 593 (4th Cir. 1954), cert. denied 349 U.S. 905 (1955).
As noted above, where the information sought by the union
pertains to employees in the unit, the core of the employer-
employee relationship, the information is deemed presump-
tively relevant and must be disclosed or provided to avoid vio-
lations of Section 8(a)(5) and (1) of the Act. However, where
the information requested concerns matters outside the bargain-
ing unit, the burden is on the union to demonstrate relevance.
Shoppers Food Warehouse, 315 NLRB 258 (1994); Reiss Vi-
king, 312 NLRB 622, 625 (1993). The union satisfies its bur-
den when it demonstrates a reasonable belief supported by ob-
jective evidence for requesting the information. Knappton
Maritime Corp., 292 NLRB 236, 238–239 (1988).155
154 The Respondent notes that Stephens was not called by the Gen-
eral Counsel as a witness.
155 The Board, by contrast, has also held that an information request
that does not directly bear on or concern wages, hours, and terms and
conditions of employment may not enjoy presumptive relevance, and
the requestor must demonstrate a specific need for the data; a general
claim of relevance will not be sufficient in such cases (see F. A. Barlett
Tree Expert Co., 316 NLRB 1312 (1995), where the union sought
information contained in contracts of all the employer’s customers and
the Board determined that there was an insufficient relationship of the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 582
The requesting union must have a good faith basis for the re-
quested information. W–L Molding Co., 272 NLRB 1239
(1984); there is a presumption of good faith unless the contrary
is shown (especially where the information sought is presump-
tively relevant). O & G Industries, 269 NLRB 986, 987 (1984).
The employer has the burden of proving lack of relevance or
providing adequate reasons why the information will not or
cannot be supplied. San Diego Newspaper Guild Local 95 v.
NLRB, 548 F.2d 863 (9th Cir. 1977).
The Board uses a broad, discovery-type standard in deter-
mining relevance in information request cases, including those
where a special demonstration of relevance is obligatory; po-
tential or probable relevance is sufficient to give rise to an em-
ployer’s obligation to provide information. Reiss Viking, supra;
Children’s Hospital of San Francisco, 312 NLRB 920, 930
(1993); and Pfizer, Inc., 268 NLRB 916, 918 (1984), enfd. 763
F.2d 887 (7th Cir. 1985).
With the foregoing discussion serving as a backdrop, I would
find that the Respondent violated Section 8(a)(5) and (1) of the
Act by untimely providing some of the information by the Un-
ion in its February 23, 2001 letter, and failing to provide in the
altogether the remainder of the information called for by this
letter. First and foremost, the information requested by the
Union appears to be relevant and presumptively so because the
data appears to relate clearly to wages and other terms and
conditions of employment for unit employees. Moreover, in my
view, the information sought generally conforms to the type of
information a newly certified exclusive bargaining representa-
tive would want and need to perform its representational duties
and to facilitate the collective-bargaining process especially in
the initial stages of the parties’ relationship. Items 1–3 cer-
tainly fall within this category. Items 4 and 5 also are highly
pertinent to the Union’s representation function and roles. One
needs no reminder that this instant litigation is replete with
allegations of allegedly improper discipline imposed on union
adherents for “talking” by the Respondent in the aftermath of
the Union’s victory up to and including the period covered by
the letter. The Union’s need to know the Company’s discipline
record under the facts and circumstances of this case could not
be more compelling. Regarding the Union’s request for copies
of initial contracts of less than 2 years, Madden credibly testi-
fied that this request was predicated on the Respondent’s advo-
cacy of a 1-year contract or less than 2-year contract. Cer-
tainly, Madden, who had significant experience in the collec-
tive-bargaining arena, was acting as a responsible representa-
tive of the new unit, in my view, to request copies of such un-
usual (to him) contractual agreements.
I have considered the Respondent’s arguments and would
find them without merit. First, if the Respondent had indeed
provided information, updated or otherwise, of its wage struc-

information contained in the contracts and the representational func-
tions of the union; and that the union’s general claim of relevancy was
insufficient to establish relevancy).
Generally, however, information concerning terms and conditions of
employment of the bargaining unit employees is deemed by the Board
as “so intrinsic to the core of the employer-employee relationship that
the presumption will apply.” York International Corp., 290 NLRB 438
(1988).
ture, employee seniority lists and associated wages, and the
wage increases given to the unit employees, then it would have
been a simple matter to adduce its prior production at the hear-
ing. It does not suffice, in my mind, to claim compliance and
question the credibility of the union representative and then not
produce that which the Company claims to have provided.
Moreover, the list of employees, while somewhat in compli-
ance, was not timely provided.
I also find unconvincing the Respondent’s claim of entitle-
ment to withhold documents because the Union failed to pro-
vide certain documents to it. The duty to bargain in good faith
to produce relevant information does not rest on this type of tit
for tat. Moreover, the Union ultimately was charged with a
violation by the Respondent for failing to provide it with in-
formation, and a settlement with the Region was reached. That
the Respondent did not join in the settlement does not allow it
to avoid its own responsibilities under the Act.
In likewise, I find unpersuasive the Respondent’s argument,
that the Union’s request for “talking” disciplines was an im-
proper bad-faith effort to gather information for purposes of
buttressing an unfair labor practice. Under the circumstances
of this litigation, excessive talking was a major component of
the Respondent’s complaints against the union adherents after
the election. Madden, as the unit representative, acted in the
interests of the employees by requesting so-called talking re-
lated disciplines to evaluate the complaints of the affected em-
ployees. That these or like charges were levied against the
Respondent eventually does not justify its refusal to provide
this information.
CONCLUSIONS OF LAW
1. Saginaw Control and Engineering, Inc., the Respondent,
is an employer engaged in commerce within the meaning of the
Act.
2. United Steelworkers of America, AFL–CIO, the Union is
a labor organization within the meaning of Section 2(5) of the
Act.
3. By maintaining in its employee handbook and enforcing
an overly broad no-solicitation/no-distribution rule against its
employees, the Respondent violated Section 8(a)(1) of the Act.
4. By threatening its employees with physical harm and un-
specified adverse actions in retaliation for their activities, sym-
pathies, and support of the Union, the Respondent violated
Section 8(a)(1) of the Act.
5. By telling its employees they could not discuss the Union
during working hours while allowing discussion of other non-
work-related topics, the Respondent violated Section 8(a)(1) of
the Act.
6. By soliciting employees to persuade other employees to
vote against the Union, the Respondent violated Section 8(a)(1)
of the Act.
7. By coercively interrogating employees with respect to
their support for the Union, the Respondent violated Section
8(a)(1) of the Act.
8. By creating the impression that its employees’ union ac-
tivities were under surveillance, the Respondent violated Sec-
tion 8(a)(1) of the Act.
SAGINAW CONTROL & ENGINEERING, INC. 583
9. By telling its employees they were or had become poor
workers and/or bad employees because of their involvement
with and support of the Union, the Respondent violated Section
8(a)(1) of the Act.
10. By threatening employees with a reduction in overtime
work hours and/or transfer to another department because of
their support of or involvement with the Union, the Respondent
violated Section 8(a)(1) of the Act.
11. By surveilling employees and telling them that the
Company knew of their support of the Union and they were in
fact union supporters, the Respondent violated Section 8(a)(1)
of the Act.
12. By advising employees to refrain from associating with
union activists, the Respondent violated Section 8(a)(1) of the
Act.
13. By disparately enforcing an overly broad no-
solicitation/no-trespassing rule against employees supportive of
the Union while not enforcing this rule against employees op-
posed to the Union, the Respondent violated Section 8(a)(1) of
the Act.
14. By coercively instructing employees not to converse
with supporters of the Union and informing them that the Un-
ion would no longer represent them in the near future, the Re-
spondent violated Section 8(a)(1) of the Act.
15. By implying to employees that their wearing of a union
T-shirt could or would have a detrimental impact on their per-
formance evaluations, the Respondent violated Section 8(a)(1)
of the Act.
16. By issuing a notice/letter to its employees informing
them that they were required to report for work regardless of a
strike if they valued their employment and telling them if they
do not report for work during a strike or did not participate in
picketing, they would be considered to be on strike and subject
to permanent replacement, the Respondent violated Section
8(a)(1) of the Act.
17. By requiring employees to remove posters supportive of
the Union while disparately allowing other nonunion posters
and materials to remain posted, the Respondent violated Sec-
tion 8(a)(1) of the Act.
18. By discriminatorily issuing a written discipline to em-
ployee Greg Kennedy on or about June 21, 2000, the Respon-
dent violated Section 8(a)(3) and (1) of the Act.
19. By discriminatorily issuing written disciplines to em-
ployees Nick Herzberg, Pat Maziarz, and Wayne Tornberg on
or about August 4, 2000, the Respondent violated Section
8(a)(3) and (1) of the Act.
20. By discriminatorily denying daily overtime work oppor-
tunities to employee Greg Kennedy since about August 2, 2000,
and, since September 2000, denying Saturday overtime oppor-
tunities to Kennedy, the Respondent violated Section 8(a)(3)
and (1) of the Act.
21. By discriminatorily issuing to employee Ronald Martin
on January 11, 2001, a performance evaluation which adversely
impacted his opportunity for a pay increase, the Respondent
violated Section 8(a)(3) and (1) of the Act.
22. By discriminatorily issuing to employee Derek Dukarski
on or about September 1, 2000, a performance evaluation
which adversely impacted his opportunity for a pay increase,
the Respondent violated Section 8(a)(3) and (1) of the Act.
23. By discriminatorily issuing to employee Steve Coughran
on September 28, 2000, a performance evaluation which ad-
versely impacted his opportunity for a pay increase, the Re-
spondent violated Section 8(a)(3) and (1) of the Act.
24. By discriminatorily issuing to employee Greg Kennedy
on about October 16, 2000, a performance evaluation which
adversely impacted his opportunity for a pay raise, the Respon-
dent violated Section 8(a)(3) and (1) of the Act.
25. The following employees of the Respondent constitute a
unit appropriate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act:

All full-time and regular part-time production and mainte-
nance employees including coordinators, programmers,
draftsmen, shipping clerks, warehouse employees and truck
drivers employed by the Respondent at its facility located at
95 Midland Road, Saginaw, Michigan; but excluding all of-
fice clerical employees, guards and supervisors as defined in
the Act.

26. At all times material, the Union has been the exclusive
collective-bargaining representative of all the employees in the
unit described above for the purposes of collective bargaining
with respect to rates of pay, wages, hours of employment, and
other terms and conditions of employment within the meaning
of Section 9(a) of the Act.
27. By withdrawing recognition from the Union on June 18,
2001, based on unlawful solicitations of signatures and peti-
tions to decertify the Union prior to the expiration of the certifi-
cation year in Case 7–RC–21809, and refusing to bargain with
the Union thereafter as the bargaining representative of the
employees in the unit described above, the Respondent violated
Section 8(a)(5) and (1) of the Act.
28. By withdrawing recognition from the Union on July 18,
2001, despite the existence of a number of unremedied unfair
practices occurring within the certification year, the Respon-
dent violated Section 8(a)(5) and (1) of the Act.
29. By unilaterally and without notice to the Union and/or
giving the Union an opportunity to bargain, granting a wage
increase to unit employees, increasing the starting rate for new
unit employees and revising its merit evaluation system for unit
employees, all mandatory subjects for purposes of collective
bargaining, on or about June 19, 2001, the Respondent has
refused to bargain collectively and in good faith with the Union
in violation of Section 8(a)(5) and (1) of the Act.
30. By unilaterally and without notice to the Union and/or
giving the Union an opportunity to bargain, reducing the work-
ing hours of and relocating certain unit employees (mandatory
subjects for purposes of collective bargaining) since about
January 2001, the Respondent has refused to bargain collec-
tively and in good faith with the Union in violation of Section
8(a)(5) and (1) of the Act.
31. By failing and refusing since about February 23, 2001,
to furnish timely and/or completely the Union with the follow-
ing relevant information requested by the Union, the Respon-
dent violated Section 8(a)(5) and (1) of the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 584
(a) A current, up-to-date seniority list for all bargaining-unit
employees.
(b) A current, up-to-date wage structure and list of the wage
the Company currently pays to each bargaining-unit employee.
(c) A list of every bargaining unit employee whom the Com-
pany has decided to give a raise to (and in what amount) since
June 1, 2000.
(d) A list of all employees the Company has disciplined, in
whatever manner or degree, for the offense of “talking” or any
similar offense, since January 1, 1996. Provide supporting
documentation as well.
(e) A copy of any first contract, collective-bargaining agree-
ments in the manufacturing sector, of which the Company is
aware and to which the Company has access, that has a dura-
tion of less than 2 years.
32. By the aforesaid conduct, the Respondent has engaged
in unfair labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
33. The Respondent has not violated the Act in any other
way, manner, or respect.
REMEDY
Having found that the Respondent has engaged in unfair la-
bor practices warranting a remedial order, I shall recommend
that it cease and desist from engaging in such conduct and that
it take certain affirmative action designed to effectuate the poli-
cies of the Act and post the appropriate notice to its employees.
It is recommended that the Respondent rescind the written
disciplines issued to employees Greg Kennedy, Nick Herzberg,
Pat Maziarz, and Wayne Tornberg; remove any reference to the
disciplines of Greg Kennedy, Nick Herzberg, Pat Maziarz, and
Wayne Tornberg from all of the Respondent’s records; and
make Kennedy, Ronald Martin, Derek Dukarski, and Steve
Coughran whole for any loss of earnings and benefits they may
have suffered as a result of the Respondent’s discrimination
against them, computed on a quarterly basis as prescribed in
F. W. Woolworth Co., 90 NLRB 289 (1950), less interim earn-
ings, plus interest as computed in accordance with New Hori-
zons for the Retarded, 283 NLRB 1173 (1987).
It is further recommended that the Respondent rescind the
overly broad no-distribution/no-solicitation rule contained at
page 25 of its employees’ handbook; issue nondiscriminatory
performance evaluations with any appropriate wage increases
to employees Kennedy, Martin, Dukarski, and Coughran, and
make them whole for any loss of earnings consistent with the
Board authorities cited above.
It is further recommended that the Respondent recognize
and, upon request, meet and bargain with the Union as the ex-
clusive collective-bargaining representative of the employees of
the unit with respect to all mandatory subjects for purposes of
collective bargaining as determined; provide the information
requested in the Union’s February 23, 2001 letter to the Re-
spondent; and make all unit employees whole who have suf-
fered any losses in earnings and benefits because of reduction
of hours and/or transfer or relocation to other departments, with
interest thereto consistent with the aforementioned Board au-
thorities.
[Recommended Order omitted from publication.]