Stahl Specialty Company

National Labor Relations Board - Administrative Judge Opinions

Apr 22, 2016

17-CA-088639 (N.L.R.B. Apr. 22, 2016)

JD-38-16
Kingsville, MO
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
WASHINGTON, DC

STAHL SPECIALTY COMPANY

Respondent

and CASE 17-CA-088639

INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS LOCAL #1464
affiliated with the INTERNATIONAL BROTHERHOOD
OF ELECTRICAL WORKERS, AFL-CIO

Charging Party

Anne C. Peressin, Esq.,
for the Acting General Counsel.
Chris Mitchell, Esq. and Catherine Crowe, Esq.,
for the Respondent.
Thomas H. Marshall, Esq.,
for the Charging Party.

ORDER RATIFYING AND ADOPTING DECISION

On September 30, 2013, I issued a decision in this case. Subsequently, Stahl Specialty
Company (Respondent) filed exceptions and a supporting brief, and the General Counsel and
International Brotherhood of Electrical Workers, Local 1464 (Charging Union) filed answering
briefs with the National Labor Relations Board (the Board). Respondent argued, inter alia, that I
was appointed at a time when the Board lacked a quorum; my appointment was therefore invalid;
and I lacked the lawful authority to preside over the hearing, issue a decision or otherwise act in
this proceeding.

On April 15, 2016, the Board issued an order remanding this case back to me with full
authority over this matter to “decide whether or not to ratify [my] prior actions herein, to adopt
or modify [my] prior decision, or to issue an entirely new decision.”1 The Board’s order also
stated that “[a]bsent a specific order by [me], this remand does not give the parties the
1 Pursuant to the Board’s remand order, I am only addressing the issues raised by Respondent
regarding the validity of my prior actions and decision in this case. The Board has already made
determinations regarding Respondent’s allegations and arguments about the validity of appointments and
authority of the Regional Director and Acting General Counsel in this case. (Board Order Remanding).

JD-38-16

opportunity to relitigate any matter previously presented for decision, nor does it give any party
the right to expand the scope of the issues previously presented.”

The Board agreed with the Respondent’s contention that under the Supreme Court’s
decision in NLRB v. Noel Canning, 134 S.Ct. 2550 (2014), the Board lacked a valid quorum at 5
the time that it originally approved my appointment in April 2013. However, the Board pointed
out that on July 18, 2014, it ratified all administrative and personnel decisions made from
January 4, 2012 to August 5, 2013, and expressly authorized my appointment. It also concluded
that its ratification expressly authorized my appointment.2 However, since my decision in this
case was issued and transferred to the Board prior to the Board’s July 18, 2014 ratification of my 10
appointment, I was divested of jurisdiction as well as the opportunity to consider whether or not
to ratify my prior actions. In considering all of the circumstances of this case, including its
complexity, number of alleged violations, the hearing and lengthy decision, exceptions filed and
Respondent’s intention to continue to litigate my authority, the Board, “in an effort to remove
any lingering questions,” decided to remand the case to give me the opportunity to consider the 15
issues presented now that my appointment has been fully confirmed by a legally valid five-
member Board.

This complex case involves many alleged violations of the National Labor Relations Act
(the Act), Sections 8(a)(1) and (3), including allegations that, during a union organizing 20
campaign, the Respondent engaged in unlawful surveillance of union handbilling, threatened
employees with plant closure if they selected the Union, interrogated an employee about his
union activities and sympathies and those of other employees, threatened employees with
permanent job loss if they were replaced by new hires while on strike, and unlawfully discharged
a union supporter. Respondent denied violating the Act in any way, and raised several 25
affirmative defenses. Pursuant to the Board’s remand order and my now valid ratification,
authority and jurisdiction over this case, I have fully reviewed my decision in light of the alleged
allegations and Respondent’s defenses. In doing so, I have determined that my decision
(including the findings of fact, analysis, credibility determinations, conclusions and
recommended order), is based on the entire record, and that it remains correct and should stand 30
on its entirety.

IT IS SO ORDERED that all prior actions performed by me in this case are hereby
ratified and that my decision issued in this case on September 30, 2013 is hereby adopted in its
entirety for the reasons stated above and in the Board’s remand order issued on April 15, 2016. 35

Dated, Washington, DC April 22, 2016

Christine E. Dibble 40
Administrative Law Judge
2 The Board explained in its order remanding this case that it took this ratification action on July 18,
2014 “in an effort to resolve any continuing uncertainty regarding various actions taken during the time
the Board lacked a quorum.” See Board Order Remanding (April 15, 2016).
2

JD–73–13
Kingsville, MO
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES

STAHL SPECIALTY COMPANY

Respondent

and CASE 17-CA-088639

INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS LOCAL #1464
affiliated with the INTERNATIONAL BROTHERHOOD
OF ELECTRICAL WORKERS, AFL-CIO

Charging Party

Anne C. Peressin, Esq.,
for the Acting General Counsel.
Chris Mitchell, Esq. and Catherine Crowe, Esq.,
for the Respondent.
Thomas H. Marshall, Esq.,
for the Charging Party.

DECISION

STATEMENT OF THE CASE

Christine E. Dibble, Administrative Law Judge. This case was tried in Overland Park,
Kansas on January 15–18, 2013 and March 28, 2013. The International Brotherhood of Electrical
Workers Local #1464 affiliated with the International Brotherhood of Electrical Workers, AFL-
CIO (Charging Party) filed the charge on September 5, 20121. The first amended charge was
filed by the Charging Party on September 18 and a second amended charge filed on November
28. The Acting General Counsel2 issued the complaint on November 29. The Respondent filed
a timely Answer on December 5.

The complaint alleges that the Respondent violated Section 8(a)(1) and (3) of the
National Labor Relations Act (NLRA/the Act) when (1) on or about May 31, June 13, 18, and
26, July 17, 24 and 26, and August 2 and 14, the Respondent, through Jeanne Adams, engaged in
surveillance of employees’ union or other protected concerted activities3; (2) on or about July 26,
the Respondent, through Jim Spalding, threatened employees with facility closure if they

1
All dates are in 2012 unless otherwise indicated.
2
The Acting General Counsel is referenced as the General Counsel.
3
This allegation is alleged in paragraph 5(a) of the complaint.
JD–73–13

2

selected the Union as their collective bargaining representative4; (3) on or about July 26, the
Respondent, through Ken Stewart, interrogated its employees about their union membership and
activities and the union sentiments and activities of other employees5; (4) on or about July 26, the
Respondent, through Ken Stewart, solicited employee complaints and grievances, and promised
its employees increased benefits and improved terms and conditions of employment if they 5
refrained from union organizational activity6; (5) on or about late July or early August 2012, the
Respondent, through Jim Spalding, threatened not to hire employees’ relatives because the
employees engaged in union or other protected, concerted activities7; (6) on or about late July or
early August 2012, the Respondent posted literature at its facility that threatened employees with
permanent job loss if they were replaced by new hires during a strike8; and (7) on or about 10
August 30, the Respondent discharged its employee, Patrick Christian Armstrong because he
formed, joined, and assisted the Union and engaged in concerted protected activities.9

On the entire record, 10 including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and the Respondent, I make the 15
following

FINDINGS OF FACT

I. JURISDICTION 20

The Respondent, a corporation, engages in the manufacture and non-retail sale of
permanent mold aluminum castings at its facility in Warrensburg, Missouri. (Tr. 16; GC Exh. 1-
O.) During the 12-month period ending September 30, 2012, the Respondent annually sold and
shipped from its Warrensburg, Missouri facility goods valued in excess of $50,000 directly to 25
points outside the State of Missouri. During the 12-month period ending September 30, 2012,
the Respondent as described above, purchased and received at its Warrensburg, Missouri facility
goods valued in excess of $50,000 directly from points outside the State of Missouri. The
Respondent admits, and I find, that at all material times it has been an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the Act. (GC Exh. 1-O.) 30

At all material times the Union has been a labor organization within the meaning of
Section 2(5) of the Act.

35

4
This allegation is alleged in paragraph 5(b) of the complaint.
5
This allegation is alleged in paragraph 5(c) of the complaint.
6
This allegation is alleged in paragraph 5(d) of the complaint. The General Counsel, however,
admitted that no evidence was presented in support of this allegation. (General Counsel’s Brief 50.)
7
This allegation is alleged in paragraph 5(e) of the complaint.
8
This allegation is alleged in paragraph 6 of the complaint.
9
This allegation is alleged in paragraph 7 of the complaint.
10
Abbreviations used in this decision are as follows: “Tr.” for transcript; “R Exh.” for the
Respondent’s exhibit; “GC Exh.” for General Counsel’s exhibit; “CP Exh.” for the Charging Party’s
exhibit; “CP Br.” for the Charging Party’s brief; “GC Br.” for the General Counsel’s brief; and “R
Br.” for the Respondent’s brief.
JD–73–13

3

II. ALLEGED UNFAIR LABOR PRACTICES

A. OVERVIEW OF RESPONDENT’S OPERATION

Since 1946, the Respondent has been a privately held corporation, becoming a subsidiary 5
of Ligon Industries on December 31, 2010. (Tr. 387.) The Respondent operates facilities in
Warrensburg and Kingsville, MO and employs approximately 270 hourly and salaried workers.11
(Tr. 406.) The Warrensburg facility consists of several departments for the manufacture and
non-retail sale of permanent mold aluminum casting parts for motorized vehicles. The
departments are: foundry, processing, heat treat, machining, warehouse, inspection, shipping and 10
receiving, and maintenance. Approximately 110 to 120 employees work at the Warrensburg
facility. The Respondent’s headquarters and administrative offices are at the Kingsville, MO
location. (Tr. 390.) The Kingsville location also has a foundry with approximately 150
employees. (Tr. 405-406.)
15
The plant in Warrensburg is a sprawling facility with its main entrance facing south on
Stahl Drive. Management and administrative staff park in the employee lot in front of the
building facing Stahl Drive. (Tr. 139-141; GC Exh. 2A.) The shipping department abuts the
manager’s parking lot to the east. (Tr. 140-141; GC Exh. 2A.) Pride Avenue to the east of the
facility leads to the parking lot for hourly employees. The hourly employee parking lot is at the 20
end of a long driveway in the back of the plant. (Tr. 140; GC Exh. 2A.) On the west side of the
facility is private property.

The machine operators in the machining department work on several machines casting
parts for heavy equipment automotive and marine vehicles. (Tr. 156, 160.) The machining 25
department includes the following computer numeric control (CNC) machines: chip claimer;
Okumas 1, 2, 3, 4, 5, 6, 7; SH-1 and SH-2; air/leak check machine; and Makinos A81 and A77.12
(Tr. 159-160, 253-255; GC Exh. 7.) The machine operators have to complete a predetermined
number of parts per hour per shift. (Tr. 168.) The quotas vary according to the machine they
operate. (Tr. 168-169.) It has been the Respondent’s policy for 2 employees to work (“run”) on 30
3 machines at the same time (each employee runs one machine and they share duties on the third
machine). (Tr. 173, 673.)

B. Respondent’s Managerial Staff
35
Beginning in 2007, James Spalding (Spalding) has been the Respondent’s president.
Since the Respondent became a subsidiary of Lignon Industries, Spalding has reported directly to
its board of directors and its president, Jim Delk (Delk). Spalding is responsible for the
Respondent’s overall operation. (Tr. 386-387.) Krishnan Venkatesan (Venkatesan) has been
employed with Respondent for approximately 4½ years, first as the technical director and later as 40
plant manager of the Kingsville foundry. Venkatesan is currently the plant manager at the
Warrensburg facility and reports directly to Spalding. (Tr. 643.) Courtney Wilkins (Wilkins) has
worked for the Respondent for more than 5 years as the human resources manager and reports
directly to Spalding. (Tr. 777.) From her office in Kingsville, she administers the Respondent’s

11
All employees referenced in the decision work in the Warrensburg facility, unless otherwise noted.
12
The air/leak check machine is not a CNC machine. (Tr. 253.)
JD–73–13

4

employee benefits, policies and procedures and oversees employee relations and all other
personnel activity. John McBride (McBride) has worked for the Respondent for 18 years and
has been the foundry manager for 3 years. (Tr. 546.) He reports directly to Venkatesan. From
April 2012 through September 2012, Kenneth Stewart (Stewart) was the Respondent’s
machining manager in the Warrensburg plant. He was responsible for the machining 5
department’s 3 shifts.13 (Tr. 575-576.) Vincent Stowell (Stowell) has been employed by the
Respondent for 15 years. During the past 4½ years, he has been the C-shift foundry supervisor at
the Warrensburg plant. McBride was his immediate supervisor for the period at issue. (Tr. 524.)

C. Initiation of Union Organizing Campaign 10

During the past 10 years, the Respondent has been the target of 3 union organizing
campaigns. The first organizing campaign occurred from about 2001 to 2002 and involved the
United Auto Workers (UAW). The next union organizing campaign was undertaken in 2006
with the Teamsters Union. The current campaign began on April 12, 2012 with the Charging 15
Party.

Michelle Little (Little), a machine operator for approximately 9 years with the
Respondent,14 contacted the Charging Party, through her husband, to assist with a union
organizing campaign at the Respondent’s Warrensburg facility.15 (Tr. 131-134, 148.) As an early 20
supporter of the organizing campaign, Little was on the organizing committee, hosted union
informational meetings, and signed and collected union authorization cards. (Tr. 132-134.) On
or about May 1, in response to Little’s request, the Charging Party sent Jerry Gulizia (Gulizia) to
serve as the lead organizer for the union campaign at the Warrensburg facility. (Tr. 194.)
25
Patrick Armstrong (Armstrong) worked for the Respondent for 18 years prior to his
termination on August 30, 2012. (Tr. 240; GC Exh.6.) He held various positions throughout his
tenure with the Respondent, most recently as a Production Machine Operator Labor Grade 10 in
the Machining Department at the Warrensburg plant.16 In addition to supporting the two prior
unionizing efforts (2001 to 2002 and 2006), Armstrong played a dominant role in the union 30
campaign at issue. He attended the first union organizing meetings at Little’s house and
thereafter consistently attended the weekly meetings. Armstrong also joined the employee

13
The 3 shifts at the Respondent’s facility are: A-shift 7:00 a.m. to 3:00 p.m.; B-shift 3:00 p.m. to
11:00 p.m.; and C-shift 11:00 p.m. to 7:00 a.m.
14
Little currently works the A-shift and her immediate supervisor is McBride. During the period at
issue, however, she worked as a machine operator on the C-shift.
15
All events occurred at the Warrensburg facility, unless otherwise noted.
16
The official title of Armstrong’s position at the time of his termination was Production Machine
Operator 10. (R Exh. 2.) The job description set forth the purpose of the position as: “Operation of CNC
equipment to produce machined aluminum castings and insure proper quality and quantity. Must be
capable of functioning during the absence of Supervision. Expected to train new and incumbent
employees in the proper process operations and insure that all Safety and Environmental Policies are
understood and followed.” (R Exh. 2.) There was testimony that the Machine Operator Labor Grade 10
was commonly referred to within the Respondent’s organization as the “lead”. (Tr. 241, 327-328, 643-
645.) Since they are expected to perform other duties to ensure their shift meets its production quota,
leads infrequently operate machines. (Tr. 241, 331, 339, 583; R Exh. 2.) It is undisputed that the lead
position is not a supervisory position within the meaning of the Act.
JD–73–13

5

organizing committee, solicited union authorization cards, discussed the benefits of unionization
with employees, and engaged in handbilling. (Tr. 133, 245.)

D. Respondent’s Initial Actions to Counter the Union Organizing Campaign
5
On May 2, Jerry Helms (Helms), maintenance manager, and McBride reported to
Venkatesan rumors of union organizing efforts. (Tr. 548-550, 552-555.) They told him several
of the employees in the maintenance department had been invited to a union organizing meeting
over the weekend. (Tr. 546, 556-557.) Shortly after receiving the news about a union campaign,
Venkatesan relayed the information to Spalding. (Tr. 396, 689-690, 711-712.) Venkatesan also 10
met with Wilkins, McBride, and Helms to discuss gathering information to confirm that a union
organizing campaign had begun at the plant. (Tr. 693.)

Wilkins learned from Assistant Human Resource Administrator Jeanne Adams (Adams),
that an employee had reported to her that several employees met over the weekend to discuss 15
unionizing the Warrensburg facility. (Tr. 398, 807-808.) On May 2, Wilkins sent Spalding an
email notifying him of the newly discovered information. The email read, “I’d like to spend a
few minutes discussing the “news” in WB. I’d like to gather a few thoughts from you.” (CP Exh.
2; Tr. 806.) During the week of May 2, Wilkins also went to the Warrensburg facility to attend a
meeting with several of the managers, Spalding, and the Respondent’s attorney in response to the 20
“news” about the union campaign. (Tr. 807-808.)

Within the first week (May 2) of being notified about rumors of union activity, Spalding
made at least two trips to the Warrensburg facility to gather information on the union campaign
and strategize with Venkatesan and the supervisors. (Tr. 426.) On May 2, Spalding drove to the 25
Warrensburg location to speak with Venkatesan about the rumors. (Tr. 396-399, 404.) During
their discussion, Spalding cautioned Venkatesan not to speak against the unionizing campaign
until he was able to convene a meeting with the management staff and provide them with
training. (Tr. 407-408) In addition, Spalding questioned Helms about his knowledge of the
union campaign. Helms again reported that an individual in his department had been invited to a 30
union informational meeting over the weekend. (Tr. 396, 410) On a second trip to the plant,
Spalding asked McBride if he had heard employees discussing the union campaign. McBride
acknowledged that several workers were talking about it. (Tr. 424-425.)

On his return from the plant on about May 2, Spalding and Wilkins consulted with 35
Respondent’s attorney about the actions they were legally allowed to take to advocate against
unionizing the plant. Based on the feedback he received from the attorney, Spalding and Wilkins
drafted a speech for Spalding to read at mandatory staff meetings convened for May 8 and July
25 or 26. (Tr. 310, 422, 819; GC Exh. 5.) He also spoke with Delk about the status of the
organizing campaign. Delk responded, “Well, our philosophy about unions is we don’t need 40
them. … We run our business in a manner we don’t need that.” (Tr. 416-417.) He told Spalding
to keep him informed on the pace of the organizing campaign. (Tr. 418.) During the week of
May 2, Spalding, Wilkins, Venkatesan, Stewart, Stowell, McBride, Helms, Bill Bailey (B-shift
supervisor), and Respondent’s attorney met to discuss the union organizing campaign. In early
summer, Spalding also held a second meeting with the supervisors to discuss the widening nature 45
of the union organizing campaign. (Tr. 574-549.) Spalding, through a series of emails, continued
JD–73–13

6

to work with his management team to encourage the employees’ to reject unionization of the
plant. (CP Exh. 9 p.2-6.)

E. Surveillance of Employees’ Union Activity
5
On or about May 1, 2012, Gulizia began working on a union organizing effort at the
Respondent’s Warrensburg facility. He regularly attended union organizing meetings with some
of Respondent’s employees and assisted in handbilling at the Warrensburg facility. (Tr. 194.)
Since May 2012, weekly handbilling has occurred at the Warrensburg facility. (Tr. 783.) During
the shift changes (6:00a.m., 2:00p.m., 3:00p.m., and 5:00p.m.), Gulizia engaged in handbilling 10
primarily on the public road (Pride Avenue) at the entrance to the driveway leading into the
Respondent’s hourly employee parking lot. (Tr. 195-196, 204-206.) In late May, Gulizia began
to notice that Adams, who had been identified to him by employees, was observing the
handbilling activity from her car parked on the driveway leading to the hourly employee parking
lot. (GC Exh.2; Tr. 197.) He saw her observing the handbilling on about 8 to 12 occasions for “a 15
few minutes” each time.17 (Tr. 198.) Over a period of several months, Gulizia also observed on 3
to 5 occasions two men unknown to him standing in the doorway of the facility watching him
handbill. (Tr. 199-201, 207.)

Venkatesan first saw the handbilling in June. On two occasions he observed a person 20
distributing handbills on the northeast corner of the Warrensburg facility but admits that he was
aware of handbilling occurring every Tuesday. (Tr. 727, 739-738.) He watched the handbilling
activity from the window to the east of the foundry and subsequently retrieved about five of the
handbills to review. (Tr. 721-722, 728, 743.) He admittedly was upset by the handbilling
activity because he felt it was disruptive and at least one employee, Mike Pfeifer, complained to 25
him about the handbilling. (Tr. 733-735.) Venkatesan informed Spalding that there was
handbilling in front of the facility. (Tr. 727, 732.) Spalding directed him to ensure that no one
conducted handbilling activity on company property. (Tr. 740.)

There were a series of emails from May 2 to September 1, between Spalding, Adams, and 30
Wilkins discussing people engaged in handbilling at the facility. (Tr. 441-442.) Spalding
admitted, “…probably most every time there was handbilling going on, there was an email that
said somebody’s here handing something out, just an FYI.” (Tr. 445.) On an almost weekly
basis, certain unidentified employees coming into the employee parking lot would receive a
handbill from a union organizer and later give the handbill to a manager or human resource staff 35
who would forward it to Spalding. (Tr. 446; CP Exh. 9.) Spalding told Adams to investigate and
ensure there was no handbilling occurring on company property. (Tr. 820.)

40

17
Spalding claims Adams did not watch handbilling 8 to 12 occasions but was unsure about the
number of times. (Tr. 835-836) I do not credit Spaldings testimony on this point. He has proffered
nothing more than a general denial, without evidence that he had first-hand knowledge of Adam’s role in
the handbilling surveillance. The Respondent did not call Adams as a witness to corroborate Spalding’s
testimony and dispute Gulizia on this point. I also do not credit Spalding’s testimony that an unidentified
employee complained to Adams about people handbilling on company property. There is no evidence to
corroborate his testimony on this point.
JD–73–13

7

F. Management’s Threats to Close the Company if Union Organizing Successful

In response to information he received that employees were attempting to unionize,
Spalding called two mandatory meetings of the plant. (Tr. 449, 818.) The meetings were held at
the facility in Warrensburg for each of the three shifts. The first meeting was held on May 8, 5
where Spalding read a prepared speech that he drafted with assistance from Wilkins. (Tr. 422;
GC Exh. 5.) It is undisputed that in each of the meetings Spalding stated in part:

“The other aluminum casting companies that do permanent mold and low pressure are
non-union. That’s no accident, because Ligon prefers not to operate an aluminum casting 10
company where the employees choose to be represented by a union. And they run their
companies in a way that they believe their employees will realize they don’t need a union
to represent them.

I’m telling you that Ligon buys plants and invests in plants that are efficient and that 15
make a profit so that Ligon can make a return on its investment. Unions love to have
work rules and other processes in place that create inefficiency and make it harder to earn
a profit. That is why so many union plants close and that is why we don’t need any union
here. Ligon can invest it’s (sic) money wherever it wants and right now its investing a lot
of it right here in Warrensburg, where we don’t have a union. I don’t want that to change. 20
For your future and your families’ future, you don’t want that to change either.

The point is that the turmoil that goes along with a union organizing effort distracts all of
us from our work and our priorities.
25
I’ve already told you today the major reason that [unionizing the plant] would be a bad
idea and that is further investments in this plant would be at risk.

If they ask you to sign a card asking for a union election, just say no. If they ask you to
attend an organizing meeting, just say no. That will end it! 30

If [it] doesn’t end it, I’ll be back here talking to you again and I’ll be talking about more
of the reasons that having a union here would be bad for you, your families and for this
Plant.” (Tr. 449; GC Exh. 5.)
35
Shortly after the speech was given by Spalding, the written version was posted on the
bulletin board in the employee lunch room. On July 25 or 26, Spalding convened another
mandatory meeting of the entire plant to reemphasize Respondent’s desire to keep the plant non-
union. (Tr. 819.) Spalding again read from the prepared speech that he delivered on May 8. (GC
Exh. 5.) 40

G. Management’s Interrogation of Employees about Union Sentiment

Subsequent to Spalding’s speech on July 25 or 26, on the negative impact unions would
have on the operation of Respondent’s business, Stewart and Armstrong had a discussion in 45
Stewart’s office about the union activity. Stewart asked Armstrong the reasons he wanted to
unionize the plant, if he had ever been a union member, and why no one spoke in the meeting
JD–73–13

8

with Spalding. Armstrong responded he had prior union membership and felt a union was
needed to address employees’ issues with management. Armstrong also told Stewart that
speaking against Spalding’s points in the meeting would have been counterproductive.18 (Tr.
248-249.) Shortly thereafter, the conversation ended.
5
H. Management’s Retaliation against Employees because of Union Support

In July 2012, the Charging Party held an informational meeting at a local restaurant,
Nathan’s, with several of the Respondent’s employees in attendance. Jared Hunsburger
(Hunsburger), processing department team leader, was at the meeting. Brandon Harrison 10
(Harrison), an account manager at the Respondent’s Kingsville plant, was also at the restaurant
to have dinner with friends, but not to attend the union meeting. After the meeting, Hunsburger
went to sit at the bar with Harrison and a conversation ensued. (Tr. 226.) Harrison commented to
Hunsburger that it looked like a serious meeting was occurring and asked him what was going
on. Hunsburger responded that it was a union meeting with an IBEW (Charging Party) 15
representative. In response, Harrison commented that he recognized some of the faces and asked
their names. Hunsburger gave him the names of Scott Serber, Dave Reynolds, Michelle Little,
and Mike Howell. (Tr. 213.) It is at this point the parties disagree on the content of the
discussion.
20
Hunsburger testified that their discussion continued, with Harrison asking his opinions on
the union’s ability to run a casting business and Spalding’s business acumen. Hunsburger
purportedly responded that he felt Spalding was a good business man and did not believe the
union knew how to operate a casting business. (Tr. 214.) According to Hunsburger, the
conversation lasted approximately 15 minutes. 25

Spalding19 testified that Harrison came to his office and told him Hunsburger approached
him at Nathan’s restaurant where several employees were attending a union informational

18
Stewart denied that the conversation occurred. (Tr. 577-579, 607.) I do not credit his testimony on
this point. Stewart relied on closed questions and answers to deny the occurrence of the discussion. On
further questioning he responded, “I don’t recall” when asked whether he had even a single conversation
with Armstrong about the union or if Armstrong told him about his father’s prior union membership. (Tr.
578, 607.) Armstrong’s testimony and overall demeanor were more credible than Stewart’s denials of the
conversation. Armstrong detailed the date, location, and approximate time of the conversation. Also, his
description of the content of the discussion is believable when viewed in context. The discussion
occurred almost immediately after Spalding’s speech against the union campaign. It occurred in the
private office of a manager who had been part of Spalding’s efforts to defeat the union. Last, Stewart’s
interrogation of Armstrong on his desire for and support of the union soon after Spalding’s speech has the
ring of truth about it.
19
Throughout the trial I found that Spalding was not a credible witness. The majority of his
testimony was accompanied by smirks, evasion, and pregnant pauses. He gave intentionally deceptive
and often confusing testimony. An example is Spalding’s testimony that by August he was still unaware
of Armstrong’s support for the union. Likewise, he refused to admit to when he became aware of the
identity of the union. It strains credulity to believe that Spalding was unaware of the identity of the union
or Armstrong’s role in unionizing the plant. Spalding admitted the union campaign was an important
event in light of Ligon’s anti-union stance. (GC Exh. 5.) The evidence established soon after he learned
of rumors about a unionizing effort, Spalding acted quickly against the unionizing action. He also worked
closely with his managers and the Human Resources Manager to defeat the campaign. Finally, Delk told
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9

meeting. According to Spalding, Harrison said Hunsburger “was just really bashing the
company and telling him it was a horrible place to work.” (Tr. 456.) Spalding attested that
Harrison tried to relay information to him about the substance of the union’s informational
meeting but he stopped him.20 (Tr. 456.)
5
I find there is probably a grain of truth in both witnesses’ descriptions of the
conversations they had with Harrison. I have previously made clear my dissatisfaction with
Spalding’s veracity throughout the hearing. I can no more credit his version of the conversation
than I can almost any other disputed fact he has testified about. Consequently, Harrison’s
testimony would have been helpful to the Respondent by corroborating Spalding’s testimony on 10
this point. Nevertheless, I cannot fully credit Hunsburger account of his conversation with
Harrison or Spalding because it does not have the ring of truth. It is frustrating for me that
neither the General Counsel nor the Respondent called Harrison to testify. Their testimony about
Harrison’s statements to them is hearsay because it is offered “to prove the truth of the matter
asserted in the statement.” Federal Rules of Evidence 801(c). Likewise, neither party presented 15
an argument for allowing the hearsay because of a qualifying hearsay exception. Therefore to
the extent that the parties presented hearsay evidence about Harrison’s statements to Spalding
and Hunsburger, I will allow it only for the purpose of establishing that Harrison held separate
conversations with Spalding and Hunsburger.
20
Hunsburger testified that a few days prior to his discussion with Harrison at Nathan’s
restaurant, he had an unanticipated discussion with Spalding. During their conversation about a
work related matter, Hunsburger told Spalding that his stepson, Raul, had applied for a position
with the company and asked him to check on the status of his application. Although Respondent
subcontracts employee hiring to a temporary agency, Spalding agreed to get information on 25
Raul’s application. (Tr. 235, 460.) Contrary to Hunsburger’s recollection, Spalding claimed his
conversation with Harrison occurred before he ever spoke with Hunsburger about his stepson’s
application. (Tr. 457-458.) (emphasis added) Spalding agreed with Hunsburger, however, that
their initial conversation involved Hunsburger asking him to check on the status of Raul’s job
application and him agreeing. 30

I find that it is not material to the facts or credibility of either witness whether their initial
conversation occurred before or after their conversations with Harrison. It is undisputed that
Spalding’s alleged unlawful statements occurred in a second conversation with Hunsburger,
which both agree happened after the meeting at Nathan’s restaurant. The parties agree that 35
approximately a week after the meeting at Nathan’s, Spalding informed Hunsburger that he had
asked the temporary agency about the status of Raul’s application. Spalding then noted that he
had spoken with Harrison who mentioned that he had talked with Hunsburger about the union

him to keep him informed about the unionization efforts. On cross-examination, however, when
presented with evidence of the improbable nature of his claim, Spalding continued to provide evasive
answers and denials. When viewed in context, it substantially weakens the overall credibility of his
testimony. (Tr. 409-411, 413, 417-418, 435, 828-831, 835.) (a few examples of Spalding’s evasive and
contradictory responses)
20
I do not credit Spalding’s testimony on this point. Spalding and his management team admitted the
rumors of a union campaign was an important event, which justified their immediate action to counter it.
(Tr. 388, 396, 399, 407-408, 415, 417-418, 693.) Therefore, I do not find it plausible that Spalding would
not have welcomed this information.
JD–73–13

10

meeting held at Nathan’s. Again the parties disagree regarding key aspects of the remaining
portion of the conversation. Hunsburger contends that Spalding then immediately launched into,
“Why would we want to hire somebody that thinks it is a bad place to work.” (Tr. 215, 216.) He
later clarified his testimony to note Spalding allegedly said, “…why would the Company want to
hire somebody else that thought it was a terrible place to work.” 21 (Tr. 219) (emphasis added) 5
Hunsburger inferred that Spalding was referring to his stepson. (Tr. 215) According to
Hunsburger, he tried to change the subject because he felt “intimidated” by the tone and
inference of the conversation. (Tr. 221, 224-225.) It was later determined that the temporary
hiring agency had rejected Raul’s application and he was not offered a position at either of
Respondent’s facilities. (Tr. 221, 462.) 10

Spalding disputes Hunsburger’s version of the discussion and denies making the
statements attributed to him. He testified that during their initial discussion he approached
Hunsburger to thank him for talking with a customer about the process for manufacturing the
parts made at the plant. He noted, “We talked in some detail about the part process and some 15
production issues regarding it.” (Tr. 458.) This aspect of the conversation is undisputed.
According to Spalding, Hunsburger then “volunteered” that he was aware of the union
organizing activity and was not interested in becoming involved in any aspect of the union
campaign. He stated he responded, “Jared, I appreciate that, but that’s your choice.” (TR. 458-
459) I do not credit Spalding’s testimony on this point. It is a self-serving statement, which 20
makes no sense within the context of the overall conversation. Regardless, it is not material to
my determination of whether Spalding’s statements were unlawful.

It is undisputed that Hunsburger told Spalding his stepson had applied for a job with the
Respondent and asked him to check on the status of his application. To assist Spalding in 25
locating his stepson’s application, Hunsburger gave Spalding his stepson’s name (Raul) and
noted that Raul listed him as a reference. Subsequently, Spalding approached Hunsburger to
inform him that Raul had not listed Hunsburger as a reference and he had been “screened out” by
the temporary agency.” (Tr. 46.) He claimed he offered to be a reference for Raul but
Hunsburger did not accept his offer.22 (Tr. 464-464.) I credit Spalding’s testimony that he told 30

21
Hunsburger provides plausible testimony that during his second conversation with Spalding about
Raul’s application Spalding stated either “Why would we want to hire somebody that thinks it is a bad
place to work.” or “…why would the Company want to hire somebody else that thought it was a terrible
place to work.” (Tr. 219) In this rare instance, I find that Spalding is equally as credible as Hunsburger on
this point. Although Spalding’s and Hunsburger’s iterations of the alleged unlawful statement are similar,
there is an important difference. In Hunsburger’s version, Spalding issues an implied threat that the
Respondent will not hire Raul because of Hunsburger’s alleged complaints about the company. In
Spalding’s version of the statement, he merely questions the logic of Hunsburger recommending that Raul
work at a place Hunsburger views in a negative light. Regardless, neither version explicitly or implicitly
links the statements with Hunsburger’s union sympathies. Since the General Counsel has the burden of
proving the allegations in the complaint by a preponderance of the evidence, I credit Spalding’s
testimony. See Central National Gottesman, 303 NLRB 143, 145 (1991) (finding that the General
Counsel did not meet its burden of proof because the testimony that the allegation occurred was equally
credible as the testimony that denied the allegation); Blue Flash Express, 109 NLRB 591, 591-592 (1954)
(same), questioned on other grounds, Allegheny Ludlum Corp. v. NLRB, 104 F.3d 1354 (D.C. Cir. 1997).
22
I do not credit Spalding’s statement on this point. If he in fact was willing to be a reference, and by
inference influence the process to guarantee Raul a job, he would have done it when told by the
temporary agency that the application had been rejected.
JD–73–13

11

Hunsburger, “Brandon [Harrison] reported to me that you were very upset the other night and
you had a lot of bad things to say about the company in public.”23 (Tr. 46.) It is at this point,
Spalding testified, that he told Hunsburger it did not “line up” for him to ask “someone who you
– who is your kin to come to work at a place that you don’t think is a good place to work.”24 (Tr.
465.) The conversation ended a short time later. (Tr. 465.) 5

I. Anti-Union Literature Posted by Management

Subsequent to becoming aware of a union organizing campaign, the Respondent began
posting literature in the workplace noting the negative consequences of unionizing. The majority 10
of the literature was posted on the Respondent’s bulletin board in the employee lunchroom.
Some of the literature was also hung on signs in the facility and distributed by hand to
employees. (Tr. 861; CP Exh. 4; CP Exh. 9 pgs. 9, 33; CP Exh. 10.) Many of the postings
encouraged the employees to reject the Union and highlighted negative aspects of union
membership. (CP Exh. 10 pgs. 2, 4, 5, 20-26.) Some of the literature set forth positive aspects of 15
working in a non-union workplace. (CP Exh. 10 pgs.7, 8.) Nonetheless, the evidence shows that
the majority of the company postings emphasized the negative consequences of unionizing. (CP
Exh. 9, CP Exh. 10.)

The allegedly unlawful posting reads in relevant part: 20

Strikers often lose their jobs. The Company has the right to continue operating during a
strike and can hire new workers to replace strikers. When that happens, strikers lose their
jobs – even if they give up on the strike and ask to come back to work. (Tr. 472-475; CP
Exh. 4.) 25

J. August 26 Instructions from Management to Patrick Armstrong

During the period at issue, Armstrong worked as the lead on the C-shift. Although
Stewart was his immediate supervisor, he would occasionally seek assistance from Stowell 30
because he was the only supervisor on duty in the evening. (Tr. 243, 269, 517.) Armstrong
would also call the manufacturing engineer, Richard Moore (Moore), at home if he needed
advice on resolving technical issues related to the machines. (Tr. 175, 242-243, 303-304.)

On August 26 at 9:38 p.m., Armstrong received a text message from Stewart detailing 35
staffing assignments for the C-shift that evening. The text message read:

Chris,
40
Run all three okumas on Detroit. Put someone on both Volvos and don’t worry
about getrag. I don’t know if you have been made aware but Kevin is no longer

23
As previously noted, Hunsburger agreed that Spalding made the statement to him or a closely
similar statement.

JD–73–13

12

with stahl. If you have any problems when you get in shoot me a text. (GC Exh. 4,
12.)25

Armstrong arrived at the plant on August 26, at approximately 10:30 p.m. and determined
the steps he needed to take to carry out Stewart’s instructions. Mary Meade (Meade), Randy 5
Tucker (Tucker), Michael Ridge (Ridge), and Jessica Timmons (Timmons) worked with
Armstrong that evening. In addition, Steve Cochran (Cochran) was reassigned from the foundry
to assist them for part of the C-shift. (Tr. 757.) Armstrong observed that the machining area was
in disarray from the work done on the B-shift. (Tr. 250-251.) The B-shift workers’ totes
(containers used to hold parts) and heat treat baskets had not been returned to their proper places. 10
The “chip hoppers”26 were full and needed to be emptied. Aluminum casting parts were stacked
in front of the machine platforms and left to be transported to the inspector for inspection and
shipping departments. (Tr. 250-251.)

After evaluating the workload for the night and readiness of the machines, Armstrong 15
made the decision to assign Tucker to the Okuma 1 and A77, Meade was placed on the Okuma 3,
Timmons ran the Okuma 5, and Ridge operated the air check (getrag) machine.27 (Tr. 260, 357.)
Armstrong readily admits that he did not completely follow Stewart’s instructions because there
were no parts to “run” on the A81 Volvo machine. During the hearing, it was explained that
parts are first cast in the foundry, tested in heat treat and finally delivered to the machining 20
department to be “machined”. There were not enough Volvo parts delivered from heat treat for
the C-shift to run on the A81 that evening.28 Further, Armstrong did not interpret Stewart’s text
as directing him to operate a machine that evening. (GC Exh. 4, 12.)

At approximately 11:10 p.m. on August 26, Stowell approached Armstrong in the 25
machining department to relay Venkatesan’s instructions for the department’s operation that
evening. He also told Armstrong that he was required to operate a machine. (Tr. 269-270, 520.)

25
I do not credit Stewart’s testimony on this point. The Charging Party issued a subpoena for the text
messages Stewart sent to Armstrong on the night at issue. Stewart testified that he sent Armstrong a text
message specifically directing him to operate a machine but could not locate the message. (Tr. 14-15,
600-602, 618.) Consequently, there is no corroborating evidence. Furthermore, I find it unlikely that if
the text message had existed, Stewart would have destroyed a key piece of evidence that is the linchpin of
the basis for Armstrong’s discharge.
26
Chip hoppers are containers that are located behind the machines and collect the chips that break
off from parts being machined.
27
There was undisputed testimony that during the period at issue Ridge was only trained to operate
the air check (getrag) machine. (Tr. 260, 357.)
28
Venkatesan disputed Armstrong’s testimony that there were not enough parts for him to operate the
A81 that night. I credit Armstrong’s testimony on this point. Since he did not work the C-shift that night,
Venkatesan failed to persuasively explain how he would have had first-hand knowledge about the
availability of parts for the A81. I also find that Venkatesan’s overall testimony on the stand was dismal.
Often he responded to questions on cross examination with evasive and confusing answers. Frequently
Venkatesan provided what I perceived as deliberate nonresponsive answers to questions posed by the
counsel for the Respondent. Several times I had to admonish him on this point. He also tailored many of
his answers to conform to the responses he felt would best help Respondent’s attorney, rather than to
illuminate the truth. Based on the evasive, confusing, and vague responses Venkatesan gave on both
direct and cross-examination, his overall demeanor, and the totality of the evidence, I find he was not a
credible witness.
JD–73–13

13

Armstrong told Stowell that he would not have time to operate a machine. Stowell did not reply
and did not speak to Armstrong again that evening. (Tr. 270.) Subsequent to his conversation
with Stowell, Armstrong called Stewart for clarification about his instructions for work
assignments that evening because the A81 machine was not ready for operation. However,
Stewart did not answer the telephone so he left Stewart a voicemail message explaining the 5
reason he could not operate the A81 machine (Tr. 276-277, 591, 596.) There is no evidence that
Stewart returned Armstrong’s call or otherwise tried to contact him that evening to answer his
questions. (Tr. 277, 591-592.)

As a result of what Armstrong perceived to be conflicting instructions from Stewart and 10
Venkatesan, he prioritized his duties for the night. After assigning each C-shift worker to run
one or more machines according to Stewart’s instructions, Armstrong spent the remainder of the
evening warming up the machines, cleaning the disarray in the work area left by the prior shift,
ensuring that the machine operators had enough parts to run for the shift, operating the forklift to
clean the area and transport parts to the inspection department and warehouse, repairing air tools, 15
checking machine operations, answering employee questions, and adjusting the scribe on
Timmon’s machine.29 He also inspected the Hubble handles and manually rebuffed those he
discovered had imperfections in the casting.30 (Tr. 265-267.) At the end of his shift the next
morning, Armstrong updated Moore on the status of the machines and the work he performed
that night. (Tr. 278.) 20

K. August 27 Investigation into Patrick Armstrong’s Work Performance the Prior Night

On August 27, Stowell sent Venkatesan an email at 12:23 a.m. noting Armstrong had not
operated a machine as instructed and he would prepare a “write-up” (warning notice) of the 25
infraction. (Tr. 528-529.) Venkatesan arrived at the plant at about 7 a.m., read Stowell’s email,
and reviewed the productivity report for the C-shift from the previous night. (Tr. 754-755.)
Sometime prior to 8:45 a.m. he went to the machining department and spent approximately 5
minutes assessing which duties had been performed on the C-shift the previous evening. (Tr.
659-660, 666-668.) Venkatensan instructed Stewart to investigate and verify the charges noted 30
in Stowell’s email that Armstrong had failed to perform as instructed. (Tr. 650, 665.)
Subsequently, Venkatesan briefly spoke with Stowell to get more information on the work
performed the prior night by the C-shift employees, specifically Armstrong. (Tr. 649-651.) In
response to his query about whether Armstrong operated a machine as instructed, Stowell told
Venkatesan that the other operators on C-shift were not assigned to the tasks as he had instructed 35
and Armstrong did not operate a machine. (Tr. 529.)

On the morning of August 27, soon after he arrived at work, Stewart listened to
Armstrong’s voicemail message from the previous night concerning one of the machines. (Tr.
591.) Upon review of the production report for the C-shift, he discovered that the A81 and an 40

29
Venkatesan and Stewart contend that Armstrong lied about the tasks he performed during the shift.
I credit Armstrong’s testimony on this point for the reasons set forth in the analysis portion of this
decision.
30
Prior to going to the wheelabrator, the machine operator looks at the Hubble handle for
imperfections. If the machine operator makes a judgment that a flaw cannot be removed by the
wheelabrator, the Hubble handle is then placed in a basket to be sent to the Inspection Department. (Tr.
612.) The imperfections can be as small as a dime or larger. (Tr. 613.)
JD–73–13

14

Okuma machine had not been operated. Subsequently, Stewart had a meeting with Armstrong in
his office the morning of August 27 to determine why he had not fully complied with his and
Venkatesan’s instructions to “run” the A81 and Okuma machines.31 He also asked Armstrong to
account for his actions that evening. Armstrong reminded Stewart that he had attempted to call
him for clarification of his instructions since it was not possible to operate the A81 because it 5
was out of Volvo parts. He also recited a list of the work he performed on the night at issue. (Tr.
591-592.) Stewart told Armstrong he would investigate to verify Armstrong’s account of his
actions.

Stewart went to the machining department to inspect the machines and the overall 10
condition of the area. (Tr. 593-594.) He checked the chip hoppers to determine if they had been
emptied and inspected the Hubble handles. (Tr. 610-612.) It took Stewart approximately 10 to
15 minutes to complete his inspection of the work area. (Tr. 615.) He again spoke with
Armstrong and told him that his inspection of the area did not confirm Armstrong’s description
of the work he performed on August 26. Stewart admits that he did not interview any of the 15
worker’s on the C-shift about their observations of Armstrong’s work performance on the shift
that prior night. (Tr. 615, 626-627.) After his discussions with Armstrong, Stewart prepared
notes memorializing the meetings and informed Venkatesan about the results of his
investigation. (Tr. 595, 665-666.)
20
On August 27 at 9:02 a.m.,Venkatesan emailed Spalding that Armstrong had not
complied with his instructions to operate a machine and he recommended his termination based
on his failure to follow instructions and a prior 3 day suspension. (Tr. 770.) Although he
admitted that he incorrectly noted Armstrong had a prior 3 day suspension on his record,
Venkatesan felt that Armstrong’s action on the night of August 26 was sufficient to justify 25
termination. Spalding agreed but noted he would discuss taking action against Armstrong with
Wilkins and copied her on the email response. (Tr. 501-502, 786.)

Spalding met with Wilkins and told her to investigate Venkatesan’s complaint that
Armstrong was insubordinate. He also told her that Stewart had notes of his meetings with 30
Armstrong. On August 27, Wilkins requested that Stewart send her notes of his meeting with
Armstrong. He complied with her request the same day. (Tr. 597, 786-787; R Exh. 8.) Wilkins
also received from Venkatesan a forwarded email from Stowell about Armstrong’s failure to
operate a machine and the verbal warning notice that Stowell had begun to prepare for issuance
to Armstrong. (Tr. 787.) She emailed Venkatesan and Stewart to get clarification on why 35
Stowell did not follow up with Armstrong that night and tell him he was being insubordinate for
not running a machine and to clock out and go home. (Tr. 787-788.) Wilkins also posed the
question directly to Stowell. He responded that “he had other activities that he was working on”
that night. (Tr. 788.) Subsequently, Wilkins instructed Stewart to notify Armstrong that he was
suspended pending an investigation into the charges against him. Stewart met with Armstrong to 40
inform that he was suspended and the human resources department would contact him about his
employment status at the completion of the investigation. (Tr. 598, 788-789.)

31
The parties do not agree on the time and number of meetings Stewart held with Armstrong to
discuss the work he performed on August 26. (Tr. 282-283, 636-637.) I find that resolving the conflicting
testimony on this issue is not material to my analysis.
JD–73–13

15

The Respondent has a four-stage disciplinary policy set out in its Employee Handbook.
The four steps are: Step1 - Verbal Warning: Clarifying Expectations; Step 2 – Written Warning;
Developing Commitment; Step 3 – Written Warning: Decision Making; and Step 4 –
Termination of Employment. (GC Exh. 3 p.47- 48.) Discipline is normally meted out in this
order. However, the Respondent “reserves the right to determine appropriate level of action to 5
be taken on a case by case basis in consideration of the circumstances involved.” (GC Exh. 3 p.
47.)

Wilkins, with assistance from Adams, reviewed both the results of her investigation of
Armstrong and his past disciplinary record. Her review of his personnel file revealed 2 10
disciplinary actions: abuse of attendance policy because he only had 16 hours attendance balance
left, issued March 19, 2012;32 and failure to meet production or quality standards, issued June 29,
2012.33 (R Ex. 6, 8.) The evidence reveals that Armstrong was issued two additional verbal
warnings which were not initially reviewed by Wilkins. The additional disciplines were for:
unsatisfactory and careless work habits because he failed to conduct an audit prior to changing 15
the tool on a machine, issued on July 18, 2011; and low production, issued March 25, 2012.34 In
July 2011, the verbal warning issued to Armstrong noted that further infractions would result in
progressive corrective action. (GC Exh. 8.) Likewise, the verbal warnings issued to him on
March 19 and 25, noted that the consequences of further infractions would result in progressive
corrective action. (GC Exh. 9, 10.) The verbal warning Armstrong received on June 29, noted 20
that “Failure to meet the requirements of your job description will result in further disciplinary
action, per the Employee Handbook.” (GC Exh. 11)

Based on her review of his disciplinary history and the insubordination charge, Wilkins
recommended that Armstrong receive a 3 day suspension with a final warning placed in his 25
personnel file. (Tr. 790.) As part of the basis for her recommendation, Wilkins noted that
contrary to Venkatesan’s belief, Armstrong did not have a prior 3 day suspension in his
disciplinary record. However, she later changed her recommendation from a suspension to
termination because she learned from Venkatesan, in a conversation with Spalding, that
Armstrong had two additional disciplines that were not in his personnel file. (Tr. 790-791; R Ex. 30
6.)

32
Each year the Respondent places 80 hours in the attendance bank of full time employees. The hours
are dispersed on January 1 for 40 hours and the remaining 40 hours are deposited into the employees’
attendance bank on July 1. Hours that are not used by the end of the calendar year cannot be carried over
to the next period. (GC Exh. 3, p.29-30.) Although there is no evidence that Armstrong’s use of the hours
placed in his attendance bank was contrary to the policy in the Employee Handbook, he was issued a
verbal warning on March 19, because he had 16 hours left in his attendance bank as of February 29. (R
Exh. 6.)
33
Armstrong was again issued a verbal warning dated June 29, for his shift’s failure to meet
production or quality standards. (R Exh. 6.)
34
On March 25, Armstrong was given a verbal warning for running a machine with lower than
required production numbers. He ran 20-plus parts as opposed to 30-plus parts. Armstrong gave
undisputed testimony that he was unable to meet the production quota because he stopped to fix the chip
reclaimer machine but forgot to clock off of the machine he was working on. This caused his production
numbers to appear lower than required. (Tr. 294-295.)
JD–73–13

16

On or about August 29, Wilkins contacted Armstrong to arrange a meeting with him to
discuss the outcome of the investigation. A meeting was held in Venkatesan’s office on August
31, with Armstrong, Wilkins and Venkatesan. (Tr. 288, 797-793.) She prepared the termination
letter and a script of talking points for Venkatesan to use in the meeting. (Tr. 793; R Ex. 5, 7; GC
Ex. 6.) In the meeting, Armstrong attempted to explain the reasons for his actions but 5
Venkatesan dismissed his explanations and handed him the termination letter. The letter
explained that Armstrong was terminated for “gross negligence of assigned duties and making
false reports of your activities during the shift.” (GC Ex. 6.) Armstrong went to his work area,
gathered his personal items, and left the plant. (Tr. 290.)
10
III. LEGAL STANDARDS

Section 8(a)(1) of the National Labor Relations Act (NLRA/the Act) provides that it is an
unfair labor practice for an employer to interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed in Section 7 of the Act. The rights guaranteed in Section 7 15
include the right “to form, join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection.” See Brighton Retail, Inc., 354 NLRB
441, 441 (2009).
20
In Meyers Industries (Meyers 1), 268 NLRB 493 (1984), and in Meyers Industries
(Meyers II), 281 NLRB 882 (1986), the Board held that “concerted activities” protected by
Section 7 are those “engaged in with or on the authority of other employees, and not solely by
and on behalf of the employee himself.” However, the activities of a single employee in enlisting
the support of fellow employees in mutual aid and protection is as much concerted activity as is 25
ordinary group activity. Individual action is concerted if it is engaged in with the object of
initiating or inducing group action. Whitaker Corp., 289 NLRB 933 (1988). A conversation can
constitute concerted activity when “engaged in with the object of initiating or inducing or
preparing for group action or [when] it [has] some relation to group action in the interest of the
employees.” Meyers II, supra, 281 NLRB at 887 (quoting Mushroom Transportation Co., 330 30
F.2d 683, 685 (3 Cir. 1964)). The object of inducing group action, however, need not be
expressed depending on the nature of the conversation. See Hoodview Vending Co.., 359 NLRB
No. 36, slip op. at 4–5 (2012).

An employer violates Section 8(a)(1) of the Act if it disciplines or discharges an 35
employee for engaging in activity that is “concerted” within the meaning of Section 7 of the Act.
If it is determined that the activity is concerted, a violation of Section 8(a)(1) will be found if the
employer knew of the concerted nature of the employee’s activity, the concerted activity was
protected by the Act, and the adverse employment action was motivated by the employee’s
protected, concerted activity. Relco Locomotives Corp., 358 NLRB 37 (2012) (citing Meyers 40
Industries, 268 NLRB 493, 497 (1984), remanded sub nom. Prill v. NLRB 755 F.2d 941 (D.C.
Cir. 1985), cert. denied 474 U.S. 948 (1985), supplemented 281 NLRB 882 (1986), affd. sub
nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), cert. denied 487 U.S. 1205 (1988)). Once
the General Counsel establishes such an initial showing of discrimination, the employer may
present evidence, as an affirmative defense, showing it would have taken the same action even in 45
the absence of the protected activity. The General Counsel may offer evidence that the
employer’s articulated reasons are pretext or false. Relco, supra.
JD–73–13

17

The Board applies the Wright Line35 analysis to evaluate whether an adverse employment
action violates 8(a)(3) of the Act. The burden is on the General Counsel to initially establish that
a substantial or motivating factor in the employer’s decision to take adverse employment action
against an employee was the employee’s union or other protected activity. In order to establish 5
this initial showing of discrimination, the evidence must prove: (1) the employee engaged in
union or concerted activities; (2) the union or concerted activities were protected by the Act; (3)
the employer knew of the concerted nature of the activities; and (4) the adverse action taken
against the employee was motivated by the activity. Circumstantial evidence may be used to
show animus. Camaco Lorain Manufacturing Plant, 356 NLRB No. 143 slip op. at 4 (2011); 10
Praxair Distribution, Inc., 357 NLRB No. 91, slip op. at 1 fn. 2 (2011).

Once the General Counsel has met its initial showing that the protected conduct was a
motivating or substantial reason in employer’s decision to take the adverse action, the employer
has the burden of production by presenting evidence the action would have occurred even absent 15
the protected concerted activity. The General Counsel may offer proof that the employer’s
articulated reason is false or pretextual. Hoodview Vending Co.,supra 359 NLRB No. 36, slip op
at 5. The General Counsel retains the ultimate burden of proving discrimination. Wright Line,
id. However, where “the evidence establishes that the reasons given for the Respondent’s action
are pretextual—that is, either false or not in fact relied upon—the Respondent fails by definition 20
to show that it would have taken the same action for those reasons, absent the protected conduct,
and thus there is no need to perform the second part of the Wright Line analysis.” Golden State
Foods Corp., 340 NLRB 382, 385 (2003) (citing Limestone Apparel Corp., 255 NLRB 722
(1981), enfd. 705 F.2d 799 (6
th
Cir. 1982)). The Wright Line analysis is not applicable when
there is no dispute that the employer took action against the employee because the employee 25
engaged in protected concerted activity. Phoenix Transit System, 337 NLRB 510, 510 (2002),
enfd. 63 Fed. Appx. 524 (D.C. Cir. 2003).

IV. DISCUSSION AND ANALYSIS
30
A. Armstrong’s Protected Union and/or Concerted Activity

The General Counsel alleges that the Respondent violated Sections 8(a)(1) and (3) of the
Act by discharging Armstrong, effective August 31, 2012. The Respondent counters that
Armstrong was terminated solely for gross negligence of his duties and making false reports of 35
his work activities. (R Br. 14.) A Wright Line analysis is appropriate in this case because the
Respondent’s motive is at issue.
I find that the General Counsel has established that the discharge of Armstrong effective
August 31, 2012, violated Sections 8(a)(1) and (3) of the Act for the reasons discussed below.
The evidence clearly establishes and I find that Armstrong engaged in protected union 40
and concerted activity. Armstrong was an early supporter of the union organizing campaign.
The evidence is undisputed that he regularly attended weekly union organizing meetings, joined
the employee union organizing committee, solicited union authorization cards, discussed the

35251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1
st
Cir. 1981), cert denied 455 U.S. 989 (1982).
JD–73–13

18

benefits of unionization with employees, and engaged in handbilling. (Tr. 132-133, 194-195,
212, 245-246.) Armstrong’s acts are the epitome of protected union and concerted activity.

B. Respondent’s Knowledge of Armstrong’s Protected Union and/or Concerted Activity
I find that the evidence establishes the Respondent had knowledge of Armstrong’s 5
protected union and concerted activity.
Venkatesan and Spalding both deny knowledge of Armstrong’s union activity prior to his
termination. McBride, however, admitted that sometime after the union campaign began he
learned the names of “[p]retty much everybody that came to the union meeting.” (Tr. 549.)
Armstrong was also one of the employees McBride learned had attended the union meetings. (Tr. 10
550, 554.) He admitted that he learned of this information and reported it to Venkatesan
“sometime before the summer.” (Tr. 550, 555.)36 Consequently, McBride and Venkatesan had
knowledge of Armstrong’s protected union activity prior to his discharge. Since I find that
McBride, a supervisor and agent of Respondent, had knowledge of Armstrong’s protected
activity prior to his termination, it is not necessary for me to rule on the credibility of Spalding’s 15
and Venkatesan’s denials on this point.37 Thus, I find that the Respondent had knowledge of
Armstrong’s protected union activity at the time a decision was made to discharge him.

C. Adverse Employment Action Based on Discriminatory Animus
The remaining question the General Counsel must prove to establish its initial burden is 20
whether the Respondent discharged Armstrong because of discriminatory animus. I find that the
General Counsel has proven the final prong of its initial burden.

36
After unnecessarily redundant questioning by counsel for the Charging Party on this point,
McBride later changed his testimony to state that he did not give Venkatesan the names of Armstrong and
other employees who had attended union meetings. (Tr. 555-556.) Nonetheless, I find his later denial
lacks credibility. McBride testified that in early May 2012, he was informed in a supervisor’s meeting
that a union campaign had begun. (Tr. 547.) The meeting occurred the week of May 2. (Tr. 427-428.) He
admitted that prior to this meeting, he knew that “five to ten” employees were involved in a union
organizing campaign but in the meeting he learned that employee participation had become more
“widespread”. He testified that prior to the summer, he learned Armstrong was one of several employees
that was involved in the union effort. (Tr. 548-549.) In response to counsel’s unambiguous question
whether he reported to “anyone in the company” the names of employees he was aware of participating in
the union organizing campaign, McBride stated, without wavering, that he told Venkatesan. (Tr. 550.)
Further, he noted that he told Venkatesan this information early in the summer. A reading of the transcript
of this exchange reveals that the questions were clearly stated without room for multiple interpretations
and McBrides’ responses were also clearly articulated. There is nothing in the initial exchange which
indicates that McBride did not understand the questions asked or that counsel misinterpreted the response.
(Tr. 547-550.)
37
While not ruling on the credibility of Spalding and Venkatedan on this point, I will again
emphasize that I do not find credible the majority of their overall testimony. I found Spalding’s
testimony was evasive and calculated to be misleading. In my many years as a judge, I have never had a
witness whose testimony I have found more worthy of discredit than Venkatesan’s. There was virtually
nothing about Venkatesan’s testimony that I believed beyond the statement of his name, prior work
experience, and a few undisputed facts.
JD–73–13

19

The General Counsel contends that the evidence shows the Respondent was motivated to
discharge Armstrong because of his union activities. The General Counsel sets forth several
bases supporting its argument: (1) the intentional failure of the Respondent to adequately
investigate the charges against Armstrong that led to his termination (GC Br. 26-34.); and (2) the
Respondent’s refusal to follow its progressive disciplinary policy against Armstrong. (GC Br. 5
35-39.)

1. Failure to Conduct a Fair and Meaningful Investigation
As noted earlier in the decision, the facts establish that Venkatesan’s investigation into
the charge that Armstrong disobeyed his order to operate a machine consisted of reading 10
Stowell’s email notifying him of the occurrence, reviewing the productivity report for
Armstrong’s shift the night at issue, spending 5 minutes on the plant floor assessing the work
that had been completed, briefly discussing with Stowell the situation, and instructing Stewart to
further investigate. (Tr. 650, 659-668.) In response to Venkatesan’s directive, Stewart likewise
reviewed the production report for the night, conducted a 10-15 minute inspection of the work 15
area at issue, and met with Armstrong to discuss the events.

The weight of the evidence supports a finding that the Respondent deliberately conducted
an inadequate investigation into the charges against Armstrong to justify terminating him.
20
Venkatesan admitted that as soon as he read Stowell’s email and prior to conducting any
investigation he “absolutely” felt that Armstrong should be terminated. (Tr. 661.) After
receiving feedback from Stewart on the results of his investigation into Armstrong’s activities
the previous evening, Venkatesan went to the machining department and spent only five minutes
inspecting the area. (Tr. 666-667.) He testified that at about 8:45 a.m., he conducted a five 25
minute review of the machining department and observed that the A77 and A81 chip baskets
were full. According to Venkatesan, there were cradle and getrag parts available to run on the
A77, A81, and Okuma 1 and 2. He insisted the all of the machines were operational. (Tr. 668-
669, 672, 674.) Based on Stewart’s report and his five minute review of the machining
department, Venkatesan testified that he concluded Armstrong had willfully disobeyed his 30
instructions and falsely reported his activities.

I discredit Venkatesan’s testimony in its entirety. The evidence is undisputed that prior
to August 26, Venkatesan had never given Stowell instructions to convey to Armstrong or any
other lead. (Tr. 518, 521, 753.) It is suspicious that soon after he learned of Armstrong’s 35
unionizing activity, Venkatesan would tell Stowell to instruct Armstrong to perform a specific
task, especially a task that leads rarely perform. (Tr. 518, 753.) Although Venkatesan claimed he
needed Armstrong to operate a machine that evening because the shift was missing one
employee, I do not find his explanation plausible. (Tr. 648.) The Respondent’s spreadsheet
summarizing activity in the machining department for August 26 through 27 shows one 40
employee (Judy Holsey) was absent on the A-shift. (CP Exh. 5.) However, there is no evidence
that Venkatesan instructed the lead on the A-shift to operate a machine to compensate for the
absence of an employee. Based on the evidence and combined with my skepticism of
Venkatesan’s overall veracity as a witness, I do not credit his testimony.
45
JD–73–13

20

Venkatesan also admitted that he had determined Armstrong should be fired based on
nothing more than an email from Stowell sent within about an 1 ½ hours into Armstrong’s shift
noting he had failed to operate a machine. Even Spalding had to acknowledge it was odd for
Stowell to target Armstrong for discipline for failing to operate a machine a mere hour and
twenty-three minutes into the shift. (Tr. 494.) 5

Further, Venkatesan conceded that during his 5 minute cursory review of the machining
department, he did not inspect all of the machines. He acknowledged that he saw a few chip
baskets behind 2 of the 7 machines and assumed Armstrong had not emptied them. He admitted
that the baskets could have been filled by an employee on another shift after they had been 10
emptied by Armstrong. (Tr. 667-669.) Venkatesan also provided unpersuasive testimony that
there were parts Armstrong could have run on the A77 or A81 machines. (Tr. 669-673.) He
failed to detail the basis for his statement, provide production reports to support his statement or
provide corroborating testimony on this point. The evidence shows that the employees on the C-
shift on August 26, had efficiency rates well above 100%, even without the absent mployee. (Tr. 15
623-624; CP Exh. 6.) The efficiency rate of the C-shift, in combination with Armstrong’s
credible testimony, supports my finding that Venkatesan’s testimony is unconvincing.
Therefore, I do not credit his testimony on this point based on the aforementioned and his overall
evasive and deceptive testimony.
20
Second, Venkatesan and Stewart did not interview Armstrong or any of the employees on
the C-shift to confirm or discredit the charges against Armstrong. Timmons provided
corroborating testimony that Armstrong spent more than an hour that night adjusting the scriber
on her machine and observed him empty 3 or 4 of her full chip baskets. She also gave
undisputed testimony that she never saw Armstrong idle during the shift. (Tr. 341-343.) 25
Likewise, Tucker testified, without contradiction, that he never saw Armstrong not working that
evening. On the occasions he observed him, Armstrong was buffing Hubble handles or
retrieving and removing machined parts. (Tr. 348.) Based on Ridge’s sightline that evening, he
was able to observe half of the machining department. From his vantage point, he was only
occasionally able to see Armstrong operating the forklift. (Tr. 357, 361.) Meade could only 30
recall that she observed Armstrong operating the forklift and sweeping the floor. (Tr. 371, 373-
374.) Each of them provided undisputed testimony that no one from management interviewed
them about the night at issue, either before or after Armstrong’s termination. An attempt at a
reasonable investigation would have at minimum included interviews of those people who were
most in a position to observe Armstrong’s actions that evening. The record established that 35
Venkatesan and Stewart had access to the employees who witnessed Armstrong’s work
performance that night but intentionally refused to interview them. (Tr. 626-627.) American
Crane Corp., 326 NLRB 1401, 1417 (1998) (the Board held that an employer’s investigation is
evidence of discriminatory motive when it fails to interview key witnesses). Respondent’s
failure to take such action supports an inference of discriminatory animus and motivation. See 40
Relco Locomotives, Inc., 358 NLRB No. 37, slip op. at 14 (2012) (evidence that the respondent
failed to adequately investigate alleged misconduct supports an inference of animus and
discriminatory motivation).

As part of their investigation into Armstrong’s actions, management also failed to 45
interview Moore. It is undisputed that at least weekly Armstrong consulted Moore for technical
advice. (Tr. 304.) Further, prior to leaving work each day, it was a standing practice for
JD–73–13

21

Armstrong to provide Moore with a detailed account of the work he performed and the status of
work to be completed by the next shift. (Tr. 278-279.) On August 27, Armstrong gave the usual
summary of the work he and the other employees on the C-shift completed and “anything that I
thought day shift needed to be aware of.” (Tr. 278.) As the only manager to speak with
Armstrong immediately after his shift, he was in a position to see and assess what work had been 5
completed on Armstrong’s shift before it was tainted by the employees working the next shift.
Despite the possible significance of his testimony to the investigation, neither Venkatesan nor
Stewart interviewed him. Equally significant is Moore’s failure to appear for the hearing despite
being subpoenaed to testify. (GC Exh. 1.) American Crane Corp., supra at 1417.
10
Further, I do not find plausible Venkatesan’s and Stewart’s testimony that within five
minutes of walking around the machining department, they were able to determine that
Armstrong falsely reported on his activities the prior evening.

After following Venkatesan’s directive to investigate Armstrong’s activities on the C-15
shift August 26, Stewart reported to him that his review of the machining department revealed
that “nothing had been done.” (Tr. 665.) Sometime before 8:45a.m. on August 27, Venkatesan
went to the machining department to confirm Stewart’s findings. Since Venkatesan could not
remember what time he conducted his review, it is feasible that he did not visit the area until
almost two hours into the A-shift’s work. (Tr. 665-666.) He gave no credible explanation as to 20
how 2 hours or more into the A-shift, he could distinguish between tasks that were not completed
on the C-shift versus work generated by the A-shift. Venkatesan claimed the baskets for A77
and A81 were full when he checked them. Therefore, he discounted Armstrong’s claim that one
of the functions he performed that evening was emptying the chip baskets and hauling them
away. However, he admits that it is possible the baskets could have been refilled by the A-shift 25
before he looked at them. Also, Venkatesan admitted that he only checked 2 of the 11 machines
in the department. (Tr. 667-668.) Therefore, it is plausible that the other machines’ baskets were
emptied by Armstrong as he alleged and Venkatesan would not have known it. Based on the
foregoing and Armstrong’s more truthful demeanor, I credit his testimony.
30
Venkatesan also attested that there were 400 Hubble handles from the previous Friday
waiting to be processed by the C-shift on August 26. (Tr. 594-595.) However, Venkatesan
unconvincingly testified he was able to conclude, after less than 10 minutes of review, that there
were not enough Hubble handles in need of buffing to justify the amount of time Armstrong said
he had spent buffing them. I do not credit Venkatesan’s testimony on this point. Timmons, 35
Tucker, and Meade corroborated Armstrong’s testimony on this point. (Tr. 341-343, 348, 371,
373-374.)

I also find that Stewart conducted a cursory examination of the machining department,
which could not have afforded him with enough information to determine whether Armstrong 40
lied about his actions on the C-shift.

Stewart claimed that his review of the area revealed none of the machines’ hoppers had
been emptied and only 20 out of 400 Hubble handles had been buffed. (Tr. 593-594.) He
attempted to explain that by looking at just 2 to 3 of the 20 buffed Hubble handles, he could tell 45
that they were ready for wheelbrating. Stewart also insisted that from each stack he picked up 2
or 3 of the remaining 380 Hubble handles and determined none of the 380 handles had been
JD–73–13

22

buffed. (Tr. 612-615.) However, Stewart conceded that flaws occur in some of the handles after
they are buffed. (Tr. 612-613.) He admitted that it is left to the judgment of the individual
machine operator whether to send the blemished handle to the wheelbrator or manually buff out
the imperfection. (Tr. 613-614.) There is no evidence to contradict Armstrong’s credible
testimony that in his judgment the handles required buffing. Therefore, I do not credit Stewart’s 5
testimony on these points. Stewart failed to provide a persuasive explanation of how a quick
glance of a fraction of the 400 handles would enable him to determine that out of 400 handles,
Armstrong only buffed 15 to 20 of them.

I previously found Stewart failed to interview Moore or key witnesses on the C-shift. (Tr. 10
626-627.) In addition, Stewart concedes that the lead does not usually operate a machine. (Tr.
583.) He testified that a lead is expected to operate a machine for an absent employee or when
training a new employee.38 (Tr. 583.) However, I again do not credit the argument that
Armstrong needed to operate a machine the night at issue because an employee was absent from
the shift for the same reasons noted earlier in the decision. Stewart and Venkatesan also argue 15
that the A81 was operational and if there were not enough Volvo parts to run on the A81,
Armstrong should have switched the machine over to run cradle parts because the machine could
operate both parts. (Tr. 596-597, 670, 674.) I likewise reject this argument because there is no
evidence Armstrong was trained to perform this function, nor that he was authorized or
instructed to perform this function on the night at issue. Regardless, I do not credit Stewart’s or 20
Venkatesan’s testimony that there were sufficient parts to operate the A81.39 Since neither
witness has proven to be reliably credible, I will not credit their testimony on this point without
corroborating objective evidence.

Last, Armstrong gave credible testimony that the prior shift left the machining 25
department in disarray which required him to clean and organize the area in order to carry out
several of the duties on the C-shift. Neither Venkatesan nor Stewart provided evidence that they
had first-hand knowledge that the machining department was not in disarray at the beginning of
the C-shift.
30
The above facts, combined with the Respondent’s additional acts of union animus (threat
of plant closure and job loss, and unlawful surveillance and interrogation of employees),
supports an inference that discriminatory animus was the actual motive for Armstrong’s
discharge by the Respondent.
35

38
Stewart also argues that Armstrong had a history of attempting to circumvent instructions to
operate the machines. I do not credit his testimony because there was no corroborating evidence. Also, I
am skeptical of the truthfulness of his overall testimony.
39
Another example of Stewart’s contradictory testimony is an email he sent to Wilkins explaining
Stowell told him he had checked on Armstrong “a couple different occasions” throughout the night and
noted each time he was not running a machine. (CP Exh. 8.) Stowell, however, contradicts Stewart’s
testimony on this point. Stowell insisted that after his initial conversation with Armstrong, he never
spoke with him again and only saw him once more that evening as Armstrong was buffing handles. (Tr.
520-524.) This type of contradictory testimony weighs negatively on the overall credibility of Stewart’s
testimony. Further, I find the overall evidence supports my finding that Stowell was a more credible
witness than Stewart.
JD–73–13

23

2. Respondent Failed to Follow Progressive Discipline Policy

The General Counsel argues that the Respondent’s failure to follow its progressive
discipline policy prior to terminating Armstrong is another factor pointing to discriminatory
animus being the true motive for his discharge. The Respondent argues that it was justified in 5
not following the usual progressive discipline steps because Armstrong’s action was so egregious
that it warranted immediate termination. Further, the Respondent contends that Armstrong’s
prior disciplinary record, combined with the current infraction, supports his immediate discharge.

I find the Respondent’s failure to follow its progressive disciplinary policy is evidence of 10
discriminatory animus against Armstrong.

It is undisputed that Armstrong had four prior infractions, one in 2011 and three in 2012.
Even considered in combination, the infractions would not have led a reasonable person to
conclude that termination was justified. None of the infractions were considered serious enough 15
to warrant more than a verbal warning by his supervisor. The evidence reveals that Armstrong
only received one disciplinary action in 2011. On July 18, 2011, he was issued a verbal warning
for improperly changing out a tool. However, the verbal warning should not have been a part of
his record by the time Wilkins reviewed his personnel file in August 2012.40
20
After reviewing his personnel file, Wilkins initially recommended that the Respondent
issue Armstrong a 3 day suspension with a final warning placed in his personnel file in lieu of
termination. (Tr. 790.) She testified, unconvincingly, that she revised her initial recommendation
to a termination after Venkatesan told her about 2 prior disciplines that Armstrong had received
which were not in his personnel file. (Tr. 790-791.) She provided nothing in the way of 25
testimony or other objective evidence to support why the additional verbal warnings issued for
minor infractions would justify changing her recommendation. In fact she appeared confused by
the entire rush to terminate Armstrong. As an example, she sent an email to Venkatesan and
Stewart asking why Stowell did not approach Armstrong when he observed him not operating a
machine and tell him to clock out and go home because his action was insubordinate. No one, 30
including Stowell, could provide a convincing response other than Stowell’s excuse that he had
other duties to take care of that evening. I do not credit Stowell, Stewart, Spalding, or
Venkatesan’s testimony on this point. If Stowell had time to purposely observe Armstrong
allegedly on several occasions that evening, then it is reasonable to assume that he could have
taken a few extra seconds to ask Armstrong why he was not working the machine and if not 35

40
Armstrong testified that McBride and Foundry Supervisor Bob Brown told him it was the
Respondent’s policy to remove discipline from an employee’s record after a year. (Tr. 299) McBride did
not dispute that he told Armstrong it was the Respondent’s policy to limit the length of time discipline
remained on employees’ record to a year. However, Venkatesan, Spalding, and Wilkins testified that it
was not the Respondent’s policy to remove discipline from employees’ files after a year. I do not credit
their testimony on this point. I have made clear my distrust of Venkatesan’s and Spalding’s testimony.
While Wilkins was a relatively credible witness when testifying about undisputed facts and personnel
procedures, I find her testimony on this point is incomplete. Venkatesan, Wilkins, and Spalding were
evasive in responding to questions on why the additional disciplines were not part of Armstrong’s
personnel folder; which missing disciplines were brought to Wilkins attention; and how Spalding and, or
Venkatesan acquired the missing information. (Tr. 466-467, 676-678, 790-792, 830-834) Their testimony
on this point lacked credibility and was not helpful.
JD–73–13

24

satisfied with the response, instruct him he was suspended for insubordination. Further,
Armstrong and the other employees working the C-shift the date at issue credibly testified that
after his initial conversation with Armstrong, they did not see Stowell again for the remainder of
the night.
5
Based on the evidence, I find that the General Counsel has established an initial showing
of discrimination. Therefore, the burden shifts to the Respondent to show, as an affirmative
defense, that it would have terminated Armstrong even in the absence of his union and concerted
protected activities.
10
The Respondent argues Armstrong was discharged because: (1) Armstrong disobeyed
instructions to operate a machine (R Br. 5-6, 13.); (2) Armstrong gave a false reporting of his
activities during the C-shift on August 26 (R Br. 5-6.); and (3) Armstrong had a history of prior
discipline (R Br. 7-8, 13-14.)
15
I find that the Respondent’s reasons are pretext for discrimination. I set out earlier in the
decision my reasons for finding that Armstrong did not give a false report of his activities on the
C-shift on August 26. An adequate investigation by management that was not tainted by
unlawful motivations would have supported most or all of Armstrong’s claims. I also detailed
my rationale for finding that Armstrong’s prior history of discipline, in combination with the 20
most recent charge, would likely not lead to termination but for discriminatory animus
(Armstrong’s prior disciplines were verbal warnings for minor infractions). Last, the evidence
established that Stewart did not instruct Armstrong to operate a machine and Armstrong could
not carry out Venkatesan’s directive to operate a machine because the circumstances in the
machining department that evening made it impossible (machining department in disarray from 25
prior shift’s work, insufficient parts to operate the A8, etc.).

Based on the evidence, I find that the Respondent discharged Armstrong for
discriminatory reasons in violation of Sections 8(a)(1) and (3) of the Act, as alleged in paragraph
7 of the complaint. 30

D. Surveillance of Employees Union and/or Other Protected Activities

The General Counsel argues that the Respondent, through its managers and
administrative staff, took extraordinary and unlawful steps to observe the union activity 35
conducted on or near its property. (GC Br. 50-51.) The Respondent refutes this charge and
contends that its managers observed union activity that was “open and notorious and was subject
to observation by any person (employee or non-employee) with non-impaired vision.” (R Br.
15.)
40
I find that the General Counsel has established that the Respondent conducted unlawful
surveillance of its employees in violation of Sections 8(a)(1) of the Act for the reasons discussed
below.

The Board and federal case law have long held that surveillance of employees by an 45
employer, even if the employees are unaware of it, violates the Act. NLRB v. Grower-Shipper
Vegetable Ass’n, 122 F.2d 368 (9
th
Cir. 1941); Ivy Steel & Wire, Inc., 346 NLRB 404 (2006).
JD–73–13

25

Nonetheless, an employer may observe employees engaging in Section 7 activities in an open
and public manner on or near its property. This observation is legal if done in a manner that is
not out of the ordinary and absent coercive behavior. Smithfield Foods, Inc., 347 NLRB 1225
(2006) (employer did not engage in illegal surveillance when, because of a reasonable concern
about employee trespassing on employer property, it moved a security camera to an area where 5
employee handbilling and trespassing had taken place); Sprain Brook Manor Nursing Home, 351
NLRB 1190 (2007) (the Board found unlawful surveillance where supervisor admitted to
working outside her normal schedule because she believed union activity may be occurring);
Eddylean Chocolate Co., 301 NLRB 887, 888 (1991) (noting “[t]he Board has long held that
management officials may observe public union activity without violating the Act so long as 10
those officials do not do something out of the ordinary”). Evidence of coerciveness includes, the
“duration of the observation, the employer’s distance from its employees while observing them,
and whether the employer engaged in other coercive behavior during its observation.” Aladdin
Gaming, LLC, 345 NLRB 585, 585-586 (2005), petition for review denied 515 F.3d 942 (9
th
Cir.
2008). The Board has held, however, that random or isolated observations of Section 7 15
activities, such as handbilling, do not violate the Act. Id.

The General Counsel alleges that the Respondent, through Adams, unlawfully conducted
surveillance of employees’ union or other protected concerted activities. The General Counsel
argues that the frequency of the observations and her proximity to the employees engaged in the 20
activities are indicative of its coercive and unlawful nature.

Although the charge alleges the Respondent unlawfully conducted surveillance of
“employees’ union or other protected, concerted activities”, the primary complaint involves
managers’ observation of employees and union officials engaged in handbilling on or near 25
company property. It has been established that since May 2012, union organizers have
conducted weekly handbilling on the public road (Pride Avenue) leading to the Respondent’s
hourly employee parking lot. It is also proven that beginning in late May 2012 until
approximately August 7, Adams observed the handbilling from her parked car on at least 8 to 12
occasions. (Tr. 198-199.) After charges were filed against the Respondent with the National 30
Labor Relations Board (NLRB), Adams stopped her surveillance of the handbilling activity. (Tr.
199.) In addition, Venkatesan admitted to observing the handbilling on 2 occasions from a
window in the foundry and was aware of the handbilling occurring each Tuesday. He reported
this to Spalding. Spalding, Adams, and Wilkins exchanged a series of emails from May 2 to
September 1, commenting on the handbilling activity. In response to an employee complaint and 35
Venkatesan’s concern about the handbilling, Spalding instructed Adams and Venkatesan to
ensure that handbilling did not occur on company property. (Tr. 740. 820.)

Applying the standards set out in the above cited cases, I find that the General Counsel
has met his burden of proof. The evidence established on at least 8 to 12 occasions Adams 40
parked her car in the driveway leading to the hourly employees’ parking lot and observed the
handbilling for “a few minutes” each time. There was no evidence to show that prior to the
handbilling campaign Adams parked her car in that location. Further, her observations took
place from a close vantage point and would likely have the effect of dissuading some employees
from interacting with the union for fear of reprisal. Significantly, Adams stopped her 45
surveillance after charges were filed with the NLRB. (Tr. 199.)

JD–73–13

26

The Respondent counters that Adams observed the handbilling on just two occasions in
order to monitor the no distribution/no solicitation rule and ensure non-employees were not
trespassing on company property. However, the evidence established Adams engaged in
surveillance of union activity on at least (possibly more) 8 to 12 occasions. On numerous
occasions, Adams reported her observations to Spalding, Wilkins and, or Venkatesan. (CP 9; Tr. 5
141-144, 198-199.) Last, there is no persuasive evidence to show that the Respondent had a
reasonable basis for believing that the no solicitation or no trespassing policies were being
violated.

Based on the evidence, I find that the Respondent’s surveillance of employees was 10
coercive and a violation of Section 8(a)(1) of the Act.

E. Soliciting Grievances, Promising Improved Working Conditions, and Granting Increased
Benefits and Pay
15
The complaint alleges that on July 26, Stewart solicited employee complaints and
grievances, and promised its employees increased benefits and improved terms and conditions of
employment if they refrained from union organizational activity. In its brief, however, the
General Counsel admits “no evidence was presented in support of the allegation that Respondent
solicited grievances and promised increased benefits if employees refrained from union activity.” 20
(GC Br. fn. 5.) The General Counsel has the burden of presenting credible evidence to support
the allegations in the complaint, but admits he failed.

Therefore, I recommend that paragraph 5(d) of the complaint be dismissed.
25
F. Threats of Adverse Consequences for Supporting the Union

The General Counsel contends that the Respondent, through Spalding , threatened not to
hire employees’ relatives because the employees engaged in union or other protected, concerted
activities in violation of Section 8(a)(1) of the Act. (GC Exh. 1) Curiously, the Respondent 30
rebuts this allegation using the Wright Line burden-shifting framework and the legal principles
covering refusal to hire cases in violation of 8(a)(3) set forth in NLRB v. Interstate Builders, Inc.,
351 F.3d 1020, 1035-36 (10
th
Cir. 2003) and Copes-Vulcan, Inc., 237 NLRB 1253, 1257 (1978).
The complaint at issue does not involve a refusal to hire allegation. Rather the gravamen of the
allegation at issue is that the Respondent violated Section 8(a)(1) of the Act when its agent, 35
Spalding, threatened an adverse consequence (refusal to hire Hunburgers’ stepson) against its
employee (Hunsburger) because of that employee’s union or other protected, concerted activity.
Further, the General Counsel argues that, taken in context, Spalding’s statements to Hunsburger
would “reasonably tend to restrain, coerce or interfere with rights guaranteed by the Act.”
Bloomfield Health Care Center, 352 NLRB 252 (2008), quoting Rossmore House, 269 NLRB 40
1176, 1178 fn. 20 (1984), enfd. sub nom. HERE Local 11 v. NLRB, 760 F.2d 1006 (9
th
Cir.
1985).

The Board has established an objective test for determining if “the employer engaged in
conduct which would reasonably have a tendency to interfere with the free exercise of employee 45
rights under the Act.” Santa Barbara New-Press, 357 NLRB No. 51, slip op. at 25 (2011). This
objective standard does not depend on whether the “employee in question was actually
JD–73–13

27

intimidated.” Multi-Ad Services, 331 NLRB 1226, 1228 (2000), enfd. 255 F.3d 363 (7
th
Cir.
2001). The mere threat of an unspecified reprisal is sufficient to support a finding that the
employer has violated Section 8 (a)(1) of the Act. Metro One Loss Prevention Services Group,
356 NLRB No. 20, slip op. at 1 (2010). Although I agree that the correct standard for analyzing
this allegation is the one articulated by the General Counsel, I find that the General Counsel has 5
failed to present persuasive evidence to establish that the above conversation contained an
unlawful threat of an adverse consequence for Hunsburger’s support of the union organizing
campaign.

The record established that in July, Spalding told Hunsburger that he had checked on the 10
status of his stepson’s application for employment with the Respondent. He then told
Hunsburger that Harrison described to him a conversation he had with him at Nathan’s
restaurant. Spalding continued the conversation by noting Harrison told him that Hunsburger
was “bashing the company”. Spalding stated to Hunsburger that it did not “line up” for him to
ask “someone who you – who is your kin to come to work at a place that you don’t think is a 15
good place to work.” (Tr. 465.)

Although Spalding’s statement could reasonably lead an employee to believe that they or
someone they recommended would not get the job because they had spoken negatively about
company, it does not establish a threat in violation of 8(a)(1) of the Act. While the parties 20
disagree on the exact phrase that Spalding used, the evidence establishes that Spalding was
sufficiently concerned about what he perceived to be Hunsburger’s dissatisfaction with the job to
question him about his comments to Harrison at Nathan’s restaurant. In context, Spalding’s
conversation with Hunsburger is not clearly linked to Hunsburger’s union support. Rather, it
reveals an employer’s unwillingness to hire the relative of a disgruntled employee, irrespective 25
of that employee’s union sympathies. Additional evidence to support the non-discriminatory
nature of Spalding’s action is the undisputed fact that the Respondent uses a temporary agency to
accept employment applications, screen the applicants, and hire employees. (Tr. 235, 460.)
There is no evidence that the Respondent’s managers or human resources department are aware
of the applicants prior to their hire. Further, the General Counsel did not present evidence to 30
dispute testimony that the temporary agency had “screened out” Raul’s (Hunsburger’s stepson)
application prior to Spalding intervening to check on its status.

Accordingly, I find that the General Counsel failed to meet its burden of proof regarding
this allegation and recommend that paragraph 5(e) of the complaint be dismissed. 35

G. Interrogation

The General Counsel argues that the Respondent, through Stewart, interrogated its
employees about their union membership and activities and the union sentiments and activities of 40
other employees. (GC Br. 54-55.) The General Counsel contends that Stewart’s statements to
Armstrong on July 26, were coercive, intimidating and amounted to an unlawful interrogation.
The Respondent counters that Armstrong’s claim that Stewart questioned him about his union
sympathies was fabricated. (R Br. 18.)
45
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28

I find that the General Counsel has established that the Respondent, through Stewart,
unlawfully conducted an interrogation of its employees in violation of Sections 8(a)(1) of the Act
for the reasons discussed below.

The Board has adopted the test established in Bourne v. NLRB, 332 F.2d 47, 48 (2d Cir. 5
1964) to determine if management directly interrogating employees during union organizing
campaigns violates Section 8(a)(1) of the Act. Field Family Associates, LP d/b/a Holiday Inn-
JFK Airport, 348 NLRB 16 (2006); Smithfield Foods, supra. Under the Bourne test, the factors
to consider are: the background; the nature of the information sought; the identity of the
questioner; the place and method of interrogation; and the truthfulness of the reply. Westwood 10
Health Care Center, 330 NLRB 935, 939 (2000). In applying these factors, the Board assesses
whether, based on the facts of the specific case, the questioning at issue would reasonably tend to
interfere with, restrain, or coerce employees in the exercise of their statutory rights. Rossmore
House, 269 NLRB 1176, 1177 (1984); Temecula Mechanical, Inc., 358 NLRB No. 137 (2012).
15
The record establishes that on or about July 26, Stewart had a discussion with Armstrong
after a mandatory employee meeting led by Spalding. Immediately following the meeting,
Stewart called Armstrong into his office. There is no evidence that Armstrong was told of any
legitimate reason for a meeting in which he was asked why he felt he needed a union. There is
also no evidence that Stewart gave Armstrong any assurances that he could speak freely about 20
his union sympathies or activities without reprisal. The evidence shows that the primary purpose
of Stewart’s talk with Armstrong was to specifically ask him why he felt that he needed a union,
if had ever been a member of a union, and why none of the employees in the meeting spoke in
response to Spalding’s speech. Since Stewart denied knowing that Armstrong was a union
supporter, it must be concluded that he questioned Armstrong in an attempt to learn about the 25
strength and depth of his and other employees’ union support.

Based on the facts, I find that Stewart’s questioning of Armstrong would reasonably tend
to interfere with, restrain, or coerce employees in the exercise of their statutory rights.
Accordingly, I find that the Respondent violated Section 8(a)(1) of the Act when on July 26, 30
Stewart interrogated Armstrong.

H. Threatened Employees with Facility Closure because of Union Sympathies

The General Counsel argues that the Respondent, through Spalding, threatened 35
employees with facility closure if they selected the Union as their collective bargaining
representative. (GC Exh. 1-M.) The General Counsel contends that Spalding’s statements to
employees in the July 26 meeting, given the totality of the circumstances, are an implied threat of
plant closure or job loss in violation of Section 8(a)(1) of the Act. (GC Br. 53.) The Respondent
counters that the Respondent, through Spalding, merely communicated its general views about 40
the union to employees and the possible economic consequences of unionization. Further,
Spalding denies that he told employees the Respondent’s plant would close if it was unionized.
(R Br. 17.)

I find that the General Counsel has established that the Respondent, through Spalding, 45
unlawfully threatened its employees with plant closure if they unionized in violation of Section
8(a)(1) of the Act for the reasons discussed below.
JD–73–13

29

It is well understood that an employer, and by extension its agents and supervisors may
“communicate to his employees any of his general views about unionism or any of his specific
views about a particular union, so as long as the communications do not contain a ‘threat of
reprisal or force or promise of benefit.’” Albertson’s, LLC, 359 NLRB No. 147, 33 (2013) 5
quoting NLRB v. Gissel Packing Co., 395 U.S. 575, 618 (1968). Whether the statements are a
threat is viewed from the objective standpoint of the employee, over whom the employer has a
measure of economic power. See Mesker Door, Inc., 357 NLRB No. 59, slip op. at 5 (2011); Inn
at Fox Hollow, 352 NLRB 1072, 1074 (2008); See also Section 8(c) of the Act (stating that the
‘expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, 10
printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice
under any of the provisions of this Act …, if such expression contains no threat of reprisal or
force or promise of benefit”). An employer’s communication to employees that they will
jeopardize their job security, wages or other working conditions if they support the union is a
violation of Section 8(a)(1). Metro One Loss Prevention Services Group, at 1; Noah’s Bay Area 15
Bagels, LLC, 331 NLRB 188 (2000).

Based on the facts and the controlling legal standard, I find that Spalding’s July 26,
remarks are implicit threats of plant closure or job loss in violation Section 8(a)(1) of the Act.
20
The evidence established that in response to rumors of a union organizing campaign,
Spalding held mandatory employee meetings for each of the three shifts to express
management’s and the parent company’s (Ligon Industries) views on unionization.41
In the meeting, Spalding extolled the virtues of a non-union plant and set out the consequences
of unionization. This speech came after almost 3 months of management’s intense efforts to 25
disrupt the union organizing campaign (surveillance of handbilling, consults with attorneys,
discussions and meetings with management staff to discover the extent of the union campaign
and its supporters, interrogating employees on their union support, and giving the same speech at
a prior mandatory employee meeting).
30
The Respondent accurately points out that Spalding never explicitly threatened the
employees with facility closure if a union was established at the plant. However, Spalding
clearly implied that the employees jobs were in jeopardy if they unionized by stating because all
other similar casting companies were non-union and Ligon preferred not to operate a union plant,
investment in the plant would be jeopardize by a union. He also stated as a fact that unionized 35
plants have a more difficult time making profits and many shut down solely because of union
work rules and other union negotiated processes, without allowing for other factors apart from
the union as the reason for lost company profits and inefficiencies. Further, this was the second
time Spalding had given the same speech to the hourly employees, both times ending it with a
warning that he would continue to hold similar mandatory meetings if the workers’ did not end 40
the union organizing effort by refusing to support it. (GC Exh. 5) His comments go beyond
communicating the Respondent’s general views about the Union because they involved thinly
veiled threats of plant closure and job loss for supporting the Union. I find that Spalding’s
speech reasonably would tend to restrain or coerce employees in the exercise of their Section 7
rights. 45

41
Venkatesan, Stewart, Wilkins and other supervisors also attended at least one of the meetings.
JD–73–13

30

Accordingly, I find that the Respondent violated Section 8(a)(1) of the Act as alleged in
paragraph 5(b) of the complaint.

I. Respondent Posted Literature Threatening Permanent Job Loss 5

The General Counsel argues that the Respondent, in late July or early August, posted
literature at its facility that threatened employees with permanent job loss if they were replaced
by new hires during a strike. (GC Exh. 1-M.) The General Counsel contends that the posting at
issue “went beyond merely informing employees that they could be permanently replaced, and 10
instead threatened, contrary to Laidlaw,42 that as a result of the strike, employees are not
automatically entitled to their jobs when the strike ends, or to be put on a preferential hire list.”
(GC Br. 56.) The Respondent counters that the “statement as to the employment consequences
of a strike was merely incomplete, rather than misleading.” (R Br. 20) The Respondent also
argues that the charge should be dismissed because neither the General Counsel nor Charging 15
Party questioned any witness to establish that they interpreted the posting as a threat to their
Section 7 rights. (R Br. 21.)

An employer may tell its employees that they are subject to permanent replacement in the
event of a strike. Eagle Comtronics, Inc., 263 NLRB 515, 516 (1982). An employer does not 20
have to fully explain the nature and scope of the Act’s protections for replaced strikers. Superior
Emerald Park Landfill, LLC, 340 NLRB 449, 462 (2003); Laidlaw, supra. Nonetheless, the
Board has held that “where an employer’s statements about permanent replacements make
specific references to job loss, such statements are generally deemed to be unlawful since they
convey to employees the message that their employment will be terminated.” Connecticut 25
Humane Society, 358 NLRB No. 31, 62 (2012).

The Respondent’s posting clearly states that strikers will lose their jobs during a strike if
the company exercises its right to hire replacement workers. (CP Exh. 4) The Respondent fails
to make clear the distinction between employees who engage in economic strikes and are not 30
entitled to immediate reinstatement if replaced, as opposed to employees who engage in unfair
labor practice strikes and are protected against permanent replacement. See Spurlino Materials,
LLC, 357 NLRB No. 126, slip op. at 15 (2011) (explains the difference between unfair labor
practice strikes and economic strikes); Connecticut Humane Society, supra. Despite the
Respondent’s argument to the contrary, the posting does not, even when taken in context, 35
“clearly” show that the Respondent was referring only to economic strikers. I find that there is
absolutely nothing in the language of the posting to support the Respondent’s argument. I also
find without merit the Respondent’s argument that the charge should be dismissed because
neither the General Counsel nor Charging Party questioned any witnesses to establish that they
interpreted the posting as a threat to their Section 7 rights. The Respondent failed to provide any 40
case law to support this argument.

I find that the General Counsel has established that the Respondent, through a posting of
literature in late July or early August, threatened its employees with permanent job loss if they
were replaced by new hires during a strike in violation of Section 8(a)(1) of the Act. 45

42
171 NLRB 1366 (1968).
JD–73–13

31

CONCLUSIONS OF LAW

1. The Respondent, Stahl Speciality Company, is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act. 5

2. The International Brotherhood of Electrical Workers Local 1464, affiliated with the
International Brotherhood of Electrical Workers, AFL-CIO is a labor organization within the
meaning of Section 2(5) of the Act.
10
3. By discharging Patrick Armstrong on August 31, because he engaged in union and
protected concerted activities, the Respondent has violated Section 8(a)(3) and (1) of the Act.

4. By, on or about May 31, June 13, 18, and 26, July 17, 24 and 26, and August 2 and 14,
engaging in surveillance of employees’ union or other protected concerted activities in a manner 15
that was out of the ordinary and coercive, the Respondent has violated Section 8(a)(1) of the Act.

5. By, on or about July 26, threatening employees with facility closure if they selected the
Union as their collective bargaining representative, the Respondent has violated Section 8(a)(1)
of the Act. 20

6. By, on or about July 26, interrogating its employees about their union membership and
activities and the union sentiments and activities of other employees, the Respondent has
violated Section 8(a)(1) of the Act.
25
7. By, on or about late July or early August 2012, threatening not to hire employees’
relatives because the employees engaged in union or other protected, concerted activities, the
Respondent has violated Section 8(a)(1) of the Act.

8. By, on or about late July or early August 2012, posting literature at its facility that 30
threatened employees with permanent job loss if they were replaced by new hires during a strike,
the Respondent has violated Section 8(a)(1) of the Act.

9. The above violations are unfair labor practices that affects commerce within the
meaning of Section 2(6) and (7) of the Act. 35

10. The Respondent has not violated the Act except as set forth above.

REMEDY
40
Having found that the Respondent has engaged in certain unfair labor practices, I shall
order it to cease and desist therefrom and to take certain affirmative action designed to effectuate
the policies of the Act.

The Respondent having discriminatorily discharged Patrick Armstrong must offer him 45
reinstatement and make him whole for any loss of earnings and other benefits he suffered as a
result of the discrimination against him from the date of the discrimination to the date of his
JD–73–13

32

reinstatement. Backpay shall be computed in accordance with F.W. Woolworth Co., 90 NLRB
289 (1950), with interest as provided in New Horizons for the Retarded, 283 NLRB 1173 (1987),
compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB No. 8 (2010) enf.
denied on other grounds sub. nom., Jackson Hospital Corp. v. NLRB, 647 F.3d 1137 (D.C. Cir.
2011). 5

Respondent shall file a report with the Social Security Administration allocating backpay
to the appropriate calendar quarters. Respondent shall also compensate Patrick Armstrong for
the adverse tax consequences, if any, of receiving one or more lump-sum backpay awards
covering periods longer than 1 year, Latino Express, Inc., 359 NLRB No. 44 (2012). 10

On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended43

ORDER 15

The Respondent, Stahl Specialty Company, Warrensburg, Missouri, its officers, agents,
successors, and assigns, shall

1. Cease and desist from 20

(a) Discharging or otherwise discriminating against any employee for supporting the
International Brotherhood of Electrical Workers Local 1464 affiliated with the International
Brotherhood of Electrical Workers, AFL-CIO or any other union.
25
(b) Interrogating employees about their union membership, activities, and sympathies.

(c) Engaging in surveillance of employees’ union or other protected concerted activities.

(d) Threatening employees with facility closure if they select the Union as their collective 30
bargaining representative.

(e) Threatening adverse employment consequences against employees because they
engage in union or other protected concerted activities.
35
(f) Posting literature at its facility threatening employees permanent job loss if they were
replaced by new hires during a strike.

2. Take the following affirmative action necessary to effectuate the purposes and policies
of the Act. 40

(a) Within 14 days from the date of the Board’s Order, offer Patrick Armstrong full
reinstatement to his former position or, if that position no longer exists, to a substantially

43
If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted
by the Board and all objections to them shall be deemed waived for all purposes.
JD–73–13

33

equivalent position, without prejudice to his seniority or any other rights or privileges previously
enjoyed.

(b) Make Patrick Armstrong whole for any loss of earnings and other benefits suffered as
a result of the discrimination against him, in the manner set forth in the remedy section of the 5
decision.

(c) Within 14 days from the date of the Board’s Order, remove from its files any
reference to the unlawful discharge of Patrick Armstrong, and within 3 days thereafter notify
Patrick Armstrong in writing that this has been completed and that the discharge will not be used 10
against him in any way.

(d) 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 designated by the Board
or its agents, all payroll records, social security payment records, timecards, personnel records 15
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.

(e) Within 14 days after service by the Region, post at its facilities in Kingsville and
Warrensburg, Missouri, copies of the attached notice marked “Appendix.”44 Copies of the notice, 20
on forms provided by the Regional Director for Region 14 Sub-region 17, after being signed by
the Respondent’s authorized representative, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places including all places where notices to employees
and members are customarily posted. In addition to physical posting of paper notices, the notices
shall be distributed electronically, such as by email, posting on an intranet or an internet site, 25
and/or other electronic means, if the Respondent customarily communicates with its employees
by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are
not altered, defaced, or covered by any other material. In the event that, during the pendency of
these proceedings, the Respondent has gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the 30
notice to all current employees and former employees employed by the Respondent at any time
since August 7, 2012.

35

40

44 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice
reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
Board.”
JD–73–13

34

(f) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.

Dated, Washington, D.C. September 30, 2013 5

____________________________
Christine E. Dibble (CED)
Administrative Law Judge 10

15

JD–73–13

APPENDIX

NOTICE TO EMPLOYEES

Posted by Order of the
National Labor Relations Board
An Agency of the United States Government

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

FEDERAL LAW GIVES YOU THE RIGHT TO

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

WE WILL NOT discharge or otherwise discriminate against any employee for supporting
the International Brotherhood of Electrical Workers Local 1464, affiliated with
International Brotherhood of electrical Workers, AFL-CIO or any other union.

WE WILL NOT discharge or otherwise discriminate against any employee for engaging
in union or other concerted activities protected by Section 7 of the National Labor
Relations Act (the Act).

WE WILL NOT in any like or related manner interfere with, restrain, or coerce our
employees in the rights guaranteed to them by Section 7 of the Act.

WE WILL, within 14 days from the date of the Board’s Order, offer Patrick Armstrong
full reinstatement to his former position or, if that position no longer exists, to a
substantially equivalent position, without prejudice to his seniority or any other rights or
privileges previously enjoyed.

WE WILL, make Patrick Armstrong whole for any loss of earnings and other benefits
suffered as a result of the discrimination against him, in the manner set forth in the
remedy section of the decision.

WE WILL, within 14 days from the date of the Board’s Order, remove from our files any
reference to the unlawful discharge of Patrick Armstrong, and within 3 days thereafter
notify Patrick Armstrong in writing that this has been completed and that the discharge
will not be used against him in any way.

WE WILL, file a report with the Social Security Administration allocating backpay to the
appropriate quarters.

JD–73–13

WE WILL, compensate Patrick Armstrong for the adverse tax consequences, if any, of
receiving one or more lump-sum backpay awards covering periods longer than 1 year.

STAHL SPECIALTY COMPANY
(Employer)

DATED: __________ BY__________________________________________
(Representative) (Title)

The National Labor Relations Board is an independent Federal agency created in 1935 to
enforce the National Labor Relations Act. It conducts secret-ballot elections to determine
whether employees want union representation and it investigates and remedies unfair
labor practices by employers and unions. To find out more about your rights under the
Act and how to file a charge or election petition, you may speak confidentially to any
agent with the Board’s Regional Office set forth below. You may also obtain
information from the Board’s website: www.nlrb.gov.

1222 Spruce Street, Suite 8.302
St. Louis, Missouri 63103-2829
Telephone: (314) 539-7770
Fax: (314) 539-7794
Hours of Operation: 8:30 a.m. to 5:00 p.m. CST

THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE.

THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS
FROM THE DATE OF POSTING AND MUST NOT BE ALTERED,
DEFACED OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS
CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS PROVISIONS
MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (314) 539-7770.