Stalwart Assn.

National Labor Relations Board - Board Decisions

Apr 8, 1993

310 N.L.R.B. 1046 (N.L.R.B. 1993)

1046
310 NLRB No. 170
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 On November 2, 1992, Administrative Law Judge Richard H.
Beddow Jr. issued the attached decision. The Respondent filed ex-
ceptions and a supporting brief. The General Counsel and the Charg-
ing Party filed briefs in response to the exceptions.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
2 The Respondent has requested oral argument. The request is de-
nied as the record, exceptions, and briefs adequately present the
issues and the positions of the parties.
3 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings. We also find no merit in
the Respondent’s allegations of bias and prejudice on the part of the
judge. We perceive no evidence that the judge prejudged the case,
made prejudicial rulings, or demonstrated a bias against the Re-
spondent in his analysis of the evidence. There is no basis for find-
ing that bias and prejudice exist merely because the judge resolved
important factual conflicts in favor of the General Counsel’s wit-
nesses. NLRB v. Pittsburgh Steamship Co., 337 U.S. 656, 659
(1949).
In affirming the judge’s findings of 8(a)(3) violations, we do not
rely on evidence that the Respondent hired a labor consultant and
circulated lawful antiunion letters to employees during the represen-
tation election campaign. Furthermore, we find no need to pass on
whether the July 1991 conversation between Respondent’s owner
Drewniany and employee Wysong entailed interrogation violative of
Sec. 8(a)(1). A finding of unlawful conduct would merely be cumu-
lative in light of several other findings of an unlawful interrogation
and would not affect the remedy appropriate for such unfair labor
practices.
4 We shall amend the judge’s Conclusions of Law 4 and 6 to cor-
rect the mistaken reference to Sec. 8(a)(4) in the summary of unlaw-
ful conduct affecting employee Timothy Wysong.
The Stalwart Association, Inc. and Sheet Metal
Workers International Association, Local
Union No. 19, AFL–CIO. Cases 4–CA–20165,
4–CA–20197, 4–CA–20333, and 4–RC–17695
April 8, 1993
DECISION, ORDER, AND DIRECTION
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
The questions presented here are whether the judge
correctly found that the Respondent: violated Section
8(a)(3) and (1) of the Act by imposing more onerous
work rules during a representation election campaign,
by laying off John MacDonald, and by demoting, lay-
ing off, and failing to recall Timothy Wysong; violated
Section 8(a)(4), (3), and (1) by issuing disciplinary
criticism to, reassigning, laying off, and failing to re-
call Chris Broadt; violated Section 8(a)(1) by interro-
gating and threatening its employees and by dissemi-
nating and soliciting support for an antiunion petition;
and, finally, by engaging in objectionable conduct that
interfered with unit employees’ choice in the October
10, 1991 election.1 The Board has considered the deci-
sion and the record in light of the exceptions and
briefs2 and has decided to affirm the judge’s rulings,
findings,3 and conclusions as modified4 and to adopt
the recommended Order as modified.
AMENDED CONCLUSIONS OF LAW
1. Substitute the following for Conclusion of Law 4.
‘‘4. By discriminatorily laying off employee John
MacDonald and by discriminatorily demoting, laying
off, and failing to recall employee Timothy Wysong,
the Respondent has engaged in unfair labor practices
in violation of Section 8(a)(3) and (1) of the Act.’’
2. Substitute the following for Conclusion of Law 6.
‘‘6. By issuing disciplinary criticism to employee
Chris Broadt, by removing him from a work assign-
ment, by laying him off, and by failing to recall him
to available work, the Respondent has engaged in un-
fair labor practices in violation of Section 8(a)(4), (3),
and (1) of the Act.’’
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, the
Stalwart Association, Inc., Frederick, Pennsylvania, its
officers, agents, successors, and assigns, shall take the
action set forth in the Order, as modified.
Substitute the following for paragraph 2(c).
‘‘(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.’’
DIRECTION
It is directed that Case 4–RC–17695 is severed from
Cases 4–CA–20165, 4–CA–20197, and 4–CA–20333
and is remanded to the Regional Director for Region
4. The Regional Director shall open and count the bal-
lot of Paul Nesspor Sr., and thereafter issue a revised
tally of ballots. If the revised tally of ballots shows
that the Petitioner received a majority of the votes cast,
the Petitioner’s objections will be moot, and the Re-
gional Director shall issue the appropriate certification
of representative. If the revised tally of ballots shows
the Petitioner has not received a majority of the votes
cast, the election previously conducted in Case 4–RC–
17695 shall be set aside and the Regional Director
shall direct and conduct a second election by secret
ballot at an appropriate time.
1047STALWART ASSN.
1 The General Counsel’s motion to correct the transcript is granted
and received into evidence as G.C. Exh. 24.
2 All following dates will be in 1991 unless otherwise indicated.
Richard Heller, Esq. and Margaret McCain, Esq., for the
General Counsel.
Martin R. Lentz, of Philadelphia, Pennsylvania, for the Re-
spondent.
Dennis Walsh, of Philadelphia, Pennsylvania, for the Charg-
ing Party.
DECISION
STATEMENT OF THE CASE
RICHARD H. BEDDOW JR., Administrative Law Judge. This
case was heard in Philadelphia, Pennsylvania, on July 13, 14,
and 15, 1992. Subsequent to a requested extension in the fil-
ing date, briefs1 were filed. The precedings are based on an
election petition filed August 8, 1991, and a charge filed Oc-
tober 17, 1991,2 by Sheet Metal Workers International Asso-
ciation, Local Union No. 19, AFL–CIO. The Regional Direc-
tor’s consolidated complaint dated June 16, 1992, as amend-
ed, alleges that Respondent, the Stalwart Association, Inc., of
Frederick, Pennsylvania, violated Section 8(a)(1), (3), and (4)
of the National Labor Relations Act by demoting employee
Timothy Wysong from shop foreman to fabricator; imple-
menting new rules during an election period; imposing more
onerous terms and conditions of employment on its shop em-
ployees; laying off Timothy Wysong, John MacDonald, and
Chris Broadt; and removing Chris Broadt from his coordi-
nator assignment, interrogating employees, and threatening
employees with discharge because of their union or other
protected activities. The Union timely filed objections to the
election held on October 10, 1991. An objection to the ballot
of Paul Nesspor Sr. was withdrawn at the hearing.
On a review of the entire record in this case and from my
observation of the witnesses and their demeanor, I make the
following
FINDINGS OF FACT
I. JURISDICTION
Respondent is in the construction industry engaged in the
fabrication and installation of heating and air-conditioning
systems and it annually purchases and receives goods and
materials valued in excess of $50,000 directly from points
outside Pennsylvania. It admits that at all times material it
has been an employer engaged in operations affecting com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act. It also admits that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
The Respondent was founded in 1972 and at one time
Stalwart had as many as 16 employees. In the fall of 1991,
it had eight employees and Owner Tom Drewniany. Four
employees principally worked in the field as installers (Paul
Nesspor Sr., Paul M. Nesspor Jr., Bob Yerger, and Chris
Broadt); three worked in the shop as fabricators (Ray
Troxell, Tim Wysong, and John MacDonald); and one (Willa
Stevenson) was a secretary.
Timothy Wysong was first hired by the Respondent in
1984 and worked both as fabricator in the shop and as an
installer in the field. During this period, Respondent sent him
to plumbing school and he thereafter performed plumbing
work for the Respondent. In 1985, he left but returned to Re-
spondent as a shop fabricator from 1986 through 1987. After
again leaving he returned in 1989 as a shop fabricator earn-
ing $11 per hour. After 6 months he received a 25-cent-per-
hour raise and 6 months later asked Owner Drewniany for
another raise and medical benefits. Drewniany told him he
couldn’t afford to give him medical benefits but he would
give Wysong another 25 cents raise with the understanding
that he would expect more out of him, and would have him
a new job title (as shop foreman) with duties that entailed
making duct sketches from blueprints; making drawings for
installation; going over structural drawings; ordering the ma-
terials for the shop and the field; and coordinating things be-
tween himself, the field employees, and other trades. Al-
though Respondent denies that Wysong was made a ‘‘fore-
man,’’ Wysong testified that Drewniany himself would intro-
duce him to outside vendors as the shop foreman.
John MacDonald also worked for the Respondent on three
separate occasions beginning in November 1990. After a lay-
off he was recalled in July 1991, and worked mostly in the
shop with an hourly wage rate of $10. He was again laid off
in October 1991. (On June 9, 1992, about a month before
the hearing in this case, he was recalled and at the time of
the hearing currently worked as a field installer making $12
per hour.)
Chris Broadt worked continuously for the Respondent
from September 1990 until January 1992, performing elec-
trical control and sheet metal work. Broadt was also an air-
craft sheet metal mechanic and when work was slow for the
Respondent, he worked on Owner Drewniany’s personal air-
plane.
In December 1990, Wysong contacted Union Representa-
tive William Dorward and discussed the possibility of having
union representation; however, at the time, Wysong’s wife
was going through a difficult pregnancy, and he didn’t pur-
sue union representation right away. However, in mid-1991,
Wysong began discussions at the shop with employees Mac-
Donald and Broadt as well as with the office secretary. On
August 9, 1991, both Wysong and MacDonald signed cards
authorizing the Union to be their bargaining agent.
In the meantime, in July 1991, Union Representative
Dorward had two meetings with Respondent’s president
Drewniany. He initiated a meeting with Drewniany to see if
Respondent would be interested in signing a collective-bar-
gaining agreement and becoming a union contractor.
Dorward described it as engaging in a ‘‘top-down’’ cam-
paign, as authorized by Section 8(f) of the Act, by attempting
to sign a construction industry employer to a ‘‘pre-hire’’
agreement even though he had not yet demonstrated that the
Union represented a majority of the Employer’s employees.
They discussed the Union’s training program and
Drewniany was told the program had a no-fail qualification
exam for employees. After this meeting, Dorward dropped
off a list of union contractors in central Pennsylvania and
copies of two collective-bargaining agreements with
Drewniany’s secretary. One week later Dorward and
Drewniany met again but Drewniany said he didn’t feel as
though he could fit the Union into his company at this time
1048 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and that he was considering subcontracting his sheet metal
work.
By letter dated August 15, 1991, Dorward notified the Re-
spondent that the Union represented a majority of its sheet
metal workers, demanded recognition, and requested that
Drewniany contact him for bargaining. No response was re-
ceived.
On August 21, 1991, the Union filed a representation peti-
tion with the Board. It served Respondent with a copy the
same day and the parties entered into a Stipulated Election
Agreement, which provided that the eligible voters would in-
clude all field and shop employees engaged in sheet metal
work for the Respondent. The Respondent and the Union
also signed a Norris-Thermador agreement stating that the
only eligible voters in the election would be Paul Nesspor
Jr., Robert Yerger, Timothy Wysong, Chris Broadt, John
MacDonald, and Ray Troxel, and that Paul Nesspor Sr.
would vote subject to challenge. The Board conducted an
election on October 10, 1991, and the tally of ballots showed
three votes for the Union, three votes against the Union, and
one challenged ballot. As noted above, the Union subse-
quently withdrew that challenge.
Wysong testified that in July Drewniany had told Wysong
that the Union was out on the jobsites speaking with the em-
ployees and asked Wysong ‘‘what do you think about the
Union?’’ and Wysong defensively replied that he didn’t
know much about the Local. Drewniany testified that he
spoke to Wysong because he was concerned about ‘‘his peo-
ple’’ in relation to his discussions with Dorward and that he
consulted with them concerning what benefit it would be if
he considered the Union. When Respondent recalled Mac-
Donald, in July, however, Drewniany told him that if the
Union came in, he ‘‘would only be able to keep one me-
chanic and that all employees would have to take tests.’’
In mid-August, Drewniany showed Wysong the Union’s
August 15 recognition demand and told Wysong to read it.
He then asked Wysong ‘‘what do you think about it?’’ When
Wysong did not respond, Dewniany asked him if ‘‘anybody
from the Union had approached him or talked to him’’about
the Union and Wysong said ‘‘No.’’ Drewniany testified that
he had let everybody know that the Union had knocked on
our door and there were pros and cons to accepting the
Union’s proposal to become organized but that he never
asked employees whether they wanted to be union or didn’t
want to become union. He said he asked inquisitive questions
about how it would help the organization and if they felt the
Union would or wouldn’t help the organization.
Within a week or two (no more specific dates was estab-
lished) of the Union’s recognition letter to Respondent,
Drewniany rehired former employee Ray Troxel to work in
the shop.
After Troxel’s hire Wysong’s job duties changed. Wysong
no longer communicated with the field employees. Instead,
Nesspor Jr., the field leadman, would call the shop and ask
for Troxel. Drewniany began sending the outside vendors to
Troxel, not to Wysong, even though at times, Troxel required
Wysong’s assistance when dealing with them. Troxel had
worked for the Respondent in 1977 and again from 1985
through 1989. Troxel testified that both times that he left Re-
spondent’s employ it was for personal reasons. Wysong testi-
fied, however, that when he was rehired in 1989, Drewniany
told him that he had to let Troxel go because ‘‘the shop was
a mess and some duct was going out not completed, and . . .
he thought that Ray thought races were more important than
his work.’’ Troxel himself admitted that he had previously
left the Employer because of personal friction between him-
self and Drewniany, and he also admitted that one of his
hobbies was going to the racetrack.
Prior to Troxel’s hiring, Drewniany had usually asked
Wysong’s opinion before hiring anyone in the shop, but he
did not even tell Wysong that he was bringing Troxel back.
Troxel testified that when he came back he initially ‘‘re-
spected him [Wysong]’’ as the shop ‘‘lead person’’ but that
after a few weeks he ‘‘wound up’’ being Drewniany’s con-
tact in the shop doing all the paperwork and ordering that
Wysong had been doing.
At the end of the workday on September 4, Drewniany
gave Wysong copies of a list of 17 shop instructions for ev-
eryone in the shop. The next day, Drewniany met with the
shop as a group and reviewed the rules with them.
Drewniany said that the reason he circulated that shop rules
was to reiterate what the past and present rules were because
the shop was totally disorganized, with three people in it at
that time. Troxel testified that about a month after his rehire
he told Drewniany, that it would be a good idea to issue
written shop rules. Wysong testified that rules 5, 9, 10, 12,
and portions of others were in existence before September 4,
1991, but that some other rules (discussed below) were new.
At this meeting, Drewniany also told the employees that a
timeclock would be installed and told Troxel to order it;
however, it was not put into effect.
In August 1991, Drewniany told Broadt that he was going
to be doing the Williams Township job by himself and that
he would be expected to coordinate it. Broadt had never co-
ordinated a job before and he asked Drewniany what ‘‘co-
ordinate’’ entailed but Drewniany didn’t explain. Drewniany
told Broadt the job would be a two-heater installation with
coils and condensers for air-conditioning and then worked
with him one night for approximately 2-1/2 hours doing the
sketches for the duct work for fabrication, telling Broadt the
session was for training purposes. Broadt made an initial
start on the job about a month later and that it was basically
October before he and Paul Nesspor Sr. really began working
on it for 2 days together. He then worked the job alone for
3 days doing duct work. Meanwhile, Broadt had two con-
versations with Drewniany in which Drewniany once asked
him who was responsible for bringing in the Union and once
asked who had signed union cards. (One conversation was at
work about a month prior to and one at home before the
election.) Broadt testified that when he wasn’t working at the
Williams Township job he was working at Alliance Hall
under the lead of Nesspor Jr.
During the first week in September, the shop employees
received a petition from Nesspor Jr. which read: ‘‘I , an em-
ployee of the Stalwart Association, Inc.—Do not want to be
represented by Local 19 Sheet Metal Workers Union. I wish
to remain as a non-union employee and desire no change.’’
This petition, accompanied by a two-page letter, was signed
by Paul Nesspor Jr. and was addressed to ‘‘Tim, Ray and
John’’ (Wysong, Troxel, and MacDonald). The letter stated
that:
We, the guys in the field, have decided to write letters
against Local 19 Sheet Metal Workers Union and need
1049STALWART ASSN.
shop support in uniting with field workers in signing a
simple statement that you as an individual are opposed
to changing and desire no change. Your individual sig-
nature will be sent with all of ours in the field to show
unity of all seven of our employees. If you so desire
please sign five copies of this statement. One copy
of/from all of us will be sent to National Labor Rela-
tions Board, Martin Lynch (Lentz)—Atty for Co., Al
Peterich—Mcklinon Group—Non Union Representa-
tive, Local 19 Union Rep.—Mr. Dorward and Local 19
Union Attorney Mr.? please put 5 copies in an envelope
and leave in my box on lobby desk. any questions or
comments call A.H. (Alliance Hall). Paul
Nesspor Jr. began working for the Respondent in March
1985. He testified that he currently does HVAC mechanical
work and his duties include mechanical installation, review-
ing shop drawings, installing materials and equipment, and
making sure everything is in order. He testified that
Drewniany communicates with the other employees through
him and instructs him to give the employees messages. He
lays out work for the field employees and tells them what
they are going to do each day and the field employees give
him their weekly timesheets. Field employees report to
Nesspor Jr. unless they are alone on a job, in which case
they reported to Drewniany. Employees consider Nesspor Jr.
to be the leadman out in the field. Nesspor Jr. testified that
one of his job responsibilities was to ‘‘make sure that every-
thing is in order.’’ Although other employees have no health
insurance payments or deductions, deductions for health in-
surance and whenever he works at the shop rate or shop sal-
ary he receives medical insurance paid for by the Respond-
ent. He also is allowed to drive to and from work in a vehi-
cle owned by the Respondent and he served as the Respond-
ent’s observer at the Board election on October 10.
Paul Nesspor Sr. is Paul Jr.’s father and he is over 65
years old and collects social security but has worked fre-
quently for Respondent when fieldwork is available.
Robert Yerger worked regularly as a field employee for
Respondent from 1989 until he quit in February 1992. He
worked in the field as a pipefitter and sheet metal mechanic.
Yerger testified that he regularly drove the Respondent’s
truck and transported materials to the jobsites because he was
the only employee with a class 3 driver’s license.
Yerger testified that Nesspor Jr. told him that Drewniany
wanted an antiunion petition done but that Drewniany didn’t
want to have anything to do with it. He also testified that
Nesspor Jr. told him that if we could get all the employees
to sign it, the Union wouldn’t bother to try to get into the
shop.
Nesspor Jr., however, testified that Drewniany did not ask
him to prepare and circulate this petition and that he never
told Drewniany until the day of the hearing ‘‘who signed it.’’
He said he gave the petition to Yerger and Broadt separately
and agreed that neither signed it (thereby making the state-
ment in his letter an apparent contradiction). Broadt and
Yerger each testified they spoke with Nesspor Jr. concerning
this petition. Broadt testified that about 6 weeks before the
election, Nesspor Jr. told him that ‘‘Tom [Drewniany] want-
ed him to draw up a petition and pass it around to the guys
to say that we didn’t want a Union vote.’’ He said that
Drewniany told him that the petition was supposed to come
from one of the guys. Broadt further testified that Paul
Nesspor Jr. gave him ‘‘a stack of forms’’ (the letter and the
petition) to sign but Broadt told him ‘‘I’m not signing the
fucking things.’’ Broadt testified that he refused to sign the
antiunion petition because ‘‘he felt he was being railroaded
into something he didn’t have to do.’’ Later that day,
Drewniany told him to look at an envelope left for him on
the front desk which contained the petition.
MacDonald testified that the petition was on a shop table
when Drewniany entered and MacDonald called it to his at-
tention and Drewniany acted surprised and said ‘‘the field
guys are against the Union.’’ Wysong testified he called the
Board concerning the effect of the petition and, after a phone
conversation with the Board agent (who said it would have
no effect on the election), all three shop employees signed
the petition.
Between September 9 and October 1, Drewniany sent a se-
ries of four letters to employees. In the first three letters,
Drewniany, urged the men to vote ‘‘No’’ in the October 10
election and emphasized that Respondent had provided and
would continue to provide job security to its employees.
The first letter also said Drewniany was ‘‘shocked and
upset by the Union situation’’ and that he has ‘‘tried to pro-
vide excellent job security.’’ The letter went on to say that
‘‘we have a great work force and we know that you do an
excellent job.’’
The second letter said that when Local 19 tries to organize
employees, it depends on inside people to do much of their
campaigning. He wrote:
The Unions do a good job of coaching inside people
with a personal axe to grind on how to stir-up dis-
satisfaction, spread rumors and how to campaign for the
Union. . . . ‘‘Don’t let an inside organizer talk you
into supporting this infamous Sheet Metal Local #19.’’
. . . read that it is our people who can provide the
good job security we all want and need.
The third letter said:
I would like to discuss real job security with you and
that it is a shame that a few dissidents are trying so
hard to undermine the company. Make no mistake
about it, these few people have been very well trained
by the highly paid outside union professional organizer
to let you to follow him. Don’t fall for the inside orga-
nizers promises of great things to come and a pot of
gold at the end of the rainbow. Vote for real job secu-
rity. Vote No on October 10th.
In his last letter Drewniany pointed out how costly union
membership could be to the employees and their families and
stated:
I continue with my letters despite the overwhelming No
vote next week is that the election is so important to
everyone’s future and I do feel obligated to provide ev-
eryone with the facts.
Drewniany also hired a company to talk to employees be-
fore the union election to help convey a message that the
Company should be nonunion.
1050 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
During the week preceding the October 10 election,
Drewniany called Wysong to his office and asked him what
he thought about the election. Before Wysong responded, the
telephone rang and Wysong left. A second and third con-
versation occurred on the same day near the shop.
Drewniany asked Wysong if he had any questions for him
concerning the election, and Wysong replied that he had
heard from both sides and he was ready to make up his own
mind. Five minutes later, Drewniany came to the shop, told
Wysong he wanted to speak with him and told him how
good the Company had been to him, and how pieces of duct
had left the shop improperly fabricated. At the end of the
conversation, Drewniany told Wysong that if ‘‘anybody
wanted to work for the Union that they could go down the
road and do that.’’
Broadt testified that the day before the election Drewniany
approached him at the Alliance Hall jobsite, spoke about
how important the election would be to Broadt and his fam-
ily, and then told Broadt he had not been doing what was
expected of him at the Williams Township job and asked
Broadt if he wanted to run the job because if he didn’t,
Drewniany could arrange it.
The election was held on October 10 at 4:30 p.m. Broadt,
Wysong, and MacDonald testified they voted for the Union.
Yerger testified that after the vote, and he was in
Drewniany’s office with Nesspor Jr., and Troxel and all three
told Drewniany that they had voted against the Union.
MacDonald testified that the first workday following the
October 10 election, he and Drewniany were in the storage
room when Drewniany said to him ‘‘if you wanted to work
for the Union, why don’t you ask them for a job.’’
On or about October 18, Drewniany laid off Wysong and
MacDonald after calling together Wysong, MacDonald, and
Troxel. He explained he had to let two of them go because
work was getting slow and that it would have to be Wysong
and MacDonald because they did not have a valid driver’s
license.
On December 9, Nesspor Jr. gave Broadt a letter from
Drewniany which stated that Broadt had been expected to co-
ordinate the installation of duct work at the Williams Town-
ship job and reprimanded him for his lack of coordination of
the project. The letter directed Broadt to contact him by De-
cember 11 to inform him of what his intentions would be
concerning his future role on the Williams Township job.
Broadt called Drewniany who proceded to tell Broadt he
thought Broadt was a construction manager. He also said he
thought Broadt was a mechanic, but obviously he wasn’t and
that he didn’t think Broadt was capable of doing the Wil-
liams Township job. Drewniany further stated that he ‘‘didn’t
know how to be fair with Broadt anymore in view of the fact
that Broadt brought charges against him.’’ (Broadt apparently
was identified in the investigation of the initial complaint
dated October 18.)
On December 10, Nesspor Jr. gave Broadt another letter
from Drewniany. In this letter, Drewniany said that he want-
ed Broadt to communicate with Troxel and him on a daily
basis concerning the project, that work on the project would
restart in the near future after the Respondent obtained mate-
rials on the job, and that he would notify Broadt when work
would start. Two weeks later, Drewniany told Broadt to take
Yerger to the Williams Township jobsite. Thereafter, Broadt
no longer worked on the Williams Township job. Drewniany
said he did not remove Broadt, but that Broadt voluntarily
ceased working on it.
At the end of the workday, on January 8, 1992, Paul
Nesspor Jr. laid off his father and Broadt. No reason was
given for the layoff.
By letter dated January 27, Drewniany, told Broadt that he
had tried calling him concerning a recall to work but to no
avail. Broadt called Drewniany the day following receipt of
the letter and informed him that the phone numbers in the
letter were wrong and told him his Sellingsgrove phone num-
ber, which Drewniany already had on file, was where to
reach him. Broadt again gave Drewniany his Sellingsgrove
phone number, but Drewniany told him he gave the available
work to somebody else. (Drewniany testified that he recalled
Paul Nesspor Sr. for a week or less in the end of January.)
Drewniany testified he again attempted to contact Broadt
for recall by telephone on Friday, March 27, and Sunday,
March 29. He then sent Broadt a letter, to his Gilbertville ad-
dress, stating that because the Company had attempted to re-
call him twice and it hasn’t heard from him, the Company
will now consider him unavailable for work.
The Respondent previously had placed classified news-
paper ads on March 13 and 15, 1992, seeking pipefitters,
HVAC (heating, ventilation, air-conditioning), and plumbers.
Drewniany testified, however, that although he anticipated
hiring more employees, work never materialized and he
didn’t hire anyone. In April 1992, Drewniany began using
Ralph Fried as a subcontractor doing temperature control and
pipe insulation (and some duct work). He attested that he at-
tempted to recall Chris Broadt in March to run thermostat
wire at the Monocacy jobsite but when he couldn’t reach
Broadt, he gave the work to Fried.
David Renn is supervisor of buildings and grounds for the
Daniel Boone School District, the client for the Monocacy
contract. He testified that he visits the Monocacy jobsite
daily. Renn testified that there are two people doing the
work, Nesspor Jr. and Fried. He attested that he sees Nesspor
Jr. there every day and Fried about every other day. He ob-
served that he saw both men do the same work and that this
work entails installing duct, installing pumps and pipes, and
installing oil burners and oil tanks.
Respondent MacDonald was recalled as a field installer on
June 9. No other attempt to recall MacDonald was made be-
fore June 9, and Wysong was never recalled since his Octo-
ber 1991 layoff. Wysong testified that the Respondent had
his address and phone number and that he had an answering
machine. Wysong testified that John MacDonald called him
in June, after he was recalled and that he then called
Drewniany to ask about available work. Drewniany told him
he tried to get in touch with him because he had some fab-
rication and small installation work but that the job was no
longer available because he had hired MacDonald.
III. DISCUSSION
The primary events which caused the charges in these pro-
ceedings were the organizational election and the subsequent
layoffs of each of the three employees who had voted for the
Union.
1051STALWART ASSN.
A. Credibility and Motivation
In a layoff or discharge case of this nature, applicable law
requires that the General Counsel meet an initial burden of
presenting sufficient evidence to support an inference that the
employees’ union or other protected, concerted activities
were a motivating factor in the employer’s decision to termi-
nate them. Here, the record shows that Respondent’s owner
was well aware of union activity and that it had engaged the
services of a consultant to help persuade employees to vote
against the Union in the scheduled Board election. The
owner also engaged in certain unfair labor practices, other-
wise discussed below, and sent the employees repeated let-
ters in which he attempted to influence them to vote against
the Union. Moreover, he is alleged to have disseminated and
solicited employee support for an antiunion petition, an alle-
gation which I find below to be proven by the evidence.
Here, my evaluation of the testimony and demeanor of the
several witnesses, in the context of the overall record, leads
me to concur with the General Counsel’s contention that cer-
tain testimony by Respondent’s witnesses Drewniany and
Nesspor Jr. should not be credited. I find that Owner
Drewniany’s testimony often appeared to be inconsistent,
vague, or self-serving. For example, Respondent’s answer ad-
mits that the Respondent removed Chris Broadt from an as-
signment as coordinator of the Williams Township job, but
Drewniany’s testimony attempts to imply that Broadt volun-
tarily rejected the position. Also, a document prepared for the
hearing by Drewniany lists the names of Respondent’s em-
ployees from September 1991 to July 1992 and their layoffs
and recalls but does not show any work recall attempt for
or by the Respondent in January 1992 with respect to Broadt
or Nesspor Sr., despite Drewniany’s testimony that in late
January 1992, Nesspor Sr. was called back to work for 1
week or less and evidence that the Respondent sent a letter
to Broadt on January 27, 1992, concerning alleged recall at-
tempts.
Drewniany also testified that he was not aware that the
antiunion petition was being circulated, had no part in ‘‘ar-
ranging’’ its circulation, and did not know who signed it
until the start of the hearing.
However, on cross he testified that the first time he knew
it was being circulated was when MacDonald showed it to
him in September 1991. Drewniany asserted he didn’t read
it at that time, however, MacDonald credibly testified that he
showed the petition to Drewniany before the election and
that Drewniany acted surprised and responded with a com-
ment about ‘‘the field guys’’ being ‘‘against’’ (this was the
opening statement of the petition). This clearly shows that he
then looked at who signed it or otherwise had prior knowl-
edge of its preparation and contents.
I do not credit Nesspor Jr.’s testimony that Drewniany did
not ask him to prepare and circulate this petition or that he
never told Drewniany until the hearing who signed it.
Broadt and Yerger (who voted against the Union and sub-
sequently voluntarily left Respondent’s employment) each
testified that they spoke with Nesspor Jr. concerning this pe-
tition when it was circulated. Nesspor Jr. told them that
‘‘Drewniany’’ wanted him to draw up a petition and pass it
around to the guys to say that we didn’t want a union vote
and that Drewniany told him that the petition was suppose
to come from the guys without his being involved. (Also,
after he initially declined to sign it, Drewniany personally
called Broadt’s attention to an envelope with the petition in
it that was left for him at the front desk in the office, a fur-
ther implication of Drewniany’s knowledge of the affair.)
Nesspor Jr.’s letter, accompanying the antiunion petition,
stated that the ‘‘guys in the field’’ had decided to write let-
ters against Local 19. This statement clearly is false. In fact,
Nesspor Jr. did not author the letter or the petition with the
assistance or concurance of the other two field employees
(other than his father), and Yerger and Broadt did not sign
it. Nesspor Jr. concededly asked Drewniany’s secretary for
the Respondent’s attorney’s name and address and sent him
a copy, yet the petition was neither sent to the Board nor to
the Union, as suggested in the petition.
Drewniany also testified that he had no knowledge or
opinion whether Wysong, MacDonald, or Broadt supported
the Union, yet the persuasive testimony of Yerger, an unbi-
ased witness, shows that following the election, he, Nesspor
Sr., and Troxel were in the office with Drewniany when each
of these three men all told him they voted against the Union
(neither Troxel nor Drewniany, witnesses called by the Re-
spondent, refuted this testimony).
Under these circumstances, my overall evaluation of the
testimony leads to the conclusion that Drewniany’s and
Nesspor Jr.’s testimony is self-serving, contradicting,
untrustworthy, and unreliable. Accordingly, it will not be
credited where it is in conflict with the credible testimony or
circumstances disclosed by other witnesses, documents, or
events.
Although the Respondent calls attention to a friendship
and common interest in aviation shared by Broadt and
Drewniany, and contend that there is no evidence of an
antiunion bias involving Broadt, a finding if such specific
and direct animous is unnecessary for each specific alleged
discriminatee, in a situation, such as here, where there is an
overall showing of animous and motivation, see Vemco, Inc.,
304 NLRB 911 (1991). Moreover, as noted above, although
Broadt attempted to display a posture of neutrality,
Drewniany knew right after the election that Broadt had
voted in favor of the Union. This, as well as the showing
that Broadt was subjected to preelection interogation, directly
ties Broadt to Respondent’s antiunion motivation.
Under these circumstances, I find that the General Counsel
has met his initial burden and has presented a strong prima
facie showing, sufficient to support an inference that the
Union support evidence by employees Broadt, MacDonald,
and Wysong was a motivating factor in Respondent’s deci-
sion to lay off or take other adverse action against them.
B. Demotions, Layoffs, and Alleged Violations of
Section 8(a)(3)
Once the General Counsel establishes a prima facie case,
the burden shifts to the Respondent to show that it would
have taken the same action even in the absence of union con-
siderations. See Wright Line, 251 NLRB 1083 (1980), enfd.
662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982), approved in NLRB v. Transportation Management
Corp., 462 U.S. 393 (1983). Accordingly, the testimony will
be discussed and the record evaluated to consider Respond-
ent’s defense and, in the light thereof, whether the General
Counsel has carried his overall burden.
Respondent contends that Wysong was not really demoted,
that Broadt voluntarily removed himself from a position as
1052 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
a job coodinator, and that each was laid off because of a lack
of work and because neither Wysong nor MacDonald had a
current driver’s license.
Turning first to the allegation regarding Wysong’s change
of status from shop foreman to fabricator, the record shows
that Union Representative Dorward spoke to Wysong on his
visit to the shop and Wysong mentioned the benefits of
union representation to Respondent’s secretary. After
Drewniany received the Union’s demand for recognition let-
ter in August 1991, Drewniany questioned only Wysong and
Wysong refused to divulge any information concerning the
union campaign.
Despite the fact that Troxel had a spotty work record with
the Respondent and had left because of personal friction be-
tween himself and Drewniany (Wysong credibly testified,
that when he returned in 1989, Drewniany told him that he
had to let Troxel go because ‘‘the shop was a mess and some
duct was going out not completed, and . . . he thought that
Ray thought races were more important than his work’’),
Drewniany then sought out Troxel. Troxel had checked on
the availability of work approximately 9 months earlier but
was not called back until August, after Drewniany had
recieved the Union’s recognition letter. Meanwhile,
Drewniany had first recalled MacDonald in June 1991, rather
than Troxel. Troxel testified that Drewniany indicated that
work was slack but that Drewniany was therefore doing more
bidding and wanted him to run (drive) bids on jobs and help
with a backup on duct work. Drewniany didn’t consult with
Wysong about Troxel’s rehire and, within a short time,
Drewniany shifted Wysong’s foreman-leadman type duties to
Troxel.
Although Troxel makes some undisclosed number of bid
runs (a task that also was done by Drewniany and his sec-
retary) his estimate that he drove two or three times a week
included the delivery of duct work, a job previously per-
formed by Yerger until he left at the end of February 1992,
appears to be an exageration or an estimate that would apply
to period after February 1992, when both Yerger and the sec-
retary were no longer employed.
The Respondent makes much of Wysong’s lack of a driv-
er’s license; however, I find that this essentially is a
pretextual and insubstantial excuse (especially prior to
Yerger’s departure), and that the running of bids was a mere
occasional convience for Drewniany or his secretary and oth-
erwise it is inconsistent with the purported need (in August
and the fall of 1991), for curing the asserted problem of a
backup in the fabrication of duct work (i.e., taking a skilled
fabricator away from necessary production to run ministerial
errands).
The circumstances noted above, when considered in the
context of the timing of Troxel’s rehire and assumption of
leadman/foreman duties and Wysong’s de facto demotion
shortly after the demand for recognition and shortly before
the election, preclude a finding consistent with Respondent’s
assertations that its actions in this regard were for legitimate,
nonpretextual reasons. Accordingly, I conclude that the Re-
spondent has not refuted the General Counsel’s showing that
its actions were motivated by and were in retaliation for
Wysong’s protected activity, all in violation of Section
8(a)(1) and (3) of the Act, as alleged.
After Wysong’s demotion, and 8 days after the election
(and Respondent’s clear identification of Wysong, Mac-
Donald, and Broadt, the three employees who voted in favor
of the Union), Respondent put Wysong and MacDonald on
layoff from the shop but retained Troxel, the only shop em-
ployee who had informed Drewniany he had voted against
the Union.
Again, the holding of a driver’s license is offered as a jus-
tification for Respondent’s choice to retain Troxel, yet it was
not a condition of employment and only became an issue
after the start of union activity. Accordingly, and for the rea-
sons discussed immediately above, I find Respondent’s
assertations to be pretextual.
Moreover, Respondent’s other asserted reason for hiring
Troxel, that duct work was backed up on the Alliance Hall
project, appears to be specious inasmuch as the purported
rush work lasted only 2 days after Troxel was hired. Re-
spondent’s claim that Yerger and Nesspor Jr. complained
about the shop’s incomplete shipments of duct work was
never corroborated by of Nesspor Jr. or Yerger. Drewniany
also testified that he did not have problems with Wysong’s
and MacDonald’s work peformance and their work perform-
ance was not a basis for their layoffs. Drewniany testified
that he knew in August that he probably would run low on
work in the next few months, nevetheless he hired Troxel
and placed the two shop employees who voted for the Union
on layoff. Accordingly, I am not persuaded that a lack of
work and a lack of valid drivers’ licenses were the real mo-
tives for the layoffs. Respondent has failed to show that both
MacDonald and Wysong would have been let go were it not
for the union activity (which appears to be the real reason
Troxel was hired just prior to the election). It also is noted
that although Respondent makes much of its need to run bids
on possible jobs, it presented no documentary evidence that
it actually was actively pursuing additional work at this time.
Under these circumstances, and in view of the timing of
Respondent’s various actions immediately following the
union recognition demand and the following vote on October
10 and the General Counsel’s strong showing regarding ille-
gal motivation, I find the Respondent’s stated reasons are not
supported by persuasive evidence and otherwise are
pretextual. Accordingly, I conclude that the Respondent has
failed to show that MacDonald and Wysong would have
been laid off absent their union activities. The General Coun-
sel otherwise has met its overall burden of proof and I fur-
ther conclude that Respondent’s layoff of these two employ-
ees is shown to have been in violation of Section 8(a)(1) and
(3) of the Act, as alleged.
This conclusion is reinforced by Respondent’s subsequent
actions in March 1992, when it placed classified ads for
HVAC plumbers and pipefitters (Yerger’s position), rather
that attempting to recall Wysong who had been sent to
school by Respondent for training in this area and had done
such work previously. Again, rather than recalling laid-off
prounion employees, Respondent hired a so-called inde-
pendent contractor and used that person to perform regular
work along with employee Nesspor Jr.
In addition to the two shop employees, Respondent laid
off field employee Broadt in early January 1992. This oc-
curred after he became involved in Board processes and was
identified in election objections and unfair labor practice
charges. Drewniany clearly demonstrated that he knew about,
and was hostile toward, Broadt’s participation when he told
1053STALWART ASSN.
Broadt that ‘‘in view of the charges that are being filed
against me I don’t know how to be fair with you anymore.’’
The layoff also occurred after Broadt was formally sent
two consecutive letters by Drewniany dated December 9 and
10, in which Drewniany sets forth a self-serving description
of his own alleged preceptions of the history of Broadt’s ap-
parent assignment as ‘‘coordinator’’ of the Williams Town-
ship job.
In August, just prior to the Union’s recognition demand
Broadt was assigned this heater and air-condition installation
job. He was told he would do the job by himself and would
be expected to ‘‘coordinate’’ it. Drewniany helped Broadt
sketch out the plans for the job but did not explain in any
detail what his ‘‘coordination’’ responsibilities would be.
Some preliminary work occurred on 3 days in October
(Nesspor Sr. helped out on 1 day with duct work), but al-
though Broadt was assigned to work at Nesspor Jr.’s job lo-
cation occasionally asked when he would be sent back to that
job Nesspor Jr., his leadman, told him not to worry about it.
Broadt otherwise understood they were waiting for the heat-
ers to be delivered. It appears that following the election,
Drewniany stopped personally communicating with Broadt
but had Nesspor Jr. ask him about job progress and then sent
him letters criticizing him for his performance and removed
him from the coordinator position.
In view of the General Counsel’s prima facia showing re-
garding motivation as discussed above, it’s the Respondent
burden to justify its actions in this regard.
Although Drewniany testified to various alleged problems
with Broadt’s performance as a coordinator, Respondent
failed to demonstrate that he made any reasonable efforts to
communicate with or instruct Broadt about the job prior to
suddenly and uncharacteristically giving him two formal and
critical letters and I am not persuaded that he would have re-
moved Broadt in the absence of his union support and his
participation in Board processes. Respondent’s actions in un-
fairly issuing critical letters and abruptly removing Broadt
from the so-called coordinators assignment are the equivalent
of a disciplinary warning and it has the effect of punishing
Broadt for his union support. Moreover, as discussed below,
Drewniany’s actions served as a preclude to his later layoff
of Broadt and failure to recall him and, accordingly, I find
that Respondent’s conduct therefore violates Section 8(a)(1),
(3), and (4) of the Act, as alleged.
Turning to the issue of Broadt’s layoff, the General Coun-
sel has presented a strong prima facie case demonstrating
that Broadt was laid off because of his union activity and
participation in Board processes. Broadt agressively refused
to sign the antiunion petition proffered to him by Nesspor Jr.
He was one of only three employees who voted for the
Union, all three of whom were later laid off. Drewniany di-
rectly expressed animus toward Broadt by saying he did not
know how to be fair with him in view of the unfair labor
practice charges in which Broadt was involved, and then laid
him off soon thereafter.
Respondent’s defense is based on a contention that the lay-
off was due to lack of work. The record, however (specifi-
cally the testimony of the School District Buildings Super-
visor Renn), shows that at the time of the layoff, Drewniany
was aware that the Respondent had been awarded the lenghty
Monocacy School job on which Broadt could have worked.
Moreover, in slack work periods before the election
Drewniany had retained Broadt, whom he valued at the time,
by assigning him to work on his private airplane. As noted
by the General Counsel, the fact that Nesspor Sr. was laid
off the same time does not negate a finding that Broadt’s
layoff was illegal, see Alliance Rubber Co., 286 NLRB 645,
647 (1987). Also, Nesspor Sr. was an older man, on social
security, who had previously been sporadically laid off.
Moreover, unlike Broadt, he was later recalled (one time in
January 1992, an occasion not specifically listed in
Drewniany’s abstract-exhibit which purported to list the em-
ployees’ work record between September 1991 and July
1992). Near the end of the day on the day of his layoff,
Broadt reported to Nesspor Jr. that he had a startup problem
with an air-conditioning unit and still had six more to go.
Nesspor Jr.’s response was to say that he had a problem too
and then informed Broadt that ‘‘I’m suppose to lay you off
today.’’
The record also shows that thereafter the Respondent made
questionable efforts to recall him for available work.
Drewniany did not try to contact Broadt at his parent’s ad-
dress and telephone number although this information had
been specifically given to Respondent’s secretary. Rather, on
the same day that Drewniany probably received notice of the
Union’s charge concerning Broadt’s layoff, Respondent sent
a letter to the wrong address. Broadt telephoned Drewniany
as soon as possible to inform him of his availability to work,
but was told that he was too late and that the work had been
given to someone else. During the time Broadt was laid off,
Respondent advertised for employees, recalled Nesspor Sr.
for a brief period, and subcontracted work to an independent
contractor for a more lenghty period. Subcontractor Fried
was used for some control and insulation work, the general
type of control and other electrical work Broadt had done on
previous jobs for Respondent. Although Broadt was utilized
regularly for electrical work, he was also regularly used in
other aspects of the trade, and although he was not laid off
for lack of ability, Drewniany, on cross-examination, ex-
pressed a number of critical appraisals of his work including
statements that jobs ‘‘didn’t work out well’’ and that ‘‘he
needed extreme supervision.’’ These reasons were not pre-
viously advanced as reasons for Broadt’s layoff and I find
that Drewniany’s resort to such justifications is indicative of
an intent to mask his true reasons.
Under these circumstances, and especially the strong
showing of illegal motivation and the timing of Respondent’s
actions following immediately after Broadt’s identification in
an action before the Board, I find the Respondent’s stated
reasons are not supported by persuasive evidence and other-
wise are pretextual. Accordingly, I conclude that the Re-
spondent has failed to show that Broadt would have been
laid off absent his union activities. The General Counsel oth-
erwise has met his overall burden of proof and I further con-
clude that Respondent’s layoff of this employee is shown to
have been in violation of Section 8(a)(1), (3), and (4) of the
Act, as alleged.
C. Implementation of New Shop Rules
On September 4, after the Union filed the petition for rep-
resentation, and a little over a month before the election, the
Respondent issued a list of 17 written rules. The ‘‘Shop In-
structions’’ are comprised of rules and procedures that the
shop employees were expected to follow and the last rule,
1054 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
rule 17, stated that ‘‘Any violations in the above stated pro-
cedures will be considered uncooperative.’’ Although some
of the instructions were simply codifications of rules and
procedures that had previously existed, there had previously
been no company policies about keeping personal notes out
of the shop office or keeping paperwork in the office.
(Wysong had previously been allowed to have personal notes
and to take paperwork home (rules 1 and 2).) Also, Wysong
had previously been given a key to the back door to let him-
self in, but after this rule was put into effect he no longer
had a key to the shop, and had to wait for someone to let
him in (rule 6). Finally rule 13, states that if an employee
had more than two personal calls per week, his pay would
be docked by 5 minutes per call unless he had permission
to make the call. There was never any previous policy to im-
pose such disciplinary action on employees for personal
phone calls. Both Wysong and MacDonald previously made
and received personal phone calls from the shop, with
Drewniany’s knowledge and they were not disciplined.
Respondent instituted new rules that were more onerous
than those that were in effect before the union campaign.
These rules did not merely memorialize existing rules, but
affirmatively imposed new sanctions against the shop em-
ployees during the critical period just prior to the election.
Moreover, rule 17 implicitly implies a new warning that rule
violations will result in unspecified discipline by being spe-
cifically identified as ‘‘uncooperative.’’ Although some of
the rules are not new or onerous, the timing of the rules and
the inclusions of some new or more onerous rules just after
the Union’s demand for recognition lead to a conclusion that
they were discriminatorily motivated in response to and in
order to discourage union activity. There is no showing why
all the rules had to be reiterated or established at this par-
ticular time (except for paperwork or possibly shop cleanli-
ness and order), and I find that Respondent did not prove
that it would have instituted the shop rules regardless of
union activity. Accordingly, I find that Respondent has not
rebutted the General Counsel’s prima facie case and I con-
clude that by implementing the total package of shop rules
on and after September 4, Respondent is shown to have vio-
lated Section 8(a)(3) and (1) of the Act, as alleged.
D. Alleged Violations of Section 8(a)(1)
The record here shows that Owner Drewniany questioned
Wysong about the Union at the workplace on three occa-
sions. Wysong was not an ‘‘open’’ union adherent (but had
contacted the Union and had begun to talk to other employ-
ees) and as Drewniany did not state a purpose for this ques-
tioning nor did he assure Wysong against reprisals, I find
that Respondent’s interrogation of Wysong in July, ‘‘what do
you think about the Union,’’ August, ‘‘what do you think
about this’’ (the Union’s recognition demand) and Octo-
ber,‘‘what do you think about the election,’’ a statement that
was followed by a remark that: ‘‘if any body wanted to work
for the Union they could go down the road and do that,’’
interfered with and coerced Wysong in his exercise of Sec-
tion 7 rights.
These circumstances are consistent with those in Sunny-
vale Medical Clinic, 277 NLRB 1117 (1985); and the ‘‘total-
ity of the circumstances’’ test including (1) the nature of the
information sought; (2) the identity of the questioner; (3) the
place and method of interrogation; and identity of the ques-
tioner; (3) the place and method of interrogation; and (4) the
background surrounding the questioning. The issue of wheth-
er an employee is an open and active union supporter is also
relevant to evaluating an alleged unlawful interrogation.
Three additional factors considered in deciding whether a
particular interrogation is coercive are: (1) whether the em-
ployer had a valid purpose for obtaining information; (2)
whether the employer communicated its purpose to the em-
ployees involved; and (3) whether the employees were as-
sured that no repisals would be taken as a result of the infor-
mation they provided and it is not necessary for all indicia
of a coercive interrogation to be present in order to find a
violation.
The Respondent also interrogated Broadt in September, at
Broadt’s home, about his union sympathies and support.
Drewniany specifically asked him who was responsible for
bringing in the Union and who signed union cards. At the
time that Drewniany asked Broadt these questions, 1 month
and then 2 weeks before the election, Drewniany knew the
Union claimed to represent a majority of Respondent’s em-
ployees and he apparently wanted to find out the identity of
its supporters. Broadt also was not an open or active union
supporter and Drewniany’s questions sought sensitive infor-
mation at a critical time. Under these circumstances, I am
persuaded that the totality of the Respondent’s owner’s con-
duct demonstrates improper interrogation and I find that the
Respondent is shown to have violated Section 8(a)(1) of the
Act in each of these respects, as alleged.
On the first day after he returned to work after the election
Drewniany told MacDonald, ‘‘if you want to work for the
Union, why don’t you ask them for a job.’’ This strongly
conveyed Drewniany’s knowledge of MacDonald’s vote and
his anger with it. The statement suggested that Respondent
did not desire MacDonald’s services, and implies that he
would be discharged, see Mack’s Supermarkets, 288 NLRB
1082 (1988).
The week before the October 10 election, Drewniany also
told Wysong how good the Company had been to him and
ended up telling him if anybody wanted ‘‘to work for the
Union that they could go down the road and do just that.’’
In each instance, once before and once right after the elec-
tion, when Drewniany had learned who had voted for the
Union, Respondent implicitly threatened discharge as a con-
sequence of union support (a threat thereafter confirmed by
their respective layoffs only 8 days after the election), and
I find that the Respondent is shown to have violated Section
8(a)(1) of the Act in each of these respects, as alleged.
The day before the October 10 election, Drewniany dis-
cussed the election with Broadt at the Alliance Hall jobsite
and told Broadt that the election would be important to
Broadt and his family. Drewniany then said Broadt was not
doing what was expected of him at the Williams Township
job and he asked Broadt if he wanted to run the job because
if he didn’t, Drewniany could arrange it. At that time, Broadt
had declined to sign the antiunion petition distributed by
Nesspor Jr., and the petition had personally been bought to
Broadt’s attention by Drewniany when he said there was an
envelope (with the petition) that he thought Broadt would
want to look at.
No problems with Broadt’s acting as coordinator of the
Williams Township job were mentioned prior to the election
(and Broadt’s vote for the Union), and the sudden threat by
1055STALWART ASSN.
Drewniany to remove him from the assignment (again, a
threat implement, as discussed above, shortly after
Drewniany found that Broadt was identified in the investiga-
tion in the Board’s complaint) constitutes a threat to retaliate
against an employee for exercising his rights under Section
7 of the Act and I find that the Respondent is shown to have
violated Section 8(a)(1) of the Act in this respect, as alleged.
Finally, the record shows that Nesspor Jr. solicited support
for and distributed an antiunion petition to the employees on
worktime on the Respondent’s premises.
As noted above, I do not credit Drewniany’s or Nesspor
Jr.’s testimony regarding the preparation of the petition. I
credit Yerger’s testimony that Nesspor Jr. told him that
Drewniany had asked Nesspor Jr. to draw up an antiunion
petition so as to not disclose Drewniany’s involvement.
Otherwise, I accept the General Counsel’s argument that
although Nesspor Jr. was not a statutory supervisor, he
should be found to be Respondent’s agent.
Section 2(13) of the Act states:
In determining whether any person is acting as an
‘‘agent’’ of another person so as to make such other
person responsible for his acts, the questions of whether
the specific acts performed were actually authorized or
subsequently notified shall not be controlling.
The test for agency is whether, under all circumstances, an
employee would reasonably believe that the alleged agent
was reflecting company policy and speaking for manage-
ment. Here, the record shows that the Respondent’s employ-
ees could reasonably believe that Nesspor Jr. spoke on behalf
of management. Nesspor Jr. acted as one with more authority
than the other employees. He was the leadman out in the
field. The employees reported to him and in turn the employ-
ees believed he reported to the Respondent. Nesspor Jr. testi-
fied that one of his responsibilities was to ‘‘make sure that
everything is in order’’ and he laid off Broadt and questioned
him about the Williams Township job. Nesspor Jr. was the
only employee of the seven who had payroll deductions for
health insurance, a fringe benefit never offered to the other
employees. The evidence otherwise shows the employees
reasonably believed that Nesspor Jr.’s actions reflected com-
pany policy and spoke for management and therefore he
must be considered to be an agent within the meaning of the
Act.
It is clear that Drewniany was aware of the petition but
failed to dissociate itself (and in fact actually drew Broadt’s
attention to the petition, enclosed in an envelope), from
Nesspor Jr.’s actions thereby supporting a finding that
Nesspor Jr. had apparent authority to act on behalf of man-
agement in his solicitation of support for his antiunion peti-
tion. As an agent of the Respondent, Nesspor Jr.’s distribu-
tion and solicitation of employee support for the antiunion
petition constitutes an improper interference with employee
rights and I find that it is shown to be a violation of Section
8(a)(1) of the Act, as alleged. See Dentech Corp., 294 NLRB
924 (1989).
E. Objections
In view of the findings above, I also conclude that the evi-
dence which supports a finding of unfair labor practices by
the Respondent also shows objectionable conduct within the
scope of the election objections which are the subject of the
proceeding in Case 4–RC–17695 referred to this court by the
Regional Director. The parallel unfair labor practice and ob-
jections include actions by the Respondent prior to the elec-
tion which included unlawful threats, and establish objection-
able conduct which interfered with the employees’ exercise
of a free and untrammeled choice in the election. I rec-
ommend that the results of the election held on October 10,
1991, be set aside and that a second election be conducted.
CONCLUSIONS OF LAW
1. The Respondent, the Stalwart Association, Inc., is an
employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By interrogating employees concerning their union sym-
pathies and activities or those of other employees, by threat-
ening employees with discharge or loss of assignments or un-
specified reprisals, and by disseminating and soliciting em-
ployee support for an antiunion petition through its agent,
Paul Nesspor Jr., Respondent has interfered with, restrained,
and coerced employees in the excerise of the rights guaran-
teed them by Section 7 of the Act, and thereby has engaged
in unfair labor practices in violation of Section 8(a)(1) of the
Act.
4. By discriminatorily laying off employees John Mac-
Donald and Timothy Wysong and thereafter failing to recall
employee Wysong, Respondent engaged in unfair labor prac-
tices in violation of Section 8(a)(1) and (3) of the Act.
5. By imposing new shop rules which included more oner-
ous terms and conditions of employment, Respondent en-
gaged in an unfair labor practice in violation of Section
8(a)(1) and (3) of the Act.
6. By discriminatorily issuing disciplinary criticism, re-
moving employee Timothy Wysong from an assignment as
shop foreman, and removing employee Chris Broadt from an
assignment and thereafter laying off and failing to recall em-
ployee Broadt, Respondent has engaged in unfair labor prac-
tices in violation of Section 8(a)(1), (3), and (4) of the Act.
7. The General Counsel has failed to prove by a prepon-
derance of credible evidence that the Respondent engaged in
any other unfair labor practices as alleged.
REMEDY
Having found Respondent to have engaged in certain acts
and conduct which interfered with, restrained, and coerced
employees in the exercise of their Section 7 rights, I shall
recommend that it be ordered to cease and desist therefrom.
In addition, I shall recommend that it take certain affirmative
action designed to remedy the unfair labor practices.
In view of the objectionable conduct occurring prior to the
election, I recommend that the Board set aside the represen-
tation election in Case 4–RC–17695 and, after an appropriate
remedial period, conduct a second election.
With respect to the necessary affirmative action, it is rec-
ommended that Respondent be ordered to reinstate all em-
ployees laid off, and not subsequently rehired, to their former
jobs or substantially equivalent positions (dismissing, if nec-
essary any temporary employees (or so-called subcontrac-
tors)) or employees hired subsequent to their time of layoff,
without prejudice to their seniority or other rights and privi-
1056 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Under New Horizons, interest is computed at the ‘‘short-term
Federal rate’’ for the underpayment of taxes as set out in the 1986
amendment to 26 U.S.C. § 6621. Interest accrued before 1 January
1987 (the effective date of the amendment) shall be computed as in
Florida Steel Corp., 231 NLRB 651 (1977).
4 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
5 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.’’
leges previously enjoyed, and make them whole for any loss
of earnings they may have suffered because of the discrimi-
nation practiced against them by payment to them a sum of
money equal to that which they normally would have earned
from the date of the discrimination to the date of reinstate-
ment, in accordance with the method set forth in F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987),3 and the Respondent expunge from its files any ref-
erence to their layoff or to disciplinary criticism, and notify
them in writing that this has been done and that evidence of
the unlawful layoff or disciplinary criticism will not be used
as a basis for future personnel action against them.
Otherwise, it is not considered to be necessary that a broad
order be issued.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended4
ORDER
The Respondent, the Stalwart Association, Inc., Frederick,
Pennsylvania, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Interfering with, restraining, or coercing its employees
in the exercise of the rights guaranteed them Section 7 of the
Act by interrogating employees concerning their union sym-
pathies and activities or those of other employees; by threat-
ening employees with discharge, loss of assignments, or un-
specified reprisals; by disseminating and soliciting employee
support for an antiunion petition; or by imposing new shop
rules with more onerous terms and conditions of employ-
ment.
(b) Issuing disciplinary criticism, removing employees
from assignments, and laying off any employees and there-
after failing to recall them, or otherwise discriminating
against them in retaliation for engaging in union activities,
participating in charges filed with the Board, or participating
in other protected concerted activities.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Chris Broadt, John MacDonald, and Timothy
Wysong immediate and full reinstatement and make them
whole for the losses they incurred as a result of the discrimi-
nation against them in the manner specified in the remedy
section above and expunge from its files any reference to
their layoff or to Broadt’s diciplinary criticism or removal
from an assignment and notify them in writing that this has
been done and that evidence of the unlawful layoff and other
actions will not be used as a basis for future personnel ac-
tions against them.
(b) Revoke any shop rules imposed on or after September
4, 1991, that impose more onerous terms and conditions of
employment.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all records, reports
and other documents necessary to analyze the amount of
backpay due under the terms of this decision.
(d) Post at its Frederick, Pennsylvania facility copies of
the attached notice marked ‘‘Appendix.’’5 Copies of the no-
tice, on forms provided by the Regional Director for Region
4, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER RECOMMENDED that the election held in
Case 4–RC–17695 be set aside and that a second election be
directed.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT interfere with, restrain, or coerce employees
in the exercise of the rights guaranteed them by Section 7
of the Act, by interrogating employees concerning their
union sympathies and activities or those of other employees;
by threatening employees with discharge, loss of assign-
ments, or unspecified reprisals; by disseminating and solic-
iting employee support for an antiunion petition; or by im-
posing new shop rules with more onerous terms and condi-
tions of employment.
WE WILL NOT issue disciplinary criticism, remove employ-
ees from assignments, lay off any employees and therafter
1057STALWART ASSN.
fail to recall them, or otherwise discriminate against them in
retaliation for engaging in union activities, participating in
charges filed with the Board, or participating in other pro-
tected concerted activities.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL offer Chris Broadt, John MacDonald, and Tim-
othy Wysong immediate and full reinstatement and make
them whole for the losses they incurred as a result of the dis-
crimination against them and WE WILL expunge from our
files any reference to their layoff or to Broadt’s diciplinary
criticism or removal from an assignment and notify them in
writing that this has been done and that evidence of the un-
lawful layoff and other actions will not be used as a basis
for future personnel actions against them.
THE STALWART ASSOCIATION, INC.