United Scrap Metal

National Labor Relations Board - Board Decisions

Mar 31, 2005

344 N.L.R.B. 467 (N.L.R.B. 2005)

UNITED SCRAP METAL, INC.
344 NLRB No. 55
467
United Scrap Metal, Incorporated and Teamsters
Local Union No. 731, AFL–CIO and L.A.
Trucking Company, Incorporated and Metro
Haul and Tri-Air Transport. Cases 13–CA–
41743 and 13–CA–41842
March 31, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
The single issue presented in this proceeding is
whether the judge correctly concluded that Teamsters
Local Union No. 731, AFL–CIO (the Union) had
achieved majority status among the bargaining unit em-
ployees employed by United Scrap Metal, Incorporated
(the Respondent). We have carefully scrutinized the
record evidence as a whole, and find that substantial evi-
dence supports the judge’s majority status conclusion.1
As fully set forth in his decision, the judge found that
the Respondent committed numerous unfair labor prac-
tices in response to its employees’ organizing efforts,
including, inter alia, threats, coercive interrogation, creat-
ing the impression of surveillance, discharge of the entire
bargaining unit, and the subcontracting of all the bargain-
ing unit work. The Respondent has not excepted to any
of the judge’s unfair labor practice findings. The judge
further found that these serious unfair labor practices
rendered traditional remedies inadequate to ensure a fair
representation election, and that the employee sentiment
here expressed by authorization cards would be better
protected by a bargaining order pursuant to NLRB v. Gis-
sel Packing Co., 395 U.S. 575 (1969). The judge accord-
ingly recommended that a Gissel bargaining order be
issued.
The Respondent has not excepted to the propriety of
the Gissel bargaining order in this case, save for a single
contention: that the General Counsel failed to prove that
the Union attained majority status because he has not
shown that a majority of the bargaining unit drivers had
executed authorization cards. We have carefully re-
viewed the entire record and find no merit to the Re-
spondent’s contention.
It is long-settled that pursuant to NLRB v. Gissel Pack-
ing Co., supra, the Board may order an employer to bar-

1 On October 12, 2004, Administrative Law Judge Karl H. Busch-
mann issued the attached decision. The Respondent filed exceptions
and a supporting brief, the General Counsel filed an answering brief,
and the Respondent filed a reply brief.
The National Labor Relations Board has considered the decision and
the record in light of the exceptions and briefs and has decided to af-
firm the judge’s rulings, findings, and conclusions and to adopt the
recommended Order as modified and set forth in full below.
gain with a union that had secured authorization cards
from a majority of a bargaining unit’s employees, where,
as here, the employer has committed serious unfair labor
practices that tend to undermine majority strength and
impede the election process. 395 U.S. at 614. If the
General Counsel seeks a bargaining order remedy predi-
cated on the union’s majority status, it is his burden to
demonstrate that status. As part of that burden, the Gen-
eral Counsel must establish the number and identity of
the employees in the appropriate unit on the date on
which the General Counsel asserts the union attained
majority status.
The judge found, inter alia, that the record showed that
the Union achieved majority status among the unit of 18
drivers2 based upon the General Counsel’s presentation
into evidence of 14 signed and dated authorization cards.
The Respondent does not contest the authenticity of the
cards. Instead, it argues in its exceptions that the General
Counsel failed to establish (1) that the 14 card signers are
in fact unit employees and (2) that the unit is comprised
of 18 employees.
The record, however, supports the judge’s findings re-
garding bargaining unit size and composition. We par-
ticularly rely on General Counsel’s Exhibit 24: the Re-
spondent’s position statement, prepared by its counsel
and submitted to the NLRB Regional Office, in response
to the unfair labor practice charges filed against it by the
Union. In its position statement, the Respondent states
that on February 18, 2004, it “conducted a drivers meet-
ing with all the drivers” and adds: “see list of drivers.”
(Emphasis supplied.) The list of drivers attached to the
position statement includes each of the 14 authorization
card signers.3 Further, the list sets forth a total of 18
drivers, consistent with the judge’s finding.4 Under set-
tled precedent, the Respondent’s position statement con-
stitutes an admission by it as to the size of the unit—18
drivers—as well as the identity of the unit drivers as of
February 18, 2004.5 In light of the 14 authenticated

2 The parties stipulated that the following bargaining unit is appro-
priate: “All regular full-time drivers employed at the facility located at
1545 South Cicero Avenue in Cicero, Illinois; but excluding all yard
workers, mechanics, dispatchers, management employees, all other
employees, office clerical employees, supervisors, and guards as de-
fined in the Act.”
3 They are: (1) Ken Kolff; (2) Dave Miller; (3) Cantrell Lacey; (4)
Robert Korda; (5) Chris Wojtaszek; (6) Dave Schnobelen; (7) Lorenso
Rios; (8) Ezra Tillman; (9) Alex Martinez; (10) Jim McGhee; (11)
Artee Love; (12) Hector Roman; (13) Kurt Powell; and (14) Mike
Athern.
4 The four additional drivers listed are: (1) Greg Raegel; (2) Isadore
Fiumefreddo; (3) Tony Tillman; and (4) Jesse McCraney.
5 See, e.g., Navigator Communications Systems, 331 NLRB 1056,
1058 fn. 10 (2000); McKenzie Engineering Co., 326 NLRB 473, 485
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD468
signed and dated authorization cards in the unit of 18
drivers,6 the General Counsel has shown that the Union
attained majority status by at least February 18, 2004.
We are mindful, of course, of our duty to take into ac-
count any countervailing evidence which might detract
from our conclusion that the Union attained majority
status. Universal Camera Corp. v. NLRB, 340 U.S. 474,
487–488 (1951). We have found nothing in the record,
however, indicating that the bargaining unit’s size and
composition differs from that set forth in the Respon-
dent’s own list of its drivers. Further, the Respondent
failed to present any evidence or argument indicating that
the card signers were not in fact unit members or that the
unit was not comprised of 18 employees. Instead, the
Respondent merely quibbles over the nature of the Gen-
eral Counsel’s evidence—not its correctness. Once the
General Counsel introduced competent evidence show-
ing the size and composition of the bargaining unit, it
became incumbent upon the Respondent to present some
specific evidence or argument supporting a contrary con-
clusion. See Abbey’s Transportation Services, 284
NLRB 698, 703 (1987) (“The Respondent did not merely
point out the inadequacy of the payroll list as proof of the
number of unit employees. It went on to identify indi-
viduals, not on the weekly payroll list, who it contends
were in the unit.”), enfd. 837 F.2d 575 (2d Cir. 1988.
This proceeding stands entirely distinct from cases in
which the record included evidence calling into question
the accuracy of the bargaining unit complement asserted
by the General Counsel, thus precluding a finding of ma-
jority status. Compare Be-Lo Stores v. NLRB, 126 F.3d
268, 277 (4th Cir. 1997) (accuracy of the voter list relied
on by the General Counsel “repeatedly challenged” by
the respondent, which proffered supporting evidence);
Abbey’s Transportation Services, supra (“[r]ecord evi-
dence corroborate[d]” the respondent’s claim that certain
individuals should be added to the number of unit em-
ployees asserted by the General Counsel).7 We accord-
ingly conclude that the record before us fully supports

fn. 6 (1998), enfd. 182 F.3d 622 (8th Cir. 1999); Hogan Masonry, 314
NLRB 332, 333 fn. 1 (1994).
The position statement was prepared by Fred Hayes, who the Re-
spondent describes as its former counsel. The record indicates, how-
ever, that he never withdrew as the Respondent’s counsel. In any
event, the rule that a party’s position statement is admissible as an
admission is applicable to those submitted by the employer’s former
counsel. See Optica Lee Borinquen, 307 NLRB 705 fn. 6 (1992), enfd.
991 F.2d 786 (1st Cir. 1993) (Table).
6 The authorization cards are dated between January 21 and 28,
2004.
7 In the instant case, there is nothing in the record to show or even
suggest, and no party contends, that any changes in the bargaining unit
occurred during the relevant time period.
the judge’s finding that the Union attained majority
status.
ORDER8
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, United Scrap Metal, Incorporated, Cicero,
Illinois, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Coercively interrogating employees about the Un-
ion.
(b) Instructing employees to convince other employees
not to engage in union activities.
(c) Threatening employees with discharge, with job
loss, and with unspecified reprisals because of their un-
ion activities.
(d) Creating the impression among employees that
their union activities were under surveillance.
(e) Coercively soliciting employees to sign affidavits
stating that they had not heard any threats from the Re-
spondent.
(f) Promising to and granting an employee a day off
work for signing such affidavit.
(g) Threatening to sell its trucks and replace its em-
ployees with brokers if they continued their union activi-
ties, and informing employees that it was selling its
trucks, because of their union support.
(h) Threatening employees that selecting the Union as
their bargaining representative would be futile.
(i) Announcing the subcontracting of its unit work to
brokers, discharging its unit employees, and subcontract-
ing its unit work to brokers because of the employees’
union activities.

8 We have modified the judge’s recommended Order in accordance
with Ferguson Electric Co., 335 NLRB 142 (2001), to correct inadver-
tent errors, and to include a broad cease-and-desist order. See, e.g.,
America’s Best Quality Coatings Corp., 313 NLRB 470, 473 (1993)
(broad cease-and-desist order provided because of serious nature of
violations and egregious misconduct demonstrating a general disregard
for employees’ fundamental rights), enfd. 44 F.3d 516 (7th Cir. 1995),
cert. denied 515 U.S. 1158 (1995). Accord: NLRB v. Blake Construc-
tion Co., 663 F.2d 272, 285 (D.C. Cir. 1981) (upholding broad cease-
and-desist order in light of egregious unfair labor practices). We have
substituted a new notice to comport with these modifications.
In light of the Supreme Court’s admonitions to the Board concerning
the use of broad cease and desist orders, see NLRB v. Express Publish-
ing Corp., 312 U.S. 426 (1941), the specificity requirements of Fed. R.
Civ. P. 65(d) that render such orders exceedingly difficult to enforce,
and the fact that we are already issuing an affirmative bargaining order,
Member Schaumber believes that traditional remedies, including a
“narrow” cease and desist order restraining “any like or related” viola-
tions of Sec. 8(a)(1) and (3), are appropriate and sufficient to address
the violations in the instant case. He, therefore, dissents from the issu-
ance of a broad order restraining “any” violations of the Act.
UNITED SCRAP METAL, INC. 469
(j) Constructively discharging its employees because
of their union activities.
(k) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Recognize, and on request, bargain with Teamsters
Local Union No. 731, AFL–CIO, as the exclusive collec-
tive-bargaining representative of the employees in the
following appropriate unit concerning terms and condi-
tions of employment and, if an understanding is reached,
embody the understanding in a signed agreement:
All regular full-time drivers employed at the facility lo-
cated at 1545 South Cicero Avenue in Cicero, Illinois;
but excluding all yard workers, mechanics, dispatchers,
management employees, all other employees, office
clerical employees, supervisors, and guards as defined
in the Act.
(b) Within 14 days from the date of this Order, offer
Michael Athern full reinstatement to his former job or, if
that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other
rights or privileges previously enjoyed.
(c) Make Michael Athern whole for any loss of earn-
ings and other benefits suffered as a result of the dis-
crimination against him, with interest, in the manner set
forth in the remedy section of the judge’s decision.
(d) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharge of
Michael Athern, and within 3 days thereafter notify him
in writing that this has been done and that the discharge
will not be used against him in any way.
(e) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(f) Within 14 days after service by the Region, post at
its facility in Cicero, Illinois, copies of the attached no-
tice marked “Appendix.”9 Copies of the notice, on forms
provided by the Regional Director for Region 13, after

9 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respon-
dent 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 facilities involved in
these proceedings, it shall duplicate and mail, at its own
expense, a copy of the notice to all current employees
and former employees employed by the Respondent at
any time since February 18, 2004.
(g) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT coercively interrogate you about the Un-
ion.
WE WILL NOT instruct our employees to convince other
employees not to engage in union activities.
WE WILL NOT threaten you with discharge, with job
loss, or with unspecified reprisals, because of your union
activities.
WE WILL NOT create the impression among our em-
ployees that your union activities were under surveil-
lance.
WE WILL NOT coercively solicit you to sign affidavits
stating that you have not heard any threats from the
Company.
WE WILL NOT promise to and grant you a day off work
for signing such affidavit.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD470
WE WILL NOT threaten to sell our trucks and replace
you with brokers if you continued your union activities,
and WE WILL NOT inform you that the Company is selling
its trucks because of your union support.
WE WILL NOT threaten you that selecting the Union as
your representative would be futile.
WE WILL NOT announce that we will subcontract the
unit work to brokers, discharge unit employees, and sub-
contract the unit work to brokers, because of your union
activities.
WE WILL NOT constructively discharge you because of
your union activities.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce you in the exercise of the rights set forth
above.
WE WILL recognize, and on request, bargain with
Teamsters Local Union No. 731, AFL–CIO, as the ex-
clusive collective-bargaining representative of the em-
ployees in the following appropriate unit concerning
terms and conditions of employment and, if an under-
standing is reached, embody the understanding in a
signed agreement:
All regular full-time drivers employed at the facility lo-
cated at 1545 South Cicero Avenue in Cicero, Illinois;
but excluding all yard workers, mechanics, dispatchers,
management employees, all other employees, office
clerical employees, supervisors, and guards as defined
in the Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer Michael Athern full reinstatement to his
former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to his senior-
ity or any other rights or privileges previously enjoyed.
WE WILL make Michael Athern whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against him, less any net interim earnings,
plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to our unlaw-
ful discharge of Michael Athern, and WE WILL, within 3
days thereafter, notify him in writing that this has been
done and that the discharge will not be used against him
in any way.
UNITED SCRAP METAL, INC.
Vivian Robles, Esq. and Kevin McCormick, Esq., for the Gen-
eral Counsel.
Daniel B. Pasternak and Thomas Dugard, Esqs. (Matkov,
Salzman, Madoff & Gunn), of Chicago, Illinois, for the Re-
spondent.
Robert Cervone, Esq. (Dowd, Bloch & Bennett), of Chicago,
Illinois, for the Petitioner.
John D. Jeske, Esq., of Des Plaines, Illinois, for the Party in
Interest.
DECISION
STATEMENT OF THE CASE
KARL H. BUSCHMANN, Administrative Law Judge. This case
was tried on May 25 and 26, 2004, in Chicago, Illinois. The
charge was filed on March 4, 2004, in Case 13–CA–41743, as
amended, and on April 6, 2004, in Case 13–CA–41842 by the
Teamsters Local Union No. 731, AFL–CIO. The second
amended consolidated complaint issued on May 11, 2004,
against United Scrap Metal, Inc.
The complaint charges the Respondent with violations of
Section 8(a)(1) of the National Labor Relations Act (the Act),
specifically that the Respondent, United Scrap Metal, Inc.,
unlawfully,
(1) interrogated employees as to their union activities, and
instructed employees to convince other employees not to en-
gage in union activities,
(2) threatened employees with unspecified reprisals, with
discharge and with job loss, because of their union activities,
(3) created the impression among employees that their union
activities were under surveillance,
(4) coercively solicited employees to sign affidavits stating
that they had not heard any threats from the Respondent, and
promised to and granted an employee a day off if he signed
such an affidavit,
(5) threatened to sell its trucks and replace its employees
with brokers, if they continued their union activities, and in-
formed employees that it was selling its trucks because of their
union activities, and
(6) threatened employees that selecting the Union as their
bargaining representative would be futile.
The complaint also alleges violations of Section 8 (a)(3) and
(1) of the Act, that the Respondent,
(1) announced that it was subcontracting all of its unit work
to brokers effective May 15, 2005,
(2) discharged all of its unit employees effective May 15,
2004,
(3) subcontracted all of its unit work to brokers effective
May 15, 2004,
(4) accelerated the effective date of its subcontracting from
May 15, 2004 to May 3, 2004, and
(5) constructively caused the termination of its employee
Michael Athern.
UNITED SCRAP METAL, INC. 471
The Respondent filed timely answers in which the jurisdic-
tional allegations were admitted, and in which it denied any
violations of the Act.
On the entire record,1 including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, and the Respondent,2 I make the fol-
lowing
FINDINGS OF FACTS
I. JURISDICTION
United Scrap Metal, Inc., is engaged in the business of recy-
cling scrap metals in Cicero, Illinois. During the past 12
months, in conducting its operation described above, the Re-
spondent purchased and received at its facility goods and mate-
rials valued in excess of $50,000 directly from points outside
the State of Illinois. Admittedly, the Respondent is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act. The Union, Teamsters Local Un-
ion No. 731, AFL–CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
II. FACTS
United Scrap Metal, Inc., employs slightly more than 100
employees, in its business of collecting, processing, and dis-
tributing scrap metal. Owner and chief executive officer is
Marsha Serlin who started the business in 1978 in Cicero, Illi-
nois. The corporate hierarchy includes John Gillmeister, vice
president and chief financial officer, Dennis Rook, vice presi-
dent of operations, Brian Chrzanowski, transportation manager,
and Rita Zajak, human resources or personnel director. A part
of Respondent’s operation is the transportation department with
its own fleet of trucks and roughly 800 containers that are used
in the collection and transportation of scrap metal. The depart-
ment’s main responsibility is to pick up scrap metal from cer-
tain customers and to deliver these materials to the Company’s
facility and to other customers. The transportation department
includes 18 full-time drivers. The Respondent has also used the
services of contractors (brokers) to supplement the work of its
drivers.
The Union, the International Brotherhood of Teamsters, Lo-
cal 731, had attempted to organize the drivers in 2003, but
failed. In January 2004, Dave Miller, one of the drivers in the
transportation department, contacted William (Bill) Miller, a
union organizer, to tell him that the drivers were interested
again in organizing. The Union held a meeting on January 21,
2004, with about five drivers in attendance. They signed union
authorization cards. At the next meeting, held on January 28,
2004, additional drivers signed authorization cards (GC Exhs.
2, 4–13,17–19). In the meantime, the Respondent learned of
the unionization efforts and questioned employees, threatened
them and made other statements to them with the effect of in-
terfering with their Section 7 rights. Having achieved majority
status with 14 signed authorization cards, the Union filed a
representation petition on February 18, 2004, with Region 13 of

1 The Respondent’s unopposed motion to correct transcript is hereby
granted.
2 The Respondent’s motion to take administrative notice is denied.
the National Labor Relations Board to represent all 18 drivers
in the transportation department (GC Exh. 23). On February
19, the Company received the representation petition filed by
the Union (in Case 13–RC–321166). A representation hearing
was held on March 3, 2004 (GC Exh. 14). Pursuant to a stipu-
lation, the appropriate bargaining unit was defined as follows
(GC Exh. 23):
All regular full-time drivers employed at the facility located at
1545 South Cicero Avenue in Cicero, Illinois; but excluding
all yard workers, mechanics, dispatchers, management em-
ployees, all other employees, office clerical employees, su-
pervisors, and guards as defined in the Act.
At the hearing, the Employer revealed for the first time the
decision to subcontract to brokers the entire transportation work
of its drivers. On the same date, March 3, 2004, Respondent’s
owner, Marsha Serlin held a meeting with the employees in the
transportation department to announce the Company’s decision
to eliminate the department and to subcontract the trucking
work. The decision was, according to her testimony at that
hearing, final and irrevocable, and would be implemented no
later than May 15, 2004. The primary reasons for the decision,
according to her testimony, were economic factors and high
costs. Serlin told the employees that they could become inde-
pendent contractors with their own companies, and assured
them of help in that regard or that she would recommend some
of the drivers to the brokers to whom she would be outsourcing
the work.
On March 16, 2004, the Decision and Direction of Election
issued, directing an election among the employees in the Unit.
On March 24, 2004, the Respondent signed agreements with
three companies as subcontractors to provide transportation
services effective May 3, 2004. The contracts with L.A. Truck-
ing, Managed Transportation, and Metro Haul, provided for
$55 or $60 per hour depending on their equipment (GC Exhs.
20–22).
By letter of April 2 2004, Gregory [Raegel] Rangel, one of
the drivers, sent a letter to the Union after he had collected 13
signatures from the drivers who had expressed their antiunion
sentiment (GC Exhs.15, 16). Rangel testified that he had solic-
ited the signatures in the hope of saving the drivers’ jobs.
Two weeks later the Respondent changed course and re-
scinded the contracts, because the Board had instituted injunc-
tion proceedings against the Company. By letters of April 9,
2004, the Respondent notified the three brokers of the decision
to rescind the broker service agreements (R. Exhs.13–15). In
the meantime several employees decided to look for work.
Michael Athern found a job and left the Company on April 9,
2004. He did not return to this Employer even after it decided
to continue the transportation unit.
The General Counsel submits that the Respondent violated
the Act with an “outrageous and unlawful campaign,” using
“interrogations, threats, promises and granting of benefits, sub-
contracting of unit work, and the wholesale termination of the
bargaining unit to subjugate the prounion sympathies the em-
ployees once had.” Accordingly, so argues the General Coun-
sel, “only a Gissel bargaining order can possibly bring back the
status quo to the terrified drivers.” The Respondent on the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD472
other hand argues that the “General Counsel failed to prove that
any substantial unfair labor practices occurred, but even had he
done so, he also failed to show that any such violations would
warrant the imposition of a bargaining order.” According to the
Respondent, the General Counsel failed to show that the Union
had achieved majority status among the employees, because
there was no evidence showing the size of the unit, nor the
identity of the unit employees. The Respondent also argues
that the decision to subcontract was economically justified and
that any inference based on the timing of the announcement is
unjustified.
Analysis
The record in this case clearly supports a finding, that this
Employer committed a series of Section 8(a)(1) and 8(a)(3)
violations in reaction to the employees’ lawful pursuit of their
union activities, and that a bargaining order is justified under
the present circumstances.
The 8(a)(1) Allegations
The complaint alleges that the owner and admitted supervi-
sor, Serlin, unlawfully interrogated an employee, threatened
him with unspecified reprisals, and gave the impression that she
was surveiling the employees’ union activities. The testimony
of Ken Kolff, employed as a truckdriver until April 16, 2004,
shows that on February 18, 2004, Serlin approached him in
front of the truck scale, when the following conversation oc-
curred (Tr. 34):
Well, Marsha came up to me and asked me if I heard anything
about the Union coming in. And I told her no as I was work-
ing nights. I really haven’t had a chance to talk to too many
drivers. Then she told me that somebody around there was ly-
ing because 14 to 15 drivers signed authorization cards. . . She
said she was pretty hot that day. And she says it’s fucking
bull shit. No union will tell her how to run her company.
Serlin denied having engaged in such a conversation, stating
that she was in Miami that day and did not return until February
19. I find Kolff’s testimony credible, he was no longer in the
Respondent’s employ and would have no reason to testify ei-
ther for or against his former employer’s interest. Moreover, I
found his demeanor to be forthright, direct, and responsive.
Serlin, on the other hand, appeared protective of the Company’s
interest. She founded the business. Her testimony appeared
self-serving and at times unconvincing. She did not provide
any receipts, tickets, or other documentary evidence to support
her testimony that she was elsewhere that day. In any case, it is
also possible that the conversation may have occurred on the
following day, February 19, when she admitted receiving the
representation petition from the NLRB.
In Rossmore House v. NLRB, 760 F.2d 1006 (9th Cir. 1985),
the court found that the Board was within its authority to rely
on the “all the circumstances” test as its adjudicative criteria for
determining whether an interrogation was coercive. The prohi-
bition on interrogating is balanced against the employer’s free
speech protection, enunciated in Section 8(c) of the Act that, “if
such expression contains no threat of reprisal or force or prom-
ise of benefit,” then the speech is protected. Serlin’s statements
may not have contained threats, but she did reveal her opinion
that she considered the union activity to be “fucking bullshit,”
that no union will tell her how to run her company, and that she
knew about the signed union cards. Kolff described her de-
meanor as “pretty hot.” Considering all the circumstances, in
particular Serlin’s conduct in her role as chief executive, and
whether her actions would reasonably tend to restrain, coerce,
or interfere with the employees’ exercise of their Section 7
rights,3 I find that the Respondent coercively interrogated the
employee and that she created the impression that the employ-
ees’ union activities were under surveillance, in violation of
Section 8(a)(1). Serlin may be correct that she actually never
spied on the employees’ union activities, but her statement that
she was aware of the signed union cards implied that she did.
Flexsteel Industries, 311 NLRB 257 (1993).
Serlin also had a conversation on February 18 with David
Miller, employed as a driver. Miller testified as follows about
his conversation at about noon as Serlin approached him in the
yard (Tr.87):
I said, hi, Marsha. How are you doing? She said don’t smile
at me. I just got another petition for that fucking union again.
She wanted to know—she she told me that if I knew who had
made the call, I should try to convince them that it’s not the
way to go and that we had till midnight to make it go away.
And if not, she’d have to do what she had to do. I didn’t re-
spond to it and she told me, she says, you know, get back to
work.
Again, Serlin denied the substance of the conversation or
that it occurred on February 18, but she admitted that she spoke
to Miller on February 19, and that she felt outraged upon re-
ceiving the union petition. Miller was a credible witness. He
was the primary contact for the Union among the drivers. Cur-
rently employed at Respondent’s facility, he testified contrary
to his Employer’s interest. He gave a clear and detailed ac-
count of his observations in an honest and credible manner.
Serlin not only coercively interrogated also this employee un-
der circumstances similar to those with Kolff, but this time, she
threatened to do what she had to do, unless Miller would dis-
suade the employees from supporting the Union. Such conduct
amounted to threats of unspecified reprisals, in violation of
Section 8(a)(1), as well as instructions to an employee not to
engage in union activities, in violation of the Act. Caribe Sta-
ple Co. 313 NLRB 877 (1994); Hoffman Fuel Co., 309 NLRB
327 (1992).
The complaint alleges that Dennis Rook, vice president of
operations, threatened employees with discharge if they contin-
ued their union activities and threatened to sell the Company’s
trucks and replace the employees with brokers if the employees
continued their union activities. The record shows that David
Miller and Alex Martinez, employed as drivers for the Respon-
dent, had a conversation on February 19, 2004, with Dennis
Rook, admittedly a supervisor within the meaning of the Act.
According to Miller, Rock said to them, that “sometimes
change is bad especially when people trying to organize . . . .
it’s not exactly a good idea . . . . that Marsha was going to fire

3 Southdown Care Center, 313 NLRB 1114 (1994).
UNITED SCRAP METAL, INC. 473
us off and either sell off or lease off the trucks” (Tr. 88). When
Miller replied that it was just a bluff, Rock insisted that it
would happen, and added, “you guys aren’t married to the
company . . . . if you don’t like it here, get the fuck out.” Mar-
tinez’ testimony corroborated Miller, and added that Rook also
said, that “Marsha is sick of this shit,” that she feels someone is
“stabbing her in the heart,” and that, “if you don’t like it, get
the hell out of here and find another job.” He also recalled
Rook saying that Marsha doesn’t care how much it will cost,
she’ll “fire all of you guys, sell the trucks and go with brokers”
(Tr. 140).
Rook testified that he had a conversation about the Union
with the two employees on February 18, suggesting that they
apply for a job at another company if they were unhappy with
their pay scale, but Rook denied telling them that Serlin would
fire them or sell the trucks. I credit the consistent and plausible
testimony of the employees, particularly under the circum-
stances where Rook admitted a conversation with the employ-
ees about the Union. I found nothing in the demeanor of the
employee witnesses to suggest that they were not telling the
truth. Rook, on the other hand, tried to put a positive spin on
his version of the conversation, conceding only the most benign
statements he had made to the employees and denying making
any threats.
Using coarse words and threatening employees with loss of
employment, interferes with the employees’ Section 7 rights
and would tend to undermine employees’ support for the Un-
ion. By Rook’s own testimony, he suggested to the employees
that they should work elsewhere rather than trying to join a
union (Tr. 277). Yet the Respondent contends that a supervisor
may, during a bull session, tell employees to get jobs else-
where, citing Danzansky-Goldberg Memorial Chapels, 264
NLRB 840, 854 (1982). In that case, however, the Board spe-
cifically stated that it would have been a violation if the super-
visor’s comments were made because the discriminatees were
union supporters. “For present purposes it can be assumed that
Respondent would have violated Section 8(a)(1) had [the em-
ployer] told [the discriminatees] that they, as union supporters,
should find jobs elsewhere.” According to Danzansky-
Goldberg Memorial Chapels, his comments were not accept-
able bull session comments, but violations of Section 8(a)(1).
The complaint alleges that comments made by Rook to em-
ployee Kolff on March 17, violated the Act. Kolff testified that
he wanted a day off for a job interview and went to the shipping
and receiving office to get permission. Seated there were Rook
and Scott Pawlowski, operations manager. They asked what he
was doing there so early. Kolff told them that he needed the
day off to go for a job interview. During the ensuing conversa-
tion with Rook, Kolff recalled that Rook made the following
statements (Tr. 43–44): “And Dennis Rook looked at me and he
said if you fucking assholes wouldn’t try bringing the Union in
you would never have to go to a job interview . . . . he said well
Marsha never intended on selling the trucks until the union
decided they wanted to come back in.”
Pawlowski testified that he did not recall Rook saying any-
thing to Kolff about wanting to take a day off, or making any
statements about the Union. Rook denied making any of the
statements attributed to him by Kolff. Kolff’s appearance at the
office that day to obtain permission to take leave for a job in-
terview is corroborated by Brian Chrzanowski, Respondent’s
transportation manager. I generally credit Kolff’s testimony for
the reasons stated above. I found his testimony more credible
and plausible than that of the two supervisors who simply re-
membered nothing about that conversation. Clearly, the state-
ments conveyed the message that the Respondent was selling
the trucks and that the employee was forced to find another job,
because of the employees’ union support. I accordingly find
these coercive statements to be violations of the Act. Coronet
Foods, 305 NLRB 70 (1991).
Several allegations of Section 8(a)(1) involve the conduct of
Brian Chrzanowski, transportation manager, and Rita Zajac,
personnel director, when they solicited employees to sign ex-
culpatory affidavits without assurances that no reprisals would
be taken against them. In its brief, the Respondent has chal-
lenged the supervisory status of Zajac. However, the record
shows that the Respondent clearly admitted the status of the
two managers as supervisors within the meaning of the Act,
first in the answer to the complaint and again in the Respon-
dent’s response to unfair labor practice charge (GC Exhs. 1(i),
24). I therefore find that Zajac and Chrzanowski are statutory
supervisors. The record shows that on March 16, 2004, Ken
Kolff reported for work at 7 p.m. for the night shift. He could
not find his dispatch sheet on the board and called his supervi-
sor, Chrzanowski, about the missing dispatch sheet.
Chrzanowski told him that there was a yellow envelope in his
desk and that he needed to sign it. Chrzanowski then told him
where to find the dispatch sheet. During that conversation
Kolff requested the following day off work to go for a job in-
terview in Wisconsin. Early in the morning of the following
day, March 17, 2004, Kolff informed Chrzanowski again that
he needed the day off for a job interview. Chrzanowski stated
that he would give his permission, if Kolff signed the affidavit.
Kolff replied that he could not sign the affidavit, because he
could not agree to certain statements in the affidavit.
Chrzanowski assured him that he would make the necessary
corrections in the affidavit. In a subsequent conversation in the
dispatch office in the morning of the same day, Chrzanowski
stated again that Kolff had to sign the affidavit to get his per-
mission for the day off work. Kolff finally agreed and signed
the revised affidavit (GC Exhs. 3, 24). In his testimony,
Chrzanowski generally agreed with this scenario, but he denied
that he told the employee that he had to sign the statement to
get the day off. I credit Kolff who generally impressed me as a
truthful witness. Moreover, the record is clear that Chrzan-
owski solicited the employee to sign an affidavit which states,
inter alia, “I never heard Brian tell the drivers that if a union got
in everyone in the transportation department would be fired”
(GC Exh. 3). The record clearly shows that Chrzanowski
promised and granted the employee to take a day off work for
signing the affidavit. I find that conduct to be coercive. The
Respondent also violated the Act by soliciting the employee to
sign the affidavit without making the required assurances, such
as that no reprisals would be taken against the employee and
that his participation would be voluntary. Johnnie’s Poultry,
146 NLRB 770 (1964).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD474
Respondent’s personnel director, Rita Zajac, also solicited
the signatures of many employees to sign prepared affidavits
which stated in substance that no one in management had
threatened to close down the transportation department because
of the Union (GC Exh. 24). In this regard the record contains
the consistent testimony of drivers Alex Martinez, Hector Ro-
man, and Michael Athern. On various dates, following the
March 3 meeting, they were directed by Chrzanowski to report
to Zajac. When they went to see her, she asked them to sign
the prepared affidavits. But she did not inform them of the
purpose for their signatures, nor clearly assure them that their
signatures were voluntary and that no reprisals would be taken
against them if they refused. Acting in conjunction with
Chrzanowski and, in her role as the Respondent’s personnel
director, Zajac had the appearance of authority and certainly
conveyed the impression that upper management sanctioned her
actions. Martinez, Roman, and Athern testified that they re-
fused to sign the statement, because they disagreed with it.
Martinez poignantly testified, “because that statement is false”
(Tr. 145). The employees’ testimony was uncontradicted. Za-
jac was not called to testify. The conduct of an admitted super-
visor to solicit employees to sign affidavits dealing with union
issues and expecting them to take a position about the Union
under oath without advising the employees of their Johnny
Poultry safeguards violated Section 8(a)(1).
Respondent cites Allegheny Ludlum Corp., 333 NLRB 734
(2000), for the proposition that an employer may have a valid
reason to interrogate employees about their union membership
to prepare a defense at trial. But the Respondent fails to show
how these interrogations were in preparation of any trial de-
fense. Moreover, even if Zajac, were not considered a supervi-
sor under the Act, she clearly acted on behalf of the Respon-
dent. The Board has stated: “Apparent authority will result
from a manifestation by the employer to a third party, such as
an employee, which creates a reasonable basis for the employee
to believe that the employer authorized the action of the alleged
agent. The determination is whether under the circumstances,
the employee would reasonably believe that the alleged agent
was acting on behalf of management when he took the action in
question.” Quality Mechanical Insulation, Inc., 340 NLRB
798; Pan-Olston Co., 336 NLRB 305 (2001). Zajac manifested
her apparent authority and acted in an administrative capacity
for the Respondent in processing its hiring, firing, and vacation
decisions. Under these circumstances, it is reasonable for the
employees to believe that such directive was coming from man-
agement and that Zajac was an agent. She provided no valid
reason for soliciting their signatures, nor were the employees
assured that there would be no reprisals against them. She
clearly interfered with the employees’ protected Section 7 ac-
tivity.
Further supporting these findings is the incredible timing of
the announcement to close the plant, occurring on March 3, the
day of the hearing. While the Respondent asserts that timing is
not independently sufficient to establish a violation, I find this
timing to be highly probative of the Respondent’s intent to
intimidate the employees.
The 8(a)(3) Allegations
The complaint charges the Respondent with five violations
of the Act. In substance, these violations arise out of the same
set of circumstances. In its brief the Respondent states: “There
is no dispute that on March 3, [Respondent] announced to its
employees that, effective May 15, it intended to permanently
subcontract out all transportation department work” (R. Br. 36).
On that day, following the preelection hearing, company law-
yer, Fred Hayes, appeared alongside Marsha Serlin before the
assembled employees in the transportation department and
announced that a decision had been made to subcontract the
entire transportation department and that the decision was final.
According to her testimony, she explained that the costs of
running the department had increased and were very high. She
also told them that she would try to help them become entre-
preneurs and find employment. The timing of the announce-
ment could not be more suspect. Consideration of the action in
the context of the Respondent’s antiunion animus, in particular
the threats by Serlin and Rook to the employees that their union
support would have the following consequences, the sale of the
trucks, the loss of their jobs and the subcontracting of their
work, points to only one motive. It was not coincidental that
the Respondent held a management meeting to discuss the dis-
continuation of the transportation operation on February 20,
only 1 day after the Respondent received the union petition,
that management made its decision 1 day before the May 3
hearing, and promptly announced its decision to the drivers
immediately after the hearing on the same day. Yet the Re-
spondent observes that timing is not alone sufficient to carry
the General Counsel’s prima facie burden. St. Vincent Medical
Center, 338 NLRB 888 (2003). The Board there stated: “Thus,
while not dispositive, clearly here the proximity in time be-
tween the filing of the petition herein and the act of subcon-
tracting is sufficient to satisfy that element of the case in favor
of the General Counsel.” The employer’s knowledge of the
employees’ union support and the unlawful threats by supervi-
sors that Serlin would subcontract their work, because of their
union support, was clearly established on this record. This,
coupled with Respondent’s unequivocal announcement, makes
out the General Counsel’s prima facie case of an 8(a)(3) viola-
tion. Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982). The Respon-
dent quarrels with the notion that Serlin’s announcement would
be construed as a discharge or the termination of employment
of all the unit employees. Yet here the Respondent not only
made the statement informing the drivers that their department
would be eliminated as of a date certain, and that the decision
was final, but Serlin also offered to work with them to find
other employment or become independent contractors. This
“would lead a prudent person to believe his tenure had been
terminated.” Ridgeway Trucking Co. 243 NLRB 1048 (1979);
Kolkka Tables & Finnish-American Saunas, 335 NLRB 844,
846 (2001). Moreover, the Company effectuated that decision
by entering into agreements with various subcontractors to
perform that work. Coronet Foods, 305 NLRB 79, 89 (1991).
In the mind of the employer and in the minds of the employees
it was a done deal, a fait accompli. The Respondent subse-
quently cancelled the contracts for other reasons.
UNITED SCRAP METAL, INC. 475
The Respondent tried to show that the termination of the
transportation department was based upon economic considera-
tions and not motivated by union concerns. Serlin testified that
she made her decision on reports from her accounting depart-
ment and its financial analysis. According to Serlin, the sub-
contracting cost in 2003 was between $55 and $60 per hour,
while the Respondent’s costs per driver came to $59.63 per
hour, so that it did not make any sense to her at the time to
subcontract the work. Serlin claimed that the revised figures
for 2004 saw no significant cost increases in subcontracting
expenses, but a significant increase in cost per hour for her own
trucks to $67.37 per hour, making the decision to subcontract
profitable. One reason for the increase, according to the Re-
spondent, was that one of her drivers had a fatal accident that
year, which raised the insurance payment. Other factors in-
cluded rising gasoline prices, and the capacity of subcontractors
to haul larger loads in a single trip.
The Respondent’s analysis, however, fails to show convinc-
ingly that the decision to close its trucking division was based
on cost saving measures. The cost analysis, purporting to show
that the hourly cost of operation of the department had in-
creased to $67.37, is not reliable as pointed out by the General
Counsel. The expenses include such items as depreciation—
building, real estate taxes, supervisory salaries and benefits, as
well as overtime costs. Yet most of these expenses would not
be saved by subcontracting the work. Of the three subcontrac-
tors, L.A. Trucking Co., Management Transportation, and
Metro Haul, only L.A. Trucking, showing $58 and $65 per
hour, appeared to be slightly lower than Respondent’s figures
for its own hourly costs. The record is not clear and Serlin was
unable to explain that the other subcontractors were lower in
hourly costs. With respect to Metro Haul, for example, she
stated that payment was made per load, and that there was no
hourly rate. Furthermore, the record shows that at the same
time, the Respondent had subcontracted with Lombardi Truck-
ing, Eno Inc., and KR Drenth Trucking who charged more than
the Respondent’s hourly rates (GC Exhs. 26–30). The Respon-
dent argues that it used these companies on a limited basis and
only for extra business. On balance, I find that the record fails
to demonstrate that the Company’s average cost through out-
sourcing would be financially beneficial, especially considering
Serlin’s testimony that she “won’t give up our department” for
a dollar or two, and her preference for her “own trucks and her
“own name” on those trucks. W. H. Froh, Inc., 310 NLRB 384,
387 (1993). I accordingly find that the Respondent failed to
show that it would have made the same decision even in the
absence of any union considerations. Wright Line, supra. The
Respondent’s actions prevented and discouraged its employees
from engaging in activities protected by Section 7 of the Act
and discriminated against them in violation of Section 8(a)(3)
and (1) of the Act.
The complaint alleges, and the General Counsel argues, that
the Respondent unlawfully accelerated the effective date of its
subcontracting decision by executing agreements with three
brokers, providing for May 3, 2004, as the effective dates for
their services. According to the General Counsel, the Respon-
dent effectively changed the termination date of the transporta-
tion department to May 3, rather than the previously announced
date of May 15, 2004. Each of the contracts with L.A. Truck-
ing Co., Managed Transportation, and Metro Haul expressly
provides that the “agreement will be effective May 3, 2003”
(GC Exhs. 20–22). The parties executed the contracts on
March 24, 2004, approximately a week after the issuance on
March 16, 2004, of the Decision and Direction of Election to be
held among the drivers (GC Exh. 23). According to the Gen-
eral Counsel, the Respondent accelerated the termination date
intentionally in order to prevent the employees from exercising
their Section 7 rights to vote in the representation election.
The record does not show why the Respondent agreed to the
May 3 date with its brokers, or whether this date was commu-
nicated to the drivers, but it is clear that the Respondent can-
celled the contracts on April 9, 2004. Moreover, it is not clear
and the General Counsel has not shown how the accelerated
date would have prevented an election among the drivers any
more than the shutdown of the operation 2 weeks later. In ei-
ther case, the argument remains whether any useful purpose
would be served by an election in a unit, which is being abol-
ished. While the record clearly shows the Respondent’s unlaw-
ful motive in announcing the closure of the department on May
15, the record does not independently show any direct correla-
tion between the accelerated date and the Respondent’s motive
to interfere with an election. I also agree with the Respondent
that the contracts with the brokers did not necessarily or auto-
matically obligate the Respondent to terminate the department
on May 3 rather than on May 15, as planned. I accordingly
dismiss this allegation.
The complaint alleges that the Respondent constructively
caused the termination of its employee Michael Athern, be-
cause of his union support. The General Counsel’s argument in
support of that allegation is fully supported by the record. Ath-
ern was one of the drivers employed by the Respondent who
was notified on May 3, 2004, by Serlin and her legal represen-
tative that his unit in the transportation department would be
closed effective May 15, that the decision was final, and that
management would help some of the affected employees to find
employment. As already articulated, the Respondent’s motiva-
tion was union related and unlawful. Athern testified that after
the meeting on March 3, he immediately looked for another
job, stating: “Because we had that meeting and everybody was
fired. . . . we weren’t going to have a job” (Tr. 247). He found
employment with another company and left the Respondent’s
employ on April 9, 2004. He did not know that the Respondent
had rescinded its subcontracting decision on the same day. I
find that the Respondent constructively discharged this em-
ployee because of his union support. He was one the drivers
who had attended union meetings and signed a union authoriza-
tion card. But for the Respondent’s announced closure of the
entire department, he would not have looked for a job else-
where. Georgia Farm Bureau Mutual Insurance Co., 333
NLRB 850, 851 (2001). Gregory [Raegel] Rangel similarly
testified that within a week or so after the announcement on
March 3 he began to look for a job.
Finally, it is the General Counsel’s position that the unfair
labor practices are so serious, that traditional remedies such as
offers of reinstatement and the posting of a notice are insuffi-
cient to remedy the violations and to guarantee a fair election.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD476
This was an all-out assault on the employees’ Section 7 rights,
according to the General Counsel, where the Respondent’s
egregarious conduct, including termination of the entire driver
unit, threats of terminations, the promise of benefits, coercive
interrogations, merit a Gissel bargaining order. In certain in-
stances, the Board has determined that a bargaining order is an
appropriate remedy for the unfair labor practices of an em-
ployer. In NLRB v. Gissel Packing Co., 395 U.S. 575 (1969),
the Supreme Court held the duty to bargain can arise without a
Board election where an employer undermines majority support
for a union through unfair labor practices. While noting that
previous Board precedent had already established that a bar-
gaining order is appropriate in exceptional cases where there is
pervasive and outrageous conduct, the Court announced it
would, “approve the Board’s use of the bargaining order in less
extraordinary cases marked by less pervasive practices which
nonetheless still have the tendency to undermine majority
strength and impede the election processes.” Id. The Court
explained that in determining the appropriateness of issuing the
bargaining order that:
“such an order on a lesser showing of employer misconduct is
appropriate, we should reemphasize, where there is also a
showing that at one point the union had a majority . . . the
Board can properly take into consideration the extensiveness
of an employer’s unfair practices in terms of their past effect
on election conditions and the likelihood of their recurrence in
the future.” Id.
Here, the union campaign began in early January 2004 and
on January 28, 2004, 14 out of the 18 drivers had signed au-
thorization cards (GC Exhs. 2, 4–13, 17–19). Although the
Respondent quarrels with the evidence showing that the unit
consisted of 18 employees, the Respondent admitted in its re-
sponse to unfair labor practice charge, dated March 17, 2004,
that currently “there were 18 employees for whom the Union
petitioned” (GC Exh. 24). The Decision and Direction of Elec-
tion, as well as Serlin’s testimony during that hearing, corrobo-
rate that the unit consisted of 18 full-time drivers (GC Exh. 23).
The Respondent has not contested that number, nor the validity
of the 14 signed union cards. Indeed the Respondent subse-
quently referred to a counter petition signed by 13 individuals
in the 18-member unit. The record clearly shows that the Un-
ion had achieved majority status among the employees in the
bargaining unit. Under these circumstances, the test is whether
the Respondent’s unfair labor practices have a tendency to un-
dermine the majority support for the Union and impede the
election process.
The Respondent, citing Abbey’s Transportation Services,
284 NLRB 698 (1987), argues that the General Counsel failed
to rely on the payroll records as a means to demonstrate unit
size. But that case stands for the proposition that the General
Counsel may rather than must, use the payroll records. The
Respondent’s reliance on the scenario in Be-Lo Stores v. NLRB,
126 F.3d 268, 277 (4th Cir. 1997), is also misplaced, as the
General Counsel has not relied upon information or an “Exel-
sior” list he knew to be incorrect. The Respondent argues that a
Gissel bargaining order is an extreme remedy, “Gissel route is
to be used only in circumstances where it is unlikely that the
atmosphere can be cleansed by traditional remedies.” Aqua
Cool, 332 NLRB 95 (2000).
The Respondent’s antiunion campaign began on February
18, as soon as the Union filed the petition. Serlin, the Com-
pany’s owner and chief executive, immediately confronted the
main union supporter, coercively interrogating him about the
identity of the person who had called the Union and telling him
to convince the particular employee to disavow the Union and
get rid of it, or she had no choice but do what she had to do. In
abusive language, she told another employee that she knew
about the signed union cards and that no union will tell her how
to run her business. Other high-ranking company officials
employed similar coercive tactics and threats if the employees
continued their union activities. In no uncertain terms employ-
ees were told that they would be fired, that the trucks would be
sold, and brokers would do their work. Given the consistently
crude and disparaging language used by the Respondent to
express its distaste for the Union to its employees, the threats to
shutdown the operation, the intimidation, and interference with
the employees’ Section 7 rights, and in particular the swift and
all-out attack against the unit of employees by subcontracting
its function and abolishing the entire unit, a Gissel bargaining
order is appropriate. The discharge of an entire bargaining unit
is a hallmark violation, as is the constructive discharge of an
employee. Where hallmark violations exist, a bargaining order
is an appropriate remedy to cleanse the long-term coercive
effects. Grass Valley Grocery Outlet, 332 NLRB 1449 (2000);
Allied General Services, 329 NLRB 568 (1999). In Allied
General Services, the employer, similar to United Scrap Metal,
discharged the entire bargaining unit because of their union
activity.
The Respondent, relying on Pyramid Management Group,
318 NLRB 607 (1995), contends that discharges do not always
require a Gissel bargaining order. There, unlike here the sus-
pensions and discharges did not directly affect a significant
portion of the 69-member unit. In Phillips Industries, 295
NLRB 717 (1989), the Board was willing to overlook two
hallmark violations based upon the size of the unit. Hospital
Shared Services, 330 NLRB 317 (1999), is a case where a bar-
gaining order was not issued, because the threats were not the
same as a plant closing threat made by the employer. In Cardi-
nal Home Products, 338 NLRB 333 (2003), no bargaining or-
der was issued despite two hallmark violations. In that case the
Board found that the unfair labor practices did not occur on a
unit-wide basis, stating: “Although the Respondent’s unfair
labor practices in this case were serious, the record shows that
they did not impact a significant portion of the bargaining unit,
and thus, they are not likely to have so lasting an effect that
traditional remedies would be inadequate to ensure a fair rerun
election.” The Respondent also cites Cassis Management
Corp., 323 NLRB 456 (1997), to illustrate that a Gissel order is
an exceptional remedy. The Board stated: “Discharge of an
entire bargaining unit is the ultimate retaliation for union activ-
ity, the final assault on the employment relationship.” In High-
land Plastics, Inc., 256 NLRB 146 (1981), cited by the Re-
spondent for the proposition that the announcement to close the
plant is not enough, the Board held that a threat of loss of em-
ployment, discharge of union adherents, and the threat of plant
UNITED SCRAP METAL, INC. 477
closure are likely to have a lasting inhibitive effect and are
considered hallmark violations, which support the issuance of a
bargaining order.
Respondent’s series of unfair labor practices reflects a con-
centrated and persistent effort to undermine the employees’
support for the Union. The damage to the free exercise of Sec-
tion 7 rights resulting from such a pervasive series of unfair
labor practices cannot be remedied by traditional remedies.
Although Respondent has rescinded the mass discharge of em-
ployees, the coercive effect of the action is by no means elimi-
nated. On March 26, Gregory [Raegel] Rangel a driver in the
unit, began to solicit the other drivers to oppose the Union and
was able to collect 13 signatures for his antiunion petition.
Eight of the employees who signed the petition had earlier
signed union authorization cards. This shows that they had
changed their sentiment and proves that the Respondent’s re-
scission of the contracts had no ameliorating effect among the
drivers. The Respondent’s reliance upon two recent cases
where the respondents had recalled the laid-off employees, is
misplaced. Desert Aggregates, 340 NLRB 289 (2003); Master
Form Tool Co., 327 NLRB 1071 (1999). Here it is clear that
the Respondent’s actions undermined majority strength, which
would impede the election processes.
A more classic scenario—showing the most serious and
typical hallmark violations to subdue a union campaign—in
support of a bargaining order can hardly be imagined. I have
no difficulty in finding that the Respondent violated Section
8(a)(1) and (3) of the Act and that an appropriate remedy in-
clude a bargaining order.
CONCLUSIONS OF LAW
1. The Respondent, United Scrap Metal, Inc., is an employer
engaged in commerce, within the meaning of Section 2(2), (6),
and (7) of the Act.
2. The Union, Teamsters Local Union No. 731, AFL–CIO,
is a labor organization within the meaning of Section 2(5) of
the Act.
3 The Respondent violated Section 8(a)(1) of the Act by en-
gaging in the following conduct.
(a) Coercively interrogating employees about the Union.
(b) Instructing employees to convince other employees not to
engage in union activities.
(c) Threatening employees with discharge, with job loss,
with unspecified reprisals, because of their union activities.
(d) Creating the impression among employees that their un-
ion activities were under surveillance.
(e) Coercively soliciting employees to sign affidavits stating
that they had not heard any threats from the Respondent.
(f) Promising to and granting an employee a day off work for
signing such affidavit.
(g) Threatening to sell its trucks and replace its employees
with brokers if they continued their union activities, and in-
forming employees that it was selling its trucks, because of
their union support.
(h) Threatening employees that selecting the Union as their
bargaining representative would be futile.
4. The Respondent violated Section 8 (a)(1) and (3) of the
Act by:
(a) Announcing that it was subcontracting all of its unit work
to brokers effective May 15, 2004.
(b) Discharging all of its unit employees effective May 15,
2004.
(c) Subcontracting all its unit work to brokers effective May
15, 2004.
(d) Constructively discharging its employee Michael Athern.
5. A Gissel bargaining order is an appropriate and necessary
remedy in this case.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act. Having found that the Respondent
caused the discharge of Michael Athern, the Respondent must
be ordered to offer him immediate and full reinstatement to his
former position of employment and make him whole for any
loss of wages and other benefits he may have suffered by rea-
son of Respondent’s discrimination against him in the manner
prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus
interest as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987). Having found that the Respondent an-
nounced the subcontracting of the unit work to brokers, subcon-
tracted the work and discharged the unit employees, a cease and
desist order is appropriate. A reinstatement order and make
whole remedy is not warranted, because the Respondent re-
scinded its actions. Having found that a bargaining order is
appropriate, the Respondent must be ordered to recognize the
Union and, on request, bargain collectively with the Union as
the exclusive bargaining representative of the employees in the
Unit.
[Recommended Order omitted from publication.]