United Steel Workers (Atlas Refinery, Inc.)

National Labor Relations Board - Administrative Judge Opinions

Sep 2, 2011

22-CB-011104 (N.L.R.B. Sep. 2, 2011)

JD(NY)–33–11
Newark, NJ
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
UNITED STEEL WORKERS, LOCAL 4-406
and Case 22-CB-11104

LES PORZIO, An Individual
and Case 22-CB-11214
MANUEL GONCALVES, An Individual
and
ATLAS REFINERY, INC., Party in Interest
Joshua S. Mendelsohn and
Marguerite R. Greenfield, Esqs.,
Newark, New Jersey, for the General Counsel
David Tykulsker, Esq. (David Tykulsker &
Associates), Montclair, New Jersey
for the Respondent
DECISION
Statement of the Case
Mindy E. Landow, Administrative Law Judge. This case was tried in Newark, New Jersey
on March 29, 30 and 31 and April 7 and 8, 2011. The charges and amended charges were filed
by Les Porzio and Manuel Goncalves alleging violations of the National Labor Relations Act (the
Act) by United Steel Workers Local 4-406 (Respondent or Union). On February 16, 2011, an
Order Consolidating Cases, Consolidated Complaint and Notice of Hearing (the complaint) was
issued by the Acting General Counsel1 alleging that Respondent violated Section 8(b)(1)(A) and
8(b)(2) of the Act by proposing the elimination of the lead operator position then occupied by
Porzio and the maintenance 1 position then occupied by Goncalves, thereby attempting to
cause and causing a reduction in the wages of Goncalves and Porzio because they crossed
Respondent’s picket line and returned to work during a lockout of employees and for reasons
other than the failure to tender the periodic dues and initiation fees uniformly required as a
condition of employment. Respondent filed an answer denying the material allegations of the
complaint and posing certain affirmative defenses, as will be discussed below.

1 For ease of reference, hereafter called the General Counsel.
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Based upon the entire record including my observation of the demeanor of the
witnesses, and after considering the briefs filed by counsel for the General Counsel and the
Respondent, I make the following findings of fact, conclusions of law and recommendations.
Findings of Fact
I. Jurisdiction
The complaint alleges, Respondent admits and I conclude that Respondent is a labor
organization within the meaning of Section 2(5) of the Act. Atlas Refinery, Inc. (Atlas or the
Employer) is a corporation with a facility located in Newark, New Jersey where it is engaged in
the manufacture of chemicals. The complaint alleges, and Respondent admits that during the
preceding 12 months, in the course and conduct of its business operations, the company sold
and shipped from its Newark, New Jersey facility products, goods and materials valued in
excess of $50,000 directly to points outside the State of New Jersey. Respondent admits, and I
find that Atlas is an employer engaged in commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
II. Alleged Unfair Labor Practices
This case arises out of the terms reached in a collective-bargaining agreement between
the Union and Atlas in June 2010 (the 2010 agreement), which, among other things, eliminated
two positions: lead operator and maintenance 1, held by Porzio and Goncalves, respectively.
These employees were then placed into other positions and suffered a consequent reduction in
salary which, on a percentage basis, was in excess of reductions suffered by certain other
bargaining unit employees. The General Counsel has alleged that the Union’s proposal to
eliminate these two positions constituted a violation of its duty of fair representation and
retaliatory discrimination for these employees’ concerted, protected conduct which consisted,
among other things, of crossing a picket line during a June 2008 lockout of employees.
The Employer manufactures lubricants and auxiliaries for the leather industry at its
facility located in Newark, New Jersey. Steven Schroeder Jr. is the Employer’s President and
Chief Operating Officer and William Baumann is its Operations Manager. Michael Fisher is the
International Representative for the Union, and Cary Krand has served as the Union’s President
during the times at issue here.
Porzio has worked for the Employer for 24 years, is a member of the Union and currently
serves as shop steward for the facility. Previously, he served as first and third vice-president of
the local then representing the employees, and also served as shop steward from 1987 to
2007.2 In this capacity he participated in contract negotiations on five or six occasions. He has
held a number of positions at Atlas including head shipping and receiving clerk, head refiner,
sulfinator, boiler operator and lead operator. Porzio currently serves as the boiler operator at the
facility. Prior to the implementation of the 2010 agreement, as lead operator Porzio earned
$28.41 per hour. As the boiler operator, he presently earns $25.33 per hour.
Goncalves has worked for the Employer for over 10 years as a maintenance employee.

2 It appears from the record that some of these positions were with predecessor unions which
represented the Atlas employees at the time.
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Sometime during the fall of 2007 he assumed the position of maintenance 1, the head
maintenance position at the Atlas facility.3 After the elimination of this position, he was slotted
into a maintenance position. Goncalves’ salary decreased from $26.69 to $21.21 per hour. This
is the same rate which is currently paid to other employees at the facility who are considered
operators.
Also testifying in this proceeding was John Carrasca, who is an operator at the facility.4
A. The Underlying Unfair Labor Practice Case
The allegations of the instant case arose from the effects of a lockout at Atlas in June
2008. That lockout, and related unfair labor practices, led to a prior case, Atlas Refinery, Inc.,
354 NLRB No. 120 (2010), where the Board found that the Employer violated Section 8(a)(1) of
the by threatening to discharge employees who would not return to work under the new terms
and conditions of employment that the Employer unlawfully implemented and by soliciting
employees to withdraw from the Union. The Board further concluded that the Employer violated
Section 8(a)(3) and (1) of the Act by discharging certain employees because they supported the
Union’s efforts to continue bargaining and that Atlas violated Section 8(a)(5) and (1) of the Act
by refusing to bargain with the Union as long as former employee and shop steward Jeff Gilliam
was part of the bargaining committee; by unilaterally implementing new terms and conditions of
employment on June 9, 2008 absent a valid impasse; by locking out employees in order to
evade its duty to bargain with the Union and by withdrawing recognition from the Union based
upon unlawfully solicited resignation letters. As part of the remedy for the unfair labor practices
found, the Board ordered an affirmative bargaining order.
The administrative law judge in the prior case found that Porzio and Carrasca are
“employees admittedly biased against the Union.” He further found that Porzio, an employee
“admittedly interested in ‘a position where you had particularly close relations with
management’” assisted in collecting letters of resignation from the Union. 354 NLRB slip op. at
13, fn. 43, 45.
As the judge further noted, at the outset of the 2008 negotiations the Union sought,
among other things, annual wage increases of 10 %, (with a differential for tier 2 and 3 – less
senior – employees). The Union subsequently modified this proposal and sought a 7 %
increase in each year of the agreement. After the involvement of the FMCS the Union adjusted
its proposal to an across-the-board a wage freeze in the first year and 3% increases in each of
the second and third years. The Union then advised the company that it was willing to accept
further wage reductions as follows: a 5 % wage cut in year one, keeping wages flat in year two
and a 3 % raise in year three. Thus, as outlined in the prior case, the Union’s proposals had

3 At the hearing Respondent appeared to suggest that Goncalves did not assume the maintenance 1
position until some time after he crossed the picket line in June 2008, but to the extent any evidence was
adduced pointing to this assertion it was unpersuasive. Rather, this suggestion is contradicted by the
testimony of various witnesses, including Goncalves, Porzio, Baumann and Schroeder. The record
establishes that after head maintenance employee Jason Malinowski went on medical leave in the fall of
2007, Goncalves assumed the maintenance 1 position and was compensated accordingly. When
Malinowski returned to work in the spring of 2008 he worked as a boiler operator and did not work in
maintenance again. Goncalves retained the maintenance 1 position until its elimination in June 2010.
4 Carrasca testified that he is the head shipping clerk/lead operator. In an information request
submitted to the Union in February 2010, Atlas classified his job title as head operator – shipping. There
is no evidence that Carrasca ever occupied the lead operator position held by Porzio during any relevant
time.
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consistently been across-the-board proposals and, with the exception of certain initial proposals
relating to tier 2 and 3 employees, were otherwise not tied to any particular job title.
B. The Creation of the Lead Operator Position in 20085
In late 2007, Porzio, who was then the boiler operator, told Operations Manager
Baumann that he had received an offer of employment from the Patterson, New Jersey school
district. Baumann then suggested that the company might create a managerial position for
Porzio to induce him to stay. The position was tentatively called assistant plant manager.
As Porzio testified, about a week or two after this initial discussion, Baumann told him
that he had spoken to Krand, who had suggested keeping Porzio in the bargaining unit by
making him a lead man rather than promote him to management.6 Krand testified that the
Employer advised the Union of its desire to create a “working supervisor” position and Krand
maintained that the Union did not have supervisory personnel in the bargaining unit. Baumann
then proposed that the parties meet to discuss the matter further.
On Monday, January 14, Baumann sent the following e-mail to Krand:
As per our conversation on the phone the other day, we are looking into the idea of
advancing union employees into a supervisory position. During our conversation, you
mentioned the use of “lead men” in other facilities, and I would like to see copy of the job
description to see how it could fit here at Atlas Refinery.
Porzio testified that he was unhappy with this suggestion, and confronted Krand about it,
asking why the Union would seek to prevent him from being promoted to management. Krand
sought to placate Porzio by stating that the Union would negotiate a higher wage for his new
position. In a subsequent conversation, Krand told Porzio that there were other lead operator
positions in bargaining units represented by the Union and he wanted discussions over the
creation of such a position to be used as an incentive to initiate collective bargaining for a
successor agreement.
On February 5, Baumann, Krand and Fisher met to discuss the creation of the lead
operator position. Porzio was not invited to attend. Fisher testified that at the meeting he
expressed his opposition to the creation of the new position due to the fact that he perceived it
as a management position and called for the elimination of another position, that of utility
operator, which might cause employees to bump other employees from their positions. I note
that Fisher’s account of what occurred at the meeting was not corroborated by Krand, who
testified only that a meeting occurred, but offered no details of what was discussed during that
time. Bauman, who was called as a witness by the General Counsel, was not asked about what
occurred during this meeting either.
Some detail of what occurred in that meeting is contained in an arbitration award issued
after the Union filed a grievance over the creation of the lead operator position (discussed in
further detail below).7 Testimony about this meeting was adduced at the arbitration from shop
steward Jeff Gilliam, Krand and Baumann. Schroeder also offered some testimony about the
parties’ discussions.

5 Until further specified, all dates are in 2008.
6 The General Counsel failed to adduce any testimony from Baumann on this issue.
7 The arbitration award was introduced into evidence by Respondent.
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At the arbitration hearing, Krand testified that the Union never agreed to the creation of
the lead operator’s position and that the Union wanted to address that issue in upcoming
contract negotiations. Krand further testified that he advised Baumann that he was “concerned
about a supervisor doing bargaining unit work.” As the arbitrator found, however, at the
February 5 meeting convened to discuss the creation of this position, Krand showed Baumann
contractual language from another bargaining unit which summarized a lead person’s position
and also made it clear that the Union took the position that the proposed lead operator could not
discipline employees. The company agreed with that.
The day following the parties’ meeting, described above, Baumann sent the following e-
mail to Krand:
As suggested, I gave the revised “lead operator” proposal to [shop steward] Jeff [Gilliam]
to review after you and Mike Fisher left yesterday. Did he mention or send you a copy
after we looked at it. We basically change[d] the wording to what you read out of the
small hand book. I will attach a copy with this e-mail.
Krand failed to respond to this e-mail and the Employer posted the position on February
19. Porzio bid for and was awarded the position, which carried with it a wage increase of $1 per
hour. He assumed his new duties on March 3. As Porzio testified, at some point the Union
asked him to withdraw his name, which he refused to do. Krand testified that after Porzio
became lead operator, he received telephone calls from three employees, all more senior than
Porzio, who complained that Porzio was telling them what to do and how to perform their jobs.8
Porzio denied that he ever disciplined or recommended discipline to management and it
is undisputed that the Union never filed a grievance over Porzio’s performance of supervisory
work. At the time it created the lead operator position, the Employer also eliminated utility
operator position, which had previously been held by Gilliam, but by the time the lead operator
position was created, Gilliam had been on vacation and medical leave for an extended period of
time and, in fact, the Union had requested long-term union leave for him. On March 12, Gilliam
was terminated for absenteeism.
At some point prior to his promotion, Porzio had filed an unfair labor practice charge
against the Union alleging a violation of the duty of fair representation in the failure of the Union
to negotiate the lead operator position for him.9 In an affidavit given in conjunction with the
charge, Porzio asserted that he felt that the Union’s suggestion that he be given a lead operator
position rather than a managerial one was “a great idea.” He testified to the contrary at the
instant hearing, asserting that he was upset by the suggestion, and felt that the Union was
“submarining” him out of a managerial position, and that he advised Krand of his feelings at the
time. Krand told Porzio that he wanted use the issue of the creation of the lead operator position
to accelerate collective bargaining for a successor agreement.
In response to the creation of the lead operator position, the Union filed an unfair labor
practice charge and a grievance.10 The charge was deferred to arbitration. The arbitrator, in

8 The employees named by Krand were Gilbert Alers, Carlos Alers and Edmondo “Cookie” Maisonet.
9 The charge was dismissed.
10 The unfair labor practice charge alleges that the Employer “failed to bargain in good faith by
unilaterally changing terms and conditions of employment by creating a lead operator position.” The
record does not contain a copy of the grievance filed by the Union, but the issue as framed by the
Continued
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sum, found that the company did not violate the parties’ collective bargaining agreement when it
created and filled the lead operator position, but that it was obliged to bargain with the Union
over the wage to be paid for that position, with the proviso that the Employer could implement its
wage offer on September 4, 2009 if the parties did not reach agreement by that date.
After receiving this award the Union sought to have the Board’s regional office revoke its
decision to defer the charge, and appealed the Region’s decision not to do so. The Union was
unsuccessful in seeking to have deferral of the charge revoked. In its post hearing brief,
Respondent asserts that the above facts show that “the Union clearly and consistently
manifested its opposition to the Employer’s creation of a new Lead Operator position.”
C. The 2008 Lockout
As has been noted above, during the spring of 2008, Atlas and the Union were engaged
in negotiations for a successor to the 2003-2008 collective-bargaining agreement (the 2003
agreement), which had been extended twice to June 6.11 On that day, the Union rejected the
Employer’s revised final offer. On June 9, Atlas initiated a lockout but offered employees the
option of returning to work under unilaterally implemented terms. See Atlas Refinery, supra slip
op. at 12 and fn. 41. At this point in time, Atlas had 13 working employees, and two on military
leave.
Six employees returned to work on June 9: John Carrasca, Jason Malinowski, Edward
Olander, Ruben Quingalahua, Goncalves and Porzio. A seventh employee, Carlos Alers, was
on leave, but telephoned management on June 9 and stated that he would return to work the
following week, after his vacation concluded. On June 10, an eighth employee, Edmondo
“Cookie” Maisonet, also returned to work. The two employees who were on military leave,
Danny Rivera and Marco Sanchez, were allowed to return at the conclusion of their tours of
duty. Thus, a majority of employees returned to work under the terms of the Employer’s final
offer.
Upon the employees’ return to work, they were informed of their new terms and
conditions of employment and were given individual employment agreements to sign. Among
other things, the agreements provided for a 10% reduction in their hourly wages in each of two
years.12 As has been described above, employees also signed letters of resignation from the
Union and Porzio filed a decertification petition with the NLRB.
On June 10, Atlas terminated the remaining locked out employees: Gilbert Alers, 13
Raymond Ardiente, Bibiano Dechavez, Alexander Nunez and Aybar Braudillo. Alers was
recalled to work in early 2009.
D. The Allegations of Picket Line Hostility
On June 10, the Union established a picket line in front of Atlas, joined by the minority of
workers who had not returned to work. Although subject to attrition, picketing continued
throughout the summer and fall months until Alers was recalled. Alers, who was also the shop
_________________________
arbitrator was whether the Employer violated the parties’ collective bargaining agreement when it created
and filled the lead operator position and if so, what the appropriate remedy would be for such a violation.
11 The history of these negotiations is fully set forth in the predecessor case.
12 The wage reduction in the second year was not implemented by the Employer.
13 Unless otherwise specified, all further references to Alers are to Gilbert.
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steward, had been the final individual remaining on the picket line.14
Krand and Fisher were at the picket line intermittently. Krand testified that at the outset
of the lockout, he had been in negotiations for another facility and would stop by for an hour or
two, two to three times per week until those negotiations concluded in August. Thereafter, he
would come by the facility about three times per week. By this point in time, the line was
depleting. Fisher testified that he would try to get to the plant three to four days per week. As
time went on, people dissipated and only Alers would be present. Fisher did not offer testimony
as to how long his visits to the facility lasted on the occasions when he was there.
Baumann testified that the individuals on the picket line engaged in bantering with those
inside, and held signs which read “strike” and “lockout.” Fisher testified that people were cordial
with each other, having worked together for years and that on occasion he would see the
employees inside and those outside talking and laughing with one another. Krand testified that
he had instructed those on the picket line not to make any comments or vulgar statements
toward anyone which would interfere with the case which the Union had brought before the
NLRB and not to litter, cause any damage, write graffiti or to otherwise give cause to be
removed from the area.
Porzio testified that during the lockout his interactions with Krand were sometimes
hostile. He testified to three specific occasions where this is alleged to have been the case. On
one occasion, in about July or August 2008, the Union brought an inflatable rat to the work site
for several days. As Porzio testified:
On one particular occasion [Krand] called me to the fence line and they had a big
inflatable rat blown up in front of the property. And he goes, Les, you’re like a rat. And I
go, yes, I guess. And he goes, looks good, doesn’t it. I go, yeah, it does. And he goes do
you want to know what its name is? And I said yeah. And he goes it’s Les. And he had
Aybar Braudilio right next to him, another union employee, and they were pointing at the
rat, laughing at it, calling it Les.
Baumann also testified that the rat had been referred to as “Les” or “Lester.” Krand
denied that he referred to the rat as “Les” or by any other name, and stated that he never heard
anyone else do so. Fisher also testified that he never heard anyone refer to the rat as “Les.” 15
In about August 2008 the company held a barbeque for those who were working inside.
This was apparently the first time they had done so. Porzio was about 20 feet from the fence
line, tossing a ball with another employee when Krand came over to the fence and said words to
the effect that Porzio should have his fun now because he would not have fun later. He told
Porzio that he would see what was going to happen to him. As Krand recounts it, he heard the
company broadcast over the public address system that all non-union men should report to the

14 The General Counsel has argued that the Union has conceded that Alers was an agent of
Respondent during the period of time he served as shop steward. The record does not support this
assertion. At the opening of the hearing, Counsel for the General Counsel moved to amend the complaint
to “include Gilbert Alers as a chief shop steward until May 2010.” The Union “consent[ed] to the
amendment of the complaint” but denied that Alers was in fact a shop steward until May of 2010 based
upon its belief that he ceased to be the shop steward on or about March 17 or 19, 2010. There is no
specific stipulation, however, as to the agency status of Alers.
15 Krand further testified that the rat is meant to symbolize the employer with which a union has a
dispute. On cross-examination he acknowledged that the rat is also used to protest the use of non-union
labor.
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back for a picnic barbeque. He, together with Gilliam, walked around to the back to see what
was going on. Porzio was about 10-15 feet from the fence line playing catch with one of the
Schroeder brothers. As Krand testified, Porzio initiated their interaction, calling out that they
never got treated like this when they were in the Union. Krand replied that Porzio should enjoy it
while it lasts. Krand denied making any threat to Porzio. According to Baumann, who stated that
he overheard the exchange, Krand called out “enjoy it now” and “don’t worry, you’ll get yours.”
Baumann confirmed Krand’s version of events insofar as he stated that Krand and Porzio had
been talking to each other prior to that and Krand’s comments were in response to other things
which had been said.
Porzio further testified that sometime in August 2009, he spoke with Krand near the
shipping warehouse. Krand told Porzio that he was making this really hard on his union brothers
who were out there. Porzio replied that they had a choice, they could have worked or not. Krand
then became a “little agitated.” Porzio reiterated that he had to make his decision and that he
was sorry. As Porzio testified, Krand replied that Porzio should have been out there with his
brothers, and he was going to see what happens when the union gets its foot back in the door.
Porzio testified that Krand spoke with him on “at least a dozen” other occasions and that
Alers would regularly yell “scab” or “traitor” at him from the other side of the fence. On one
particular occasion, Alers, who was alone at the time, called Porzio over to the fence and told
him that the employees had to come out and help him; that he was the last one out there, that
he was losing his house, he was almost declaring bankruptcy and his wife was sick. Porzio told
him to come inside and work. Alers replied that if Porzio wasn’t going to come outside he didn’t
want to talk to him and that Porzio would see what would happen to him.
Goncalves testified that as a maintenance employee he works both inside and outside at
the facility and when Krand and Alers would see him they would “chase” him and call him
“scab.” Goncalves testified that Krand would say, “Thank you, Manny, you will see what will
happen.” Alers would laugh and make similar comments.
Krand generally denied hearing epithets or vulgar or threatening comments or that he
personally threatened anyone while on the picket line. Fisher denied ever hearing Alers make
threats or use the term “scab.” He further denied hearing Krand make a threat or hearing him
state words to the effect of “you will see what happens” or “we will get you.”16 Fisher also denied
hearing anyone referred to as a scab and testified that that there had been signs posted on
company property disparaging Alers and Krand.
E. Post-Lockout Communications with Krand
After the Board issued its decision and the parties were about to commence bargaining,
Porzio sent Krand a series of e-mails requesting updates about contract negotiations. On
Friday, March 12, 201017 he sent the following:
I’ve been trying to reach you. I called you twice already today. What is up with the extra
300 bucks in our paychecks today. Did you speak with Gilbert? He quit the shop steward
position. Now we have to call an election for a new shop steward and committee. We
have no plant representation at all. And did you guys get any dates to negotiate yet?

16 Although Krand offered a general denial as to threats, he did not specifically deny that he used
words to the effect of “you will see what happens” or “don’t worry, you’ll get yours.”
17 All dates hereafter are in 2010 unless otherwise indicated.
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Gilbert told me he has been trying to reach you all week. Is there something going on or
what? Did the NLRB do something to make you guys go back to the table? The men in
the plant and myself would like an update on what’s going down. You [are] always quick
to call us when you won something, now we aren’t hearing shit! Call or write me back so
I can tell the guys what’[s] up.
On Wednesday, March 17, Porzio wrote the following:
Cary sorry I missed the meeting today had a personal matter to deal with. John told me
that we are not having an election because we don’t need one. I’m a little confused, we
have no shop steward and no committee in the plant, who is representing us? The
contract clearly states 3 plant representatives and we have none. Gilbert quit. I don’t
understand why guys who don’t work in the plant are representing us? Some of these
men haven’t seen the inside of Atlas for 2 years, how do they know what we want or
need if they aren’t working? Can you please give me an answer. I hate to go down to the
NLRB and file charges against the Union again for misrepresentation or is the NLRB in
some kind of conspiracy with you and Mike? Because Gilbert said Jeff Gilliam was on
the negotiating team, and none of us asked him or you to have him on the team! Jeff
Gilliam was fired what the hell are you trying to pull here!!!!!!!! I was also told by Gilbert,
that you don’t want me on the committee. It’s not up to you, on who represents us, it’s
the membership!!! You know the people who got you elected!!!!! So please tell me what
is really going on with the Union. You may not like me and that’s okay, but keep this in
mind, I was shop steward for over 15 years and serve[d] on the committee for over 20
years and negotiated over 6 contracts, 5 of them good, 1 bad and that was the strike
year which we never recovered from, so try to work with me and your men in the plant.
On March 19, Porzio sent the following letter, signed by five coworkers, to Krand:
The plant workers at Atlas Refinery Inc. would like to know in writing why we haven’t had
an election for a new committee? Our chief steward resigned and we have no
representation in the plant. Also the other committee men are on lay off and haven’t
worked in the plant for 2 years! We need to address this problem as soon as possible!
Also it has come to our attention that a terminated employee is on the negotiating team!
Not one plant employee has requested the services of said terminated employee (Jeff
Gilliam) to negotiate for us. What are you guys trying to pull on us! We the plant workers
simply can’t believe that your team of negotiators would have our best interest at heart!
All the men that are on the negotiating team are clearly disgruntled employees! (One
terminated and two laid off for 2 years) and one that doesn’t want to be on the
negotiating team. The contract clearly states on page 19 article 11 that the Union
committee shall consist of 3 plant representatives and one alternate. None of the men
now on the negotiating team fit that qualification, except Gilbert and he doesn’t want to
be involved with negotiations anyway! We would like a written response A.S.A.P! or by
3/25/10.
Then, On March 23 Porzio sent the following e-mail to Krand:
Gilbert told me he handed you and Mike the letter from me and the men in the plant. Just
waiting on your response. Also the men in the plant and myself can’t believe that Ray
was sleeping in your meeting on [F]riday!!!!! What a disgrace, do you and Mike have any
pride.
Krand testified that about one to two weeks after the Board decision issued on January
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15 he held a meeting with employees to explain the decision and get employee contact
information. Both Porzio and Goncalves attended this meeting. Porzio in particular wanted to
know how employees would receive their backpay and the Union attorney, who was present,
explained the process. There was no discussion of negotiations at this time.
Following this meeting, Krand held a discussion with Alers about the negotiating
committee for the new contract. As Krand testified, he asked Alers to see if anyone inside the
plant was interested in negotiations and Alers notified him that he had asked around and
nobody was interested. Subsequently, Krand met with employees to solicit contract proposals
but neither Porzio nor Goncalves attended. Alers notified the Union that he no longer wished to
be shop steward and Krand asked him to stay on for a short while to assist in negotiations,
which he did. On April 23, Alers submitted his written resignation, and did not serve as shop
steward after that time.
Regarding Porzio’s request for information about negotiations, Krand asserts that he told
Porzio that he was not going to sit on the phone and give him a “blow by blow” on a daily basis.
He advised Porzio that when negotiations were completed, the Union would sum it up and
report to employees. In his testimony, Krand did not specifically address the complaints made
by Porzio that current employees were not represented on the negotiating committee.
F. Job Classifications and Employee Status at the Employer’s Facility
The 2003 agreement contained the following job classifications: operator, assistant
operator, helper, maintenance 1, maintenance 2 and boiler operator. Employees hired prior to
the effective date of this agreement were considered tier 1 employees, and those hired
subsequent to its implementation were placed into tier 2, which resulted in a reduction in the
rate of their compensation; however, the job classifications remained the same. The 2003
agreement also provided for a $.50 per hour wage supplement for any two employees who
obtained a “black seal” boiler operator’s license.18
During the term of the 2003 agreement, two new job classifications were created. One
was utility operator, which was created in November 2007 and eliminated in February 2008, and
the lead operator position, which, as discussed above, was created in February 2008 and was
done away with in the 2010 agreement.
In February 2010, in response to the Union’s request for information in anticipation of
bargaining, the Employer provided the following list of employees and their respective job titles:
Lead Operator Les Porzio
Head Maintenance Manny Goncalves
Head Operator-Chemical Carlos Alers
Head Operator-Pumper Gilbert Alers
Head Operator-Shipping John Carrasca
Head Operator-Sulpho Ruben Quingalahua
Head Operator-Textile Edmondo Maisonet
Thus, at the time negotiations for the 2010 agreement commenced, of the seven
bargaining unit employees working at Atlas all with the sole exception of Gilbert Alers had

18 A black seal license indicates advanced training and proficiency in the operation of a boiler.
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crossed the picket line. Only one employee, Quingalahua, was a tier 2 employee.
Apart from Porzio and Goncalves, all other employees were being compensated at the
operator rate. Carrasca and Quingalahua were each paid an additional $.50 per hour as a
function of their black seal boiler operator license.
G. The 2010 Negotiations
The parties met for negotiations between the dates of March 16 and June 1. Although
there was some variation in attendance, the Employer generally was represented by Baumann,
Schroeder and attorney Tom Ryan. The Union was represented by Krand, Fisher, former
employee Ray Ardiente and attorney David Tykulsker. Alers attended the meetings which took
place prior to his resignation as shop steward. It is undisputed that throughout negotiations the
Employer sought significant financial concessions and allowed the Union to inspect financial
records to substantiate their claim of financial hardship.
The following summary of what was discussed at these negotiations was culled from the
exhibits introduced into evidence at the hearing, the testimony of Baumann, Fisher, Krand and
Schroeder and the bargaining notes that were offered into evidence by the parties. General
Counsel did not adduce detailed evidence relating to the parties’ early discussions, apparently
due to its stated theory that the Union’s discriminatory intent did not manifest itself until the
negotiation session which was held on May 14. Respondent, to the contrary, maintained that the
parties’ discussions and exchange of proposals at these earlier meetings are relevant to its
contention that there was no discriminatory intent on the part of the Union in the negotiations on
whole.
At the initial meeting, on March 16, Atlas submitted a proposal which largely reiterated
the final offer which had been presented to the Union on June 6, 2008. The company sought a
five-year agreement. With regard to wages, the Employer had proposed reducing all tier 1 rates
by 10% in years one and two, keeping wages flat in year three and increasing wages by 3% in
each of years four and five. As for tier 2, the proposal was to reduce all rates by 15% in year
one, 5% in year 2, keeping wages flat in year three and an increase of 3% in each of years four
and five. The Employer also made proposals regarding recall, holidays, employee contributions
to their health care plan, pension, Union committee and Union leave.
On April 1, the Union presented its initial proposals. They were seeking a prospective
term of three years with wages to be increased by 4% for all employees for each year of the
agreement. The Union additionally proposed that the job descriptions on file would become
effective on the effective date of the contract. It appears that in response to a discussion of the
company’s financial condition, the Union then modified its initial proposal to no change in year
one and 3% increases in each of years two and three of the contract. The Union agreed to
suspend four holidays for years one and two of the agreement with a “snap back” provision in
year three. The Union further proposed that there be no change in the vacation allowance or the
rate of health care contributions and that there would be a pension rate contribution increase to
$1.69 per hour for all employees.
On April 5, Schroeder made a presentation to the Union reiterating that the company’s
financial position had “deteriorated dramatically,” citing layoffs, wage cuts and benefit reductions
for all non-union employees. At that time, the average pay rate under the 2003 agreement was
$23.84 per hour. This proposal references the Union’s new economic proposals as presented
on April 1 and states that under that proposal the average pay for unit employees would be
$25.87 per hour.
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In this presentation, the company proposed a five-year contract retroactive to April 9,
2008 and wage reductions of 10% and 6% in years one and two respectively, keeping wages
flat in years three and an increase of 3% in years four and five. Tier 2 employees would suffer
wage reductions of 15% in year one and 6% in year two, with no change in year three, and
increases of 3% in years four and five. The employer additionally proposed that Quingalahua’s
rate changes would follow tier 1. The Employer further proposed eliminating the assistant
operator position in both tier 1 and tier 2. In total, the company’s proposal sought to reduce
costs by 8% in the fifth year through reductions in pay rates and benefits. The average pay rate
under the contract would be $21.45 per hour.
On April 6, the Union responded to the company’s presentation by modifying its proposal
to keep wages flat in each year of the agreement. The Union agreed to suspend certain
holidays for part of the term of the agreement. There was at this time a tentative agreement on
the amount of the Employer’s contribution to the pension fund.
On April 20, the Employer modified its wage proposal seeking, for tier 1 employees,
wage reductions of 10% in year one, 3% in year two, no change in years three and four and a
3% wage increase in year 5. As regards tier 2, the Employer sought a reduction of 15% in year
1, 3% in year two, no change in years three and four and a 3% increase in year five. There were
also discussions regarding the computation of vacation, sick and disability leave and the
Employer’s proposal that the contract be retroactive to 2008.
On May 5, the Employer provided the Union with supplemental financial information
documenting three consecutive years of annual losses, asserting that its business had not
recorded a profit for four of the last five years, and outlining the elimination of positions and
reduction of wages and benefits for non-union employees, cutbacks in general expenses and
investments, as well as an increase in debt to creditors. The Employer also argued that during
this period bargaining unit employees had no “financial participation in the restructuring of
Atlas.” During this meeting, the parties agreed on a vacation leave policy which generally
followed management’s proposal with the proviso that certain events be counted toward hours
of work.
At the next session, on May 14 the Union proposed a 3% decrease for the bargaining
unit in year one and two, with wages remaining flat in year three for employees generally, but a
5% reduction in the wages to be paid to the lead operator, maintenance 1 and the boiler
operator (then vacant). The Union further proposed to remove the $.50 wage supplement for
boiler licenses. Fisher testified that the Union proposed a greater reduction for the three
classifications because the Union was trying to address management’s request for economic
concessions, and that these were the top paid positions and therefore could take a “greater hit.”
On May 25, the parties met again. At this time the Employer proposed the elimination of
the assistant boiler operator position, which at the time was unfilled. The Union proposed a 10%
wage cut for the lead operator, boiler operator and maintenance 1 positions in the first year.19
For all other employees the Union’s proposal was a wage reduction of 3% in year one, keeping
wages flat in year two and increasing wages by 3% in year three.20 The Employer responded by

19 According to Fisher’s bargaining notes, the wage rates would have been, respectively, $25.56,
$24.67 and $24.00 for these three positions.
20 Baumann testified that the Union offered this proposal in the absence of any counteroffer from its
May 14 proposal. The Union has not disputed this.
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proposing, for tier 1, reductions of 10% and 3% in years one and two, keeping wages flat in
years three and four and an increase of 3% in year five. With regard to tier 2, the proposal
differed only insofar as the proposed reduction for year one was 12.5%
The parties met for a final session on June 1. As Baumann testified, Krand slid a paper
across the table and stated, “Well, I think the company’s going to like this.” Bauman looked at
the proposal and, according to his testimony, was “shocked.” The proposal was for a five-year
agreement which incorporated the wage rates paid to employees as of March 2003. As a
general matter, the proposal amounted to a 7.6 % wage reduction in the first year, wages
remaining flat in the second year, a 2% increase in year three and a 3% increase in the fourth
and fifth years. For tier two, there were wage reductions of 9.6% in year one, wages were kept
flat in years two and three and increased by 3.7% in years four and five. In addition the
classifications of maintenance 1 and maintenance 2 were eliminated and a new position, called
“maintenance” was established which was to be paid at the prior maintenance 2 rate; the lead
operator position was eliminated and the $.50 boiler license supplement was eliminated as well.
The company asked for a caucus and then made a counteroffer basically accepting the Union’s
wage proposal with one change: that wages would remain flat in year three. The company also
asked to remove the assistant operator position, which was then vacant. The Union accepted
this proposal and the parties reached an agreement. While the net result was an approximate
reduction in pay of 7.6% for the operators in the first year, Carrasca and Quingalahua suffered
increased reductions due to the elimination of their black seal boiler operator license
supplement.21 Porzio, paid at the boiler operator rate saw his wages reduced by 11.8%.
Goncalves suffered the largest wage decrease, of approximately 21.5%.22 In dollar amounts,
Porzio’s hourly wages decreased by $3.08 while Goncalves had a reduction of $5.48 per hour.
Alers, Olander, Maisonet, Carrasca and Quingalahua were all paid at the Tier 1 operator rate of
$21.21, as was Goncalves. These changes were implemented after the agreement was
executed in June 2010.
Fisher offered no testimony specifically addressing how or why the Union came up with
its June 1 proposal. Krand offered the following account of how the Union arrived at the figures
it presented to the Employer on that day:
Q: What is the hourly wage for the maintenance position that the Union proposed on
June 1st?
A: Twenty one-twenty one [$21.21]
Q: Okay. Why did the Union use the maintenance 2 rates in 2003 when it used it – made
its proposal on June 1st 2010?
A: It was the second of concessions that was requested by management, and it was
going back to a – and if I’m not mistaken, there’s a percent formula that was developed
to develop that number
Q: Okay, and would you look at the boiler operator rates on General Counsel’s 3? . .
The 2003, 2008 contract.

21 According to the General Counsel, Carrasca and Quingalahua suffered wage reductions of 10%
and 12.5%, respectively. Quingalahua, as a tier 2 employee, saw his wages decreased from $19.45 to
$17.21 per hour.
22 Respondent has not disputed these calculations.
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A: Okay, the boiler operators. . . Tier 1, I’m sorry, it was $25.33.
Q: Okay, and what was the rate that the Union proposed for the boiler operator on June
1st?
A: Twenty-five-thirty-three [$25.33]
Q: And, why did Union make that proposal
A: Again, it was seeking to address management concessions, and with the percentage
being addressed to accommodate what had previously been provided for in the contract.
Q: Okay. It’s been alleged in this complaint that the Union took the positions it did
because Mr. Porzio and Mr. Goncalves crossed the line in 2008, is that true?
A: No.
Q: Can you explain why not?
A: Well, first of all you’ve got to realize that the majority of the members crossed the line.
The Union [was] adamant in trying to find provisions for all of the employees. The ones
that were locked out, the ones that had went [in], it was not anyone singled out, as far as
any kind of adverse [effect].
Baumann testified that when the Employer raised the issue of the deletion of the lead
operator and maintenance 1 positions, Krand responded that with a smaller workforce, the
Employer no longer needed these positions. Krand also responded that these were more highly
paid positions and therefore could take more of a hit. Krand, however, failed to offer any
testimony to such effect at the hearing.
In a letter written to the Board’s Regional Office after the instant charges were filed,
Krand made the following assertions:
The union represented all members properly and fairly in respect to negotiation and the
elimination of certain positions within the Atlas refinery facility. In fact, in order to keep
the facility viable, the company and the union negotiated the elimination of several
positions and they are: the lead operator position, all of the assistant operator positions
in tier 1 and tier 2, the maintenance 1 position from tier 1 and the maintenance [2]
position from tier 2.
H. Alleged Post-Implementation Statements by Krand
Goncalves testified that he had heard either days or weeks prior to the implementation of
the 2010 agreement that he would be the most hurt within the company. When he opened his
check, he did not want to believe it. He went to the shop and searched for Krand’s telephone
number. According to Goncalves, he called Krand on Friday June 11 but Krand did not answer.
He then called again and left a message. As Goncalves testified, Krand returned his call the
following Monday and asked him what was going on. Goncalves asked Krand if he was not
ashamed of what he did to him, that he put him down and it seemed to him like discrimination.
Goncalves testified that Krand told him, “Manny, you didn’t cross the line, I wouldn’t have done
that.” Goncalves then testified “I kept asking him. I wanted to hear something. There had to be a
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solution. I could not believe it.” When asked if Krand responded, Goncalves testified that Krand
stated, “If you had not crossed the line, if you had stayed outside, I wouldn’t have done that to
you.”
When questioned by Counsel for the General Counsel, Goncalves testified that he made
two or three calls to Krand; however on cross-examination Goncalves stated that he had four or
five such conversations and that each one was the same: he would demand to know why his
wages had been cut and Krand would respond that it was because he had crossed the line.
Goncalves testified that Krand had a “smile” in his voice as he made such comments.
Goncalves asked Krand if he could put him in a better position to get a little more money and
Krand refused. As Goncalves testified, when he spoke with Krand, “it was always the same
story.”
I must note that at various points during his testimony and cross-examination, Goncalves
exhibited moments of confusion, lack of precise memory, and irritability. When asked by counsel
for Respondent about his wage rate in March 2008, he replied that he would not answer that
question (although he then did do so). I attribute this initial response to a lack of clear memory
on that issue. He exhibited confusion about what occurred on the date of the lockout as well as
at other times, including the circumstances surrounding his resignation from the Union. He
displayed some difficulty understanding certain questions.23 At a certain point, Goncalves
apparently became irritated with his cross-examination, and announced he was growing tired of
it and thereafter complained about its length. Overall, Goncalves’ demeanor demonstrated that
he would quickly become frustrated, in particular, if he could not accurately recall and describe
events he was asked about. His response was then to offer a quick, generalized reply rather
than address the specifics of the question posed to him.
Krand denied that he received any telephone calls from Goncalves on Friday June 11,
and stated that the first call he received was on Monday, June 14 when Goncalves left a
message. As Krand testified, he spoke with Goncalves on two occasions on that day. In the first
conversation, on Monday, Krand asked Goncalves what he could do for him, because he had
no idea of why Goncalves was calling. Goncalves asked what happened to the wages, and
Krand asked him what he was referencing. Goncalves stated that he took a pay cut, that it was
too much, he was not happy about it and asked what the Union was going to do about it. Krand
replied that it was a negotiated wage. Goncalves stated it was cut too much and Krand stated
that he didn’t cut it, it was negotiated it, those were the rates that were out there and that
everyone had taken a pay cut. According to Krand, Goncalves got very frustrated, complained
the Union does not do anything for him and hung up the phone.
The next conversation about which Krand offered testimony took place on Wednesday of
the same week (June 16). As Krand testified, it was similar to the prior conversation. Goncalves
yelled that he could not afford a pay cut, asked what the Union was going to do about it and
demanded that it be fixed. Krand replied that there was no way to fix it because it had been
negotiated.
In support of Krand’s testimony, Respondent produced his cellular telephone log for the
month of June. In all there are five calls which Krand testified were from Goncalves: four on

23 Goncalves’ primary language is Portuguese and he testified with the assistance of an interpreter. I
have taken this into account. I note, however, that the interpreter was extremely diligent about the
accuracy of questions and answers and made every effort to keep Goncalves informed as to what was
said by counsel and by me during his cross-examination.
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Monday June 14 24 and one on the following Wednesday. In rebuttal, Counsel for the General
Counsel produced Goncalves’ phone records which were stipulated into the record. These
records show four calls to Krand’s telephone number on Friday, June 11 occurring at 10:38,
11:34, 11:48 and 11:49 a.m. Krand’s phone records for that day show a call to his voicemail on
11:48 a.m. that day. When shown these records Krand maintained that he did not recall any
telephone calls or messages from Goncalves on Friday, June 11 and the only calls between the
two were the ones he had highlighted on his phone log for the dates June 14 and June 16.
In attacking Goncalves’ credibility on this issue, Respondent points to the
inconsistencies in the number of phone exchanges reported by Goncalves in his direct and
cross examinations, argues that Krand denied that his conversations with Goncalves took place
with the frequency which Goncalves claimed and notes that Krand’s telephone records, as
explained at the hearing, indicate that the two did not speak on June 11. Nevertheless, I note
that Krand was not questioned and offered no specific testimony to rebut Goncalves’ insistence
that Krand repeatedly told him, in effect, that he would not have cut his wages so drastically had
Goncalves not crossed the picket line.
Porzio testified that when he realized that his wages had been cut by over $3 per hour
he called Baumann and asked him what had happened. Baumann replied that Porzio should
ask his union. He called Krand, who returned his phone call and said that the company
proposed the cuts and deleted the lead operator position and that Porzio wasn’t the only one
who had suffered cuts. Krand testified that on June 15 he had a telephone conversation with
Porzio who wanted to know what had been negotiated. Krand gave him a brief summary and
Porzio wanted to know who had suggested the removal of the positions. Krand responded that
the company had originally suggested the removal but it was of the assistant operator position.
Porzio stated that he didn’t care about that, he wanted to know who had proposed the removal
of the lead operator position. As Krand testified, he stated “we did.” Porzio was upset and stated
that this was the worst agreement ever negotiated.
I. The June 28th Meeting With Employees
On June 28th Krand and Fisher held a meeting with employees in the locker room at the
Atlas facility to discuss the new collective bargaining agreement. All the unit members, with the
sole exception of Alers, attended the meeting. Testimony regarding what occurred at this
meeting was adduced by General Counsel from Porzio and Carrasca. The General Counsel
failed to ask Goncalves about the meeting, although he testified on cross-examination that he
was there for part of the time, but left in anger, as discussed below.25 In addition, both Krand
and Fisher offered testimony about the events of the meeting. Further, Porzio had written some
notes prior to, during and immediately subsequent to this meeting, which were entered into
evidence by the Respondent.
Because what was stated at this meeting is germane to the General Counsel’s

24 As Krand testified, the log reflects both incoming and outgoing calls. Incoming calls will be
identified by the word “incoming” or the location the call originates from; if Krand is on the phone the
designation “call waiting” will appear. The log also reflects calls to Krand’s voicemail. Based upon the
phone logs and Krand’s testimony, it appears that the first call, which lasted two minutes, consisted of a
message left by Goncalves. The second call went to call waiting. The third and fourth calls, which lasted
three and six minutes respectively, were incoming calls from Goncalves telephone number.
25 Counsel for Respondent was allowed to question Goncalves about this meeting over objection
from Counsel for the General Counsel.
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allegations of unlawful motive, and the accounts of the witnesses vary and are a basis on which
I have assessed their credibility generally, I have set forth the individual witness testimony on
this issue.
1. Porzio
As Porzio testified, Fisher handed out a copy of the memorandum of agreement which
formed the basis for the 2010 agreement. Certain provisions were missing in the circulated
draft; in particular those relating to wage rates and the deletion of positions. Porzio testified that
Alers had previously informed employees about the job deletions; however based upon his prior
conversation with Krand, Porzio believed this had been management’s idea. As Porzio testified,
Carrasca asked a number of questions including why certain positions had been deleted from
the contract, specifically referencing lead operator, assistant operator and maintenance 1.
Krand replied that the Union had deleted the positions. Porzio pointed out that Krand had
previously told him that it had been the company’s idea. Krand replied that Porzio was putting
words in his mouth. Porzio stated that “we started going at it” and Fisher said they should move
on.
Porzio testified that once Goncalves heard about his job position being deleted by the
Union, he stormed out of the room.
At some point, Krand informed the employees present that they were all $1,000 in
arrears for their union dues, but Fisher urged him not to discuss the issue at that point.
Porzio then testified that at toward the end of the meeting, Krand read aloud the unfair
labor charges that Porzio had filed with the NLRB26 and stated to everyone in the room that, “if
you didn’t cross the line, maybe all this wouldn’t have happened.” When asked if Krand had
defended his position, Porzio testified that Krand stated that he had done it for the betterment of
the men. On cross-examination, Porzio acknowledged that, in response to his complaints about
the contract, Krand replied that “if the union had all stuck together, you would have done better.”
2. Carrasca
As Carrasca testified, at the June 28 meeting Krand went over the contract and stated
that the company wanted some concessions and to eliminate some jobs. The Union discussed
what they had to give back to make the contract happen. After Krand finished speaking, he
asked if there were any questions. Carrasca asked who had made the proposals to eliminate
jobs and reduce the wage rates. Krand replied that he had made these proposals. Carrasca
asked him what gave him the right to make such proposals and Krand replied that he was doing
it for the better half of the Union employees that were across the street; the ones that were
outside. As Carrasca testified, Krand stated that he was not representing the employees that
were in the plant and had crossed the line.
On cross-examination, Carrasca acknowledged that the meeting had been held some
time back and he did not exactly recall anything else that was said at the meeting. He

26 On June 4, Porzio filed the initial charge in Case No. 22-CB-11104 alleging that the Union violated
Section 8(b)(1)(A) of the Act by: refusing to hold an election for a new shop steward; not being
forthcoming with information on negotiations; refusing to assign negotiators from the plant and refusing
correspondence from employees. On July 19, the charge was amended to include the allegations at issue
in this case.
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additionally pointed out that under the 2010 agreement his $.50 boiler license supplement had
been taken away from him.
3. Goncalves
As noted above, Counsel for the General Counsel did not seek to adduce testimony from
Goncalves regarding his attendance at this meeting, although he did adduce such testimony
from Porzio. On cross-examination, Goncalves testified that the June 28 meeting was
something that “he won’t forget.” When Krand acknowledged that the Union had made the
decision to cut the positions and the wages of the employees in those positions, Goncalves
approached him and asked him if he was ashamed and asked why he had been put so low.
Goncalves then left the room. After offering this testimony, Goncalves stated to counsel for
Respondent, “and don’t ask me anything else about that.”
4. Fisher
Fisher stated that he handed out copies of the labor agreement, although he was not
clear if they were complete copies or just a summary of its terms. Carrasca asked Krand who he
represented, and Krand replied that he represented all the members. When asked if there was
any further discussion about who the Union represented Fisher acknowledged that, “There may
have been –well, there were discussions as to the employees inside versus outside.” When
asked by counsel for Respondent to elaborate on these discussions, Fisher changed the topic
and alluded to a discussion regarding representation of both tier 1 and tier 2 employees and
comments made by Porzio regarding tier 2 employees.27
Fisher was asked whether Krand made any comments to the effect that the Union
represented only those who supported the lockout and he stated that Krand had not. He further
denied that there was any indication that the Union represented only those who had not crossed
the picket line. Fisher testified that Porzio and Carrasca may have made comments to such
effect, but that Krand confirmed that he was representing all the members.
5. Krand
According to Krand, as Fisher was explaining the 2010 agreement, members started to
ask questions, but Fisher asked them to hold off until he was finished. Carrasca wanted to know
who the Union was negotiating for and Krand replied that they were negotiating for everyone.
Carrasca asked what Krand meant by everybody and Krand replied that the Union was
representing everybody: inside, outside, tier 1 and tier 2. At this point Porzio interjected and
made a comment which is reported in the record as “bump the tier 2.” That comment agitated
tier 2 employee Danny Rivera28 and Porzio stated that he was not referring to him, but to others.
As Krand testified, Carrasca asked something along the lines of what gave the Union the
right to represent the employees in negotiations. Krand replied that the Union had asked
whether anyone had wanted to participate in negotiations, and no one had. Krand told Carrasca
that he knew that the offer had been made to him, and Carrasca acknowledged that it had.

27 According to Fisher, Porzio stated, “screw tier 2.”
28 It does not appear from the record that Rivera was employed by Atlas at the time. There is no
explanation of why he might have been invited to this meeting and there is no other evidence in the
record that he, in fact, did attend.
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Then, according to Krand, the discussion shifted from contract to dues issues. Porzio
and Carrasca asked why they were paying so much in dues and Krand responded that he had
implemented the Steelworkers dues structure.
As Krand testified, the meeting then came to a close. Krand was asked whether anyone
raised the issue of wages at the meeting, and he replied that they did not. He denied that
anything was said at the meeting about workers about crossing the picket line or employees
returning to work during the lockout.
6. Porzio’s notes of the June 28 meeting
As noted above, Porzio took notes before, during and immediately subsequent to this
meeting. They are not reproduced in their entirety here. Rather, I have excerpted the portions of
particular relevance to the instant case.
In advance of the meeting, Porzio prepared five questions as follows:
Who is shop steward?
Who is on the committee?
Who represents the Union in the plant?
Who proposed the jobs to be cut out of the contract, ass’t operator, lead operator,
maintenance 1?
Why aren’t we cut equally across the board?
Porzio then wrote answers to these five questions which are, respectively:
Cary said he was
Cary said he and no one else
No one
Cary said he did it for the betterment of the men. I call Cary a liar and said you told me
the company did.
Cary said the cuts were equal. MORE BULLSHIT. Cary is pissed off saying I’m putting
words in his mouth.
Porzio also took notes during the meeting, as follows:
Cary said the local will serve as shop steward and union in the plant! I never heard of
such a thing.
Cary said we were $1,000 in arrears
Mike told Cary not to discuss arrears and move along with the changes in the contract
I say this is the first time I’m hearing this! Dues.
Cary said the lead operator was a management issue! Telling people what to do. His
idea stupid ass.
Cary is pissed that me and John are asking questions about all the changes in the
contract! Then Cary reads my NLRB charge against the Union in front of all the men!
What a dick!
Mike is shaking his head at Cary for reading the charges. I believe Mike thinks he is
stupid!
Porzio’s notes then indicate that a brief lunch break was taken, after which the meeting
resumed and the contract terms were discussed. According to Porzio’s notes, the discussion
was as follows:
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Contract 5 years June 1, 2015. Insurance, eyeglasses $100.00
Reduced recall rights to 180 days for new employees, current 365
Holidays reduced to 9 from 12, snap back at end of contract
WTF does that mean, more bullshit. Columbus Day, Personal Day, Veteran’s Day, Wow.
Porzio’s notes then outline the vacation provisions of the contract, with certain editorial
comments indicating that he is unsatisfied with these terms. There are also notations relating to
sick days, signing bonus and personal days
His notes then continue:
Assistant operators? Gone
Maintenance 1 and 2? Gone
Lead Operator? Gone
$.50 hr. two employees other than the boiler operator? Gone
Dues increased to every week. 1.3% more good news. The worst negotiations ever! Are
you guys proud of yourself! 19 guys to 8 and you make all these cuts in the contract.
HORRIBLE.
John says half the changes in the contract weren’t in our proposals
Cary states: ask your committee
I said this is bullshit, this was the worst negotiations ever!
Cary blames us for crossing the lockout line. I say he is full of shit again and he is a liar
and stupid. Mike calms us down. John is going at it with Cary now.
I say to Cary that I can’t believe how bad this contract is we got nothing!!!
Cary states: We should have stayed with our Union Brothers outside.
I tell him that they are all out of work now because of him. Cary says they will all be
back. More bullshit!
Meeting ends with everyone pissed off about contract and no committee. I want to speak
to Mike but Cary won’t let him.
III. Analysis and Conclusions
A. Contentions of the Parties
The General Counsel has contended that Porzio and Goncalves were targeted for
inordinate reductions in their negotiated contractual wages through the elimination of their
positions because of their protected conduct. At the outset of the hearing, the General Counsel
contended as follows:
. . . The Union had been negotiating with the company on and off for almost two years.
And when the parties returned to the table in 2010, the Union requested increases in
wages for everyone.
They may not have come to the table with proposals to sink [Goncalves] and [Porzio],
but when they got close to a deal, after years of negotiating, labor unrest and the
realization that concessions would have to be made, they sacrificed [Goncalves] and
[Porzio] because, they could, because they crossed the line, because no Union
supporters shared their job titles.
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All employees took a pay cut, but both Porzio and Goncalves suffered cuts far greater,
not only than every other Atlas employee, but greater than what the Employer sought at
the start of negotiations.
We cannot know what the Union’s motives or intentions in making their various
proposals. But the evidence that the Union’s previous animus toward the charging
parties, its escalating, discriminatory offers culminating in the elimination of their
positions and Krand’s subsequent justifications demonstrate the Union’s discriminatory
intent . . ..
In a similar vein, in response to Respondent’s second of two motions to dismiss the
complaint made at the hearing (discussed further below), Counsel for the General Counsel
asserted:
. . .there’s evidence before you that these employees engaged in protected activity
challenging the interests of the Union. That there is evidence that the repeated
statements of [hostility] to these employees, both while they crossed the line, threats of
consequences because they crossed the line, and a statement of admission that the
objected to contractual changes were because they crossed the line.
Thus, during the course of the hearing, the General Counsel repeatedly tied its theory of
the violation in this matter to the fact that the two named discriminatees crossed the picket line
in June 2008.
In his post hearing brief the General Counsel additionally contends that the Union sought
an increased reduction in the wages and benefits for two other employees who crossed the
picket line, Carrasca and Quingalahua, all in an apparent effort to mitigate the impact on and to
protect the eventual wage rate of its supporter, former shop steward Gilbert Alers. General
Counsel points to no transcript references to support its apparent contention that this alternate
theory was litigated.29 Reviewing the record, I find that it was not. There is no basis for me to
conclude that Respondent was put on notice of this theory and General Counsel has offered no
evidence to suggest that Respondent was aware that this additional contention would be raised
in this proceeding. Although a judge may in appropriate circumstances find a violation not
specifically alleged in a complaint, the Board considers the scope of the complaint and any
representations by the General Counsel concerning the theory of violation, as well as the
differences between the theory litigated and that which had been asserted during the hearing.
See generally Sierra Bullets, LLC, 340 NLRB242, 242–243 (2003) (violation based on broader
theory improper and violates due process when General Counsel expressly litigated case on
narrow theory). Here, I find that the issue of the Union’s alleged discrimination against other
bargaining unit employees in an effort to protect its supporter Alers was neither raised nor
litigated during the course of the hearing.30
In support of its contentions generally, the General Counsel points to statements of

29 It does not appear that charges were filed with regard to these two employees. The complaint in
this matter alleges that the Respondent engaged in unfair labor practices “because Les Porzio and
Manuel Goncalves crossed Respondent’s picket line and returned to work during a lockout and for
reasons other than the failure to tender the periodic dues and the initiation fees uniformly required for
membership in Respondent.”
30 As discussed below, this determination has some impact on my recommendation as to the
appropriate remedy for the violations found.
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animus allegedly made to Porzio and Goncalves by Union officers and alleged agents, both
during the lockout and thereafter; the Union’s departure from its usual practice of seeking
across-the-board wage proposals; its apparent decision to bargain against itself during May
2010 without having received a counteroffer from the Employer; and the Union’s alleged failure
to present evidence of a lawful motive for its actions.
On two occasions during the hearing, Respondent moved for the dismissal of the
complaint.31 The Respondent notes that, with the exception of Alers, all of the employees
working for the Employer in June 2010 had crossed the picket line. Respondent argues that,
given that the contract advantaged a majority of those employees who crossed the pocket line,
it cannot be found to be discriminatory.32 Respondent further contends that the purported
evidence of animus adduced by the General Counsel is not credible and, moreover, is not
sufficient to demonstrate animus toward Porzio and Goncalves for their protected conduct. In
addition, Respondent maintains that it had historically been opposed to the creation of the lead
operator position, and its proposal to eliminate it was in furtherance of that stated position.
Respondent further argues that the General Counsel’s failure to join the Employer as a
respondent and to prove that the Employer violated the Act is fatal to its case. Finally,
Respondent contends that even assuming I were to find that there had been unlawful conduct
on the part of the Union, such discrimination was cured by a request made on March 10, 2011
that the Employer restore the jot titles and wage rates of Goncalves and Porzio as they existed
prior to the implementation of the 2010 agreement and that, accordingly, no further remedy is
warranted herein.33
B. Section 8(b)(2) Allegations
Section 8(b)(2) of the Act states, in relevant part, that “[i]t shall be an unfair labor
practice for a labor organization or its agents . . . to cause or attempt to cause . . . an employer
to discriminate against an employee in violation of subsection (a)(3).” Section 8(a)(3) provides,
in pertinent part, that “[i]t shall be an unfair labor practice for an employer . . .by discrimination in
regard to hire or tenure of employment or any term or condition of employment to encourage or
discourage membership in any labor organization.”
As the statutory language suggests, to find a violation of section 8(b)(2) it is necessary to
prove not only that a union “cause[d] or attempt[ed] to cause” an employer to discriminate, but
further, that the employer discrimination sought or caused was the kind cognizable under
Section 8(a)(3). NLRB v. Stage Employees IATSE Local 776, 303 F.2d 513, 519 (9th Cir.)
(citing Radio Officers v. NLRB, 347 U.S. 17, 53 (1954), cert. denied 371 U.S. 826 (1962)).
The Board has stated that to establish an “attempt to cause” violation there must be
some evidence of union conduct. Wenner Ford Tractor Rentals, Inc., 315 NLRB 964, 965

31 At the hearing, I denied both motions. Based upon my consideration of the evidence, briefs and
applicable case law I hereby reaffirm my ruling to such effect.
32 Thus, the Union argues that although Porzio and Goncalves suffered a greater reduction in their
wages than did the majority, all the other employees suffered less of a reduction. The Union also argues
that Alers was given no special treatment.
33 In its answer to the complaint the Respondent asserts, as an affirmative defense, that the
allegations of the complaint are time-barred by Section 10(b) of the Act. It is well-settled that Section
10(b) is an affirmative defense and the party asserting such a defense bears the burden of proof. See
Leach Corp., 312 NLRB 990, 991-112 (1993) enfd. 54 F.3d 802 (D.C. Cir. 1995). Here, Respondent failed
to present any evidence at the hearing to support this contention, and has raised no such argument in its
post hearing brief. Accordingly, it is rejected.
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(1994). There is no specific requirement, however, that an 8(b)(2) violation involve coercive
efforts to “cause” or “attempt to cause” the employer to discriminate. A request is sufficient, may
be direct or indirect, and evidence of it may be circumstantially inferred from the record.
Laborers Local 1184 (Nicholson Radio), 332 NLRB 1292, 1296 (2000); M.W. Kellogg Constr.,
273 NLRB 1049, 1051 (1984), enf. denied on other grounds 806 F.2d 1435 (9th Cir. 1986);
Avon Roofing & Sheet Metal, 312 NLRB 499 (1993). Prohibited discrimination under Section
8(b)(2) may take the form of a loss of pay or other adverse employment actions, as well as
discharge. See Maui Surf Hotel, 235 NLRB 947 (1978); In re Graphic Communications Intern.
Union, Local 1-M, (Bang Printing, Inc.), 337 NLRB 662, 678 (2002)(violation of Section 8(b)(2)
encompasses “every practice, act, source or institution which is in fact used to encourage or
discourage union membership by discrimination in regard to hire or tenure, term or condition of
employment” (quoting Teamsters Local 357 v. NLRB, 365, U.S. 667, 676 (1961)).
In determining whether the employer discrimination the union caused or attempted to
cause is discrimination condemned by section 8(a)(3), "it is the 'true purpose' or 'real motive'
that constitutes the test." Teamsters Local 357 v. NLRB, supra at 675. Where a union has acted
to interfere with an employee’s employment, the Board presumes an illegal motive that may be
rebutted “by evidence of a compelling and overriding character showing that the conduct
complained of was referable to other considerations, lawful in themselves, and wholly unrelated
to the exercise of protected employee rights or to other matters with which the Act is
concerned.” Id.
Because motive is at issue in determining whether a union has violated Section 8(b)(2)
of the Act, various administrative law judges, with Board approval, have utilized the burden-
allocation approach outlined in Wright Line,34 most frequently found in cases which involve
allegations arising out of Section 8(a)(3) of the Act. See Town and Country Supermarkets, 340
NLRB 1410, 1411 and fn. 7 (2004); Paperworkers Local 1048 (Jefferson Smurfit Corp.), 323
NLRB 1042, 1044 (1997); Teamster Local 657 (Texia Productions), 342 NLRB 637, 637 fn. 1
(2004)(Wright Line applied to allegations under Section 8(b)(1)(A) and 8(b)(2)). See also
Ironworkers Local 340 (Consumers Energy Company), 347 NLRB 578, 579 (2006) (applying
Wright Line analysis to allegations arising under Section 8(b)(1)(A)). Pursuant to that test the
Board requires that the General Counsel establish, by a preponderance of the evidence, a
prima facie case that an unlawful motive was a substantial or motivating factor in the challenged
action.
The General Counsel makes a showing of discriminatory motivation by proving the
employee’s protected activity, respondent’s knowledge of that activity, and animus toward the
employee’s protected conduct, Naomi Knitting Plant, 328 NLRB 1279, 1281 (1999). Inferences
of animus or discriminatory motivation may be warranted and may be drawn from circumstantial
evidence and the record as a whole. See Flour Daniel, Inc. 304 NLRB 970 (1991); Real Foods
Co., 350 NLRB 309, 312 fn. 17 (2007)(unlawful motive demonstrated not only by direct, but by
circumstantial evidence such as timing, disparate or inconsistent treatment, expressed hostility,
departure from past practice and shifting or pretextual reasons being offered for the action).
Once the General Counsel establishes its prima facie case, the burden of persuasion
then shifts to the respondent to prove that it would have taken the same action even if the
employee had not engaged in protected activity. See Manno Electric, 321 NLRB 278, 280 fn. 12
(1980); Ironworkers Local 340, supra. At this time, a respondent does not satisfy its burden
merely by stating a legitimate reason for the action taken, but instead must persuade by a

34 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1
st
Cir. 1981), cert. denied 455 U.S. 989 (1982).
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preponderance of the credible evidence that it would have taken the same action in the absence
of the protected conduct. T&J Trucking Co., 316 NLRB 771 (1995); Manno Electric, Inc., supra
at 280, fn. 12.
Here, there is no dispute that, by crossing the picket line during the 2008 lockout, both
Goncalves and Porzio, in addition to several other employees, engaged in protected conduct.
The protections provided by Section 7 extend not only to a member's decision to participate in
union activities, but also to a member's decision to refrain from union activities, including union-
sponsored picketing. See Service Employees District 1199 (Staten Island University Hospital),
339 NLRB 1059, 1060-1061 (2003); District 65, Distributive Workers (Blume Associates, Inc.,),
214 NLRB 1059 (1974); see also Service Employees Local 87 (Able Building Maintenace Co.),
349 NLRB 408, 411 (2007) (“An essential element of any violation of Section 8(b)(1) is restraint
or coercion in the exercise of a Section 7 right; i.e., the right to form, join, or assist a labor
organization, or to refrain from such activity.”) 35
Moreover, it is not disputed that the Union was fully aware of both Goncalves’ and
Porzio’s protected conduct.
The question of animus (or unlawful motivation) requires me initially to make certain
credibility findings regarding the varying testimony of witnesses regarding events which
occurred (1) at or near the picket line in the summer of 2008; (2) in telephone conversations
between Goncalves and Krand in June 2010 and (3) during the Union’s June 28 meeting with
employees.
While it is not unusual for an administrative law judge to credit some but not all of any
particular witnesses’ testimony, here I found that several witnesses were at times credible and
at others not particularly so. Moreover, though I may have credited one version of events over
another, that does not necessarily resolve the issue of whether the account offered by the
credited witness is sufficient to show unlawful motivation or, alternatively, a defense to such
allegations. Thus the relative strength of the credited evidence is another matter to consider.
As a general proposition, there are certain principles regarding the assessment of
credibility which should be placed in focus. In particular, it is the case that while uncontradicted
testimony need not be automatically accepted, the absence of any rebuttal to specific testimony
is a significant factor to consider. “Although the Board may dismiss or disregard uncontroverted
testimony, it may not do so without a detailed explanation.” Missouri Portland Cement Co v.
NLRB, 965 F.2d 217, 222 (7th Cir. 1992). In addition, it has been held that general denials will
not ordinarily suffice to refute specific and detailed testimony from an opposing side’s witness.
See e.g. Williamson Memorial Hospital, 284 NLRB 37, 39 (1987); Emerson Elec. Co. v. NLRB,
649 F.2d 589, 592 (8th Cir. 1981). In a similar vein, a professed lack of recollection does not
suffice as a rebuttal to detailed and specific testimony. Indian Hills Care Center, 321 NLRB 144,
150 (1996). See also Precoat Metals, 341 NLRB 1137, 1150 (2004) (lack of specific
recollection, general denials and comparative vagueness is generally insufficient to rebut more
detailed testimony); Mercedes Benz of Orlando Park, 333 NLRB 1017, 1035 (2001) enfd. 309

35 Other instances of protected conduct adduced in this record included Porzio’s filing unfair labor
practice charges with the Board and his criticism of the Union’s practices during the negotiation of the
2010 agreement. See generally Painters Local 558 (Forman Ford), 279 NLRB 150 (1986). Although the
General Counsel has not specifically alleged that any other instances of protected conduct led to
Respondent’s discrimination against Porzio, I consider these matters as background evidence in
evaluating the allegations raised by the General Counsel herein.
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F.3d 452 (7th Cir. 2002)(“It is settled that general or ‘blanket’ denials by witnesses are
insufficient to refute specific and detailed testimony advanced by the opposing side’s witness.”)
Moreover, the Board has further found that when a witness fails to deny or only generally
denies without further specificity certain adverse testimony from an opposing witness an
adverse inference is warranted. LSF Transportation, Inc., 330 NLRB 1054, 1063 fn. 11 (2000);
Asarco, Inc., 316 NLRB 636, 640 fn. 15 (1995), modified on other grounds 86 F.3d 1401 (5th Cir.
1996).
Bearing these general principles in mind, I make the following credibility resolutions:
1. Statements associated with the 2008 picket line
I find that the evidence supports Porzio’s contention that Krand taunted him by calling
the inflatable rat “Les”. Porzio’s testimony was corroborated by Baumann, and although
relations between the Employer and the Union do not have the most congenial history, I find no
basis in the record to conclude that Baumann would have fabricated such testimony. As to
Fisher’s assertion that he never heard Krand refer to the rat as “Les”, I note that both Krand and
Fisher testified that they attended the picket line intermittently and there is no evidence that
Fisher was at the picket line at all times when Krand was present, or that he was in the vicinity
when these comments were made. Thus, I find Fisher’s denials are not convincing with regard
to this issue. Accordingly, I discredit Krand’s denial that, in Porzio’s presence, he referred to the
inflatable rat as “Les.”
I also generally credit Porzio about the comments made by Krand during the barbeque
held during the summer of 2008; however, I also credit Krand’s testimony that their exchange
was precipitated by Porzio’s statement that that employees never got treated like this when they
were in the Union. Porzio’s testimony that Krand said words to the effect of “enjoy it now” and
“don’t worry, you’ll get yours” or that Porzio would see what would happen was generally
corroborated by Baumann who, however, also noted that Krand’s comments were in response
to a previous discussion. I additionally find it inherently more plausible that Krand uttered
remarks of this sort in response to some provocation. In crediting Porzio’s account of Krand said
to him, I note that while Krand generally denied making any threats to Porzio, testifying that he
merely said “enjoy it while it lasts,” he did not specifically refute the other statements attributed
to him.
I further credit, in the absence of any specific denial by Krand, Porzio’s testimony that at
some point during the summer of 2008 Krand told Porzio that he should have remained outside
with his Union brothers and he would see what would happen when the Union returned to the
facility.
I additionally credit Porzio and Goncalves’ testimony that they were called “scabs” by
members of the picket line, including chief shop steward Alers, as I find in inherently plausible
that this would have occurred.36 In light of any specific denial from Krand, I additionally credit

36 I disagree with the General Counsel’s contention that the record establishes that Alers was an
agent of the Union generally or that any comments made by him can be said to show animus on the part
of the Union. As noted above, the General Counsel did not obtain a stipulation regarding Alers’ agency
status, and there is no admission that he was one during any relevant time. The Board applies common
law principles of agency in determining who is an agent under the Act. See Longshoreman ILA (Coastal
Stevedoring Co.), 313 NLRB 412, 415 (1993), remanded 56 F.3d 205 (D.C. Cir 1009). It is also settled
Continued
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Goncalves testimony that Krand told him that he “would see what would happen.”
Having made the foregoing credibility resolutions I find that they provide, at best, remote
evidence of any specific discriminatory motive. Clearly, the fact that employees crossed the
picket line during the lockout was a source of consternation and tension among those
employees, their coworkers and Union officials. However, the specific evidence of such
instances of hostility adduced in the record, in particular the ad hominem attacks on Porzio and
Goncalves, are relatively few and far between given the relative length of the controversy.37 By
contrast, Board volumes are replete with examples of far more egregious instances of picket-
line hostility than any which have been alleged and proven here. It cannot credibly be said that
the instances of name-calling and other comments adduced by the General Counsel evince
overwhelming hostility or carried with them any overt threat. It is apparent that at the time any
alleged statements were made, some two years prior to the alleged unfair labor practices, Union
officials were clearly not in any position to know how the stalemate would end or whether they
would eventually be empowered to take retaliatory action against those who had crossed the
line. Further, the inchoate comments described here are not the sort of specific threat of
discriminatory action which the Board has found to be coercive. See e.g. Hotel Employees
Union Local 466 (Treadway Inn at Rochester), 191 NLRB 528 (1971) (union violated Act where
agent told employee who refused to join the picket line that he would soon be “making beds”
where housekeepers earned less than wage rate currently paid to that employee).38 Thus, I
consider this evidence to be less than dispositive regarding the Union’s motivation in advancing
economic proposals as they relate to Goncalves and Porzio individually.
Notwithstanding the foregoing, I find that the record contains other evidence which more
convincingly points to an unlawful motive on the part of the Union. In particular, I find that the
comments Krand is alleged to have made to Goncalves during their telephone discussions
which occurred after the 2010 agreement was implemented evince a discriminatory intent.
2. Goncalves’ telephone discussions with Krand
Goncalves testified that, in response to his demands to know why his wages had been
cut so much, Krand told him that he would not have done that to him if he had not crossed the
picket line. There are certain factors which might, under other circumstances, cast doubt on the
_________________________
that the burden of proving an agency relationship is on the party asserting its existence. Longshoremen
Local 6 (Sunset Line & Twine), 79 NLRB 1487, 1507-1508 (1948). Here, the General Counsel has
adduced no specific evidence of Alers’ agency status either through actual or apparent authority. Further,
the evidence in the record, including the timing of Alers’ resignation from his shop steward position (April
23, 2010), bargaining notes of the various participants and Porzio’s various e-mails to Krand shows that
Alers was not involved in contract negotiations at the time the allegedly discriminatory proposals were
generated. Moreover, there is no evidence that Alers was in any way otherwise involved in the
formulation or discussion of the contract proposals at issue here.
37 Porzio’s general testimony about the other “dozen” times he and Krand exchanged words is
insufficient for me to draw any particular conclusion about the nature of these comments. Porzio did not
offer any testimony about why he could not be more specific regarding what Krand said to him. Had
Krand actually threatened Porzio on these occasions, I find based upon the record as a whole that Porzio
would have recalled them with some further measure of detail.
38 In this regard, I note that the Board has held generally that union agents who engage in name
calling of vilification of employees because of their failure to act in conformity with union priorities do not
commit an unfair labor practice. Hotel & Restaurant Employees, Local 466 supra. Moreover, calling
someone a scab during the course of protected activity, absent more, is protected conduct. Nor-Cal
Beverage Co., 330 NLRB 610, 611 (2000).
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accuracy and veracity of this testimony but here I find it is generally worthy of credit. As an initial
matter, I must note Goncalves’ testimony about what Krand said to him is essentially
unrebutted. Missouri Portland Cement Co., v. NLRB, supra; Precoat Metals, supra (and other
cases cited above).
I am troubled by the fact that, given the significance of this evidence to its prima facie
case, the General Counsel failed to adduce specific evidence to enable me to more fully
evaluate to what extent Goncalves is proficient in the idioms or conversational nuances of
English (and there is no evidence or reason to suppose that Goncalves’ conversations with
Krand took place in his native Portuguese). Nevertheless, I infer from the record as a whole that
Goncalves generally communicates with his employer, Union representatives and coworkers in
English. In this regard I note that Respondent has failed to argue or present any evidence to
support a contention that Goncalves was unable to understand what Krand said to him. As
noted above, I have found that Goncalves has certain infirmities which compromise his reliability
as a witness. Nevertheless, I have concluded that Goncalves did get the gist of what Krand was
telling him. His testimony in this regard was unwavering even through a difficult cross-
examination and, although Krand was questioned by counsel for Respondent about his
discussions with Goncalves, he was not questioned about whether he made the comments
attributed to him. Moreover, Krand failed to testify to any non discriminatory reason why such
comments had been made, whether they might have been misunderstood or to otherwise
provide a framework for such remarks.
As noted above, where a witness does not deny, or only generally denies without further
specificity, certain adverse testimony from an opposing witness, an adverse inference is
warranted. Asarco, Inc., supra; LSF Transportation Inc., supra. I therefore conclude from the
record evidence before me that Krand told Goncalves, in essence, that the reason his wages
had been cut so drastically was because he had crossed the picket line.
I also find that to the extent Krand offered testimony about his telephone conversations
with Goncalves, such testimony lacks credibility in certain significant respects. For example,
Krand testified that when the two first spoke on Monday, June 14, he asked Goncalves what he
could do for him because he had “no idea” of why Goncalves was calling. Such an assertion
strains credulity. Of course, Krand was aware that Goncalves’ wages had been reduced by
some $5.00 per hour, and that this was prompting his phone calls. Krand continued in this
improbable vein when he testified that, after Goncalves asked what happened with the wages,
Krand asked him what he was referencing. It is apparent that Krand would have known full well
what Goncalves was calling about and did not need to be told what he was “referencing.” Thus,
I reject Krand’s testimony about the nature of his discussions with Goncalves during these
telephone calls because, apart from his failure to issue a credible and specific denial about what
he told Goncalves about why his wages had been cut, he further embellished his testimony with
highly unlikely assertions which tend to undermine his credibility on this issue in its entirety.
3. Inferences of unlawful motivation
In addition to this direct evidence of animus, I draw certain inferences from the record as
a whole. Flour Daniel, supra; Real Foods Co., supra. In particular, I find that an inference of
unlawful motivation is supported by Krand’s initial misrepresentation to Porzio that the Employer
had sought the elimination of his position. As set forth above, Porzio testified that when he saw
his wage cut, he called Krand who initially told him told him that the elimination of his position
had been suggested by the Employer. I credit Porzio in this regard and found Krand’s
explanation – that his initial comments referred to the elimination of the assistant operator
position – to be unavailing. Clearly, it would have been apparent to Krand that Porzio was acting
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largely in his own self interest and the primary focus of his inquiry would have been about the
elimination of his own job (rather than one that was unfilled at the time) combined with the
obvious decrease in his wages. Moreover, I further note that Porzio did not amend his unfair
labor practice charge to include the allegation that the Union discriminatorily eliminated his
position until some time after the June 28 meeting. This tends to support Porzio’s testimony that
he did not learn that it had been the Union’s proposal until that time.39 Similarly, I credit
Goncalves’ testimony that Krand initially told him that the elimination of the maintenance 1
position had been negotiated between the parties and that when it was confirmed, at the June
28 meeting, that it had been suggested by the Union he left the meeting in anger.
Here, I find that Krand’s deliberate misrepresentation (as in Porzio’s case) and his
equivocations (to Goncalves) permit an inference of an unlawful motive. In other contexts, the
Board and the courts have found that a respondent’s failure either to inform employees of its
decisions to take action or to describe the real reasons for its actions constitute some evidence
of a proscribed motive. See Real Foods Co., supra; Tidewater Construction Corp., 341 NLRB
456, 457, 458 (2004), citing Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466
(1966)(employer falsely told employees there was no work available rather than that they were
locked out; advancement of false reason for action found to constitute evidence of
discriminatory motive); Bennett v. Local Union No. 66, 958 F.2d 1429, 1439 (7th Cir.
1992)(union’s misinformation to an employee and failure to correct that misinformation was held
to show bad faith and intentional misconduct).
The General Counsel further argues that the Union’s apparent and unexplained
deviation from its usual bargaining pattern evinces a discriminatory motive. Here, the evidence
establishes that the Union had consistently made, both in 2008 and at the outset in 2010 so-
called “across the board” proposals for employees. Beginning in May 2010, the Union thereafter
sought increased reductions for the wage rates paid to Porzio and Goncalves, the first of these
involving a proposed pay cut of 5 % (as contrasted with the Union’s proposal for 3% for other
employees). Fisher offered specific testimony regarding this proposal explaining that was
predicated on the fact that these employees were earning more than other employees and
therefore, could take a “greater hit.”
As the General Counsel has shown, at the negotiation session on May 25, in the
absence of any counterproposal from the Employer, the Union (again, contrary to its usual
practice of responding to such counterproposals) suggested that the wage rates paid to Porzio
and Goncalves be further reduced to a total of 10 % during the first year of the contract. Then,
on June 1, the Union suggested the elimination of the lead operator and maintenance 1
positions altogether with even deeper cuts for Goncalves and Porzio. This suggestion,
however, was in apparent contrast to the Union’s stated position, articulated earlier in the
bargaining process, that all job descriptions then on file (which at the time obviously included
the lead operator and maintenance 1 positions) become effective as of the date of the contract.
Here, the Union has offered scant evidence of the genesis or motivation behind its May
25 or June 1 proposals which deviated from both its established bargaining history and its prior
proposal that employees’ current job descriptions be memorialized in any new agreement.
Fisher did not address the reasons behind the May 25 or June 1 proposals at all, and Krand
testified about the June 1 proposal by making vague references to the concessions being
sought by management and some percentage formula used, but he failed to identify any specific

39 Porzio has demonstrated that he has no hesitancy in seeking the Board’s assistance to seek
redress for wrongs he believes the Union responsible for.
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management proposal the Union was responding to or formula used. As is discussed further
below, I find this vague testimony to be insufficiently probative as to the Union’s motivation.
Moreover, it is clear from the record that Atlas did not seek the elimination of the lead operator
and maintenance 1 positions; its only proposal in that regard concerned the then-empty
assistant operator position.
As a general matter, the Board has held that departures from past practice, devoid of
explanation, may be found to be evidence of unlawful motivation. See generally, Real Foods
Co., supra; Embassy Vacation Resorts, 340 NLRB 846, 848 (2003)(proof of discriminatory
motivation may be inferred from circumstantial evidence based upon the record as a whole
including, among other factors, inconsistencies between reason proffered for the challenged
action and deviation from past practice). Cf. Crown Zellerbach Corp., 266 NLRB 1231
(1983)(discussed infra) (union’s bonus payment plan proposal found not to violate the Act
where, among other things, it was consistent with prior bargaining history). Here, the evidence
of record which shows a substantial deviation from the Union’s typical bargaining history,
coupled with the Union’s failure to address in any detailed way the reasons for its actions, raises
questions about Respondent’s motives in making the proposals in question.
4. The June 28th meeting with employees
The General Counsel alleges that Krand’s comments at the June 28 meeting further
demonstrates the Union’s discriminatory motivation. In this regard the General Counsel relies
largely on Carrasca’s testimony that, in response to his inquiry about why positions had been
eliminated in the 2010 agreement, Krand replied that the Union had done so for those
employees “that were across the street, the ones that were outside. . . and he wasn’t
representing the ones that were in the plant that crossed the line.” I do not credit this aspect of
Carrasca’s testimony because it is inherently implausible and, moreover, not corroborated and
in fact contradicted by other evidence adduced by the General Counsel.
As an initial matter, as set forth above, Carrasca has been found to be “admittedly
biased against the Union.” He also demonstrated a measure of confusion during his testimony
regarding elementary matters such as his job title and accompanying duties. He also admitted
that he could recall very little about the meeting. Moreover, I note that Carrasca’s testimony
about what was stated at the June 28 meeting was uncorroborated by Porzio, who was in
attendance and who has been found to be another employee with a similar anti-union bias. In
discrediting Carrasca’s testimony in this regard, I find that had Krand actually made the sort of
comment attributed to him by Carrasca, Porzio, who by that time admittedly had any number of
reasons to have a dispute with the Union, would surely have noted any such admissions in his
notes and would have testified to them at the instant hearing. I additionally find it unlikely that,
whatever the Union’s motivation may have been, Krand, an experienced Union agent, would
have made that obvious of a comment in front of a roomful of unhappy employees, where all the
employees then in attendance had themselves crossed the picket line and where at least one
employee was taking notes of what was occurring at the time. In contrast to Carrasca, Porzio’s
testimony and notes reflect that Krand stated that the lead operator and maintenance 1
positions had been eliminated for the “betterment of the men.”
I do, however, credit both Carrasca and Porzio (and accordingly discredit Krand) to the
extent that they testified that Krand did make reference to the fact that employees crossed the
picket line. Carrasca testified that Krand stated that “if you didn’t cross the line, maybe all of this
wouldn’t have happened.” In a similar vein, Porzio’s notes indicate that Krand blamed
employees for crossing the “lockout line” and in response to Porzio’s complaints about how bad
the contract was, Krand stated that “we should stayed with our Union Brothers outside.”
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Similarly, Porzio testified that when he complained about the contract Krand replied that if the
union had all stuck together [the employees] would have done better.
I note that the Respondent has argued in its post hearing brief that Krand’s statements
at the June 28 meeting are more fairly read as a simple statements of fact: that lack of solidarity
in the bargaining unit diminished the Union’s bargaining power and lead to the need for the
Union to make severe concessions during the course of bargaining. I find this to be a fair
argument in the abstract: the force of which is undercut by Krand’s rather improbable general
denial that he mentioned the crossing of the picket line during course of the meeting.40
Notwithstanding Krand’s lack of believability on this issue, and contrary to the General
Counsel, I do not find that any of the credible testimony regarding Krand’s comments at the
June 28 meeting evince a particular discriminatory intent as to Porzio and Goncalves in
particular, but were more generally addressed, as Respondent suggests, to expressions of
unhappiness with the fact that the Union had been undermined by the crossovers and that the
resulting weakening of the Union’s position resulted in the terms of the 2010 agreement.
However, I do find that Krand demonstrated animus toward Porzio’s protected conduct
when, in the June 28 meeting convened for the express purpose to explain the 2010 agreement,
he made a point of reading aloud the unfair labor practice charge Porzio had previously filed
against the Union relating to its conduct in bargaining. There was no apparent reason for him to
have done so. Neither Krand nor Fisher denied this assertion and it is corroborated by Porzio’s
notes of the meeting.
5. Summary of conclusions as to the General Counsel’s prima facie case
Based upon all of the foregoing I find that the General Counsel has established the
elements of a prima facie case of protected conduct, knowledge and animus. In particular, with
regard to Porzio, I find that there are several instances of protected conduct; there is remote
evidence of animus dating back to statements made by Krand on the picket line in 2008; there is
circumstantial evidence of animus based upon Krand’s misrepresentations to Porzio about the
elimination of the lead operator position under the 2010 agreement and there is direct evidence
of animus based upon the reading of the unfair labor practice charges in the June 2010
meeting. Goncalves, on the other hand, engaged in protected conduct no more or no less than
other crossovers. While there is some vague evidence of picket line hostility, I do not find this to
be particularly availing. However, there is unrebutted and direct evidence of animus which
stems from Goncalves’ telephone conversations with Krand in June 2010.
I additionally infer animus toward both employees from the circumstantial evidence
generally, including the Union’s misrepresentations to employees and its largely unexplained
abandonment of past practices with regard to its bargaining posture. In addition, and for reasons
discussed in further detail below, I have found that certain of the Respondent’s defenses are
pretextual. As the Board and the courts have found, the proffer of a false, pretextual defense
supports an inference of an unlawful motive. Kentucky River Medical Center, 355 NLRB No.
129, slip op. at 3 (2010) (and cases cited therein).
6. The legal implications of Respondent’s contact proposals

40 I also note that Fisher does not corroborate Krand’s testimony insofar as he acknowledged that
there was some discussion of those inside and those outside.
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Thus the elements of protected conduct, knowledge and animus have been set forth by
the General Counsel, to varying degrees, with respect to each alleged discriminatee. Under
Section 8(b)(2), however, it is also necessary to show that the Union caused or attempted to
cause the Employer to discriminate against Goncalves and Porzio in a manner which would
violate Section 8(a)(3).
The General Counsel addresses the issue of whether a union may engage in unlawful
conduct by virtue of discriminatorily motivated contract proposals by citing to two cases which
involved alleged breaches of the duty of fair representation arising under the Railway Labor Act
which it deems instructive on the issue: Rakestraw v. United Airlines, Inc., 981 F.2d 1524 (7th
Cir. 1992) and Ramey v. District 141, 378 F.3d 269 (2d Cir. 2004). The General Counsel argues
that both of these cases stand for the general proposition that a union’s contract proposal which
retaliates against employees who cross a picket line is unlawful. 41
There are also certain Board cases which touch on the issue of whether, by virtue of
advancing a contract proposal, a union can be found to have violated the Act. For example, in
Crown Zellerbach Corp., 266 NLRB 1231 (1983), the Board concluded that a union lawfully
agreed to the distribution of bonus payments solely to employees who were actively employed
on a certain date, even though the chosen date would diminish payments to other employees
who were then on strike in support of a rival union. Although the agreement negatively impacted
those employees who did not cross the picket line or remained on a preferential hiring list, a
Board majority found that the union’s proposals were consistent with past bargaining precedent
and made, “out of a good faith belief that the bonus proposal would benefit a significant majority
of unit employees.” Board Member Jenkins, dissenting, would have found that the union violated
Section 8(b)(1)(A) and 8(b)(2) of the Act by proposing and thereafter agreeing to the
implementation of what he concluded was a discriminatory bonus payment plan. In addressing
its disagreement with the rationale behind Member Jenkins’ dissent, however, the Board
majority did not quarrel with its basic premise that by proposing (and thereafter agreeing) to the
bonus distribution plan, the union could have engaged in discriminatory conduct.
Subsequently, in Bellsouth Telecommunications, Inc., 346 NLRB 637 (2006), the Board
accepted the District Court’s remand as the law of the case and found that the respondent union

41 In Rakestraw, the court decided two companion cases which framed the issue of whether a union’s
duty of fair representation blocked the union from adjusting seniority in a way known to favor some
employees over others. In one of these cases, which involved a strike at United Airlines, the court found
that the union did not breach its duty of fair representation by negotiating an agreement which gave pre-
strike seniority dates to pilot trainees who had honored the picket line, even though it was found that the
union was motivated in part to punish replacement pilots hired during the strike. The court concluded that
the union’s collective bargaining stance was not a violation of the duty of fair representation because it
served he interests of the bargaining unit employees as a whole and did not treat replacement pilots
differently from other similarly situated bargaining unit employees. The second case involved the
dovetailing of seniority lists between TWA and Ozark Airlines which was contrary to the union’s usual
practice and operated to the detriment of all but the most senior pilots employed by Ozark, the newer of
the two companies. The court held that the union’s objective was legitimate in that it sought to avoid
protracted intraunion litigation. In each case, the decisive factor was that the union acted to serve the
interests of employees as a whole even though some members of minority groups fared less well as a
result. By contrast, in Ramey, the District Court found a triable issue where the facts established disparate
treatment for a rival group and evidence of discrimination. The case then proceeded to trial where a jury
found that the union had been motivated by hostility toward the mechanics who had opted not to join a
strike. The Second Circuit, on review, found that the jury’s conclusion that the union was motivated by
hostility toward these mechanics was supported by sufficient evidence.
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there violated Section 8(b)(1)(A) and 8(b)(2) of the Act by, among other things, proposing and
thereafter agreeing to require employees to wear the union’s logo.42 Apart from the merits of
either of these above-cited cases, their relevance to the instant matter is the fact that the Board
considered the underlying issue of whether contract proposals could be sufficiently
discriminatory as to be in violation of the Act.
Further supporting the conclusion that the advancement of contract proposals may,
under appropriate circumstances, be found to be discriminatory is the general proposition,
outlined above, that there is no specific requirement that an 8(b)(2) violation involve coercive
efforts to “cause” or “attempt to cause” the employer to discriminate. A request is sufficient, may
be direct or indirect, and evidence of it may be circumstantially inferred from the record.
Laborers Local 1184 (Nicholson Radio), supra; M.W. Kellogg Constr., supra; Avon Roofing &
Sheet Metal, supra.
Of course, if an employer eliminates a job classification, demotes an employee or alters
the wages of an employee due to his or her protected activity, such conduct runs afoul of the
Act. Accordingly, based upon the foregoing, I find that if it is established that the Union’s
contract proposals were discriminatory or retaliatory in nature, this conduct would have either
caused or attempted to cause the Employer to discriminate against Goncalves and Porzio in
violation of the Act.
Inasmuch as I have found that the General Counsel has made a prima facie case that
Goncalves’ and Porzio’s protected conduct was a motivating factor in the Union’s decision to
reduce their wages through the elimination of their positions, the burden now shifts to the
Respondent to establish, by a preponderance of the evidence, that it would have undertaken the
same actions in any event.
3. Respondent’s Asserted Defenses as to Motive
In its post hearing brief, the Union has advanced certain arguments about its negotiating
stance which, in the abstract, have much appeal. In particular, the Union has argued that in its
effort to minimize losses for the bargaining unit as a whole it reasonably offered during
negotiations to concede to a reduction in the wages of the top earners as part of its bargaining
strategy. Here, however, I find that the evidence adduced in this record fails to meet the
Union’s burden of proof to establish, by a preponderance of the evidence, a non-discriminatory
reason for its actions.
As an initial matter, I find the record fully supports the Union’s contention that it was
faced with the prospect of giving significant financial concessions to the Employer, and that is
charged with reconciling the diverse and contradictory interests of its membership. Humphrey v.
Moore, 375 U.S. 335, 349-350 (1964). As noted above, the Union has argued that the majority
of the employees for whom it was negotiating had crossed the picket line and benefited from its
negotiation strategy. Presumably, what the Union means is that if it had not proposed the
elimination of the lead operator and maintenance 1 positions, with the accompanying wage
reductions, other employees would have suffered increased cutbacks. Respondent thus argues
that because its contract proposals favored the majority of those who crossed the line, they

42 In the underlying case, while the Board recognized that the compelled wearing of the union’s logo
implicated Section 7 rights to refrain from engaging in activities in support of a labor organization, it found
that the Section 7 interest was outweighed by special circumstances underlying the collective bargained
uniform policy.
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cannot be found to be discriminatory. While this is a factor to consider, it is not necessarily
controlling. In other contexts where motivation under Wright Line and its progeny is at issue, the
Board has consistently found that a failure to retaliate against all who engage in protected
conduct does not preclude a finding of unlawful motivation as to others. See Volair Contractors,
Inc., 341 NLRB 673, 676 fn. 17 (2001).
Turning to Respondent’s proffered explanation for its proposal to eliminate the lead
operator job title, I first address Respondent’s contention that it was opposed to the creation of
this position from the start, and was taking action consistent with that institutional posture.
Although the record does show that Respondent never gave its assent to the creation of the
position and thereafter filed an unfair labor practice charge, pursued a grievance and an
arbitration over the issue and fought the Board’s continued deferral of the unfair labor practice
charge, there is other evidence to the effect that, at least initially, the Union was complicit in the
establishment of the position and led the Employer (and Porzio) to believe that the Union would
agree to it. The record establishes that the idea of establishing the lead operator position
stemmed from Krand’s response to Baumann’s suggestion that Porzio be given a managerial
job. Porzio’s unrebutted testimony was that, at least initially, the Union promised him that it
would negotiate an increased salary for the position. Further, as Krand’s testimony before the
arbitrator revealed, the Union’s input was solicited and obtained when Krand presented the
Employer with information regarding similar positions which existed in other Union bargaining
units. After this feedback was provided, the Employer sent the Union an updated job description
which it apparently never addressed. The record further establishes that the Union sought to
use bargaining over the creation of this position to jumpstart contract negotiations generally.
Thus, it cannot be said that the Union was opposed to the creation of the position at the
outset. 43
Moreover, I note that throughout the history of negotiations up until June 1, the Union
never proposed eliminating lead operator position or changing the job responsibilities
associated with it. In fact, and to the contrary, in its initial proposal, provided to the Employer on
April 1, the Union took the position that the job descriptions then on file (presumably including
the extant lead operator and maintenance 1 positions) would become effective on the effective
date of the contract. The only substantive explanation that Krand offered for the Union’s
apparent change of heart and its decision to oppose the establishment of the position stemmed
from complaints allegedly received from employees regarding Porzio in 2008. However, these
complaints were lodged either prior to or concurrently with bargaining for a successor to the
2003 agreement and there is no evidence to suggest that the Union proposed the elimination of
the lead operator position at that time. Moreover, the Union was clearly aware of any such
objections by employees well prior to its April 1 proposal that the current job descriptions
become effective as of the date of the 2010 agreement.
In this regard, Fisher’s testimony that the Union stated its opposition to the
establishment of the position in the February 2008 meeting with Atlas management is
unavailing. It was not corroborated by Krand, nor by Krand’s testimony at the arbitration or by
any other witness. Moreover, there is no specific evidence to buttress Fisher’s claims that the
lead operator position involved managerial duties or entailed the bumping of other employees.
Based upon the foregoing, I find the Union’s reliance on its purported institutional

43 Further, as the General Counsel points out, the Union’s charge and grievance was predicated on
the failure of the Employer to bargain over the implementation of the position, not the nature of the job
itself.
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opposition to the creation of the lead operator position to be inadequate to meet its burden of
proof to convince, by a preponderance of the evidence, that it’s proposal to eliminate the
position was motivated by long-term opposition to its creation and implementation and, more
importantly, would have been made in the absence of Porzio’s protected conduct. To the
contrary, I find the Union’s reliance upon such stated opposition is not only a post-hoc
rationalization, but is, at least to a certain extent, pretextual as well. It is of significance that a
pretextual explanation for a respondent’s action will support an inference of discriminatory
motivation. Kentucky River Medical Center, supra, slip op. at 304; See generally, Laro
Maintenance Corp. v. NLRB , 56 F.3d 224, 230 (D.C. Cir 1995)(“when the [respondent] presents
a legitimate basis for its actions which the factfinder concludes is pretextual. . .the factfinder
may not only properly infer that there is some other motive, but that the motive is one that the
[respondent] desires to conceal – an unlawful motive.”)(internal quotation omitted). As the Board
has found, even something short of mere pretext, for example, the failure to substantiate an
asserted rationale for a disputed employment action, coupled with some evidence undermining
that rationale, will support a finding of unlawful motivation. TCB Systems, Inc., 355 NLRB No.
162, slip op. at 3 (2010).
Other defenses pointed to in the record include Fisher’s testimony that Goncalves and
Porzio were better positioned to “take the hit.”44 Even assuming that such a rationale would
have offered support to the Union’s initial proposals abandoning the practice of across-the-
board reductions, the fact remains that neither Krand nor Fisher offered any specific evidence
with respect to the origin of or rationale behind Union’s proposal to further increase the wage
reductions to be absorbed by Goncalves and Porzio by eliminating their positions in their
entirety.
As noted above, the only record evidence offered to support the Union’s June 1 proposal
to eliminate the two positions was Krand’s assertion that the Union’s decision to use the
maintenance 2 rates was because it was the “second of concessions that was requested by
management, and it was going back to a – and if I’m not mistaken, there’s a percent formula
that was developed to develop that number.” As to the rates proposed for the boiler operator
position Krand similarly stated that the Union “was seeking to address management
concessions, and with the percentage being addressed to accommodate what had previously
been provided for in the contract.” I note that this hearing spanned the course of several days
during which much evidence was adduced regarding the exchange of proposals; largely through
testimony and documents proffered by the Union. Had Respondent, in fact, tied its proposals to
something previously put forward by management or some percentage formula which had been
developed by the parties, Respondent certainly had an adequate opportunity to explicate the
financial basis for its decisions. It is also noteworthy that Krand offered no independent financial
rationale for why, on June 1, the Union proposed the elimination the lead operator position. In
sum, such inchoate, ambiguous and incomplete testimony is insufficient to meet the Union’s
burden of proof to demonstrate a non-discriminatory reason for the proposals made.45

44 I note that Baumann testified that Krand reiterated this argument to the Employer during the June 1
meeting; however, Krand offered no testimony about making such comments and therefore did not
explain why he might have believed this to be the case.
45 I additionally note that the record shows that at various times Krand offered differing reasons for the
Union’s actions from those offered at the hearing. Thus, according to Baumann, Krand stated that the
Employer no longer needed the lead operator positions and maintenance 1 positions due to the
contraction of the workforce. While it seems that this would more typically be an argument one would
expect from an employer rather than from the bargaining representative, offer testimony to such effect, or
deny or explain this comment. In a letter provided to the Board’s Regional Office, Krand offered yet
another rationale for the Union’s actions: concern for the continuing viability of the company. Again,
Continued
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Moreover, It is a basic tenet of law under Wright Line and its progeny that even if one
were to assume a dual motive on the part of the Union: i.e. that Respondent harbored a
legitimate reason for advancing the contract proposals at issue here, the existence of a lawful
motive does not, by itself, prove that the Union would have taken the same action absent
Goncalves’ and Porzio’s protected activity. This is true even if a lawful rationale factored into the
Union’s decision. As is well-settled, it is not sufficient for a respondent to show it had a lawful
reason for making its challenged actions, or that legitimate reason entered into its decision to do
so, but that the legitimate reason would have resulted in the same action even in the absence of
the employee’s union and otherwise protected activities. See e.g. Turtle Bay Resorts, 353 NLRB
1242, 1243 (2009); T. Steele Construction, Inc., 348 NLRB 1173, 1183 (2006); Carpenter
Technology Corp., 346 NLRB 766, 773 (2006). Here, I find that the vague testimony offered by
the Union’s witnesses fails to meet this burden.
Respondent additionally asserts that its proposal was merely that, and it did not coerce
the employer to accept it. Respondent additionally points to the fact that its June 1 proposal was
rejected by the Employer who then submitted a revised proposal which the Union acceded to.
These arguments overlook both salient facts and applicable legal principles. While it is true that
the Union’s June 1 proposal was not accepted by the Employer, the framework set forth in that
proposal, which incorporated the elimination of the lead operator and maintenance 1 positions,
was fully presented and agreed to. The only proposed change involved whether employees
would receive a wage increase in the contract’s third year. Moreover, as has been discussed
above, the Act does not require a Union to use coercion in seeking to implement discriminatory
proposals or even cause their effectuation. It is sufficient that a Union “attempt” to cause what
would be discrimination within the meaning of Section 8(a)(3).
Thus, I find that the General Counsel has met his burden of showing that animus toward
Goncalves’ and Porzio’s protected conduct was a motivating factor in Respondent’s decision to
propose a reduction in their wages through the elimination of their job titles. In part this showing
is buttressed by unsubstantiated claims regarding the Union’s supposed opposition to the
establishment of the lead operator position. I further find, for all reasons discussed above, that
Respondent has failed to carry its burden of showing that it would have made the same contract
proposals in the absence of the charging parties’ protected conduct. Accordingly, I find that by
proposing the elimination of the maintenance 1 and lead operator positions, thereby attempting
to cause and causing a reduction in the wages of Goncalves and Porzio, Respondent violated
Section 8(b)(2) of the Act.
4. 8(b)(1)(A) Allegations
The General Counsel has additionally alleged that Respondent has violated Section
8(b)(1)(A) of the Act. Under that section, It is an unfair labor practice for a labor organization or
its agents “to restrain or coerce [ ] employees in the exercise of the rights guaranteed in Section
7.”
For the reasons set forth above I have found that the Union’s contract proposals were
_________________________
leaving aside the fact that this is more likely to be a stated concern of the employer, it is yet another,
differing rationale for the Union’s bargaining posture. As the Board has held, the articulation of such
“shifting defenses” is evidence of or, at the least, supports an inference of unlawful motive. See Taft
Broadcasting Co., 238 NLRB 588, 589 (1978).
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discriminatory toward Goncalves and Porzio, in violation of 8(b)(2) of the Act. However, not
every 8(b)(2) violation is also a violation of Section 8(b)(1)(A). Plumbers Local 669 (Lexington
Fire), 318 NLRB 347, fn. 4 (1995)(“It is well established that other 8(b) violations do not give rise
to derivative violations of Sec. 8(b)(1)(A)”); National Maritime Union, 78 NLRB 971 (1948) enfd.
175 F.2d 686 (2d Cir. 1949), cert. denied 338 U.S. 954 (1950).
Here, however, the evidence shows that the Union attempted to cause and did cause
discrimination against certain employees due, at least in part, to their protected conduct. The
effects of this discrimination necessarily served to “restrain or coerce employees in the exercise
of the rights guaranteed in section 7” and the Union’s conduct, accordingly, violates Section
8(b)(1)(A) of the Act. See Radio Officers, 347 U.S. at 42 (the union by requesting such
discrimination, and the employer by submitting to such an illegal request, deprived [the
employee] of the right guaranteed by the act to join in or abstain from union activities without
thereby affecting his job”); See also Newspaper & Mail Deliverers (City & Suburban Delivery),
332 NLRB 870 fn. 1 (2000) (union violates Section 8(b)(1)(A) of the Act when it discriminates
against members in retaliation for their protected activities).
5. The Union’s Duty of Fair Representation
Although not specifically set forth in the complaint, the General Counsel has additionally
alleged that the Respondent violated the duty of fair representation owed to employees, a claim
which falls within the ambit of Section 8(b)(1)(A) of the Act. It is apparent that Respondent was
aware that the General Counsel was proceeding on this theory, inasmuch as it was specifically
referenced in the General Counsel’s opening statement.46 Moreover, the arguments
propounded and cases cited in Respondent’s post hearing brief make it clear that the
Respondent was on notice that this theory was being litigated here.
A union that is the exclusive representative of bargaining unit employees complies with
its duty of fair representation by avoiding arbitrary conduct and serving the interests of all
employees in the unit without hostility or discrimination. See Vaca v. Sipes, 386 U.S. 171, 177
(1967). A union, however, is allowed a wide range of reasonableness, “subject always to
complete good faith and honesty of purpose in the exercise of its discretion.” Ford Motor
Company v. Huffman, 345 U.S. 330, 338 (1953) (no breach of duty of fair representation by
union agreement to contract clause that granted enhanced seniority to one group of employees,
thus causing layoffs in another group of employees); see also Air Line Pilots Assn. v. O’Neill,
499 U.S. 65, 68 (1991)(breach of duty of fair representation only where union’s conduct is so far
outside a wide range of reasonableness “as to be irrational”).
Thus, a union may lawfully balance the rights of individual employees against the
collective good, or it may subordinate the interests of one group of employees to those of
another group, if its conduct is based upon permissible considerations. Ford Motor Company v.
Huffman, supra at 338. If a union resolves conflicts between employees or groups of employees
in a rational, honest and nonarbitrary manner, its conduct may be lawful under Section
8(b)(1)(A) even if certain employees are adversely affected by its decision. See Humphrey v.

46 As counsel for the General Counsel argued: “A union in negotiating contracts can’t make everyone
happy and often has to make hard choices. In making these choices, however, the union has a fiduciary
duty to fairly represent all employees. The Board and the Supreme Court have held that it must uphold
this duty by not behaving in a discriminatory , arbitrary or capricious manner.” The General Counsel
further argued that the evidence would “establish the Union’s discriminatory intent [and] a violation of the
duty of fair representation and Sections 8(b)(1) and 8(b)(2) of the Act.
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Moore, 375 U.S. 335, 348-49 (1964)(no breach of duty of fair representation where union
resolved seniority dispute in favor of one group of employees over another).
The standard announced in Vaca v. Sipes, supra, applies to contract negotiations. Air
Line Pilots Assn. v. O’Neill, supra. A union’s goals and methodology in reaching these goals “in
the light of both the facts and the legal climate that confronted the negotiators at the time the
decision was made” is the touchstone in determining whether union conduct that has a
disparate impact on one group of employees is unlawfully arbitrary. Id. at 78. “Not every act of
disparate treatment is proscribed by Section 8(b)(1)(A) of the act, but only those which, because
motivated by hostile, invidious, irrelevant or unfair considerations, may be characterized as
arbitrary conduct.” Glass Bottle Blowers Assn. Local 149 (Anchor Hocking Corp.), 255 NLRB
715, 719 (1981).
Insofar as I agree with the General Counsel that invidious considerations entered into
the Union’s advancement of contract proposals regarding the elimination of the lead operator
and maintenance 1 positions, I find that, by doing so, the Union violated the duty of fair
representation owed to employees.
6. The General Counsel’s “failure to join” Atlas does not preclude a remedy against
Respondent
At the hearing, and in its post-hearing brief, Respondent has argued that the General
Counsel’s failure to bring unfair labor charge allegations against Atlas and to include them in
this proceeding is fatal to its case.47 This contention is without merit. Here, there is no question
of the Board’s authority to proceed solely against the Union:
We find no support for these arguments in the Act. No such limitation is contained in the
language of 8(b)(2). That section makes clear that there are circumstances under which
charges against a union for violating the section must be brought without joining a
charge against the employer under Section 8(a)(3) for attempts to cause employers to
discriminate are proscribed. Thus a literal reading of the section requires only a showing
that the union caused or attempted to cause the employer to engage in conduct which, if
committed, would violate Section 8(a)(3).
Radio Officers Union v. NLRB, 347 U.S. 17, 53 (1954); Printing Pressman Local 284 (Las
Vegas Sun), 230 NLRB 1104 (1977) (“Nor do we find merit to Respondent's argument that the
Board may not order backpay in this proceeding because the Employer was not charged with a
violation of Section 8(a)(3) of the Act. We do not consider such a finding against an employer to
be a prerequisite to finding an 8(b)(2) violation nor to fashioning appropriate remedial relief.”).48

47 As far as the record reveals, and to my knowledge, no charge was filed against the Employer
relating to the negotiation of and eventual terms of the 2010 agreement.
48 The authority relied upon by Respondent in support of this proposition is inapposite, and to the
extent it involves issues congruent with those under examination here, fails to support Respondent’s
contentions. For example, in Del Costello v. International Brotherhood of Teamsters et al., 462 U.S. 151
(1983), an employee brought suit against his employer for wrongful termination and against his union for
a breach of the duty of fair representation. The issue before the court was what statute of limitations
should apply. The court did opine that “[t]o prevail against either the company or the Union. . .[the
employee] must not only show that their discharge was contrary to the contract, but must also carry out
the burden of demonstrating the beach of duty by the Union.” However, the court also specifically noted
that “the employee may, if he chooses, sue one defendant and not the other; but the case he must prove
Continued
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Accordingly, the Respondent’s defense that a failure to “join” Atlas in this matter requires
dismissal of the complaint or precludes any appropriate remedy as against the Union is without
merit.
Conclusions of Law
1. Respondent United Steel Workers, Local 4-406 is a labor organization within the
meaning of Section 2(5) of the Act.
2. By discriminatorily proposing the elimination of the lead operator and maintenance 1
positions thereby attempting to cause and causing a reduction in the wages of Goncalves and
Porzio because they crossed Respondent’s picket line and returned to work during a lockout of
employees and for reasons other than the failure to tender the periodic dues and initiation fees
uniformly required as a condition of employment, Respondent violated Section 8(b)(1)(A) and
8(b)(2) of the Act.
3. The unfair labor practices committed by Respondent affect commerce within the
meaning of Section 2(6) and (7) of the Act.
Remedy
At the hearing I asked the parties to address the issue of what the appropriate remedy
would be for any violations found herein. General Counsel has argued that the remedy in this
case should include an affirmative provision requiring the Union to request the Employer to
restore the job titles previously held by and to reopen bargaining over the wage rates paid to
Goncalves and Porzio and to make them whole for lost earnings and benefits until the Employer
takes such action. Newspaper & Mailer Deliverers’ Union of New York (City & Suburban
Delivery System), supra (Board ordered similar remedy for 8(b)(1)(A) and 8(b)(2) violations
where the union caused the employer not to hire certain casual employees in regular permanent
positions because employees had crossed the picket line, where no charges had been filed
against the employer). The General Counsel contends that should the Employer refuse to
reinstate these employees to their former job titles and restore the wage rates that Goncalves
and Porzio were earning prior to implementation of the 2010 agreement, the Union should be
ordered to make the Goncalves and Porzio whole for their lost wages and benefits until 2015,
when the 2010 agreement expires, at which time the Union may negotiate in good faith for the
restoration of the charging parties’ job classifications and their reinstatement to their former
wage rates.
The Respondent argues that even assuming that it were to be found that there was
discrimination by the Union, its subsequent actions purged any such wrongdoing. In particular,
the Union relies upon certain e-mail exchanges between counsel for the Union and counsel for
the Employer as follows:
_________________________
is the same whether he sues one, the other or both.” Id at 164-165. Similarly, in Chauffeurs, Teamsters
and Helpers Local 391 v. Terry et al., 494 U.S. 558 (1990), a case involving the issue of whether
employees had a right to a jury trial in a suit alleging a breach of the duty of fair representation, the Court
noted that although the breach of the duty of fair representation and an employer violation of the Act need
be proven, the case may involve “both the labor union and the employer, or only one of those entities.” Id
at 564.
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On March 10, 2011, counsel for the Union wrote to the Employer as follows:
The Union hereby agrees to amend the parties’ collective bargaining agreement to
restore Les Porzio to his former position as Lead Operator and Manuel Goncalves to his
position as Maintenance 1 effective June 1, 2010. This would entail increasing their
hourly pay to $26.25 and $24.66 respectively. We would appreciate the company’s
agreeing to same immediately. 49
The union is prepared to negotiate a schedule for the payment of the accrued
underpayment, and Mike Fisher will be in touch to set a schedule to this effect.
Employer counsel responded as follows:
Perhaps I am out of the loop on this; however, I am not aware of any such proposal
having been presented to Atlas, having been discussed with Atlas, nor there having
been a proposal to reopen negotiations of the current collective bargaining agreement
between Atlas and the union. I am not aware of any information from the union as to why
Atlas should be considering such a proposal.
Please provide me with more information with regard to this email from you so I may
discuss it with my client.
In response, Union counsel sent the following email
1. As you are aware, Region 22 of the NLRB alleges that these provisions in the parties’
collective bargaining agreement violate the NLRA. Without in any way prejudicing the
Union’s position that these provisions are not illegal, or that even if they are, the
Company is responsible for all or some of the ensuing liability, the Union believes it is
prudent to remove the allegedly illegal provisions from the CBA.
2. As a general proposition, the Union is in favor of wage increases for employees.
3. The wage concessions granted the Company by the change in job descriptions were
based on the Company’s representation that such concessions were vital to the
Company’s survival. Whatever may have been the case in June 2010, the recent hiring
of a new, full-time employee into the bargaining unit makes it clear that the company is
no longer in pure survival mode and hence the original rationale for these wage
concessions has disappeared.
The record does not reveal any further communications between the parties on these matters.
The Union argues that based upon the foregoing, there is no need to require the Union
to pay the charging parties any money, as they relief they seek has already been provided to
them by the Union. In support of this contention, the Union cites to several cases including Tim
Foley Plumbing Service, 332 NLRB 1432, 1433 (2000), Nudor Corporation, 281 NLRB 927, 929
fn. 3 (1986) and Reno’s Horseshoe Club, Inc., 162 NLRB 268, 273-274 (1966). All are

49 The Union did not clarify for the record how it arrived at these wage rates. I note that the wage rate
suggested for the maintenance 1 position comports with the March 2003 wage rate set forth in the 2003
agreement, but there is no explanation as to how Respondent arrived at the rate suggested for the lead
operator position.
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inapplicable to the circumstances here.50
In my view, both the General Counsel and the Respondent have missed the mark.
Addressing Respondent’s contentions first, I find that there is no reasonable basis in
Board law to conclude that it need not provide a financial remedy to the charging parties. See
e.g. Newspaper & Mail Deliverers, supra; Printing Pressman Local 284, supra. With respect to
the relief sought by the General Counsel, I agree that, inasmuch as Goncalves and Porzio were
discriminatorily removed from their prior positions an appropriate remedy would include a
request that these employees be restored to their prior job titles. However, I additionally find that
the General Counsel has overreached in seeking a restoration of Goncalves’ and Porzio’s wage
rates to what they had been prior to the negotiation and implementation of the 2010 agreement.
To do so would constitute an improper windfall for these employees.
Based upon the record evidence there is no doubt that, absent any discrimination
against Goncalves and Porzio during the negotiation of the 2010 agreement, their resulting
wages would have been reduced by some amount, and most probably a substantial one, as
was the case for all other bargaining unit employees.51 While the Board’s remedies are
generally couched in the terms of restoring the “status quo ante,” that term of art generally
refers to a restoration of terms and conditions as they did (or would have) existed absent the
unlawful conduct. See NLRB v. J.H. Rutter-Rex Mfg. Co., 396 U.S. 258, 265 (1969) (Board
remedies are “designed to restore, so far as possible, the status quo that would have been
obtained but for the wrongful act”).
Therefore, the proper remedy for the unlawful conduct here would more appropriately
be framed as the admittedly difficult issue of what the wage reduction would have been for the
named discriminatees had the Union not engaged in unlawful discrimination against them. In my
view this includes a consideration of the wage reductions suffered by the bargaining unit as a
whole, excluding Goncalves and Porzio. Bearing this general framework in mind, I defer
consideration of these troublesome issues to the compliance stage of these proceedings. Cf.
Essex Valley Visiting Nurses Assn., 343 NLRB 817, 843-844 (2004) (parties’ subsequent
collective bargaining agreement would have permitted challenged employment action; thus
standard remedy no longer appropriate). 52

50 For example, in Tim Foley, supra the Board found that the respondent committed additional
violations of Section 8(a)(1) beyond those which were found by the administrative law judge. It did not
supply an additional remedy for these violations as the proper remedy was encompassed in other
violations ordered remedied. Nudor, a case involving a prior settlement agreement set aside by a regional
director for alleged post-settlement violations is inapposite here. In Reno’s Horseshoe Club, the trial
examiner declined to order a remedy for the employer’s use of unlawful employment application forms
where the respondent had previously stopped using such forms, all such forms were destroyed and there
was no evidence that any applicant was affected by the use of such forms. What Respondent apparently
has neglected to note, however, was that the Board disagreed with the trial examiner and ordered an
appropriate remedy as regards the prior use of the unlawful application forms. 162 NLRB at 269 fn. 1.
51 It is worth noting that Porzio still earns more than any other unit employee, and Goncalves does
not earn less.
52 For these reasons, as well as the apparent ambiguity surrounding the Union’s proposal regarding
the wage rate for the lead operator position, I further find that absent some determination by compliance it
is not possible to conclude that the Union’s e-mail to Atlas constitutes an appropriate remedial request.
Accordingly, I shall recommend that they issue another.
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Accordingly, having found that the respondent, United Steel Workers, Local 4-406 has
violated Section 8(b)(1)(A) and 8(b)(2) of the Act, I shall order that it cease and desist therefrom
and from in any like or related manner restraining or coercing employees in the exercise of their
rights under Section 7 of the Act. I shall also order the Respondent to take certain affirmative
action designed to effectuate the policies of the Act. Having found that Local 4-406 unlawfully
caused or attempted to cause Atlas Refinery Inc. to discriminate against Manuel Goncalves and
Les Porzio, Respondent shall request that Atlas restore these employees to their former job
titles and reopen bargaining over the wage rates to be paid to these employees. Respondent
shall also make these employees whole for any loss of earnings suffered as a result of the
discrimination against them, in a manner consistent with the foregoing discussion until the
parties reach a good faith agreement on the wage rates to be paid to Goncalves and Porzio, or
the expiration of the 2010 agreement, whichever occurs first.53 Backpay shall be computed in
accordance with F.W.Woolworth Co., 90 NLRB 289 (1950), with interest at the rate prescribed
in New Horizons for the Retarded, 283 NLRB 1187 (1987), compounded daily as prescribed in
Kentucky River Medical Center, 356 NLRB No. 8 (2010). Further, Respondent shall be required
to post or otherwise distribute an appropriate notice, as attached hereto.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended54
ORDER
The Respondent, United Steel Workers, Local 4-406, its officers, agents, and
representatives, shall
1. Cease and desist from
(a) Discriminatorily proposing the elimination of the lead operator and maintenance 1
positions thereby causing and attempting to cause Atlas Refinery Inc. to reduce the wages of
employees because they crossed Respondent’s picket line and returned to work during a
lockout of employees and for reasons other than the failure to tender the periodic dues and
initiation fees uniformly required as a condition of employment, and
(b) In any like or related manner restrain or coerce employees in the rights guaranteed to
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Request that Atlas restore Manuel Goncalves and Les Porzio to the job titles they
held prior to the negotiation of the 2010 collective-bargaining agreement between the Union and
Atlas request that that Atlas reopen bargaining over the wage rates to be paid to these
employees.
(b) Make employees Manuel Goncalves and Les Porzio whole for any loss of earnings

53 In the event the Employer agrees to raise these employees’ wages, but does not agree to the
amounts deemed appropriate after compliance proceedings, in my view the Union would be liable for any
such differential until the expiration of the 2010 agreement.
54 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed waived for all purposes.
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and other benefits, less any net interim earnings, plus interest resulting from the discrimination
against them, as set forth in the remedy section of this decision.
(c) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the
Board or its agents, all payroll records, social security payment records, timecards, personnel
records 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.
(d) Within 14 days after service by the Region, post at Respondent’s union hall copies of
the attached notice marked “Appendix.”55 Copies of the notice, on forms provided by the
Regional Director for Region 22, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to employees are customarily posted. In
addition to physical posting of paper notices, the notices shall be distributed electronically, such
as by e-mail, posting on an intranet and/or other electronic means, if the Respondent
customarily communicates with its members by such means.56 Reasonable steps shall be taken
by the Respondent to ensure that the notices are not altered, defaced, or covered by any other
material. Moreover, signed copies of the notice shall be sent to the Regional Director to the
Employer for posting at the Employer’s place of business, if the Employer elects to do so, at
places where notices to employees are customarily posted.
(e) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
Dated, Washington, D.C., September 2, 2011
____________________
Mindy E. Landow
Administrative Law Judge

55 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.”
56 See Electrical Workers Local 429, 357 NLRB No. 34, slip op. at 5 and fn. 13 (2011)(citing J. Picini
Flooring, 356 NLRB No. 9 (2010)).
JD(NY)–33–11
APPENDIX
NOTICE TO MEMBERS
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post
and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain on your behalf with your employer
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT discriminatorily propose the elimination of the lead operator and maintenance 1 positions to
cause or attempt to cause Atlas Refinery, Inc. to reduce your wages because you cross a Union picket line or
for reasons other than your failure to tender the periodic dues and initiation fees uniformly required as a
condition of employment.
WE WILL NOT in any like or related manner restrain or coerce you in the exercise of the rights guaranteed to
you by Section 7 of the Act.
WE WILL request that Atlas Refinery Inc. restore the job titles of Manuel Goncalves and Les Porzio to what
they were prior to the negotiation of the 2010 collective-bargaining agreement.
WE WILL request that Atlas reopen bargaining over the wage rates to be paid to Manuel Goncalves and Les
Porzio.
WE WILL make Manuel Goncalves and Les Porzio whole for any loss of earnings and other benefits resulting
from our discrimination against them, plus interest, until a good faith agreement is reached with Atlas over their
wages or the 2010 agreement ends, whichever occurs first.
UNITED STEEL WORKERS, LOCAL 4-406
(Labor Organization)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor Relations Act. It
conducts secret-ballot elections to determine whether employees want union representation and it investigates and remedies unfair
labor practices by employers and unions. To find out more about your rights under the Act and how to file a charge or election petition,
you may speak confidentially to any agent with the Board’s Regional Office set forth below. You may also obtain information from the
Board’s website: www.nlrb.gov.
20 Washington Place, 5th Floor
Newark, New Jersey 07102-3110
Hours: 8:30 a.m. to 5 p.m.
973-645-2100.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 973-645-3784.