Wiers International Trucks, Inc.

National Labor Relations Board - Administrative Judge Opinions

Jul 23, 2008

25-CA-030375 (N.L.R.B. Jul. 23, 2008)

JD–40–08
Elkhart, IN
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
WIERS INTERNATIONAL TRUCKS, INC.
and Cases 25-CA-30375
25-RC-10389
GREAT LAKES INTERNATIONAL
TRUCKS, LLC
and
WIERS INTERNATIONAL TRUCKS, INC.
AND GREAT LAKES INTERNATIONAL
TRUCKS, LLC d/b/a WIERS
INTERNATIONAL TRUCKS, joint employers
and a single-integrated business enterprise,
and its successor GREAT LAKES
INTERNATIONAL TRUCKS, LLC,
and
INTERNATIONAL UNION OF
OPERATING ENGINEERS, LOCAL 150,
a/w INTERNATIONAL UNION OF
OPERATING ENGINEERS, AFL-CIO
Derek A. Johnson, Esq.
for the General Counsel.
Bryan P. Diemer, Esq., and
Karl E. Masters, Esq.
Countryside, Illinois,
for the Charging Party.
Steve Shoup, Esq.
(Ogletree, Deakins, Nash,
Smoak & Stewart, P.C.)
Indianapolis, Indiana,
for Respondent Great
Lakes International Trucks, LLC.
DECISION
Statement of the Case
PAUL BOGAS, Administrative Law Judge. I heard these consolidated unfair labor
practices and representation cases in Elkhart, Indiana, on March 4 and 5, 2008. The
International Union of Operating Engineers 150, a/w International Union of Operating Engineers,
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AFL-CIO (the Union or the Charging Party) filed the original charge on June 26, 2007, and
amended charges on August 24, 2007, and September 28, 2007. The Regional Director of
Region 25 of the National Labor Relations Board (the Board) issued the unfair labor practice
complaint and notice of hearing on November 30, 2007, alleging that the Respondents had
committed various unfair labor practices in advance of a representation election that was held
on June 19, 2007, for a unit of employees at a truck dealership in Elkhart, Indiana. The
complaint alleges that the Respondents violated Section 8(a)(1) of the National Labor Relations
Act (the Act) by: coercively interrogating employees, soliciting grievances from employees,
promising benefits to employees, threatening employees with plant closure and reduced terms
and conditions of employment, and prohibiting employees from discussing the Union. In
addition, the complaint alleges that the Respondents violated Section 8(a)(1) and (3) of the Act
by beginning to provide a training and certification benefit in order to discourage employees
from supporting the Union.
The complaint further alleges that the Respondents violated Section 8(a)(1) and (3) of
the Act by discriminatorily transferring three pro-union employees from the Elkhart facility, and
subsequently disciplining and terminating one of those employees, because the employees
engaged in union and other protected concerted activities. It is also alleged that two of the
transfers violated Section 8(a)(1) and (4) of the Act because those transfers were based on the
employees’ participation as union witnesses at a pre-election hearing.
Seven ballots were cast at the representation election on June 19 -- two in favor of the
Union, two against the Union, and three determinative ballots that were challenged by the
employer. The challenged ballots were cast by the same three employees who the unfair labor
practices complaint alleges the employer unlawfully transferred, and in one case, unlawfully
discharged. The employer contends that the three determinative ballots should not be counted
because the employees who cast them were no longer working at the Elkhart facility at the time
of the election. The Union counters that the challenges should be overruled because the
employer transferred and discharged the employees for reasons that violated the Act.
On December 5, 2007, the Regional Director issued an order directing a consolidated hearing
on the alleged unfair labor practices, the three ballot challenges, and determination of the name
of the employing entity.
Shortly before the hearing, one of the named Respondents – Wiers International Trucks,
Inc. ("Wiers IT") – reached a settlement with the Region regarding both the unfair labor
practices case and the representation case. At the start of the hearing, the General Counsel
stated that it was proceeding only against Great Lakes International Trucks, LLC (Respondent
Great Lakes, the Respondent, or the Company), not Wiers IT.1 Although counsel for Wiers IT
had participated in pre-hearing conferences prior to reaching the settlement, no representative
entered an appearance on behalf of Wiers IT at the hearing.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel, Respondent Great Lakes, and the
Union, I make the following findings of fact and conclusions of law.

1 Counsel for the General Counsel stated “that Wiers International Trucks, Inc., as an entity
has settled with the Region,” and “as regards . . . the proceedings here today we’re only
proceeding against Great Lakes and whatever entity that constituted at the time in terms of the
Elkhart facility that’s at issue here.” Transcript at Page (Tr.) 8; see also Brief of General
Counsel at Page 13 fn.4.
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Findings of Fact
I. Jurisdiction
Respondent Great Lakes sells and services trucks at its facilities in Elkhart and South
Bend, Indiana. In conducting these activities during the 12 months preceding issuance of the
complaint, Respondent Great Lakes sold and shipped from its Indiana facilities goods valued in
excess of $50,000 directly to points outside the State of Indiana, and received at those facilities
goods valued in excess of $50,000 directly from points outside the State of Indiana.
Respondent Great Lakes admits,2 and I find, that it is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. Respondent Great Lakes and its
Relationship to Wiers IT
International Truck and Engine Corp. is a truck manufacturer that also owns dealerships
where it sells and services its products. Respondent Great Lakes is an entity that International
Truck and Engine created to purchase, operate, and/or sell four such dealerships. Those four
dealerships are located in Elkhart, Indiana, South Bend, Indiana, Jackson, Michigan, and
Kalamazoo, Michigan (the Great Lakes facilities). The Elkhart dealership became the subject of
a union organizing campaign in 2007 and most of the allegations in the complaint involve that
location.
Wiers IT is an independently owned dealer of International trucks that does business in
the same general geographic region as Respondent Great Lakes. Wiers IT sells and services
International trucks at three dealerships located in Lafayette, Logansport, and Plymouth, Indiana
(the Wiers IT facilities).3 Its headquarters are located at the Plymouth facility. Thomas Wiers
(T. Wiers) has, for at least 14 years, owned Wiers IT and serves as its president and chief
executive officer. Drew Hettich has been the director of parts and service for Wiers IT since
August 2005.
At some point, T. Wiers became interested in purchasing the four Great Lakes
dealerships. On February 24, 2006, T. Wiers entered into an agreement to purchase those
dealerships from an entity that International Truck and Engine uses for selling dealerships to
independent operators. That seller entity is International Dealcor Operations (International
Dealcor). The purchase agreement installed T. Wiers as president of Respondent Great Lakes.
Under the agreement, T. Wiers did not acquire full ownership of Respondent Great Lakes.
Rather, T. Wiers began with a six percent ownership interest in the Company and was entitled
to purchase additional shares of Great Lakes from International Dealcor4 using bonuses that he

2 At the start of trial, Respondent Great Lakes amended its answer to admit that it was, at all
relevant times, a statutory employer. Tr.14-15. In its brief, Respondent Great Lakes concedes
that it was the employer of all employees at the Elkhart facility from February 24, 2006, until July
13, 2007.
3 For convenience, and consistent with the suggestion of the General Counsel, I use the
term “Great Lakes facilities” to refer to the Elkhart, Jackson, Kalamazoo and South Bend
locations, and the term “Wiers IT facilities” to refer to the Lafayette, Logansport, and Plymouth
locations. Brief of General Counsel at Page 3 fn. 2.
4 International Dealcor owned the other 94 percent of the shares of Respondent Great
Lakes.
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could earn as president of Respondent Great Lakes. Under the purchase agreement, the Board
of Managers of Great Lakes and/or International Dealcor had the absolute right to remove T.
Wiers from his position as president of Respondent Great Lakes. In the event that T. Wiers was
removed, his right to purchase Respondent Great Lakes would be extinguished. As is
discussed below, subsequent to the time when the unfair labor practices are alleged to have
occurred, the Board of Managers of Great Lakes and/or International Dealcor did, in fact,
remove T. Wiers from his position as Great Lakes’ president.
On the same day that T. Wiers and International Dealcor entered into the purchase
agreement, they also entered into an agreement on bonuses, the stated purpose of which was
to compensate T. Wiers, as president of Respondent Great Lakes, "in relation to the degree of
his success in managing the business and affairs of [Respondent Great Lakes]." Under the
agreement, T. Wiers promised that as president of Respondent Great Lakes, he would "devote
100 percent of his efforts to [Respondent Great Lakes’] business," and would "adhere to its
business management and other policies, as determined from time to time by its Board of
Managers." T. Wiers would receive a salary plus a bonus based on a percentage of
Respondent Great Lakes’ earnings. As with the purchase agreement, this document stated that
the Board of Managers of Great Lakes and/or International Dealcor had the "absolute" right to
terminate T. Wiers’ service as president of Respondent Great Lakes. In addition to serving as
president of Great Lakes, T. Wiers was made a member of Great Lakes’ Board of Managers. A
number of the approximately five other members of the Great Lakes Board of Managers were
officials of International Truck and Engine and/or International Dealcor.
During the time that he was president of Respondent Great Lakes, T. Wiers had
authority over day-to-day employment and labor relations at the Great Lakes facilities. He had
the power to discipline employees, hire and fire employees, transfer employees between
locations, recommend wage rate changes, and direct employees in the performance of their
duties.5 However, T. Wiers’ authority regarding the making of management policy was limited.
Pursuant to both the purchase agreement and the agreement on bonuses, T. Wiers was
required to "adhere to [the Great Lakes’] business management and other policies" in the
operation of the Great Lakes facilities. T. Wiers’ authority as president of Great Lakes was also
limited when it came to financial matters. He was required to obtain the approval of the Great
Lakes Board of Managers for any expenditure at the Great Lakes facilities that exceeded
$10,000, and also consulted with the Board of Managers regarding other significant business
decisions. In addition, he had to obtain approval before making adjustments of more than
$1000 to charges for warranty service to vehicles. Once a month, T. Wiers was required to
make a report to the Board of Managers in which he summarized activities at the Great Lakes
facilities and provided financial information. The record contains two examples of these reports,
and in both T. Wiers discussed various personnel matters at the Great Lakes facilities,

5 In its answer, Respondent Great Lakes denied that T. Wiers was its agent or supervisor
during the period when the violations at the Great Lakes facilities are alleged to have occurred.
In its brief, however, Respondent Great Lakes concedes that T. Wiers was its agent during the
relevant time period. Brief of Respondent Great Lakes at 11. To the extent that Respondent
Great Lakes may still be arguing that T. Wiers was not acting as its agent with respect to the
specific conduct alleged to be unlawful because the Great Lakes Board of Managers did not
authorize that conduct, the argument fails under Section 2(13) of the Act, which provides that
“[i]n determining whether any person is acting as an 'agent' . . . the question of whether the
specific acts performed were actually authorized or subsequently ratified shall not be
controlling." See also Braun Electric Co., 324 NLRB 1, 2-3 (1997) (company’s president acting
as agent, despite company’s argument that president’s specific acts were outside his authority).
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including, in general terms, his opposition to the union organizing campaign at the Elkhart
facility. These reports do not make any mention of the Wiers IT facilities. Auditors for
International Truck and Engine and/or Respondent Great Lakes would visit T. Wiers
intermittently in order to verify that he was operating the Great Lakes facilities in accordance
with Great Lakes’ policies.
The record indicates that it was T. Wiers’ ambition to make the four Great Lakes facilities
part of Wiers IT. He testified that he was moving the four Great Lakes facilities and the three
Wiers IT facilities "towards commonality in terms of several items." His plan was to "brand" the
Great Lakes facilities with the Wiers name. Towards that end, he requested, and obtained,
approval from the Great Lakes Board of Managers to begin using the Wiers name even when
doing business at the Great Lakes facilities. On March 6, 2006, T. Wiers filed paperwork with
the State of Michigan stating that Respondent Great Lakes would be transacting business under
the assumed name "Wiers International Trucks." He filed the same type of paperwork with the
State of Indiana. T. Wiers also began using Wiers IT signs, stationary, and business cards at
the Great Lakes facilities. The record indicates that, for a period of time, the paycheck stubs for
employees at the Great Lakes facilities carried the names of both Wiers IT and Respondent
Great Lakes. However, the paycheck stubs in the record from the Wiers IT facilities carry only
the name of Wiers IT.
T. Wiers also began to consolidate certain management and administrative functions.
Hettich, who was the director of parts and service for the three Wiers IT facilities, also oversaw
the four Great Lakes facilities during the relevant time period.6 The managers of the individual
Great Lakes locations began reporting to Hettich, who, in turn, reported to T. Wiers. Hettich had
authority to hire, train, and fire employees, and to recommend wage increases, at the Great
Lakes facilities, as well as at the Wiers IT locations. He was also held responsible for the level
of income generated by those facilities. 7 The Great Lakes facilities and the Wiers IT facilities all
submitted their payroll information to the same payroll clerk, who was located at the Wiers IT
facility in Plymouth. That payroll clerk, in turn, submitted the information to an outside payroll
company that actually issued employees’ paychecks. During the period that the purchase
agreement was in effect, the personnel files for employees of the Great Lakes facilities and the
Wiers IT facilities were kept at the Wiers IT location in Plymouth. Sales paperwork from both
the Great Lakes facilities and the Wiers IT facilities was processed by a Great Lakes employee
who worked at the Great Lakes location in South Bend. There were two or more employees of
Respondent Great Lakes who were stationed at the Wiers IT headquarters in Plymouth.
Despite the push towards "commonality" on "several items," the Great Lakes and Wiers
TI facilities remained discrete entities in significant respects. No action was taken to re-

6 His title with Respondent Great Lakes was “district parts and service manager.”
7 In its answer, Respondent Great Lakes denied that Hettich was its supervisor and agent
during the relevant time period, but that contention is wholly without merit. Given Hettich’s
authority at the Great Lakes facilities as summarized above, he was, without doubt, Respondent
Great Lakes’ supervisor with the meaning of Section 2(11) and its agent within the meaning of
Section 2(13) during the period when he allegedly took actions that violated the Act. Moreover,
an individual who engages in interrogations, promises of benefit, or other coercive activity is an
agent of the employer if the individual was placed by management in a strategic position where
employees could reasonably believe he spoke on its behalf. CDR Mfg., 324 NLRB 786 (1997);
Roskin Bros., Inc., 274 NLRB 413, 421 (1985); Elias Mallouk Realty Corp., 265 NLRB 1225,
1234-35 (1982); B-P Custom Building Products, 251 NLRB 1337, 1338 (1980). Respondent
Great Lakes placed Hettich in such a position.
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incorporate the two companies as a single entity. Respondent Great Lakes never owned any
portion of Wiers IT or its facilities, or had any authority over how T. Wiers operated the Wiers IT
locations. In the operation of the Great Lakes facilities, on the other hand, T. Wiers was
required by the purchase agreement to "adhere to [Great Lakes’] business management and
other policies." T. Wiers testified that there was no plan to generally apply the Wiers IT policies
at the Great Lakes facilities. Rather, he stated, "Wiers had some things that were in place" and
"Great Lakes had some things that were in place." Over time, Respondent Great Lakes and
Wiers IT adopted certain common policies and procedures that they determined were "best
practices," but this was, according to T. Wiers, only done "to some degree." During much of
the time that T. Wiers was president of both Respondent Great Lakes and Wiers IT, the Great
Lakes facilities (including the Elkhart location) continued to use the Great Lakes’ personnel
handbook, while the Wiers IT facilities used a different, Wiers IT, handbook. It was not until
April 2007 – after the filing of the representation petition -- that the Respondent began to
distribute the Wiers IT handbook to employees at the Elkhart location. Even then, the
Respondent was not shown to have withdrawn the Great Lakes personnel handbook.
The record shows that a bright line continued to exist between the finances of Wiers IT
and Respondent Great Lakes, even after T. Wiers began using the Wiers name at the Great
Lakes facilities. Respondent Great Lakes had a bank account that was owned by Great Lakes
and from which it paid employees at the four Great Lakes facilities. Wiers IT had a separate
bank account that was owned by Wiers IT and which was used to pay employees of the three
Wiers facilities. When an employee of a Great Lakes facility did work that benefited a Wiers IT
facility, an invoice was created and Wiers IT reimbursed Respondent Great Lakes for the time
spent by that employee on Wiers IT business. Likewise, when an employee of a Wiers IT
facility performed work for a Great Lakes facility, Respondent Great Lakes would reimburse
Wiers IT. This reimbursement procedure was followed with respect to services rendered by
Hettich, as well as to services rendered by the payroll clerk and the sales processing clerk
discussed above. When T. Wiers made a bulk purchase of new computers to be used at both
the Wiers IT facilities and the Great Lakes facilities, Respondent Great Lakes paid Wiers IT for
the computers that were placed at the Great Lakes facilities. The W-2 forms provided to
individuals employed at the four Great Lakes facilities identified the employer as Great Lakes
International Trucks even after T. Wiers began using the Wiers IT name at those facilities. The
W-2 forms issued to employees at the Wiers IT facilities, on the other hand, listed the employer
as Wiers International Trucks. After Timothy Burelison was moved from a Great Lakes facility to
a Wiers IT facility in May 2007 he received a Great Lakes W-2 form for the pre-transfer period
and a Wiers IT W-2 form for the post-transfer period. T. Wiers ran a number of marketing
advertisements in the name of Respondent Great Lakes, without any mention of Wiers IT.
When T. Wiers became president of Respondent Great Lakes he did not replace the
employees with Wiers IT staff, but rather retained the Great Lakes employees and continued to
pay them at Great Lakes’ established wage rates. He made annual recommendations for merit
wage increases at the Great Lakes facilities, but had to obtain approval from the Great Lakes
Board before implementing those increases. Employees who worked at the Great Lakes
facilities remained in Respondent Great Lakes’ health plan, while employees at the Wiers IT
facilities were covered by a separate Wiers IT health plan. Respondent Great Lakes and Wiers
IT maintained separate workers’ compensation insurance, and separate business numbers.
The record also showed that after Respondent Great Lake began using the Wiers name for
much of its operation, it continued using the Great Lakes name for commercial truck leasing.
T. Wiers’ tenure as president of the Great Lakes facilities was terminated on July 13,
2007. All of the unfair labor practices described in the complaint are alleged to have occurred
during the period when T. Wiers was president of Respondent Great Lakes. After July 13, T.
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Wiers continued to be owner, president, and chief executive officer of Wiers IT, as he had been
for many years prior to his involvement with Respondent Great Lakes. Similarly, Hettich
continued in his position with Wiers IT, but no longer had any role at the Great Lakes facilities.
After T. Wiers’ tenure as president of Respondent Great Lakes ended, Respondent Great Lakes
continued to employ a majority of the employees who were already working at the Great Lakes
facilities.
III. Union Campaign
A. Representation Petition
In early 2007, Robert Mohney and William Allison – mechanics at the Great Lakes
facility in Elkhart – contacted a business agent of the Union about meeting with employees.
Mohney and Allison subsequently informed other employees that the Union was interested in
representing mechanics at the Elkhart facility. During the relevant time period, the Elkhart
facility employed between five and nine such mechanics – referred to there as "service
technicians." A number of the service technicians who Mohney and Allison talked to about
representation signed union authorization cards. The service technicians also held group union
meetings, talked informally about the Union, and displayed various types of pro-union
paraphernalia.
The record shows that the three alleged discriminatees – Timothy Burelison, John
Bussey, and Eric Reamer – participated in the Union activities. All three signed union
authorization cards and attended group union meetings. Burelison attended five or six of the
union meetings, Bussey attended multiple such meetings, and Reamer attended nearly all of the
meetings. The three alleged discriminatees also talked to other employees about their support
for the Union. Bussey and Reamer both placed pro-union stickers on the toolboxes that they
kept in the facility’s shop – a location where the stickers could be seen by employees,
supervisors, and managers.8 In addition, Reamer placed a pro-union bumper sticker on the
vehicle that he drove to work and parked in the facility’s parking lot. He also wore a keychain
bearing a Union insignia in such a way that it could be seen by others. Hettich did not deny that
he observed the public displays of Union support by the three alleged discriminatees, nor did he
deny that he was aware that those employees supported the Union. T. Wiers denied that he
saw any antiunion paraphernalia at the Elkhart facility, but did not deny that he was aware that
the three alleged discriminatees were among the service technicians who supported the Union.
On April 6, 2007, the Union filed a petition to be certified as the collective bargaining
representative of a unit comprised of "All full-time and regular part-time mechanics" at the
Elkhart facility.9 Respondent Great Lakes actively opposed the unit description in the petition,
contending it should be broadened beyond the group of eight service technicians who the Union
was seeking to represent, so as to include two service advisors/writers (who distribute work
assignments to the technicians) and four parts department employees. A hearing was held

8 Burelison also displayed pro-union paraphernalia, but only after he was informed that he
was being transferred.
9 In its brief, Respondent Great Lakes concedes that it was the employer of all employees at
the Elkhart facility from February 24, 2006, to July 13, 2007. The Union’s representation petition
named “Wiers International Trucks” as the employer, but T. Wiers testified that while the Elkhart
facility was doing business under the Wiers IT name, the actual owner-employer was always
Respondent Great Lakes. I find that Respondent Great Lakes has been the owner-employer at
the Elkhart facility during the time period relevant to this litigation.
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regarding these contentions on April 20, 2007. At the hearing, the Union called two of the
alleged discriminatees – Timothy Burelison and John Bussey – as witnesses. Hettich was
present when Burelison and Bussey testified. Shortly thereafter, Hettich approached Burelison
at work and said that he was "surprised" to see him at the hearing. In a decision issued on May
21, 2007, the Regional Director determined that the unit description that the Union set forth in its
petition – which was limited to service technicians – was appropriate.
B. Employer’s Opposition to the Union
1. Antiunion Campaign
T. Wiers testified that he opposes unionization. The Wiers IT employee handbook has a
section entitled "management philosophy" that is concerned almost exclusively with opposition
to unionization. That handbook states that "Wiers is a non-union company," and that the
company "inten[ds] to oppose unionization by every proper means." Respondent Great Lakes
began to distribute this handbook at the Elkhart facility shortly after the Union filed the
representation petition.
When he received the representation petition, T. Wiers retained an attorney to help him
"fight" the Union, campaign for a "no" vote, and identify legal "do’s and don’ts." T. Wiers notified
the Great Lakes Board of Managers of his intention to oppose the union campaign and obtained
its approval for his choice of an attorney to help in the effort. After being retained, the attorney
assisted Respondent Great Lakes in developing the antiunion campaign and reviewed materials
that the Respondent disseminated to employees. T. Wiers also obtained the assistance of a
consultant who had been involved with a successful antiunion campaign at another company.
That consultant, Gary Mullennix, individually interviewed each person working at the Elkhart
facility in order to identify the employees’ sources of discontent.10 T. Wiers stated that the
proper analogy for Great Lakes’ antiunion campaign at the Elkhart facility is the legal defense
mounted by a person wrongly accused of committing a crime.
2. T. Wiers Conducts Mandatory Group Meetings
T. Wiers conducted three group meetings with Elkhart employees regarding the Union.
He required the service technicians to attend each of these meetings. Hettich and the Elkhart
service manager, Jon Breitenbucher, were also present. The first meeting was held on about
April 25 or 26, the second on about May 2, and the third in early or mid May. According to T.
Wiers, the purpose of these meetings was to "educate," employees about unions, not to "sway"
them to vote one way or the other. Transcript at Page (Tr.) 126. That characterization,
however, is not credible given the record evidence about his presentations.11 The written

10 Mullennix was soliciting grievances on behalf of Respondent Great Lakes and I find that
he was its agent for purposes of that activity. The Respondent placed Mullennix in a strategic
position where employees would reasonably believe he was soliciting grievances on its behalf.
See CDR Mfg., supra, Roskin Bros., Inc., supra; Elias Mallouk Realty Corp., supra; B-P Custom
Building Products, supra.
11 Based on his demeanor and testimony, I found T. Wiers a less than fully credible witness.
On several occasions while testifying he became visibly amused, giving the impression that he
did not believe the proceedings were to be taken seriously. In addition, he showed a willingness
to provide testimony that he certainly knew was false, such as the above-mentioned statement
that it was not his purpose during the mandatory group meetings to “sway” employees to vote
one way or the other regarding union representation. That statement is wholly incredible based
Continued
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documents that T. Wiers used at the meetings, and the testimonies of attendees and T. Wiers
himself, show that T. Wiers’ purpose was precisely to sway employees to vote against the
Union. Although he briefly discussed the mechanics of the upcoming representation election,
he limited his discussion primarily to impugning the motives of union officials and highlighting
negative aspects and possible adverse consequences of unionization. The written outline that
T. Wiers prepared of his remarks at the April meeting states: "Wiers does not want a union.
Any union is a thorn. It is a thorn in your side and it is a thorn in our side." Regarding the
Union’s motivation at the Elkhart facility, T. Wiers stated: "Why are they here? Money! The
Operating Engineers want your money . . . . to support their expensive habits." He stated,
further, that the Union’s "sole purpose is to serve the Union’s interests and not yours."
A slide that T. Wiers presented to employees at the second of the mandatory meetings
was titled "Union Facts" and stated that if employees elected to be represented by the Union the
employees "will work for the union – not for Wiers." The same slide went on to state that if
employees elected the Union they could "Expect" "No increased health care benefit," "No wage
benefit," and "No pension benefit." T. Wiers stated that wages would not change and that he
did not have to sign a contract, only negotiate in good faith. Another slide in the presentation
stated that unionization caused "top performers [to] leave." The written remarks that T. Wiers
prepared for one of the meetings state that "no one would support a union if you did not believe
the union was going to get you something," and that "supporting the union is like buying a raffle
ticket, the chances of winning are minimal." Generally, the only employee who asked questions
during these presentations was alleged discriminatee Burelison, and T. Wiers appeared
disturbed by those questions.
Reamer testified that T. Wiers’ general subject at the meetings was that selecting the
Union "would only increase the hardships [employees] would have to go through." T. Wiers
showed employees a video presentation which stated that "the union is only looking out for their
best interests and not your best interests" and did not discuss potential advantages of
unionization. Burelison remembered that T. Wiers was "open and adamant that he was
campaigning against the Union and that he wanted the shop to stay union-free." According to
Bussey’s testimony, T. Wiers held up the Union’s financial statement at the meeting and stated
that the Union was "just out to collect the dues" and "weren’t going to give . . . any
representation."
The evidence shows that at one of the Respondent’s mandatory group meetings,
Burelison complained that employees were not being reimbursed for training and certifications.
Employees also raised this concern to Mullennix during their one-on-one interviews, and
Mullennix communicated this to Hettich. At the second mandatory meeting, T. Wiers presented
a slide stating that, with the Company, employees were reimbursed for training and for the costs
_________________________
not only on the content of the presentations, but also on T. Wiers’ testimony that the meetings
were part of a campaign against the Union. In other instances he responded to questions in an
evasive manner. For example, during questioning by Counsel for the General Counsel, he first
denied that Elkhart employees were not receiving reimbursement for training/certifications, but
when pressed he conceded that the Elkhart employees did not even know that such a benefit
existed and were not being reimbursed. In reaching my conclusion that T. Wiers was not a
particularly credible witness I considered the fact that he was no longer associated with
Respondent Great Lakes and that the company he continued to be associated with, Wiers IT,
had already settled with the Board. However, based on his demeanor and testimony I was left
with the impression that T. Wiers remained inclined to slant his account in order to cast his
actions as president of Respondent Great Lakes in the most favorable light.
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associated with obtaining commercial drivers licenses. T. Wiers also apparently outlined the
mechanics of how employees could go about obtaining such reimbursement.
The alleged discriminatees testified that T. Wiers made a number of statements about
closing the Elkhart facility. Burelison testified that at one of the meetings, T. Wiers "said he
would have to close the facility because with the Union in there, there’s no way that it would be
profitable." Bussey testified that at the first of the mandatory meetings, T. Wiers "basically told
us," that if the Union won the election "he was going to have to close the shop." Elsewhere in
his testimony, Bussey recounted T. Wiers stating, "that if this keeps up, if the union gets elected,
that they’re basically going to close the doors." Bussey testified that T. Wiers also touched on
this subject during the second mandatory meeting, stating that "if it kept going on that he was
going to close the doors to Elkhart." According to Bussey, at the third meeting, T. Wiers
referenced the money he had spent on attorneys fees to fight the union, and stated that he was
going to have to close the doors at the Elkhart facility if he had to keep paying such "exorbitant"
attorneys fees. Reamer testified that, during a one-on-one conversation, T. Wiers told him, "I
don’t know if I can keep the doors open with all these attorney fees and fighting the union."
When asked whether he stated that he would close the facility, T. Wiers responded:
If there was any discussion through the course of this campaign, the discussion
would have been that Elkhart was not a profitable location. I believe I stated that
the Union would not make Elkhart a profitable location and that it was up to us,
being collectively management and employees, to make the Elkhart profitable
and that no business or no location over the long term that wasn’t profitable
would remain in business.
Tr. 331. T. Wiers also testified that he told employees having a union would increase the legal
expenses and the administrative expenses for the Company. One of the slides he presented to
employees at the group meetings warns that the cost associated with the Union "further reduces
profitability and viability of Elkhart location." T. Wiers told employees that the Company had the
"right to determine viability of the Elkhart location." The same slide states that the Company
had spent $20,000 to defend against the Union at Elkhart and that if employees voted for union
representation there would be further costs associated with negotiating. T. Wiers also
presented a slide indicating that employees’ "future" would be uncertain if they elected the
Union.12
I find that the record does not establish that T. Wiers explicitly stated that he would close
the Elkhart facility rather than operate it with a union in place or during an ongoing union
campaign. T. Wiers essentially denied making such statements and although I found him a
less than candid witness, see supra footnote 11, his denial was consistent with the documentary
evidence and was otherwise plausible. To the extent that the testimonies of Burelison, Bussey
and Reamer indicate that T. Wiers said that he would close the facility because of unionization
or the union drive per se – as opposed to unprofitability that T. Wiers predicted would be
exacerbated by unionization -- I find that such testimony does not outweigh the contrary
evidence. The accounts of T. Wiers’ exact wording that were given by Burelison, Bussey, and
Reamer were not consistent. Indeed, Reamer did not recount T. Wiers making any statements
regarding plant closure during the mandatory group meetings, but only during an individual
meeting between T. Wiers and himself. Moreover, Bussey qualified his testimony by stating that
T. Wiers "basically" made certain statements regarding plant closure, not that he made exactly

12 This slide is titled “What do you have with Union?” and then lists, inter alia, “Future?”
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those statements. Burelison testified about statements made by T. Wiers regarding closure of
the facility, but was unable to remember when precisely T. Wiers made those statements. For
these reasons I find only that T. Wiers made those statements regarding plant closure that he
testified to and/or that are memorialized in the documentary evidence from his presentations.13
3. Agents of Employer Meet
Individually with Employees
T. Wiers and Hettich also discussed the Union during unscheduled one-on-one meetings
with most of the employees at the Elkhart facility. These individual meetings generally occurred
immediately after the mandatory group meetings during which T. Wiers had campaigned against
the Union. During the individual meetings, T. Wiers and Hettich would typically ask employees
what they thought the Union could do for them. Hettich would also discuss problems that
employees were having with payroll, health insurance, job transfers, and the union campaign –
the idea being that Hettich would try to help employees with those problems.
Burelison described the individual meetings that T. Wiers and Hettich each conducted
with him. T. Wiers conducted his meeting with Burelison in the employee break room, while
Hettich approached Burelison near his toolbox, which Burelison described as a "more isolated"
location. Both T. Wiers and Hettich asked Burelison why employees would want to have a
union. Burelison told them that it was because of issues relating to insurance, pension, and
"quality of work life." During these meetings, both officials asked Burelison what he thought the
results of the election would be.14 In addition, Hettich asked Burelison "who he thought was in
favor and who wasn’t."15 During a one-on-one meeting, T. Wiers asked Bussey how he thought
the Union would benefit him. Bussey answered that the Union provided better benefits – an

13 That being said, it is not surprising to me that Burelison, Bussey, and Reamer would
understand T. Wiers to be saying that they would lose their jobs at the Elkhart facility if
employees elected to be represented by the Union or continued the union campaign. The
evidence suggests that T. Wiers, who reviewed the information he disseminated with legal
counsel, chose his words carefully to leave employees with the impression that unionization
would result in the closure of the Elkhart facility, without actually stating that it was unionization
or union activity, as opposed to the unprofitability that he predicted unionization would
exacerbate, which would lead to closure. As the Supreme Court has noted, when reviewing
such comments one “must take into account the economic dependence of the employees on
their employer, and the necessary tendency of the former, because of that relationship, to pick
up intended implications of the latter that might be more readily dismissed by a more
disinterested ear.” NLRB v. Gissel Packing Co., 395 U.S. 575, 617 (1969); see also American
Pine Lodge Nursing, 325 NLRB 98 fn. 1 (1997), enf. granted in part, denied in part, 164 F.3d
867 (4th Cir. 1999) (“A trier of fact is not required to accept the entirety of a witness' testimony,
but may believe some and not all of what a witness says.”); Excel Containers, Inc., 325 NLRB
17 fn. 1 (1997) (nothing is more common in all kinds of judicial decisions than to believe some
and not all, of a witness' testimony).
14 Burelison credibly testified that both officials asked him what he thought the result of the
election would be. Hettich confirmed that he had posed this question and T. Wiers stated that
he did not recall asking the question, but did not specifically deny that he had done so.
15 I base the conclusion that Hettich asked Burelison to reveal who he thought was in favor
of the Union on Burelison’s account. Tr. 239. Hettich stated that “to the best of [his] knowledge”
he did not “specifically” ask employees about their own positions regarding the Union. Tr. 210.
Not only is that denial somewhat half-hearted sounding, but even if credited it would not rebut
Burelison’s testimony that Hettich asked him to reveal other employees’ union views.
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answer to which T. Wiers reacted by "kind of frowning." The exchange made Bussey
uncomfortable and he ended the conversation at the first opportunity.
Hettich conducted a one-on-one meeting with Reamer in the Elkhart facility’s parking lot.
Hettich told Reamer: I understand the union people are hitting you guys kind of hard. I just
want you to know that we are the good guys in this." Then Hettich asked Reamer whether he
was attending the union meetings. Reamer answered that he had, but probably would not
attend future meetings. Hettich asked Reamer whether he knew anyone else who was going to
the union meetings. Reamer responded either "no" or "I can’t tell you." During a subsequent
conversation – this one a few days before Reamer was transferred -- Hettich told Reamer that
he had "heard a vicious rumor." When Reamer asked what the rumor was, Hettich responded,
"I heard you were for the Union." Then Hettich asked, "Are you for the Union or for the
company?" Reamer answered, "I’m for the Union at this time." Hettich then warned: "[O]nly . .
. three things can happen with the Union coming in here. One it can get better; two it can stay
the same; or three, it can get worse. It’s not going to get better and it’s not going to stay the
same. It can only get worse."
After receiving the Union petition, Respondent Great Lakes arranged to have a
consultant, Gary Mullennix, assist in the antiunion campaign. Mullennix conducted individual
interviews of approximately 30 minutes in length with every employee at the Elkhart facility.
Hettich, who scheduled the interviews, testified that this activity was motivated by the Union’s
petition and that the purpose was to find out what the employees’ issues and concerns were so
that the employer would be able to correct them. After Mullennix had finished interviewing
employees, he met with Hettich to discuss the issues raised by employees. Hettich then talked
to employees on the shop floor or in break areas to follow up on the issues and concerns that
had been brought to his attention. T. Wiers, in an April 20 report to the Great Lakes Board of
Managers, stated that he was working with Mullennix and a labor law attorney to "resolve the
issues."
IV. Reimbursement for Obtaining Certifications
and Commercial Drivers Licenses
When Burelison and Bussey were hired at the Elkhart facility in December 2006, they
understood that the employer would reimburse them for obtaining Automotive Service
Excellence (ASE) certifications and a Commercial Drivers License (CDL). According to
Burelison, it was "pretty expensive" to obtain the ASE certifications and a CDL, and the
employer’s promise of reimbursement was one of the reasons he had accepted the position at
the Elkhart facility. Shortly thereafter, Kevin Fields – who at the time was the service manager
at the Elkhart facility – announced to Bussey and other employees that the Company could no
longer afford to reimburse them and was discontinuing the benefit. In February 2007, Burelison
asked Fields about the training/certification benefit, and Fields told him that "we’re not going to
follow through with it at this time."16
At one of the mandatory antiunion meetings, as well as during interviews with Mullennix,
employees at the Elkhart facility complained that they were not being reimbursed for obtaining
ASE certifications and CDLs. At the second group meeting, T. Wiers presented a slide which
stated that the employer was providing employees with "Paid ASE," and "Paid CDL." T. Wiers

16 Fields did not testify. There was no evidence contradicting Bussey’s and Burelison’s
testimonies that Fields announced discontinuation of the benefits relating to ASE certification
and CDLs.
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discussed how reimbursements worked under that program. He also responded to employee
questions regarding the program by distributing copies of the Wiers IT handbook. He testified
that the handbook, which employees at the Elkhart facility had not received until then, explained
the benefit.17 Up until that time, Respondent Great Lakes had not provided Burelison with any
training materials, but about 1 week after the second meeting, Hettich gave Burelison guides
and training videos that were part of the ASE/CDL reimbursement program.
T. Wiers denied that the ASE/CDL reimbursement benefit was new. However, he made
no effort to explain the unrebutted testimony that, shortly before the start of the union campaign,
the Elkhart service manager told multiple employees that the benefit would not be provided to
them. Moreover, T. Wiers’ claim that employees had the benefit before the Union campaign is
undercut by his statement that the benefit was set forth in the Wiers IT handbook, since by his
own account employees at the Elkhart facility did not receive that handbook until after they
raised the ASE/CDL reimbursement issue during the union campaign. Indeed, T. Wiers and
Hettich admitted that it became clear during the union campaign that employees at the Elkhart
facility had no knowledge that reimbursement for ASE certification or CDLs was available to
them and were not, in fact, obtaining reimbursement.
V. Transfers and Termination
In May 2007, T. Wiers made four personnel transfer decisions that involved the Elkhart
facility. The first was in early May when he transferred a service technician named Gary Morton
to the Elkhart facility from the Wiers IT facility in Plymouth.18 In his May report to the Great
Lakes Board of Mangers, T. Wiers commented: "[Morton’s] been with me since 1994. Good
person and he will help train the current staff. Important move. Union vote is scheduled for end
of May / beginning June. I am cautiously optimistic about the outcome."
Subsequently, at least two things happened that could be expected to dampen T. Wiers’
optimism that the Union would be defeated in the upcoming election. First, on May 21, 2007,
the Regional Director issued a decision rejecting the Employer’s contention that the unit
definition should be altered to include service writers and employees of the parts department.
Second, Reamer, under questioning by Hettich, announced that he was "for the Union."
On May 25, a few days after the Board’s May 21 decision and Reamer’s declaration, T.
Wiers had Hettich inform Burelison, Bussey and Reamer that they were all being transferred
from the Elkhart facility. All three of these service technicians had been included on the list of
eligible voters that Respondent Great Lakes submitted for the payroll period ending on May 13,
2007. T. Wiers admitted that he transferred these employees out of the bargaining unit against
the advice of the labor attorney who he had specifically retained to advise the Company on
"do’s and don’ts" during the organizing campaign. Tr. 120 and 131-32. T. Wiers transferred

17 In the past, a Great Lakes handbook had been distributed at the Elkhart facility. The
Great Lakes handbook was not introduced as an exhibit and there was no evidence that it
discussed the ASE/CDL reimbursement benefit.
18 By using the term “transfer” to refer to the removal of Morton from the Plymouth facility
and his placement at the Elkhart facility, I do not mean to suggest that those two facilities were
part of a single integrated business enterprise/single employer or a joint employer. As
discussed below, Plymouth and the other Wiers IT facilities were not part of such a relationship
with the Great Lakes facilities such as the Elkhart location. However, the fact that T. Wiers was
the president of both Respondent Great Lakes and Wiers IT enabled him to carry out “transfers”
between the two separate companies.
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Burelison to the Plymouth facility – the same location from which he had just recently
transferred Morton to Elkhart. Thus T. Wiers effectively traded Burelison – a known union
supporter – for Morton – an individual who T. Wiers had employed since 1994. Morton was
closely enough associated with T. Wiers that when Respondent Great Lakes ended T. Wiers’
tenure as its president, Morton, unlike other employees, left with T. Wiers and returned to the
Plymouth facility. T. Wiers transferred Bussey to the Great Lakes facility in Kalamazoo, and
Reamer to the Great Lakes facility in South Bend. Burelison and Reamer were required to
report to their new duty stations on May 30, and Bussey on May 31.
T. Wiers testified that he made the decision to transfer three of the eight service
technicians eligible to vote in the upcoming election at the Elkhart facility because there was not
enough work for the service technicians assigned to that location. He stated that the reason he
chose Burelison, Bussey, and Reamer as the three service technicians transferred was that
they had previously asked Hettich for transfers and were the three least senior service
technicians.19 When pressed, however, T. Wiers stated that only Bussey and Reamer had
"definitely" requested transfers. Tr. 99-100. After carefully considering the record, I find that
the evidence does not show that any of the alleged discriminatees requested transfers. In
Burelison’s case, even Hettich, to whom T. Wiers claims the transfer requests were made, said
that Burelison was not among the employees who had made such a request. Burelison and
Bussey both clearly and confidently testified that they had never requested transfers, Tr. 266-
67, 315, and based on their demeanor and testimony, and the record as a whole, I credit that
testimony. 20 In the case of Reamer, while the record shows that months earlier he had
broached the subject of working at the South Bend location, it supports his testimony that he
never asked to transfer. Tr. 288. More specifically, the record shows that about 3 weeks after
starting work at the Elkhart facility in January or February 2007, Reamer asked Hettich "what
the possibility would be" of working at the South Bend facility. Hettich responded that it would
probably not be possible for Reamer to work at the South Bend facility because Reamer’s father
was a service advisor/writer at that location. Therefore, if Reamer worked at the South Bend
location his own father would be assigning work to him. Hettich told Reamer that it was "against
company policy to have family members working in the same department in the same facility."21

19 Respondent Great Lakes does not claim that employee performance had anything to do
with the decisions to transfer the alleged discriminatees, but T. Wiers implied that Burelison’s
skills were somehow lacking. Tr. 99. The Respondent’s own records for April 2007 – the last
full month before the transfer decisions were made – report that Burelison was the third most
productive of the eight service technicians at the Elkhart facility. General Counsel Exhibit (GC
Exh.) 15. Burelison testified that his efficiency rating placed him the top three of the eight
service technicians at the Elkhart facility. Burelison had been working as a service technician
continuously since 1979 and was actively recruited to work at the Elkhart facility. During
Burelison’s relatively brief period of employment at the Elkhart facility, Respondent Great Lakes
granted him a wage increase.
20 In addition, I note that Bussey was still working for Respondent Great Lakes at the time
he testified. While my credibility determination regarding Bussey is made independently of that
fact, I nevertheless note that crediting him is consistent with the Board’s view that the testimony
of a current employee that is adverse to his employer is “given at considerable risk of economic
reprisal, including loss of employment … and for this reason not likely to be false.” Shop-Rite
Supermarket, 231 NLRB 500, 505 fn. 22 (1977); see also Jewish Home for the Elderly of
Fairfield County, 343 NLRB 1069 fn2. (2004), enfd. 174 Fed. Appx. 631 (2d Cir. 2006), and
Flexsteel Industries, 316 NLRB 745 (1995), enfd. 83 F.3d 419 (5th Cir. 1996) (Table).
21 The Wiers IT handbook, which was distributed to some Elkhart employees shortly before
the transfers, includes a policy that disfavors permitting relatives to work in proximity to each
Continued
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Reamer credibly testified that during the approximately 3 months between the time of this
discussion and the time he was forced to transfer from the Elkhart facility to the South Bend
facility, he never again raised the subject with the Respondent. Reamer testified, further, that
he wanted to stay at the Elkhart facility, but that Hettich told him his only choices were to
transfer to the South Bend facility, or be laid off.
To support the claim that Bussey and Reamer requested transfers, Respondent Great
Lakes relies primarily on the testimony of Hettich. Hettich testified that Bussey, Reamer and a
third Elkhart service technician named Anthony Hood asked him if they could transfer after the
Union filed its petition to represent employees. According to Hettich, all three stated that they
wanted to transfer in order to avoid involvement with the Union. I find Hettich’s testimony on
this score less credible than the denials of Bussey and Reamer. First, it is facially implausible
that Bussey and Reamer, both of whom publicly supported bringing the Union to the Elkhart
facility, would seek to abandon that facility in order to avoid involvement with the Union.
Moreover, Hettich’s testimony on the subject vacillated. At first he testified that Bussey
requested a transfer to Kalamazoo, but then he qualified his testimony to state that all Bussey
"actually" did was "mention[ ] that there was an opportunity for him to go to work" for a
manufacturing company "that was located in Kalamazoo." Similarly, after first stating that
Reamer was seeking a transfer to South Bend to avoid involvement with the Union, Hettich later
gave other reasons – for example, that Reamer wanted to work with his father or felt he could
be mentored more professionally in South Bend.
While T. Wiers repeatedly claimed that he was merely "honoring" the transfer requests
purportedly made by the alleged discriminatees, Tr. 99-101, that characterization is hard to
square with the record evidence. First, as discussed above, the credible evidence did not show
that any of the three alleged discriminatees asked to transfer. Second, the three individuals
who supposedly requested transfers were Bussey, Reamer, and Hood – not Burelison. If T.
Wiers’ motivation was to satisfy employees’ transfer requests then I would expect him to
consider Hood before choosing to impose a transfer on Burelison -- a union supporter who
wanted to remain at the Elkhart facility. Third, T. Wiers’ claim that the Company was merely
honoring the requests of employees is undercut by the manner in which the transfers were
presented to the employees involved. On May 25, Hettich did not offer the alleged
discriminatees the opportunity to transfer, but told them they had to transfer if they wished to
continue working. Hettich told Reamer, "You’re going to South Bend or you can choose to be
laid off." Hettich told Burelison that he had "no choice but to be transferred to Plymouth." Tr.
267. Burelison expressed displeasure, pointed out that Morton had just been transferred from
Plymouth to Elkhart, and said that if he had to leave the Elkhart facility he would prefer to go to
the Kalamazoo facility. The Respondent did not allow Burelison to remain at the Elkhart facility
or move to the Kalamazoo location, but rather "honored" his non-existent transfer request by
sending him to the Plymouth facility.
Regarding seniority -- the record shows that Morton was the Elkhart service technician
who had the least seniority with Respondent Great Lakes and at the Elkhart facility. The
Plymouth location from which Morton had been moved earlier in May was not a Great Lakes
facility, but a Wiers IT facility, and according to the Respondent’s own arguments – which, as
discussed below, I accept – the Respondent was not involved with the Plymouth facility. Thus
there is no reason to assume that Morton’s seniority at the Wiers IT facility in Plymouth would
be applicable at the Great Lakes facility in Elkhart and Respondent Great Lakes has not shown
_________________________
other and that permits “an employee [to] be directly or indirectly supervised by a relative” “[o]nly
in extraordinary circumstances, with management approval.”
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that it was applicable there. Moreover, the transfer policy in the Wiers IT employee handbook,
which Respondent Great Lakes distributed to Elkhart employees prior to the transfers, does not
include seniority as one of the factors identified as influencing transfer decisions. 22
Even assuming that the evidence had shown that Burelison, Bussey, and Reamer would
be legitimate transferees in the event that there was not enough work for service technicians at
the Elkhart facility, I find that Respondent Great Lakes has failed to show that such a work
shortage existed. T. Wiers testified that there had not been enough work for the service
technicians at the Elkhart facility since at least March 2007. However, Burelison and Reamer
were both busy at the Elkhart facility prior to being transferred. The Respondent’s own records
show that Burelison usually worked over 200 hours per month there, including during the final
month before his transfer. The Respondent’s records also show that the monthly "sales dollars"
from the work of service technicians at the Elkhart facility had been trending upward. Sales
dollars increased substantially during every month from November 2006 ($44,743.12) to
February 2007 ($64,348.60), dropped in March 2007 ($36,333.54), but then rebounded in April
2007 to its second highest level during that period ($57,487.00).23 The total number of hours
worked by Elkhart service technicians also showed a general upward trend from 756.28 hours in
November 2006 to a high of 1481.00 hours in March 2007, and reached its second highest
level, 1298.20 hours, in April 2007. Perhaps more tellingly, the evidence showed that T. Wiers
transferred Morton – a service technician trusted by him – to the Elkhart facility in early May
2007. Respondent Great Lakes provides no explanation why, if there really was a shortage of
work for service technicians at the Elkhart facility, it transferred a service technician to that
facility shortly before transferring the three alleged discriminatees away. It is true that the
company’s productivity figures for service technicians showed a downward trend -- from 89
percent in November 2006 to 76 percent in April 2007. Nevertheless, the preponderance of
record evidence clearly fails to support Respondent Great Lakes’ contention that a work
shortage had created an urgent need to transfer service technicians from the Elkhart facility
during the run-up to the scheduled representation election.

22 The Wiers IT employee handbook, which was distributed to employees at the Elkhart
facility starting in April 2007, includes a transfer policy. That transfer policy states in its entirety:
At the time of hire, every effort is made to place the employee in a job where his/her
abilities are best utilized. The following reasons, however, are considered for
transferring regular employees between jobs or departments:
- To provide the employee with a better opportunity to utilize present skills, ability and
experience.
- To provide an opportunity for training so the employee may gain new skills and
experience.
- To enable the employee to continue his/her employment when there are changes
or reductions in department work schedules.
- To provide employment when physical limitations prevent the employee from
continuing in the same job.
Transfer of employees from one department to another or from one location to
another for the Company’s convenience may be made to meet Wiers requirements. A
request for transfer should be made in writing and submitted to the Human Resources
Department. A transfer may be made if management determines it is in the best interest
of the Company and/or associate.
23 April 2007 was the last month for which T. Wiers had figures when he decided to transfer
the alleged discriminatees.
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VI. Burelison at Plymouth
Burelison began working at the Plymouth facility on May 30, 2007, having been moved
there from the Elkhart facility. The Plymouth location was the headquarters of Wiers IT and the
service manager there was Matthew Cripe. Shortly after Burelison was transferred, Cripe
overheard Burelison and another employee discussing the Union during a break. When
Burelison returned to his work station, Cripe followed him and stated, "We won’t be having any
of the union conversations here." On June 12 – only 2 weeks after Burelison was transferred to
the Plymouth facility – Cripe terminated Burelison’s employment. Cripe completed paperwork
regarding Burelison’s termination in which he stated that the reason for the action was
unacceptable performance.
At trial, Cripe explained his decision to terminate Burelison as follows: "He had some
workmanship issues from when I was not at work. . . . And there were some issues when I was
there after he had left for the day. . . . So basically what we had was we had a non-documented
verbal warning, and then we had a couple of documented written warnings all at once." Cripes
states that the first incident took place on June 4 and the second on June 8, but he admits that
he did not document either of those incidents until he terminated Burelison on June 12.
Burelison testified that he was not responsible for the workmanship problems cited by
Cripe. He stated that all the tasks at issue had been performed by, or assigned to, another
service technician. The record showed that prior to the day of his termination, Burelison had
never been disciplined at either the Elkhart facility or the Plymouth facility. Cripe informed
Burelison about all of the purported performance issues at essentially the same time on June
12, and prepared the disciplinary paperwork all at once, but completed that paperwork so as to
give the impression that Burelison had been given a chance to improve. The write-up for the
first incident states, "Should Tim [Burelison] continue to have poor performance we will have no
choice but to terminate him," and the next write-up, prepared and issued at the same time,
states that Burelison was being terminated.
Analysis and Discussion
I. Single Employer and
Joint Employer Status
The complaint alleges that, during the relevant time period, Respondent Great Lakes
and Respondent Wiers IT were a single employer/single integrated business enterprise,
Complaint Paragraph 3(b), and also joint employers, Id. Paragraph 3(f), and that these related
Respondents were responsible for various unfair labor practices. However, as mentioned
above, at the start of the hearing, counsel for the General Counsel announced that Respondent
Wiers IT had settled with Region 25 and that the General Counsel "was only proceeding against
Great Lakes and whatever entity that constituted at the time in terms of the Elkhart facility." See
supra footnote 1. At the hearing, Wiers IT did not enter an appearance through an attorney or
other representative. Given that Wiers IT and the Board’s Regional Office had reached a
settlement prior to the hearing, and that the General Counsel explicitly stated it was proceeding
only against Respondent Great Lakes, it was appropriate for Wiers IT to understand that it was
not involved in the hearing, and I believe it could run afoul of due process concerns for me to
make any finding that imposes liability on Wiers IT for the unfair labor practices alleged in the
complaint. For this reason, I do not reach the question of whether Wiers IT was involved
individually, or as part of a single employer/single integrated business enterprise or a joint
employer, in any of the unfair labor practices alleged in the complaint.
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Moreover, it is not necessary for me to reach the question of whether the Elkhart facility
was being operated under a single employer or joint employer relationship in order to decide
whether the one remaining Respondent – Great Lakes – is liable for violations committed at the
Elkhart facility. Respondent Great Lakes concedes that it was the employer of the employees
working at the Elkhart facility during the relevant time period. Brief of Respondent at page 10.
The unlawful behavior that the complaint alleges took place at the Elkhart facility was that of T.
Wiers and Hettich -- persons who were acting as agents and supervisors of Respondent Great
Lakes. Therefore, a full remedy may be ordered against Respondent Great Lakes for any of the
alleged violations that occurred at the Elkhart location.
Respondent Great Lakes argues that it should not be held responsible for unfair labor
practices at the Elkhart facility because the alleged actions were taken by T. Wiers without the
actual knowledge of Respondent Great Lakes or the Great Lakes Board of Managers. About
the most I can say for this argument is that I am rather amazed by counsel’s ability to make it
with a straight face. Respondent Great Lakes had knowledge of the actions taken by T. Wiers
at the Great Lakes facilities (including the Elkhart location) because T. Wiers was the president
of Respondent Great Lakes, and its agent. See supra footnote 5. In his capacity as president
of Respondent Great Lakes, T. Wiers had the authority to, inter alia, hire, fire, and transfer
employees at the Elkhart facility – including the alleged discriminatees. Respondent Great
Lakes cites to no precedent under which a company can be held blameless for unfair labor
practices committed by its own president while making employment decisions that are within the
general scope of his or her authority. To the extent that it is necessary to determine whether the
Great Lakes Board of Managers had knowledge of T. Wiers’ actions, it is clear that at least part
of that Board did since T. Wiers was a member of the Great Lakes Board of Managers.
Moreover, T. Wiers made monthly reports to other members of the Great Lakes Board in which
he advised them that he was waging an antiunion campaign and set forth some of his plans in
that regard. The Great Lakes Board of Managers approved T. Wiers’ selection of a labor
attorney to assist in resisting the Union.
Similarly, the record shows that Hettich, when he allegedly committed unfair labor
practices at the Elkhart facility, was the district parts and service manager for Respondent Great
Lakes and was acting as its agent and supervisor. Managers at the Great Lakes locations,
including the Elkhart facility, all reported to Hettich, and Hettich had responsibility for the
profitability of those locations. Mullennix, for his part, had been brought in by Respondent Great
Lakes to work as an antiunion consultant and was attempting to identify the sources of
employee discontent so that he could convey that information to Great Lakes officials and help
them fight the Union. When Mullennix engaged in the allegedly unlawful conversations with
Elkhart employees, he was acting as an agent of the Respondent. See supra footnote 10.
A different situation is presented with respect to the unfair labor practices alleged to
have taken place at the Plymouth facility.24 That is one of the Wiers IT dealerships owned
solely by its president and chief executive officer, T. Wiers. As discussed above, Respondent
Great Lakes and its parent company had no ownership interest at all in the Wiers IT facilities.
Since Wiers IT has settled with the Board’s Regional Office, the allegations involving the
Plymouth facility are moot except to the extent that the remaining Respondent – Great Lakes –
may be held liable for them. Such liability could be imposed in this case if Respondent Great
Lakes and Wiers IT are either a single employer/single integrated business enterprise or joint

24 Those allegations concern Cripe’s conduct at the Plymouth facility in prohibiting Burelison
from discussing the Union while on break and in disciplining and terminating Burelison.
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employers at the Plymouth facility.25 Contrary to the contention of the General Counsel, I
conclude that it would not be appropriate to hold Respondent Great Lakes liable for violations at
the Plymouth facility under either theory.
The analysis applicable to questions of "single employer" status is described in NLRB v.
Browning-Ferris Industries, 691 F.2d 1117, 1122 (3d Cir. 1982):
A "single employer" relationship exists where two nominally separate entities are
actually part of a single integrated enterprise so that, for all purposes, there is in
fact only a "single employer." The question in the "single employer" situation,
then, is whether the two nominally independent enterprises, in reality, constitute,
only one integrated enterprise.
* * *
In answering questions of this type, the Board considers the four factors
approved by the Radio Union court. (380 U.S. at 256, 85 S.Ct. at 877): (1)
functional integration of operations; (2) centralized control of labor relations; (3)
common management; and (4) common ownership. Thus, the "single employer"
standard is relevant to the determination that "separate corporations are not what
they appear to be, that in truth they are but divisions or departments of a single
enterprise." NLRB v. Deena Artware, Inc., 361 U.S. 398, 402, 80 S.Ct. 441, 443,
4 L.Ed.2d 400 (1960). "Single employer" status ultimately depends on all the
circumstances of the case and is characterized as an absence of an "arm's
length relationship found among unintegrated companies." [Citations Omitted.]
As the Board has noted, none of the four factors is controlling as single employer status
ultimately depends on all the circumstances of the case. Richmond Convalescent Hospital,
313 NLRB 1247, 1249-50 (1994). "However, the Board has determined that the first three
factors are of particular importance, especially the centralized control of labor relations." Id.
Considering the record through the prism of these factors, I conclude that the General
Counsel has failed to show that Respondent Great Lakes and Wiers IT were so integrated as to
have lost their discrete business identities and become a "single employer" at the Plymouth
location.26 Regarding the first factor – "functional integration of operations" -- although T.
Wiers was making moves towards what he called "commonality" in certain respects, the record
shows that at the time in question a clear demarcation continued to exist between the
operations as concerned the Plymouth location. Respondent Great Lakes and Wiers IT did not
commingle money, personnel, or equipment at the Plymouth dealership to any significant
extent. See R. Sabee Co., 351 NLRB No. 100, slip op. at 1 fn.5 (2007) (reversing finding of
"single employer" status where there was common ownership but evidence regarding

25 Although the General Counsel also argues that Respondent Great Lakes is liable as a
successor, that argument is confined to allegations regarding conduct at the Elkhart location,
one of the Great Lakes facilities. The General Counsel does not argue that Respondent Great
Lakes is a successor employer at Wiers IT facilities, such as the Plymouth location, which it
neither owns nor operates.
26 This should not be interpreted as a determination that no such relationship existed at the
Great Lakes facilities -- Elkhart, Jackson, Kalamazoo, and South Bend. Somewhat different
facts exist at those facilities, and for the reasons discussed above, I reach no determination
regarding whether those facilities were operated as part of a single employer or a joint employer
relationship.
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commingling of assets was equivocal) and Richmond Convalescent Hospital, supra (no single
employer status where there was common management and ownership, but "no evidence of
employee interchange, commingling of funds, centralized administration, transfers of equipment
or any other financial integration"). Respondent Great Lakes and Wiers IT each had their own,
separate, bank accounts, out of which they paid they own employees. Paychecks and W-2
forms issued to Burelison at the Plymouth facility listed Wiers IT as the employer, without any
reference to Respondent Great Lakes. Although Great Lakes employees sometimes did work
for the benefit of Wiers IT, employees were not freely or informally exchanged between the two
entities. Rather, Wiers IT was billed, and required to reimburse Respondent Great Lakes, for
the hours of work that Great Lakes employees did for Wiers IT. Similarly, if Wiers IT employees
performed work for the benefit of Respondent Great Lakes, Great Lakes was required to
reimburse Wiers IT for the hours of the Wiers IT employees. The record did not demonstrate
significant transfers of equipment between the two entities. On one occasion, Wiers IT
purchased computers in bulk and some of the computers were placed at Great Lakes facilities.
However, that did not compromise the financial separation, or arms length relationship, between
the entities because Respondent Great Lakes was billed by Wiers IT for the cost of the
computers used at the Great Lakes facilities. I conclude that consideration of the first factor –
functional integration of operations – does not support a finding that Wiers IT and Respondent
Great Lakes were operating as a single employer at the Plymouth location.
Regarding the second and third factors -- common management and centralized control
of labor relations -- the strongest evidence in favor of such integration is the service of T. Wiers,
and his deputy, Hettich, as managers for both Respondent Great Lakes and Wiers IT. The
record indicates that, in practice, this was not the equivalent of the integration of those
functions. T. Wiers operated the Great Lakes facilities under the oversight of the Great Lakes
Board of Managers and at its pleasure, whereas he operated the three Wiers IT facilities as his
own enterprise without involvement by Respondent Great Lakes. Not only was T. Wiers
contractually required to apply the Great Lakes’ "business management and other policies" at
the Great Lakes facilities, but auditors from Respondent Great Lakes made visits to confirm that
that T. Wiers was doing so. Under the purchase agreement and bonus contract, Respondent
Great Lakes and/or International Dealcor retained the absolute right to remove T. Wiers from his
position as president of Great Lakes. At the Wiers IT facilities, on the other hand, T. Wiers was
the final authority on management policies and was under no obligation to follow Great Lakes
policies. Respondent Great Lakes had no right to audit the Wiers IT facilities, or to remove T.
Wiers from his positions with Wiers IT.
Similarly, in the operation of the Great Lakes facilities, T. Wiers was required to obtain
approval from the Great Lakes Board of Managers for expenditures over $10,000, to consult
with the Board of Managers regarding other significant business decisions, and to discuss the
finances of the Great Lakes facilities in monthly reports to Great Lakes and/or International
Dealcor officials. This is in sharp contrast to the way the Wiers IT facilities, such as the
Plymouth location, were operated. At those locations T. Wiers was free to make expenditures
of any amount and even the most significant of business decisions without notifying, much less
obtaining the approval of, the Great Lakes Board of Managers or International Dealcor.
The record provides numerous examples showing that labor policies at the Great Lakes
facilities and the Wiers IT facilities were not handled in a unitary fashion. At the time he took
over the Great Lakes facilities, T. Wiers did not conform the wages there to those in place at the
Wiers IT locations, but rather continued to pay the employees of the Great Lakes facilities the
wages established by Respondent Great Lakes. In addition, Employees at the Great Lakes
facilities remained in the Great Lakes health plan and workers’ compensation insurance, while
employees at the Wiers IT facilities were covered by Wiers IT health insurance and workers’
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compensation insurance. At the time that T. Wiers became president of Respondent Great
Lakes, the Great Lakes facilities continued to use Great Lakes’ own employee handbook, and
the Wiers IT facilities used a different, Wiers IT, handbook. It was not until over a year later,
after the Union filed its representation petition, that T. Wiers first began to distribute the Wiers IT
handbook to some employees at the Elkhart facility. T. Wiers’ testimony suggested that this
distribution was part of an effort to respond to employee complaints and questions regarding
training/certification reimbursement benefits. The circulation of the Wiers IT handbook at the
Elkhart facility did not mean that the Wiers IT policies all became applicable at the Elkhart
location or any of the other Great Lakes facilities. Indeed, T. Wiers testified, without
contradiction, that Wiers IT policies were not generally applied at the Great Lakes facilities, but
rather were adopted there only "to some degree" with respect to what were identified as "best
practices." The record does not show that employees at the Great Lakes facilities surrendered
their Great Lakes handbooks or were told that the existing Great Lakes policies had been
supplanted.
On balance, I conclude that the evidence concerning common management and
centralized labor relations does not support finding that Respondent Great Lakes and Wiers IT
were operating as a single employer at the Plymouth facility.
The fourth relevant factor is "common ownership." The record shows that the Wiers IT
facilities, such as the Plymouth dealership, were owned solely by T. Wiers. Respondent Great
Lakes and International Dealcor never had any ownership interest at all in those facilities. It is
true that under the agreement for the purchase of Respondent Great Lakes, T. Wiers acquired a
minority ownership interest in Respondent Great Lakes. T. Wiers’ ownership interest in the
Great Lakes facilities, in my view, goes more to the possibility of a "single employer" relationship
at the Great Lakes facilities where he and Respondent Great Lakes shared ownership, and not
so much to the existence of such a relationship at the Wiers IT facilities, such as Plymouth, of
which T. Wiers was the exclusive owner. In any case, T. Wiers’ minority interest in the Great
Lakes facilities was relatively small -- it was not shown to have ever exceeded 6 percent – and
is insufficient to establish meaningful common ownership at the Wiers IT facilities, such as the
Plymouth dealership, where Respondent Great Lakes had no ownership interest at all. I
conclude that consideration of the fourth factor also weighs against finding that Respondent
Great Lakes and Wiers IT were operating as a single employer at the Plymouth facility.
For the reasons discussed above, I find that the four factors articulated by the Board do
not support a finding that Respondent Great Lakes was responsible, as part of a "single
employer" with Wiers IT, for unfair labor practices that may have occurred at the Plymouth
facility. As Respondent Great Lakes argues, the evidence shows that the Plymouth dealership
was owned and operated solely by T. Wiers and his company, Wiers IT. T. Wiers attempted to
purchase Respondent Great Lakes, but failed. It would be unfair, as well as inconsistent with
consideration of the four factors discussed above, to hold Respondent Great Lakes responsible
for unfair labor practices that were committed at the separately owned and operated Wiers IT
facilities, simply because T. Wiers was, at the time, making an unsuccessful attempt to
purchase Respondent Great Lakes.
Much the same considerations also lead me to conclude that Respondent Great Lakes
and Wiers IT were not joint employers at the Plymouth facility. I note at the outset, that it is not
clear that the General Counsel is contending that they were. In its brief, the General Counsel
argues that Respondent Great Lakes and Wiers were joint employers at the Elkhart location and
other Great Lakes facilities, but does make any explicit attempt to extend that argument to
Wiers IT facilities such as the Plymouth dealership. Indeed, at the start of hearing, Counsel for
the General Counsel came close to conceding that Respondent was not a joint employer at the
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Plymouth facility, stating:
[O]ur position is [Respondent Great Lakes and Wiers IT] were clearly a joint
employer, a single-integrated enterprise relationship there at the Elkhart facility.
We’re really open to the idea that there may not have been such a relationship at
the Plymouth facility, which was owned by Wiers and solely run by Wiers to some
extent. . . . we were open to the idea that the Plymouth facility may be found to
be its own separate place that would not have joint liability as a joint employer
with Great Lakes.
Tr. 10 -11.
Assuming that the General Counsel means to suggest that Respondent Great Lakes
was a joint employer at the Plymouth location, I reject that contention. In determining whether a
joint employer relationship exists, "the Board analyzes whether putative joint employers share or
co-determine those matters governing essential terms and conditions of employment." Airborne
Express, 338 NLRB 597 fn.1 (2002). "The essential element in this analysis is whether the
putative joint employer’s control over employment matters is direct and immediate." Id. I
conclude that Respondent Great Lakes did not control matters governing the terms and
conditions of employment at the Plymouth facility. Those matters were within the sole discretion
of T. Wiers acting in his capacity as the owner, president, and CEO of Wiers IT, of which the
Plymouth dealership was part. The evidence does not show that in making decisions regarding
such matters, T. Wiers sought the approval or involvement of the Great Lakes Board of
Managers, considered the interests of Respondent Great Lakes, or acted in any capacity other
than as the president, CEO, and owner of Wiers IT. Moreover, the purchase and bonus
agreements that installed T. Wiers as president of Respondent Great Lakes limited the scope of
his responsibilities as Great Lakes’ president "100 percent" to the Great Lakes business.
I find that, as counsel for the General Counsel put it, "the Plymouth facility" was "its own
separate place" that was not a "joint employer with Great Lakes."27
II. Alleged Unfair Labor Practices
A. Section 8(a)(1)
1. Interrogations
The complaint alleges that Respondent Great Lakes violated Section 8(a)(1) when T.
Wiers and Hettich interrogated employees about union activities and membership. The
evidence showed that in April and May 2007, during the pendency of the representation petition,
T. Wiers and Hettich had numerous one-on-one meetings with employees about union matters.
Both officials asked how employees thought the union election would turn out, and what
employees thought the Union could do for them. During a number of these meetings, Hettich
took his questioning further. He asked Burelison to reveal who was "in favor" of the Union and

27 Given my finding that Respondent Great Lakes would not be liable for any violations at
Wiers IT’s Plymouth dealership under a “single employer” or a “joint employer” theory, and since
the General Counsel was not proceeding against Wiers IT, it is not necessary for me determine
whether the violations alleged to have occurred at the Plymouth dealership were established.
Those allegations were that Cripe – the Plymouth service manager – violated Section 8(a)(1) of
the Act by prohibiting union discussions at the Plymouth facility and violated Section 8(a)(1) and
(3) by discriminatorily disciplining and terminating Burelison.
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"who wasn’t." Hettich also asked Reamer whether he was attending union meetings and
whether he knew anyone else who was attending. Subsequently, Hettich told Reamer that he
had heard a "vicious rumor" that Reamer was "for the Union," and then asked, "Are you for the
Union or for the Company?" When Reamer indicated that he supported the Union, Hettich said
that if the Union came in "It can only get worse."
An interrogation is unlawful if, in light of the totality of the circumstances, it reasonably
tends to interfere with, restrain, or coerce employees in the exercise of their Section 7 rights.
Matthews Readymix, Inc., 324 NLRB 1005, 1007 (1997), enfd. in part 165 F.3d 74 (D.C. Cir.
1999); Emery Worldwide, 309 NLRB 185, 186 (1992); Liquitane Corp., 298 NLRB 292, 292-93
(1990). Relevant factors include, whether the interrogated employee was an open or active
union supporter, whether proper assurances were given concerning the questioning, the
background and timing of the interrogation, the nature of the information sought, the identity of
the questioner, and the place and method of the interrogation. Stoody Co., 320 NLRB 18, 18-19
(1995); Rossmore House Hotel, 269 NLRB 1176, 1177-78 (1984), enfd. 760 F.2d 1006 (9th Cir.
1985). The Board has viewed the fact that an interrogator is a high-level supervisor as one
factor supporting a conclusion that questioning was coercive. See, e.g., Stoody, supra.
Based on the factors articulated by the Board, I conclude that both T. Wiers and Hettich
unlawfully interrogated employees. Both were high level managers who oversaw multiple
facilities, not just the Elkhart facility. T. Wiers was the president of the entire Great Lakes
enterprise, not to mention its prospective owner. In his capacity as president he had authority
to hire and fire employees at all of the Great Lakes facilities. Hettich, too, had authority to hire
and fire employees at all the Great Lakes facilities and it was to him that the onsite managers at
those facilities reported. These officials initiated one-on-one interviews with regular employees
in order to question them about union matters. Neither T. Wiers nor Hettich claimed that they
assured the interviewees that they could answer without fear of reprisals and the witnesses’
accounts of the interrogations make no mention any of any such assurances being given.
The record shows that T. Wiers and Hettich questioned not only open supporters of the
Union, but nearly all of the Elkhart employees who would be voting in the upcoming election.
Moreover, although Burelison and Reamer were open union supporters, the evidence showed
that Hettich interrogated them about the Union activities and sentiments of other employees.
Gardner Engineering, 313 NLRB 755 (1994), enfd. in relevant part 115 F.3d 636 (9th Cir. 1997)
(interrogation unlawful because, inter alia, official asked employee how he thought other
employees would vote in upcoming election); Cumberland Farms, 307 NLRB 1479 (1992), enfd.
984 F.2d 556 (1st Cir. 1993) (interrogation of open union supporters unlawful where
interviewers asked about the union activities/sentiments of other employees). In several
instances, the officials interrogated employees about the Union immediately after T. Wiers held
one of the mandatory group meetings at which he expressed his vehement opposition to unions
and linked unionization to closure of the Elkhart facility. During the interrogation of Reamer,
Hettich created a particularly hostile tone. He characterized information that Reamer supported
the Union as a "vicious rumor" and demanded to know whether Reamer was "for the Union or
for the Company." Thus Hettich made clear that he viewed support for the Union as an act of
disloyalty. When Reamer nevertheless stated that he supported the Union, Hettich responded
by warning that if employees brought in the Union, things would not get better or stay the same,
but "can only get worse." See Hoffman Fuel Co., 309 NLRB 327 (1992) (interrogation unlawful
where it took place in context of hostile conversation and was coupled with veiled threat).
In addition, I conclude that T. Wiers and Hettich violated the Act by asking employees
how they thought the Union election would turn out and what good they thought the Union could
do for them. The Board has found such questioning to be coercive and violative of the Act. See
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Brooks Brothers, 261 NLRB 876, 884 (1982), enfd. 714 F.2d 111 (2d Cir. 1982) (Table)
(violation where employer asked employee "how he thought the election would turn out") and
Brookwood Furniture, 258 NLRB 208, 214 (1981), enfd. 701 F.2d 452 (5th Cir. 1983) (violation
where employer asked employee "how he thought the election would turn out" and "what good"
he thought union would do). Respondent Great Lakes cites to no authority indicating that the
prior precedent on this subject is not controlling here. Moreover, the conclusion that these
questions were part of a coercive interrogation is buttressed by the other factors discussed
above, including the identities of the questioners, the absence of proper assurances, and the
hostile circumstances attending the interrogations.
I conclude that in April and May 2007, Respondent Great Lakes violated Section 8(a)(1)
by coercively interrogating employees about their union sympathies and activities, and the union
sympathies and activities of others.
2. Solicitation of Grievances
The complaint alleges that on about April 25, 2007, T. Wiers and Mullennix solicited
employee complaints and grievances and promised employees increased benefits and
improved terms and conditions of employment in an effort to discourage employee support for
the Union.28 An employer violates Section 8(a)(1) when it solicits, and promises to remedy,
employee grievances as part of an effort to discourage union activity. MEMC Electronic
Materials, Inc., 342 NLRB 1172, 1173 fn. 5 (2004); Hospital Shared Services, 330 NLRB 317
(1999); Reliance Electric Co., 191 NLRB 44, 46 (1971), enfd. 457 F.2d 503 (6th Cir. 1972). The
promise to remedy grievances need not be explicit to constitute a violation. "There is a
compelling inference that [the employer] is implicitly promising to correct those inequities he
discovers as a result of his inquiries and likewise urging on his employees that the combined
program of inquiry and correction will make union representation unnecessary." Embassy
Suites Resort, 309 NLRB 1313, 1316 (1992), enf. denied on other grounds 32 F.3d 588 (D.C.
Cir. 1994), quoting Reliance Electric, 191 NLRB at 46.; see also Evergreen America Corp., 348
NLRB No. 12, slip op. at 38 (2006), enfd. __ F.3d__, 2008 WL 2523033 (4th Cir. 2008). This is
particularly true when the solicitation of grievances is not a pre-existing practice. Evergreen
America, supra; Reliance, supra.
After receiving the Union petition, Respondent Great Lakes retained Mullennix as a
consultant for the antiunion campaign. Hettich required every employee at the Elkhart facility to
meet with Mullennix in hopes that Mullennix would find out what the employees’ complaints
were and the Respondent could address those complaints. It is plain that this was a special
effort to solicit complaints, not the Respondent’s pre-existing practice. Indeed, Hettich
conceded that the effort was motivated by the union campaign.
I conclude that in April or May 2007 the Respondent, through Mullennix, violated Section
8(a)(1) by soliciting, and impliedly promising to remedy grievances, in order to discourage
employee support for the Union.

28 The complaint originally alleged such activity only by T. Wiers. At trial, I granted the
General Counsel’s motion to amend the complaint to allege that Mullennix also participated in
this activity. Tr. 195 and 207-08. During some portion of Hettich’s testimony, he mistakenly
used the name Ted Mullet when meaning to refer to Mullennix. All of the substantive testimony
regarding conduct by Mullet actually refers to conduct by Mullennix.
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As discussed earlier, I conclude that T. Wiers and Hettich asked employees what they
thought the Union could "do" for them as part of coercive interrogations that violated Section
8(a)(1). The General Counsel also alleges that by asking employees this question T. Wiers and
Hettich were soliciting grievances in violation of Section 8(a)(1). After considering the record as
a whole, I conclude that T. Wiers and Hettich did not pose this question to solicit grievances, but
rather as part of the employer’s argument that the Union could not do anything positive for
employees. This was a point that T. Wiers made repeatedly during his speeches at the
mandatory group meetings. He stated that the only reason to support a union was the hope that
the union would "get you something," but that this was "like buying a raffle ticket, the chances of
winning are minimal." He stated that, if the Union prevailed in the election, employees should
not "expect" improvements in wage benefits, pension benefits, or healthcare benefits.
I conclude that T. Wiers and Hettich did not unlawfully solicit grievances by asking
employees what they thought the Union could do for them.
3. Threats
The complaint alleges that on about April 25, 2007, T. Wiers violated Section 8(a)(1) by
threatening employees at the Elkhart facility with plant closure if the employees selected the
Union as their collective bargaining representative. The record evidence establishes that at the
mandatory group meetings in April and May 2007, T. Wiers stated, inter alia: that the Elkhart
facility was not profitable, that bargaining with the Union would increase costs, that all costs
would further reduce the profitability and viability of the Elkhart facility, that no facility that was
unprofitable would remain in business, and that the company had the right to determine whether
the Elkhart facility was viable. He stated that the Union would not make the Elkhart facility
profitable, and that it was up to "us . . . collectively management and employees" to make the
facility profitable. Respondent Great Lakes denied the alleged threat in its answer to the
complaint, but in its post-hearing brief makes no argument that T. Wiers’ statements did not
constitute an unlawful threat.
Pursuant to the Supreme Court's decision in NLRB v. Gissel Packing Co., the question is
whether T. Wiers’ statements constituted an unlawful threat of retaliation in response to
protected activity, or a lawful, fact-based prediction of economic consequences beyond the
employer's control. 395 U.S. 575, 618-19 (1969). In Gissel, the Supreme Court stated that
when an employer predicts dire economic effects stemming from union organization, such a
prediction is lawful only if it is affirmatively supported "on the basis of objective fact to convey
the employer’s belief as to demonstrably probable consequences beyond his control." Id. at
618. "’Conveyance of the employer’s belief, even though sincere, that unionization will or may
result in the closing of the plant is not a statement of fact unless, which is most improbable, the
eventuality of closing is capable of proof.’" Id. at 618-619, quoting NLRB v. Sinclair Co., 397
F.2d 157, 160 (1st Cir. 1968).
In the instant case, T. Wiers presented employees with no objective facts to support his
assertion that the Elkhart facility was unprofitable or his prediction that having a union at the
Elkhart facility would reduce the "profitability and viability" of that facility. Such unsupported
assertions support finding an unlawful threat. See Massachusetts Coastal Seafoods, 293 NLRB
496, 510 and 512 (1989) (statement by company official is an unlawful threat, not a lawful
prediction, when the official gave no facts or figures to support prediction of economic effects of
unionization). Moreover, T. Wiers did not present objective facts regarding the likely extent of
costs associated with unionization, compare those costs to the size of the Elkhart operation’s
budget, or otherwise show an objective basis for the prediction that such costs would be
substantial enough to negatively affect the viability of the operation. If anything, T. Wiers
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exaggerated the costs likely to be associated with having a union at the Elkhart facility by
including the $20,000 that the Company had spent on legal fees -- giving the impression that
these were costs associated with having a union whereas, in fact, they were non-recurring costs
that the Respondent voluntarily incurred to orchestrate its antiunion campaign. Nor did T. Wiers
identify any objective facts to support his assertion that all expenditures reduce a company’s
profits and viability. In fact, businesses often make expenditures for improvements – on
equipment, processes, materials, and personnel to give just some examples -- that are more
than offset by the resulting increases in revenues. T. Wiers cited no factual support for his
prediction that the costs associated with collective bargaining at the Elkhart facility would not
also be offset by resulting improvements – for example, in workforce stability, skill, experience,
morale, and productivity. I conclude that Respondent Great Lakes has not shown that T. Wiers’
prediction that the Elkhart facility would be rendered unviable by unionization was affirmatively
supported "on the basis of objective fact to convey the employer’s belief as to demonstrably
probable consequences beyond his control." Those statements were not a lawful, fact-based
prediction, but an unlawful threat of retaliation.
I recognize that the threat made by T. Wiers was veiled, but it was too thinly veiled to
escape a finding of violation under the Act. As the Supreme Court noted in Gissel, the inquiry
into whether an employer’s statement about plant closure is an unlawful threat "must take into
account the economic dependence of the employees on their employer, and the necessary
tendency of the former, because of that relationship, to pick up intended implications of the latter
that might be more readily dismissed by a more disinterested ear." 395 U.S. at 617. Thus the
Board has found that statements similar to those made by T. Wiers were unlawful threats even if
employees had to "pick up intended implications" in order to perceive the threat. In Superior
Coal Co., the Board held that the president of a coal company unlawfully threatened plant
closure when he told employees that the coal business was competitive, that anything that
drove the company’s costs up would put the company in a noncompetitive position, and that if
"we could not sell coal at a profit, we would not sell coal." 295 NLRB 439, 439 n.2 and 460-61
(1989). Similarly, in Dominion Engineered Textiles, the Board held that an employer made an
objectionable threat when it stated that the creation of a collective bargaining obligation would
consume time and energies that could be devoted to solving the company’s problems and
would be "devastating" to the company. 314 NLRB 571 (1994). In McDonald Land & Leasing,
the Board found that the vice-president of a company unlawfully threatened employees by
making statements implying that the company was financially on the ropes, that if the union won
the election the company would be unable to meet the union’s demands, and that disaster
would result. 301 NLRB 463, 466 (1991). T. Wiers could easily have made his views known to
employees without adding veiled threats of facility closure, but decided, as in the cases cited
above, to engage in the type of "brinksmanship" that the Supreme Court has observed often
leads employers to "’overstep and tumble (over) the brink." Gissel, 395 U.S. at 620, quoting
Wausau Steel Corp. v. NLRB, 377 F.2d 369, 372 (7th Cir. 1967).
For the reasons discussed above, I find that during the pendency of the representation
petition, Respondent Great Lakes, by T. Wiers, violated Section 8(a)(1) by threatening that it
would close the Elkhart facility if employees selected the Union as their collective bargaining
representative. 29

29 The complaint also alleges that in about late April or early May 2007, T. Wiers threatened
employees with plant closure if the employees and the Union continued their organizing efforts.
The Brief of the General Counsel does not explain what facts are relied on for this allegation or
how it differs from the other allegation of an unlawful threat of plant closure by T. Wiers. To the
extent that it is based on statements that T. Wiers allegedly made to Reamer during a one-on-
Continued
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The complaint also alleges that in about late April or early May 2007, Hettich violated
Section 8(a)(1) by threatening employees at the Elkhart facility with lower wages and benefits if
employees selected the Union as their collective bargaining representative. The record shows
that, during a conversation in late May 2007, Hettich told Reamer that he had "heard a vicious
rumor" that Reamer was "for the Union." Hettich then asked Reamer whether he was "for the
Union or for the Company?" When Reamer responded that he supported the Union, Reamer
said: "[O]nly . . . three things can happen with the Union coming in here. One it can get better;
two it can stay the same; or three, it can get worse. It’s not going to get better and it’s not going
to stay the same. It can only get worse." An employer violates the Act when it makes a
prediction to employees that they would necessarily lose benefits if they select a union when
there is "no lawful explanation based on objective facts as to why such a loss of benefits would
occur." Poly-America, Inc., 328 NLRB 667, 669 (1999), enfd. in relevant part 260 F.3d 465 (5th
Cir. 2001); see also Dico Tire, Inc., 330 NLRB 1252, 1257 (2000) (employer threatens an
employee in violation of the Act when it predicts that employees will lose benefits in negotiations
if they select a union). The Respondent here has shown no objective basis for Hettich’s
prediction that things would "only get worse" as a result of collective bargaining, and therefore
his statement constitutes a coercive threat, not a lawful prediction. Hettich’s statement was
particularly threatening when one considers that Hettich made it in response to Reamer’s
declaration of support for the Union and in the context of Hettich’s coercive interrogation of
Reamer.
I conclude that Respondent Great Lakes, by Hettich, violated Section 8(a)(1) in late May
2007 by threatening employees with worsened terms and conditions of employment if
employees selected the Union as their collective bargaining representative.
4. Promise of Training and Certification Reimbursement
The complaint alleges that on or about May 3, 2007, T. Wiers violated Section 8(a)(1)
by promising to reinstitute training and certification reimbursement benefits in order to
discourage employee support for the Union. The evidence showed that, during the months
immediately preceding the filing of the Union’s petition, Respondent Great Lakes had not been
reimbursing employees at the Elkhart facility for obtaining ASE training and CDL certification.
Indeed, during the early part of 2007, the service manager at the Elkhart facility had on more
than one occasion told employees that such a benefit was not available. The failure of
Respondent Great Lakes to provide this benefit was an issue of concern to employees and they
brought it up to Mullennix when he unlawfully solicited their grievances and to T. Wiers during
one of the mandatory group meetings regarding the Union. Then, while campaigning against the
Union, T. Wiers announced that Elkhart employees would be reimbursed for ASE training and
CDL certification.
In NLRB v. Exchange Parts Co., the Supreme Court stated that an employer violates the
Act by granting benefits "while a representation election is pending, for the purpose of inducing
employees to vote against the union." 375 U.S. 405, 409 (1964). The Court explained that
Section 8(a)(1) "prohibits not only intrusive threats and promises but also conduct immediately
favorable to employees which is undertaken with the express purpose of impinging upon their
_________________________
one conversation, for the reasons discussed above, I found that the record did not establish by
a preponderance of the evidence that T. Wiers made those statements. Therefore, I
recommend that this allegation, to the extent that it is independent of the other allegation
regarding threats of plant closure, be dismissed.
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freedom of choice for or against unionization and is reasonably calculated to have that effect."
Id.; see also Village Thrift Store, 272 NLRB 572 (1983). The "employer's legal duty in deciding
whether to grant benefits while a representation proceeding is pending is to decide the question
precisely as it would if the union were not on the scene." United Airlines Services, Corp., 290
NLRB 954 (1988). To determine whether an employer has met, or failed to meet, this legal
duty, the Board considers whether all the evidence, including the employer's explanation for the
timing of the increase, supports "an inference of improper motivation and interference with
employee free choice." Holly Farms Corp.¸311 NLRB 273, 274 (1993), enfd. 48 F.3d 1360 (4th
Cir. 1995), affd. 517 U.S. 392 (1996). Among the factors that may be considered to determine
whether a pre-election grant of benefit is unlawfully motivated are: the size of the benefit
conferred in relation to the stated purpose for granting it; the number of employees receiving it;
how employees reasonably would view the purpose of the benefit; the timing of the benefit,
Perdue Farms, 323 NLRB 345, 352 (1997), enfd. in relevant part 44 F.3d 830 (D.C. Cir. 1998);
the employer's explanation for the timing of the benefit; prior statements by the employer
indicating that the benefit would not be granted, Lampi, L.L.C., 322 NLRB 502, 503 and 506
(1996), Holly Farms Corp., 311 NLRB at 274; whether the grant of the benefit was consistent
with the employer's prior practice, Lampi, L.L.C., 322 NLRB at 502, Marine World USA, 236
NLRB 89, 90 (1978); and the employer's knowledge that the benefit involved was an important
issue in the union organizing effort, Huck Store Fixture Co., 334 NLRB 119, 123 (2001), enfd.
327 F.3d 528 (7th Cir. 2003).
I conclude that the evidence regarding T. Wiers’ decision to announce that Elkhart
employees would be reimbursed for training and certification supports "an inference of improper
motivation and interference with employee free choice." The service manager at the Elkhart
had, on more than one occasion, told employees that the Respondent would not provide this
benefit to them. The record reveals no reason, other than the advent of the union campaign, for
the Respondent’s change of heart on the subject. Moreover, the Respondent provides no
explanation for its decision to time the announcement shortly before the representation election,
rather than waiting until after the vote was held.30 The record shows that the Respondent knew,
based on employee complaints to Mullennix and T. Wiers, that the failure to provide this benefit
had emerged as a significant issue and source of discontent among employees. The benefit
applied to all employees eligible to vote in the upcoming election, and such employees would
reasonably view the announcement regarding the benefit as an effort by Respondent Great
Lakes to show it was not necessary to elect a Union in order to obtain improvements in their
terms and conditions of employment.
I conclude that Respondent Great Lakes violated Section 8(a)(1) when, during the
pendency of the representation petition, it attempted to discourage employees at the Elkhart
facility from supporting the Union by announcing that the Respondent would provide training
and certification benefits that had previously been denied.

30 Even when a benefit has been in the works and its approval shortly before an election is
not itself unlawful, a violation has been found where the Respondent failed to establish a
legitimate reason for timing the announcement before the election, rather than waiting to make
the announcement afterwards. American Red Cross, 324 NLRB 166, 166 fn.2 and 170-171
(1997).
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B. Section 8(a)(3) and 8(a)(4)
1. Reinstitution of Previously Denied
Training and Certification Reimbursement Benefit
The complaint alleges that, on or about May 3, 2007, Respondent Great Lakes violated
Section 8(a)(1) and (3) of the Act by reinstituting training and certification benefits in order to
discourage union support. As found above, during one of the mandatory group meetings, T.
Wiers announced to employees that training and certification benefits, which employees at the
Elkhart facility had previously been denied, would be provided to them. About a week later,
Hettich began to distribute guides and training materials that were associated with this benefit.
As discussed above, I found that, under the standards set forth by the Supreme Court in
Exchange Parts supra, Respondent Great Lakes violated Section 8(a)(1) by announcing these
benefits for the purpose of inducing employees to vote against the Union. The same Exchange
Parts standard applies to allegations that an employer unlawfully implemented the benefit in
violation of Section 8(a)(1) and (3). In Home Health, Inc., 334 NLRB 281, 284 (2001); Perdue
Farms, 323 NLRB at 352-53. Therefore, for the same reasons that I found the announcement
of the training/certification reimbursement benefits violated Section 8(a)(1), I find that by
beginning to provide those previously denied benefits Respondent Great Lakes violated Section
8(a)(3).
I conclude that Respondent Great Lakes violated Section 8(a)(1) and (3) when, during
the pendency of the representation petition, T. Wiers began to provide employees with
previously denied training and certification benefits in order to discourage employee support for
the Union.
2. Transfers
The complaint alleges that the transfers of Burelison, Bussey and Reamer violated
Section 8(a)(1) and (3) because the transfers were based on those employees joining and
assisting the Union. With respect to Burelison and Bussey, the complaint further alleges that
the transfers violated Section 8(a)(1) and (4) because the transfers were based on those
employees testifying at a pre-election hearing held by the Board. The Respondent counters that
the transfers were lawfully motivated by a lack of work for service technicians at the Elkhart
facility and that Burelison, Bussey, and Reamer were the ones selected because they had
previously sought transfers and were the three least senior service technicians at the Elkhart
facility.
In Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied, 455 U.S. 989 (1982), approved in NLRB v. Transportation Corp., 462 U.S. 393 (1983),
the Board set forth the standards for determining whether an employer has discriminated
against an employee on the basis of union or other protected activity in violation of Section
8(a)(1) and (3). Under the Wright Line standards, the General Counsel bears the initial burden
of showing that the Respondent’s actions were motivated, at least in part, by anti-union
considerations. The General Counsel may meet this burden by showing that: (1) the employee
engaged in union or other protected activity, (2) the employer knew of such activities, and (3)
the employer harbored animosity towards the Union or union activity. Senior Citizens
Coordinating Council, 330 NLRB 1100, 1105 (2000); Regal Recycling, Inc., 329 NLRB 355, 356
(1999). If the General Counsel establishes discriminatory motive, the burden shifts to the
employer to demonstrate that it would have taken the same action absent the protected
conduct. Senior Citizens, 330 NLRB at 1105.
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Similarly, to establish a violation of 8(a)(1) and (4) the General Counsel must prove, by a
preponderance of the evidence, that the Respondent's action was motivated, at least in part, by
the employees' filing of charges or testifying. Wayne W. Sell Corp., 281 NLRB 529 (1986).
Section 8(a)(4) violations turn on motivation and are analyzed using the Wright Line framework.
Newcor Bay City Division, 351 NLRB No. 54, slip op. at 1 fn. 4 (2007); McKesson Drug Co., 337
NLRB 935, 936 (2002).
Under the standards set forth above, I conclude that the General Counsel has met its
initial burden under Section 8(a)(1), (3) and (4) with respect to Burelison and Bussey, and under
Section 8(a)(1) and (3) with respect to Reamer. Burelison and Bussey testified as Union
witnesses at the pre-election hearing held on April 20, 2007. This activity constituted both
assistance to a labor organization and testimony under the Act, and therefore discrimination
based on it would violate both Section 8(a)(3) and Section 8(a)(4) of the Act. In addition, prior to
their transfers, the alleged discriminatees engaged in a range of other activities which, under
Section 8(a)(3), are unlawful bases for employment action. Burelison, Bussey and Reamer all
signed union authorization cards, attended union meetings, and expressed support for the
Union to other employees. Bussey and Reamer placed pro-union stickers on their toolboxes
where those stickers were visible to others in the Elkhart facility’s shop area. Reamer also
placed a pro-union bumper sticker on the vehicle that he used to drive to work and which he
parked in the Elkhart facility’s parking lot. While being interrogated by officials of the
Respondent, all three alleged discriminatees either explicitly stated, or implied, that they
supported the Union. When Hettich asked Reamer if he was "for the Union or for the
Company," Reamer responded "I’m for the Union at this time." During an interrogation by T.
Wiers, Bussey opined that the Union could benefit him by providing better benefits. Burelison
answered questions posed by T. Wiers and Hettich by stating that employees wanted a union
because of issues relating to insurance, pension, and quality of work life.
It is clear that Respondent Great Lakes was aware that the alleged discriminatees had
engaged in protected activities at the time it transferred them from the Elkhart facility. Hettich
was present at the pre-election hearing when Burelison and Bussey testified on behalf of the
Union. Shortly afterwards, Hettich approached Burelison to express his displeasure, stating that
he was "surprised" to see Burelison at the hearing. Burelison, Bussey and Reamer made pro-
union statements directly to T. Wiers and Hettich during interrogations. Indeed, neither T. Wiers
nor Hettich denied knowing that all three alleged discriminatees supported bringing the Union to
the Elkhart facility.
The record also shows that Respondent Great Lakes harbored animosity towards the
Union and union activity. This is established by the Respondent’s use of unlawful
interrogations, threats, solicitations of grievances, and promises of benefits, in its effort to defeat
the Union. Anti-union animus is also demonstrated by various statements that T. Wiers made to
employees during the mandatory group meetings -- for example, his statement that "[a]ny
Union" is "a thorn in our side." A finding of employer animosity to employees’ participation in the
Board’s processes is also supported by Hettich’s comment to Burelison about his appearance
as a witness.
Based on this record, I conclude that the antiunion animus was connected to the
Respondent’s decision to transfer Burelison, Bussey and Reamer. I note in particular, the
timing of the transfers. T. Wiers transferred the three union supporters only three weeks before
the scheduled elections and just a few days after both the rejection of the Respondent’s effort to
alter the unit definition and Reamer’s declaration of support for the Union. Such timing is an
important factor in assessing discriminatory motivation and in this case shows a link between
the transfers and the employer’s effort to defeat the Union. See LB&B Associates, Inc., 346
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NLRB 1025, 1026 (2005), enfd. 232 Fed. Appx. 270 (4th Cir. 2007); Desert Toyota, 346 NLRB
118, 120 (2005); Detroit Paneling Systems, 330 NLRB 1170 (2000), enfd. sub nom. Carolina
Holdings, Inc. v. NLRB, 5 Fed. Appx. 236 (4th Cir. 2001). Even Respondent Great Lakes’ own
labor attorney advised T. Wiers against transferring the three union supporters while the
representation election was approaching. Given the small number of eligible voters – only eight
as of May 13, 2007 -- T. Wiers certainly knew that eliminating three union supporters from the
pool of eligible voters would significantly improve the Respondent’s chances of defeating the
Union in the upcoming vote. Thus, he decided to go ahead with the transfers against the
advice of counsel and despite the blatancy of the discrimination. I find that the General Counsel
has met the initial burden set forth in Wright Line for purposes of both Section 8(a)(3) and
8(a)(4).
Since the General Counsel has met its initial burden, the burden shifts to Respondent
Great Lakes to prove that it would have transferred Burelison, Bussey, and Reamer even in the
absence of the unlawful motives. Respondent Great Lakes contends that T. Wiers "decided,
based upon the amount of work available, that he had to transfer or layoff three Technicians"
and that the lack of work had warranted such an action since at least April 2007. Brief of
Respondent Great Lakes at 6. The Respondent further contends, that T. Wiers lawfully
selected Burelison, Bussey, and Reamer for the transfers because: (1) they had the least
seniority with Respondent Great Lakes of any of the service technicians at the Elkhart facility;
and (2) Bussey and Reamer had requested transfers in the past.
After considering the record evidence, I conclude that the explanations that Respondent
Great Lakes offers for transferring the three union supporters are pretexts for unlawful
discrimination. As discussed above, the Respondent has not established that the Elkhart facility
was lacking work for the service technicians. Indeed, its own figures for the Elkhart facility show
a generally upward trend both in sales dollars for the work of service technicians and the total
number of hours worked by service technicians there. Any lingering doubt concerning this issue
is dispelled by consideration of the fact that Respondent Great Lakes decided to transfer Morton
– a service technician who had been with T. Wiers since 1994 – to the Elkhart facility just a few
weeks before it transferred the three union supporters away from the Elkhart facility. If, since
April, the Respondent lacked sufficient work for Elkhart service technicians then why did it
transfer a service technician to that facility at the beginning of May? Respondent Great Lakes
provides no explanation. Given the rapidly approaching representation election, and in light of
the small number of employees who would be voting, the Respondent’s decision to transfer a
trusted employee of T. Wiers to the Elkhart facility at virtually the same time that it transferred
three union supporters away from that facility leads me to conclude that the transfers were not
the result of a shortage of work at the Elkhart facility, but rather the product of an effort to
manipulate the pool of eligible voters to engineer a "no" vote.
Even assuming that there was a shortage of work at the Elkhart dealership, I conclude
that the Respondent has not succeeded in showing that Burelison, Bussey and Reamer would
have been the ones selected for transfer had it not been for their union support and other
protected activity. As discussed in the factual findings above, the evidence does not support the
Respondent’s contention that any of the three alleged discriminatees requested transfers from
the Elkhart facility and certainly does not show that T. Wiers and Hettich were motivated by the
belief that any of the three would welcome the transfers. Indeed, the record shows that all three
were transferred against their wishes and, in Reamer’s case, in contravention of the policy,
previously stated by Hettich, against allowing members of the same family to work together.
I also conclude that Respondent Great Lakes has failed to substantiate its contention
that Burelison, Bussey and Reamer were selected for transfer because they had the least
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seniority among the Elkhart service technicians. First, as discussed above, the Respondent has
not established that the alleged discriminatees, in fact, had the least seniority. That is a
distinction the record indicates belonged to Morton, who had begun working for Respondent
Great Lakes after Burelison, Bussey and Reamer. Moreover, Respondent Great Lakes did not
introduce evidence showing that it had ever before used seniority as a factor in transfer
decisions or that there was a policy or practice of doing so.31 Indeed, the Wiers IT employee
handbook that the employer distributed to Elkhart employees in April 2007 includes a policy on
transfers, and while that policy sets forth a number of factors that influence transfer decisions, it
does not include seniority as one of those factors. See footnote 22, supra. Assuming that
seniority was a factor that Respondent Great Lakes considered when deciding whether to honor
an employee’s transfer request, one would expect it to first accommodate employees who had
worked with the company the longest rather than skipping over such loyal employees to reward
the most recently hired ones.
For the reasons discussed above, I conclude that in May 2007 the Respondent Great
Lakes discriminatorily transferred Burelison and Bussey from the Elkhart facility because of their
union and other protected activities and their participation in the Board’s processes, and for the
purpose of discouraging such activities, in violation of Section 8(a)(1), (3) and (4) of the Act.
In addition, I find that in May 2007 the Respondent Great Lakes discriminatorily transferred
Reamer from the Elkhart facility because of his union and other protected activities, and for the
purpose of discouraging such activities, in violation of Section 8(a)(1) and (3) of the Act. 32
III. Challenged Ballots
The Employer challenged the ballots cast by Burelison, Bussey, and Reamer on the
grounds that those individuals were not employed in the bargaining unit on the date of the June
19, 2007, representation election. It is undisputed that all three were eligible to vote prior to
being transferred in late May 2007. As found above, those transfers were unlawfully based on
the employees’ union and other protected activities, and their participation in board proceedings.
The Board consistently overrules challenges to ballots cast by employees who, but for unlawful
discrimination, would have been eligible to vote in the election. LaGloria Oil and Gas Co., 337
NLRB 1120, 1137 (2002), affd. 71 Fed. Appx. 441 (5th Cir. 2003) (Table); Firmat Manufacturing
Corp., 255 NLRB 1213, 1225 (1981), enfd. 681 F.2d 807 (3d Cir. 1982) (Table); Gossen
Company, 254 NLRB 339, 367 (1981), enf. granted in part, denied in part 719 F.2d 1354 (7th
Cir. 1983); and F&M Importing Co., 237 NLRB 628, 632 (1978). Since the challenged ballots
were cast by three individuals who would have been eligible voters if not for the unlawful
discrimination against them, I overrule objections to their ballots.
For the reasons discussed above, Burelison, Bussey and Reamer were eligible to vote in
the June 19, 2007, election and the Employer’s objections to their ballots are overruled.

31 Unwritten policies are a ready means of discrimination and are suspect. See Planned
Bldg. Services, 347 NLRB No. 64, slip op. at 46 (2006); Kentucky General, Inc. 334 NLRB 154,
161 (2001); Sioux City Foundry, 241 NLRB 481, 484 (1979).
32 For the reasons discussed above, I do not reach the question of whether the discipline
and termination of Burelison, which occurred during his employment by Wiers IT, violated
Section 8(a)(1), (3) and (4) of the Act. See supra footnote 27.
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IV. Employer Identity
The order directing a hearing on the consolidated unfair labor practices and
representation cases states that the administrative law judge will "determine the name of the
employing entity" relevant to the representation election. In its brief, the Union asks that I direct
the Region to name Respondent Great Lakes as the Employer on the certification of the
election. The Union states that, at all relevant times, Respondent Great Lakes has owned the
Elkhart facility and that employees there were working for Respondent Great Lakes. In its brief,
Respondent Great Lakes agrees, stating that it was the employer of all employees at the Elkhart
facility during the time period relevant to this adjudication. The record evidence supports the
shared understanding of the Union and the Respondent. Moreover, at the time of the hearing,
Respondent Great Lakes continued to own and operate the Elkhart facility.
I conclude that Respondent Great Lakes has, at all relevant times, been the employing
entity at the Elkhart facility, and I will direct that the Region identify Respondent Great Lakes as
the Employer on the certification of election.
Conclusions of Law
1. Respondent Great Lakes is an employer engaged in commerce within the meaning of
Section 2(2), (6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.
3. During the relevant time period, Respondent Great Lakes was not the employer, a
joint employer, or part of a single employer/single integrated business enterprise at the Wiers IT
facility in Plymouth, Indiana.
4. By the following conduct, the Respondent has engaged in unfair labor practices
affecting commerce within the meaning of Section 8(a)(1), (3), and (4), and Section 2(6) and (7)
of the Act.
5. Respondent Great Lakes interfered with employees’ exercise of their Section 7 rights
in violation of Section 8(a)(1) of the Act by: coercively interrogating employees about their union
sympathies and activities, and the union sympathies and activities of others; soliciting and
impliedly promising to remedy grievances in order to discourage employees from supporting the
Union; threatening employees with facility closure if the employees selected the Union as their
collective bargaining representative; threatening employees with worsened terms and conditions
of employment if employees selected the Union as their collective bargaining representative;
and announcing that it would provide previously denied benefits for the purpose of discouraging
employees from supporting the Union.
6. Respondent Great Lakes violated Section 8(a)(1) and (3) of the Act when, during the
pendency of the representation petition, it began to provide employees with previously denied
benefits for the purpose of discouraging employee support for the Union.
7. Respondent Great Lakes violated Section 8(a)(1), (3), and (4) of the Act by
discriminatorily transferring employees Timothy Burelison and John Bussey because of their
union and other protected activities and their participation in the Board’s processes, and for the
purpose of discouraging such activities.
8. Respondent Great Lakes violated Section 8(a)(1) and (3) of the Act by discriminatorily
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transferring employee Eric Reamer because of his union and other protected activities, and for
the purpose of discouraging such activities.
9. Timothy Burelison, John Bussey and Eric Reamer were eligible to vote in the June 19,
2007, representation election and the Employer’s objections to their ballots are overruled.
10. Respondent Great Lakes has, at all relevant times, been the employing entity at the
Elkhart, Indiana, facility.
Remedy
Having found that Respondent Great Lakes has engaged in certain unfair labor
practices, I find that it must be ordered to cease and desist and to take certain affirmative action
designed to effectuate the purposes of the Act. Respondent Great Lakes, having
discriminatorily transferred Burelison, Bussey, and Reamer must make the discriminatees whole
for any resulting loss of earnings and other benefits, computed on a quarterly basis, less any net
interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as
computed in New Horizons for the Retarded, 283 NLRB 1173 (1987). Since Burelison’s transfer
to the Wiers IT facility in Plymouth, Indiana, meant the end of his employment by Respondent
Great Lakes, that transfer should be treated as a discharge for purposes determining backpay
and any other make-whole relief.
The General Counsel urges that the Board's "current practice of awarding only simple
interest on backpay and other monetary awards should be replaced with the practice of
compounding interest." Brief of General Counsel at 47. The Board has considered, and
rejected, this argument for a change in its practice. See Rogers Corp., 344 NLRB 504 (2005),
citing Commercial Erectors, Inc., 342 NLRB 940 fn. 1 (2004) and Accurate Wire Harness, 335
NLRB 1096 fn.1 (2001), enfd. 86 Fed. Appx. 815 (6th Cir. 2003). If the General Counsel's
argument in favor of compounding interest has merits, those merits are for the Board to
consider, not me. I am bound to follow Board precedent on the subject. See Hebert Industrial
Insulation Corp., 312 NLRB 602, 608 (1993); Lumber & Mill Employers Assn., 265 NLRB 199 fn.
2 (1982), enfd. 736 F.2d 507 (9th Cir. 1984), cert. denied 469 U.S. 934 (1984); Los Angeles
New Hospital, 244 NLRB 960, 962 fn. 4 (1979), enfd. 640 F.2d 1017 (9th Cir. 1981).
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended Order.33
ORDER
The Respondent, Great Lakes International Trucks, LLC, Elkhart and South Bend,
Indiana, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Coercively interrogating employees about their union support or union activities.

33 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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(b) Coercively interrogating employees about the union support or union activities of
other employees.
(c) Soliciting and impliedly promising to remedy grievances in order to discourage
employees from supporting the International Union of Operating Engineers, Local 150, a/w
International Union of Operating Engineers, AFL-CIO (the Union).
(d) Threatening employees with facility closure if the employees select the Union as their
collective bargaining representative.
(e) Threatening employees with worsened terms and conditions of employment if
employees select the Union as their collective bargaining representative.
(f) Announcing that it will provide any previously unavailable benefit for the purpose of
discouraging employees from supporting the Union.
(g) Implementing any previously unavailable benefit for the purpose of discouraging
employees from supporting the Union.
(h) Transferring or otherwise discriminating against any employee for engaging in union
or other protected activities.
(i) Transferring or otherwise discriminating against any employee for testifying in a Board
proceeding or otherwise participating in the Board’s processes.
(j) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Timothy Burelison, John Bussey,
and Eric Reamer reinstatement to their former jobs at the Elkhart facility or, if those jobs no
longer exist, to substantially equivalent positions at the Elkhart facility, without prejudice to their
seniority or any other rights or privileges previously enjoyed.
(b) Make Timothy Burelison, John Bussey, and Eric Reamer whole for any loss of
earnings and other benefits suffered as a result of the discrimination against them in the manner
set forth in the remedy section of the decision.
(c) Within 14 days from the date of this Order, remove from its files any reference to the
unlawful transfers, and within 3 days thereafter notify Timothy Burelison, John Bussey, and Eric
Reamer in writing that this has been done and that the transfers will not be used against them in
any way.
(d) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the
Board or its agents, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay due under the terms of this
Order.
(e) Within 14 days after service by the Region, post at its facility in Elkhart, Indiana,
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copies of the attached notice marked "Appendix."34 Copies of the notice, on forms provided by
the Regional Director for Region 25, 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.
Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed by the Respondent at any time since
April 25, 2007.
(f) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.
DIRECTION
IT IS DIRECTED that the Regional Director for Region 25 shall, within 14 days from the
date of this Decision, Order, and Direction, open and count the ballots of Timothy Burelison,
John Bussey, and Eric Reamer in Case 25-RC-10389. The Regional Director shall then
prepare and serve on the parties a revised tally of ballots and issue the appropriate certification.
IT IS FUTHER DIRECTED that the Regional Director shall identify Great Lakes
International Trucks, LLC, as the employing entity on the certification of election.
Dated, Washington, D.C. July 23, 2008
____________________
Paul Bogas
Administrative Law Judge

34 If this Order is enforced by a judgment of a United States court of appeals, the words in
the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
JD–40–08
Elkhart, IN
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT coercively question you about your union support or activities.
WE WILL NOT coercively question you about the union support or activities of other employees.
WE WILL NOT solicit, and impliedly promise to remedy, your grievances in order to discourage
you from supporting the International Union of Operating Engineers, Local 150, a/w International
Union of Operating Engineers, AFL-CIO (the Union).
WE WILL NOT threaten that we will close any facility if employees select the Union as their
collective bargaining representative.
WE WILL NOT threaten you with worsened terms and conditions of employment if employees
select the Union as their collective bargaining representative.
WE WILL NOT announce that we will provide previously unavailable benefits for the purpose of
discouraging you from supporting the Union.
WE WILL NOT implement previously unavailable benefits for the purpose of discouraging you
from supporting the Union.
WE WILL NOT transfer or otherwise discriminate against you for engaging in union and other
protected concerted activities.
WE WILL NOT transfer or otherwise discriminate against you for testifying in a Board
proceeding or otherwise participating in the Board’s processes.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s Order, offer Timothy Burelison, John
Bussey, and Eric Reamer full reinstatement to their former jobs at the Elkhart facility or, if those
jobs no longer exist, to substantially equivalent positions at the Elkhart facility, without prejudice
to their seniority or any other rights or privileges previously enjoyed.
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WE WILL make Timothy Burelison, John Bussey, and Eric Reamer whole for any loss of
earnings and other benefits resulting from the discrimination against them, less any net interim
earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s Order, remove from our files any
reference to the unlawful transfers of Timothy Burelison, John Bussey and Eric Reamer, and
WE WILL, within 3 days thereafter, notify each of them in writing that this has been done and
that the transfers will not be used against them in any way.
GREAT LAKES INTERNATIONAL TRUCKS, LLC
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
575 North Pennsylvania Street, Federal Building, Room 238
Indianapolis, Indiana 46204-1577
Hours: 8:30 a.m. to 5 p.m.
317-226-7382.
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, 317-226-7413.