Atlas Refinery, Inc.

National Labor Relations Board - Board Decisions

Jan 15, 2010

354 N.L.R.B. 1056 (N.L.R.B. 2010)

354 NLRB No. 120
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Atlas Refinery, Inc. and Local 4-406, United Steel,
Paper and Forestry, Rubber, Manufacturing,
Energy, Allied, Industrial and Service Workers
International Union, AFL–CIO. Case 22–CA–
28403
January 15, 2010
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBER SCHAUMBER
On August 7, 2009, Administrative Law Judge Mi-
chael A. Rosas issued the attached decision. The Re-
spondent filed exceptions, a supporting brief, and an an-
swering brief. The General Counsel filed exceptions, a
supporting brief, and an answering brief.
The National Labor Relations Board1 has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings,2
findings,3 and conclusions as modified and to adopt the

1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Liebman and Member Schaumber constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act. See Teamsters Local 523 v. NLRB, __ F.3d
__, 2009 WL 4912300 (10th Cir. Dec. 22, 2009); Narricot Industries,
L.P. v. NLRB, 587 F.3d 654 (4th Cir. 2009); Snell Island SNF LLC v.
NLRB, 568 F.3d 410 (2d Cir. 2009), petition for cert. filed 78 U.S.L.W.
3130 (U.S. Sept. 11, 2009) (No. 09-328); New Process Steel v. NLRB,
564 F.3d 840 (7th Cir. 2009), cert. granted 130 S.Ct. 488 (2009);
Northeastern Land Services v. NLRB, 560 F.3d 36 (1st Cir. 2009),
petition for cert. filed 78 U.S.L.W. 3098 (U.S. Aug. 18, 2009) (No. 09-
213). But see Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB,
564 F.3d 469 (D.C. Cir. 2009), petition for cert. filed 78 U.S.L.W. 3185
(U.S. Sept. 29, 2009) (No. 09-377).
2 Chairman Liebman finds it unnecessary to pass on the judge’s fail-
ure to grant the General Counsel’s motion to amend the complaint to
allege that the Respondent engaged in direct dealing as the remedy for
this additional violation would be cumulative and would not materially
affect the remedy in light of the Respondent’s unlawful withdrawal of
recognition.
3 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
recommended Order as modified and set forth in full
below.4
We adopt the judge’s findings, for the reasons he
stated, that the Respondent violated Section 8(a)(1) of
the Act by threatening to discharge employees who
would not return to work under the new terms and condi-
tions of employment that the Respondent unlawfully
implemented; and by soliciting employees to withdraw
from the Union; that the Respondent violated Section
8(a)(3) and (1) of the Act by discharging employees Gil-
bert Alers, Raymond Ardiente, Bibiano Dechavez, Aybar
Braudilio, and Alexander Nunez because they supported
the Union’s efforts to continue collective bargaining; and
that the Respondent violated Section 8(a)(5) and (1) of
the Act by (1) refusing to bargain with the Union as long
as Jeff Gilliam was part of the bargaining committee,5 (2)
unilaterally implementing new terms and conditions of
employment on June 9, 2008,6 absent a valid impasse,7
and (3) locking out employees in order to evade its duty
to bargain with the Union.
The General Counsel has excepted to the judge’s ap-
parently inadvertent failure to find and remedy the Re-
spondent’s unlawful withdrawal of recognition. We find
merit in the exception. At the hearing, the judge granted
the General Counsel’s motion to amend the complaint to
allege that the Respondent’s withdrawal of recognition
from the Union on June 13 violated Section 8(a)(5) and
(1) of the Act. As the judge found, the Respondent
unlawfully solicited employees to sign letters resigning
from the Union. Therefore, the letters were tainted and
the Respondent could not rely on them as evidence of the

4 The Respondent has contended, in its answering brief, that it can-
not restore the status quo due to its financial condition. This issue is
appropriately resolved at the compliance stage of this proceeding. The
Respondent will have the opportunity to show at that time, on the basis
of evidence that was not available as of the close of the unfair labor
practice hearing, that restoration of the status quo, including reinstate-
ment of the five unlawfully discharged employees, would be unduly
burdensome. Texas Dental Assn., 354 NLRB No. 107, slip op. at 1
(2009) (citations omitted).
5 Member Schaumber notes that the Respondent offered no evidence
that Gilliam’s presence would bring ill will to the negotiating table and
make good-faith bargaining impossible. Pan American Grain Co., 343
NLRB 205, 206 (2004), citing KDEN Broadcasting Co., 225 NLRB 25,
35 (1976).
6 Dates are in 2008 unless otherwise noted.
7 In adopting the judge’s conclusion that the parties had not reached
impasse, Member Schaumber notes that the Respondent failed to show
that further bargaining would be futile at a critical stage of the bargain-
ing process. The parties had not yet discussed important provisions in
the Respondent’s final proposal, including a five year contract term and
new wage rates for a proposed third tier of employees, or the Union’s
June 2 proposal to cut wages, proffered on the day of the purported
impasse. Further, there was no evidence substantiating the Respon-
dent’s claim to the Union that it needed to implement its final offer
upon the expiration of the current contract for financial reasons.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
Union’s loss of majority status.8 Although the judge
failed to conclude as a matter of law that the Respondent
unlawfully withdrew recognition, the judge’s decision
and recommended Order clearly contemplates a continu-
ing bargaining relationship. We therefore find that the
Respondent’s June 13 withdrawal of recognition, based
solely on the unlawfully solicited resignation letters, vio-
lated Section 8(a)(5) and (1) of the Act. The judge also
correctly found unlawful, but failed to specifically rem-
edy, the Respondent’s June 9 implementation of new
terms and conditions of employment and its lockout of
unit employees on June 9. Accordingly, we have
amended the conclusions of law and the remedy and sub-
stituted a new Order and notice to reflect the violations
found and to conform to the Board’s standard remedial
language.
AMENDED CONCLUSIONS OF LAW
Substitute the following for the judge’s Conclusion of
Law 6.
“6. By refusing to bargain with the Union as long as
Jeff Gilliam was part of the bargaining committee; uni-
laterally implementing new terms and conditions of em-
ployment on June 9 without bargaining to a valid im-
passe; locking out employees in order to evade its duty to
bargain with the Union; and withdrawing recognition
from the Union on June 13, the Company violated Sec-
tion 8(a)(5) and (1) of the Act.”
AMENDED REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act. Specifically, having
found that the Respondent violated Section 8(a)(3) and
(1) by discriminatorily discharging Gilbert Alers, Ray-
mond Ardiente, Bibiano Dechavez, Aybar Braudilio, and
Alexander Nunez, we shall order it to offer them rein-
statement and make them whole for any loss of earnings
and other benefits, computed on a quarterly basis from
the date of discharge to the date of proper offers of rein-
statement, less any net interim earnings, as prescribed in
F. W. Woolworth Co., 90 NLRB 289 (1950), plus inter-
est, as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987).9

8 See Narricot Industries, 353 NLRB No. 82, slip op. at 1 (2009),
enfd. 587 F.3d 654, supra, and cases cited.
9 The General Counsel seeks compound interest computed on a quar-
terly basis for any backpay or other monetary awards. Having duly
considered the matter, we are not prepared at this time to deviate from
our current practice of assessing simple interest. See, e.g., Glen Rock
Ham, 352 NLRB 516 fn. 1 (2008), citing Rogers Corp., 344 NLRB 504
(2005).
Having found that the Respondent violated Section
8(a)(5) and (1) of the Act by unilaterally implementing
wage rates and other terms and conditions of employ-
ment without bargaining to a valid impasse, by locking
out unit employees, and by withdrawing recognition
from the Union, we shall order the Respondent to cease
and desist, and, on the request of the Union, rescind the
unlawful unilateral changes made on and since June 9,
2008, and restore, honor, and continue the terms and
conditions of the contract with the Union that was set to
expire at midnight on June 6, 2008, and to maintain those
terms in effect until the parties have bargained to agree-
ment or a valid impasse, or the Union has agreed to
changes. We shall order the Respondent to make whole
the unit employees and former unit employees for any
loss of wages and other benefits attributable to its unlaw-
ful conduct. Backpay shall be computed in the manner
set forth in Ogle Protection Service, 183 NLRB 682
(1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest
as prescribed in New Horizons for the Retarded, supra.
We shall additionally order the Respondent to reimburse
unit employees for any expenses resulting from the Re-
spondent’s unlawful changes to their health and pension
benefits, as set forth in Kraft Plumbing & Heating, 252
NLRB 891 fn. 2 (1980), enfd. mem. 661 F.2d 940 (9th
Cir. 1981), with interest as set forth in New Horizons for
the Retarded, supra. We shall further order that the Re-
spondent make all contributions to employee pension and
any other funds that it owes under the collective-
bargaining agreement with the Union which was in exis-
tence on June 6, 2008, and which contributions the Re-
spondent would have paid but for the unlawful unilateral
changes, including any additional amounts due to the
funds in accordance with Merryweather Optical Co., 240
NLRB 1213, 1216 fn. 6 (1979).10
The judge recommended an affirmative bargaining or-
der to remedy the Respondent’s unlawful withdrawal of
recognition, but did not justify imposition of such an
order as required by the United States Court of Appeals
for the District of Columbia Circuit. Nevertheless, for the
reasons set forth below, we agree with the judge that an
affirmative bargaining order is warranted on the facts of
this case.
The Board has previously held that an affirmative bar-
gaining order is “the traditional, appropriate remedy for
an 8(a)(5) refusal to bargain with the lawful collective-

10 To the extent that an employee has made personal contributions to
a benefit or other fund that have been accepted by the fund in lieu of
the Respondent’s failure to make contributions to the funds, the Re-
spondent will reimburse the employee, but the amount of such reim-
bursement will constitute a setoff to any amount that the Respondent
otherwise owes the funds.
ATLAS REFINERY, INC. 3
bargaining representative of an appropriate unit of em-
ployees.” Caterair International, 322 NLRB 64, 68
(1996). In several cases, however, the United States
Court of Appeals for the District of Columbia Circuit has
required the Board to justify, on the facts of each case,
the imposition of an affirmative bargaining order. See,
e.g., Vincent Industrial Plastics v. NLRB, 209 F.3d 727
(D.C. Cir. 2000); Lee Lumber & Bldg. Material Corp. v.
NLRB, 117 F.3d 1454, 1462 (D.C. Cir. 1997); and
Exxel/Atmos, Inc. v. NLRB, 28 F.3d 1243, 1248 (D.C.
Cir. 1994). In Vincent Industrial Plastics, supra, the court
stated that an affirmative bargaining order “must be justi-
fied by a reasoned analysis that includes an explicit bal-
ancing of three considerations: (1) the employees’ Sec-
tion 7 rights; (2) whether other purposes of the Act over-
ride the rights of employees to choose their bargaining
representatives; and (3) whether alternative remedies are
adequate to remedy the violations of the Act.” Supra at
738. Consistent with the court’s requirement, we have
examined the particular facts of this case and we find that
a balancing of the three factors warrants an affirmative
bargaining order.11
(1) As the Board stated in Parkwood Developmental
Center,12 an affirmative bargaining order in this case vin-
dicates the Section 7 rights of the unit employees who
were denied the benefits of collective bargaining by the
Respondent’s unlawful withdrawal of recognition and
resulting refusal to collectively bargain with the Union.
At the same time, an affirmative bargaining order, with
its attendant bar to raising a question concerning the Un-
ion’s continuing majority status for a reasonable time,
does not unduly prejudice the Section 7 rights of em-
ployees who may oppose continued union representation,
because the order’s duration is not indefinite but only for
a reasonable period of time sufficient to allow the good-
faith bargaining that the Respondent’s unlawful with-
drawal of recognition cut short. It is only by restoring
the status quo ante and requiring the Respondent to bar-
gain with the Union for a reasonable period of time that
employees’ Section 7 right to union representation is
vindicated. It will also give employees an opportunity to

11 Member Schaumber does not agree with the view expressed in
Caterair International, supra, that an affirmative bargaining order is
“the traditional, appropriate remedy for an 8(a)(5) violation.” He agrees
with the United States Court of Appeals for the District of Columbia
Circuit that a case-by-case analysis is required to determine if the rem-
edy is appropriate. Alpha Associates, 344 NLRB 782, 787 fn. 14
(2005). He recognizes, however, that the view expressed in Caterair
International, supra, represents extant Board law. Flying Foods, 345
NLRB 101, 109 fn. 23 (2005). Regardless of which view is applied
here, Member Schaumber agrees that the affirmative bargaining order
is appropriate.
12 347 NLRB 974, 976–977 (2006).
fairly assess the Union’s effectiveness as a bargaining
representative and determine whether continued repre-
sentation by the Union is in their best interests.
(2) An affirmative bargaining order also serves the
Act’s policies of fostering meaningful collective bargain-
ing and industrial peace. It removes the Respondent’s
incentive to delay bargaining in the hope of discouraging
support for the Union, and it ensures that the Union will
not be pressured to achieve immediate results at the bar-
gaining table—results that might not be in the employ-
ees’ best interests. It fosters industrial peace by reinstat-
ing the Union to its rightful position as the bargaining
representative chosen by a majority of the employees.
Also, as mentioned, providing this temporary period of
insulated bargaining will afford employees a fair oppor-
tunity to assess the Union’s performance in an atmos-
phere free of the effects of the Respondent’s unlawful
withdrawal of recognition and refusal to bargain.
(3) As an alternative remedy, a cease-and-desist order,
alone, would be inadequate to remedy the Respondent’s
withdrawal of recognition and refusal to bargain with the
Union because it would allow another challenge to the
Union’s majority status before the employees had a rea-
sonable time to regroup and bargain with the Respondent
through their chosen representative in an effort to reach a
collective-bargaining agreement. Such a result would be
particularly unfair where the Respondent’s unfair labor
practices already have given rise to a tainted solicitation
to employees to resign from the Union. We find that
these circumstances outweigh the temporary impact the
affirmative bargaining order will have on the rights of
employees who oppose continued union representation.13
For all the foregoing reasons, we find that an affirma-
tive bargaining order with its temporary decertification
bar is necessary to fully remedy the violation in this case.
ORDER
The National Labor Relations Board orders that the
Respondent, Atlas Refinery, Inc., Newark, New Jersey,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening to discharge employees because of
their support for the Union during collective bargaining.
(b) Soliciting employees to withdraw from the Union.
(c) Discharging or otherwise discriminating against
any employee for supporting Local 4-406, United Steel,
Paper and Forestry, Rubber, Manufacturing, Energy,
Allied Industrial and Service Workers International Un-
ion, AFL–CIO, or any other union.

13 Parkwood, supra, 347 NLRB at 977; see also Goya Foods of Flor-
ida, 347 NLRB 1118, 1123 (2006); Smoke House Restaurant, 347
NLRB 192, 194 (2006).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
(d) Refusing to bargain with the Union as the labor
representative of its employees by placing restrictions as
to who can be on the Union’s bargaining committee.
(e) Unilaterally implementing changes in terms and
conditions of employment in the absence of a lawful bar-
gaining impasse.
(f) Failing to honor and continue the terms and condi-
tions of the contract with the Union that was set to expire
on June 6, 2008, until the parties sign a new agreement
or good-faith bargaining leads to a valid impasse, or the
Union agrees to changes.
(g) Locking out employees in order to evade its duty to
bargain with the Union.
(h) Unlawfully withdrawing recognition from the Un-
ion.
(i) In any like or related manner interfering with, re-
straining, 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) Recognize and, on request, bargain with the Union
as the exclusive collective-bargaining representative of
the employees in the following appropriate unit concern-
ing terms and conditions of employment and, if an un-
derstanding is reached, embody the understanding in a
signed agreement:
All production and maintenance employees employed
by the Respondent at its Newark facility, excluding all
office clerical employees, professional employees,
guards and supervisors, as defined in the Act.
(b) On the request of the Union, rescind the unlawful
unilateral changes made since June 9, 2008, and restore,
honor, and continue the terms and conditions of the con-
tract with the Union that was set to expire on June 6,
2008, until the parties sign a new agreement or good-
faith bargaining leads to a valid impasse, or the Union
agrees to changes.
(c) Make whole employees and former employees for
any and all loss of wages and other benefits incurred as a
result of the Respondent’s unlawful alteration or discon-
tinuance of contractual benefits provided for in the con-
tract that was set to expire on June 6, 2008, with interest,
as provided for in the amended remedy section of this
decision.
(d) Make contributions, including any additional
amounts due, to the employee pension fund and any
funds established by the collective-bargaining agreement
with the Union that was in existence on June 6, 2008,
and which the Respondent would have paid but for the
unlawful unilateral changes as provided for in the
amended remedy section of this decision.
(e) Make whole its employees for any loss of earnings
and other benefits suffered as a result of the lockout
against them in the manner set forth in the amended rem-
edy section of this decision.
(f) Within 14 days from the date of this Order, offer
Gilbert Alers, Raymond Ardiente, Bibiano Dechavez,
Aybar Braudilio, and Alexander Nunez full reinstatement
to their former jobs, or, if those jobs no longer exist, to
substantially equivalent positions, without prejudice to
their seniority or any other rights or privileges previously
enjoyed.
(g) Make Gilbert Alers, Raymond Ardiente, Bibiano
Dechavez, Aybar Braudilio, and Alexander Nunez 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 amended remedy section of this decision.
(h) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharges,
and within 3 days thereafter notify the employees in writ-
ing that this has been done and that the discharges will
not be used against them in any way.
(i) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, So-
cial Security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(j) Within 14 days after service by the Region, post at
its facility in Newark, New Jersey, copies of the attached
notice marked “Appendix”14 in both English and Span-
ish. Copies of the notice, on forms provided by the Re-
gional Director for Region 22 after being signed by the
Respondent’s authorized representative, shall be posted
by the Respondent and maintained for 60 consecutive
days in conspicuous places, including all places where
notices to employees are customarily posted. 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 Re-
spondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former

14 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
ATLAS REFINERY, INC. 5
employees employed by the Respondent at any time
since May 8, 2008.
(k) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
Dated, Washington, D.C. January 15, 2010
Wilma B. Liebman, Chairman
Peter C. Schaumber Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT threaten to discharge employees because
of their support for the Union during collective bargain-
ing.
WE WILL NOT solicit employees to withdraw from the
Union.
WE WILL NOT discharge or otherwise discriminate
against any employee for supporting Local 4-406, United
Steel, Paper and Forestry, Rubber, Manufacturing, En-
ergy, Allied Industrial and Service Workers International
Union, AFL–CIO, or any other union.
WE WILL NOT refuse to bargain with the Union as the
labor representative of our employees by placing restric-
tions as to who can be on the Union’s bargaining com-
mittee.
WE WILL NOT unilaterally implement changes in terms
and conditions of employment in the absence of a lawful
bargaining impasse.
WE WILL NOT fail to honor and continue the terms and
conditions of the contract with the Union that was set to
expire on June 6, 2008, until the parties sign a new
agreement or good-faith bargaining leads to a valid im-
passe, or the Union agrees to changes.
WE WILL NOT lock out employees in order to evade our
duty to bargain with the Union.
WE WILL NOT unlawfully withdraw recognition from
the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights guaranteed above.
WE WILL recognize and, on the request of the Union,
bargain with the Union as the exclusive collective-
bargaining representative of the employees in the follow-
ing appropriate unit concerning terms and conditions of
employment and, if an understanding is reached, embody
the understanding in a signed agreement:
All production and maintenance employees employed
by us at our Newark facility, excluding all office cleri-
cal employees, professional employees, guards and su-
pervisors, as defined in the Act.
WE WILL, on the request of the Union, rescind the
unlawful unilateral changes made since June 9, 2008, and
restore, honor, and continue the terms and conditions of
the contract with the Union that was set to expire on June
6, 2008, until the parties sign a new agreement or good-
faith bargaining leads to a valid impasse, or the Union
agrees to changes.
WE WILL make whole employees and former employ-
ees for any and all loss of wages and other benefits in-
curred as a result of the Respondent’s unlawful alteration
or discontinuance of contractual benefits provided for in
the contract that was set to expire on June 6, 2008, with
interest, as provided for in the amended remedy section
of the Board’s decision.
WE WILL make contributions, including any additional
amounts due, to the employee pension fund and any
funds established by the collective-bargaining agreement
with the Union that was in existence on June 6, 2008,
and which the Respondent would have paid but for the
unlawful unilateral changes as provided for in the
amended remedy section of the Board’s decision.
WE WILL make whole our employees for any loss of
earnings suffered as a result of the unlawful lockout, in
the manner set forth in the amended remedy section of
the Board’s decision.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
WE WILL, within 14 days from the date of this Order,
offer Gilbert Alers, Raymond Ardiente, Bibiano
Dechavez, Aybar Braudilio, and Alexander Nunez full
reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights or
privileges previously enjoyed.
WE WILL make Gilbert Alers, Raymond Ardiente,
Bibiano Dechavez, Aybar Braudilio, and Alexander Nu-
nez 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 amended remedy section of
the Board’s decision.
WE WILL, within 14 days from the date of this Order,
remove from our files any reference to the unlawful dis-
charges of Gilbert Alers, Raymond Ardiente, Bibiano
Dechavez, Aybar Braudilio and Alexander Nunez, and
WE WILL, within 3 days thereafter, notify each of them in
writing that this has been done and that the discharges
will not be used against them in any way.
ATLAS REFINERY, INC.
Tara Levy, Esq., for the General Counsel.
Thomas Ryan, Esq. (Laddey, Clark & Ryan), of Sparta, New
Jersey, for the Respondent.
David Tykulsker, Esq. (Tykulsker & Associates), of Montclair,
New Jersey, for the Charging Party.
DECISION
STATEMENT OF THE CASE
MICHAEL A. ROSAS, Administrative Law Judge. This case
was tried in Newark, New Jersey, on April 21, 22, 23, 24, 27,
and 28, 2009. The charge was filed June 10, 2008,1 the
amended charge was filed June 24, and the second amended
charge was filed July 24. The complaint was issued March 6
and amended on April 7, 2009. The complaint alleges that Atlas
Refinery, Inc. (the Company) violated Section 8(a)(1) and (3)
of the National Labor Relations Act (the Act) by: interfering
with, restraining, and coercing employees’ Section 7 rights;
discriminating in regard to the hire or tenure or terms or condi-
tions of employment of its employees, thereby discouraging
membership in a labor organization in violation of Section
8(a)(1) and (3) of the Act; and failing and refusing to bargain
collectively and in good faith with Local 4-406, United Steel,
United Steel, Paper and Forestry, Rubber, Manufacturing, En-
ergy, Allied Industrial and Service Workers International Un-
ion, AFL–CIO (the Union), the exclusive collective-bargaining
representative of its employees, in violation of Section 8(a)(1)
and (5) of the Act. The Company denies that it engaged in any
violations of the Act.
Upon submission of post-trial briefs, the General Counsel
moved to amend the complaint to include an allegation that

1 All dates are 2008, unless otherwise indicated.
William Bauman, as the Company’s agent, unlawfully refused
to bargain with the Union on June 9 by directly dealing with
employees regarding their terms and condition of employment.
The General Counsel contends that an amendment to the com-
plaint alleging such a violation of Section 8(a)(5) and (1) is
appropriate because:
Here, the facts establish “direct dealing, a violation of the duty
to bargain, all taking place within a few days and all aimed at
coercing employees to work under the Employer’s terms. The
issue was fully litigated when the facts describing the viola-
tion were elicited through the testimonial admission of Com-
pany’s witnesses.”
This is the first mention of such an amendment, as the Gen-
eral Counsel did not raise it during or at the conclusion of the
trial. The Charging Party’s counsel supports the motion. The
Company, in its supplemental letter brief, however, opposes the
motion to amend the complaint on the grounds it is devoid of
any compelling justification and would intrude on the Com-
pany’s due process rights.2 The Company concedes that the
Board has the authority to decide issues not specifically plead if
they have been fairly and fully litigated. It insists, however, that
The employer did not know the General Counsel was
placing in question its conduct in relation to its communi-
cation with employees on or about June 9, 2008 and,
therefore, did not have a fair opportunity to present their
defense to such portrayal of that conduct.3
On the entire record,4 including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Company, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Company, a corporation with an office and place of
business in Newark, New Jersey, is engaged in the manufacture
of chemicals. Annually, the Company sells and ships from its

2 A conference call was held with counsel for the parties on July 14,
2009, to discuss the Company’s response to the motion. Initially, coun-
sel for the Company was given until July 3, 2009, to file his response,
but failed to do so. The Company’s counsel explained that the failure to
do so was attributable to an oversight by support staff. The General
Counsel opposed any additional time to file a supplemental or reply
brief and added that the Company’s post-trial brief was also served
late—it was filed by the due date, June 19, 2009, but not served until
the next business day. I acknowledged the General Counsel’s concern
regarding the late service of the Company’s brief, but explained my
preference for receipt of briefs in the absence of prejudice and signifi-
cant delay to the adjudication process—especially where the issue
involved a post-trial motion to amend the complaint. Moreover, there
was no previous request by the General Counsel that I disregard the
Company’s brief on that basis. Under the circumstances, I granted the
Company’s request to permit it to serve and file a supplemental letter
brief by the end of the day.
3 The Company’s supplemental letter brief was e-filed with the Na-
tional Labor Relations Board (Board) before the close of business on
July 14, 2009.
4 The Charging Party’s unopposed motion to correct the transcript,
dated July 9, 2009, is granted and received in evidence as CP Exh. 3.
ATLAS REFINERY, INC. 7
Newark facility (the facility) products, goods, and materials
valued in excess of $50,000 directly to points outside the State
of New Jersey. The Company admits, and I find, that it is a
Company engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act and that the Union is a labor or-
ganization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Parties
The Company manufactures lubricants and auxiliaries for the
leather industry at its facility in Newark, New Jersey (the facil-
ity). Steven Schroeder Sr. is president and chief executive offi-
cer. Steven Schroeder Jr. is executive vice president.5 Robert
Webber Jr. was the Company’s vice president of opera-
tions.6William Baumann is operations manager, Joseph Gar-
giano is finance manager, and Julian Stacy is plant manager.
Thomas Ryan, Esq. serves as the Company’s labor counsel. At
all relevant times herein, Schroeder, Bauman, and Stacy were
supervisors and agents of the Company within the meaning of
Section 2(11) and (13) of the Act.7
Michael Fisher was the Union’s International representative
assigned to accomplish renewal of the contract. Cary Krand
was the Union’s president. Gilbert Alers was the chief steward
and was joined on the bargaining committee by Raymond Ardi-
ente and Bibiano Dechavez. The following employees of the
Company constituted a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of the
Act.
All production and maintenance employees employed by the
Company at its Newark facility, excluding all office clerical
employees, professional employees, guards and supervisors,
as defined in the Act.
This controversy involves the conduct of the parties during
collective bargaining and subsequent to the breakup of negotia-
tions. During most of these sessions, the Union’s bargaining
committee was comprised of Fisher,8 Krand, Alers, Ardiente,

5 Unless otherwise indicated, all references to Schroeder are to Ste-
ven Schroeder Jr., unless otherwise indicated.
6 Webber was the Company’s former vice president of operations at
some point prior to January 2008, as indicated by the correspondence
and the testimony of Michael Fisher, the Union’s representative, on
cross-examination. (Tr. 126–128; GC Exh. 2; R. Exh. 1.)
7 The Company’s answer conceded supervisory and agency status on
the part of these individuals. While I found Schroeder and Bauman
credible for the most part, as discussed, infra, portions of their testi-
mony was overly general, contradicted each other and lacked the detail
one would expect in a failure to bargain case.
8 Fisher was the Union’s primary witness. Much of his testimony
was based on his past recollection, as recorded in or refreshed by his
detailed notes of the collective-bargaining sessions. Nevertheless, the
Company did not challenge the accuracy of his notes, which were re-
ceived as evidence. I was most impressed by the spontaneity of Fisher’s
extensive testimony, which spanned parts of 3 days, including readily
conceding, where applicable, his lack of knowledge or recollection
about certain events. Given such credibility, I credit the accuracy of
Fisher’s notes as to what the parties discussed during the collective-
bargaining sessions.
and Dechavez. The Company was represented by Schroeder,
Bauman, and Ryan.9
B. The Expired Collective-Bargaining Agreement
The first collective-bargaining agreement between the parties
had a term of March 19, 1999, to April 9, 2003. It was renewed
on March 27, 2003, until April 9, 2008, but further provided
that, “if not terminated at the end of that period by sixty (60)
days’ prior written notice, one party to the other, shall continue
thereafter until terminated by either party on sixty (60) days’
prior written notice, or amended by mutual consent.” (Art. 2.)
Other pertinent provisions in the contract included: union secu-
rity and dues deduction (art. 3); a strike clause (art. 5); hours of
work and overtime (art. 6); vacations (art. 7); sick leave and
leave of absence (art. 8); workmen’s representation and meth-
ods of settling disputes (art. 11); safety and health (art. 12);
pensions (art. 13); welfare benefits (art. 14); wages (art. 15);
meetings (art. 16); and a management clause (art. 17). Of par-
ticular note, wage rates (art. 15.1) established a two-tier wage
structure as of March 27, 2003—a first tier for employees who
were hired by the Company on or before March 27, 2003, and a
second tier for employees hired by the Company after March
27, 2003. Both tiers listed the same job classifications, but pro-
vided a higher level of pay for tier 1 employees than tier 2 em-
ployees, as listed on the addendum to the contract. In addition,
the Company agreed to pay a $1200 signing bonus to employ-
ees on the payroll as of March 27, 2003, and another $1200
lump sum payment to each employee of record as of April 9,
1994.10
C. Bargaining from January until May 8
On January 22, the Union mailed a letter to the Company re-
questing bargaining for a new contract.
11
In addition to receiv-
ing the Union’s letter shortly after that date, the Company re-
ceived a notice from the Federal Mediation and Conciliation
Service (FMCS), dated January 29, that the FMCS received
notice that negotiations between the Union and Company were
about to begin. Not receiving a response from the Company,
the Union sent another letter, dated February 27, requesting the
parties begin negotiations.12

9 GC Exhs. 5, 7, 10, 13, 15, 21.
10 GC Exh. 2.
11 I credited Fisher’s testimony that the January 22 letter, which he
sent by certified mail, was received by the Company, even though it
was addressed to the attention of Webber, who was no longer employed
by the Company in January 2008. Asked about the return receipt on
cross-examination, Fisher offered to produce it if given the opportunity.
(GC Exh. 2; Tr. 126–127.) On rebuttal, Fisher produced the return
receipt establishing that the letter was received by the Company on
January 24. (CP Exh. 2; Tr. 681–682.)
12 Given the compelling evidence that the Company received the Un-
ion’s request to commence bargaining on January 24 and a letter from
the FMCS on or about January 29, I find the Company’s insistence that
it did not receive a request from the Union until February 27 to be
devoid of any credibility whatsoever. In fact, the Company’s failure to
explain why Schroeder, Baumann, or Ryan would not have been noti-
fied of the Union’s letter and, instead, hide behind the fact that the
letter was addressed to a former vice president, reflected the Com-
pany’s intention to delay the commencement of bargaining. (R Exh. 1.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
The Company and the Union met on March 11 for their first
bargaining session. At this meeting, the Union presented its
initial proposal for a new contract. The material changes from
the expiring contract included: a 3-year contract; remittance of
union dues directly to the international union; an increase in
wages to cover increased union dues during periods of dis-
agreement; extending the seniority recall rights for laid-off
employees; increased holidays, sick leave for tier two employ-
ees; increased personal leave and vacation time; increased sev-
erance pay; annual wage increases of 10 percent, with a 5-
percent differential pay for second shift employees and a 10-
percent differential pay for third-tier employees; a better health
and prescription plan; and increasing the Company’s pension
contributions.13
The parties held their second bargaining session on March
19. Schroeder provided a slide show presentation of the Com-
pany’s financial condition. Schroeder explained that the Com-
pany sustained substantial financial loss, mainly due to nonla-
bor costs, and needed to reduce total costs. As a result, the
Company has reduced costs by eliminating management and
administrative positions, and reducing wages for such positions.
Ryan followed Schroeder’s presentation by explaining the de-
tails of the Company’s proposal. He conveyed the Company’s
willingness to modify the union-security clause, as requested by
the Union. However, Ryan explained that the Company could
not afford to maintain the current level of wages and benefits,
and provided a proposal that went in the opposite direction on
the remaining issues: reduction of recall rights to 90 days; re-
duced holidays by 1 day; elimination of severance pay; the
reduction of sick leave from 12 to 5 days for all employees;
reduction of the Company’s pension contributions; increasing
employee’s share of the costs for their health benefits from 35
to 70 percent; an ability to change health plans without union
consultation; elimination of lump-sum payments; and a reduc-
tion of wages by 30 percent over the term of the contract. The
Company’s proposal was silent, however, with respect to the
contract term.14
The Union responded to the Company’s proposals at the
March 19 meeting by requesting 3 years of audited financial
documents from the Company. The Company agreed to the
request. In a letter to the Union, dated March 24, Ryan stated
that he was forwarding under separate cover the last 3 years of
the Company’s audited financial statements.15
On April 1, Krand e-mailed the Company’s representatives
and proposed “that we meet and discuss a possible contract
extension and to discuss the noneconomic language of our pro-
posals, due to the audit, the economic issues can be addressed
at a later date when the audit is completed. Please let us know
as to your availability so we can continue the negotiation proc-

13 Schroeder confirmed Fisher’s testimony that the Union presented
its initial proposal on March 11. (Tr. 26–34, 133–139, 155, 286, 447–
448, 556.)
14 At the March 19 session, the Company provided the Union with
the portions of the document describing the Company’s proposals,
while the remainder of its presentation, mainly depicting the Com-
pany’s financial condition, was displayed in a Power Point slide show.
(GC Exhs. 5–6, 34; Tr. 37–45, 159–160, 163, 286, 449, 559–560.)
15 R. Exh. 5; Tr. 402, 451.
ess.” Ryan responded the same day by e-mail and letter. In his
letter, Ryan acknowledged “that we cannot proceed with the
negotiations on economic issues pending a review of financial
documentation by the Union,” but asked “if the Union is agree-
able to move forward with negotiation on non-monetary top-
ics.” He listed eight topics considered by the Company to be
nonmonetary: leave of absence; notification periods for layoffs
and work changes; number of days for recall rights; creation
and deletion of jobs; work hours; union size committee; moving
and successor clause; and transfer language.16
The parties held their third bargaining session on April 4.
During that meeting, the Union further addressed its initial
proposals of March 11. The Company also sought to discuss the
economic issues, including those contained in its proposal. The
Union refused, however, noting that it needed more time to
review the Company’s financial information. After further dis-
cussion, the Union withdrew its proposal for one extra week of
vacation and the parties reached a tentative agreement regard-
ing the Union’s name change, the frequency of Union dues
deductions, and extended the expiration date of the contract
from April 9 to May 9. The extension agreement was signed on
April 8.17
The parties held their fourth bargaining session on April 10.
During that meeting, the Union withdrew its demand for a wage
increase commensurate with a union dues increase and the par-
ties reached tentative agreements concerning four company
proposals: modify notice period for hourly work assignments to
2 weeks (modifying art. 6.3); remove provision regarding “Al-
ternate Day men” (art. 6.4.B); updating work week provision
“to include 7/3/07 amendment (art. 6.6.A);” and limiting per-
sonal leave up to 6 months. In addition, the parties entered into
confidentiality agreements regarding the production of the
Company’s financial information. Later that afternoon, Schroe-
der forwarded the Company’s audited financial statements for
2005 and 2006 and, pending completion of the 2007 audit,
unaudited financial information for 2007..18
The fifth bargaining session was held on May 6. During that
meeting, the Union withdrew its proposals 30 and 32 relating to
an increase in the shoe allowance and adding the work rules
into the agreement. The Company withdrew its proposal to
eliminate advanced vacation pay. In addition, the parties agreed
on several Company proposals: work rules—no change; job
description—no change; and reducing the vacation request of 4
to 2 weeks (art. 7.2.C).19
The parties held their sixth bargaining session on May 8 at
the Company’s facility. During a morning session that lasted
approximately 5 hours, the Union withdrew six of its proposals:

16 R. Exhs. 6–7.
17 Fisher and Schroeder provided consistent testimony regarding the
topics addressed at the April 4 session. (GC 7–9, 34; Tr. 49–52, 294–
296, 459–461.)
18 Consistent with all of my findings as to what was discussed at the
negotiating sessions, Fisher’s notes corroborated or supplemented his
credible testimony, which was also consistent here with the Company’s
witnesses, as well as the written agreements entered into between the
parties during each session. (Tr. 54–58, 299–301, 462–463, 505–506;
GC Exhs. 8, 10–12, 34; R. Exh. 9.)
19 Tr. 58–59, 464–465; GC Exhs. 13–14, 34.
ATLAS REFINERY, INC. 9
two changes regarding hours of work and overtime (arts. 6.3,
6.4 and 6.8.A), two changes regarding holidays (art. 6.9), vaca-
tion (art. 7.1), and sick leave (art. 8.1.1). The Company with-
drew three of its proposals: removing provision relating to eye-
glass coverage (art. 14.3); requiring grievants to be present at
all step meetings (art. 11.2); and no rate changes for transfers
based on seniority (art. 4.1.K). The parties did agree to the Un-
ion’s proposal to protect shop stewards from losing pay while
involved in contract negotiations (art. 11).20 Before the parties
broke for lunch at the Union’s request at approximately 1:30
p.m., Krand informed the Company that the Union was willing
to discuss economic issues during the afternoon session.21
D. May 8 Refusal to Bargain and May 9 Contract Extension
During the lunchbreak, Schroeder and Baumann saw Jeff
Gilliam, a former employee, and former chief steward for the
Union at the Company, in or around the Company’s parking
lot. The Company discharged Gilliam on March 12 for “unau-
thorized absence.” At the time of his discharge, he was the
Union’s chief steward at the Company.22 Schroeder told
Gilliam to stay off the Company’s property. Gilliam appeared
irritated by Schroeder’s directive, but nothing else transpired
and Schroeder and Baumann continued on their way to lunch.23[
As the afternoon bargaining session was about to resume, the
Union demanded that Gilliam be permitted to attend the nego-
tiations. He had not previously attended any of the bargaining
sessions. Schroeder refused on the grounds that Gilliam was no
longer an employee and would not be permitted on company
property. The Union responded by threatening to conclude the
bargaining session if Gilliam was not permitted to attend. The
Company maintained its position and the Union contingent
began to leave. While the Union representatives were in the
parking lot, Fisher approached Baumann once again. Fisher
suggested the parties move the bargaining session to the New
Jersey State Board of Mediation, a neutral site, if it was indeed

20 The parties actually signed the agreement on May 14. (GC Exh.
16.)
21 Fisher did not refute Schroeder’s testimony that the Union agreed
to the Company’s request to discuss the economic issues after lunch.
(Tr. 63–64, 468–469; GC Exh. 15, 34.)
22 The Union asserted that the Company unreasonably denied
Gilliam’s request for a 1-year leave of absence under the contract. The
discharge was subsequently grieved and is still pending before arbitra-
tion (GC Exh. 17; Tr. 60–63, 402–403.)
23 This finding is based on Baumann’s unrefuted, but vague, testi-
mony that Gilliam became upset at learning of the Company’s refusal
to permit him into bargaining session on May 8. Besides describing
Gilliam as swinging or waving his arms in irritation that day, Baumann
did nothing more than describe someone who exhibits animated ges-
tures when he speaks—not an uncommon scene at the collective-
bargaining table. Moreover, Baumann’s concession on cross-
examination that he omitted such an observation from his report to a
Board investigator was not credible. If indeed it amounted to behavior
that contributed to the Company’s decision to exclude Gilliam from
bargaining, there is no doubt Baumann would have mentioned it at that
time. As such, it is clear that Gilliam’s antics, if any, did not faze man-
agement in the least that day. (Tr. 644, 667–668.)
a problem about Gilliam entering company property. Baumann
refused the request and the union representatives left.24
The following day, May 9, Ryan filed an unfair labor prac-
tice charge with the Board. The charge alleged essentially that
the Union: refused to bargain in good faith; demanded the par-
ticipation in negotiations of Gilliam, an employee discharged
for defrauding the Company of compensation and abusing
leave; conspiring with Gilliam and making fraudulent represen-
tations to the Company to conceal that Gilliam had taken a job
with another employer while continuing to received leave and
benefits from the Company; and representing that Gilliam was
working for the Union when he was in fact working for another
employer. The charge also claimed similar unlawful conduct by
Gilliam and sought injunctive relief ordering the Union to bar-
gain in good faith, prohibit Gilliam from attending bargaining,
and require him to return all compensation received while he
was working for another employer. That same day, however,
the parties entered in a second extension agreement extending
the contract until June 6.25
Ryan followed up the Company’s charge with a letter to the
Union, dated May 12. He essentially reiterated the Company’s
position in opposing Gilliam’s participation in contract negotia-
tions and urged the Union to agree to resume negotiations
without him during the weeks of May 12 and 19. Reserving its
right to choose its representatives at bargaining sessions, the
Union, nevertheless, agreed to resume bargaining without
Gilliam and the Company’s charge was subsequently with-
drawn.26
E. Bargaining from May 14 through June 2
The parties met for a seventh bargaining session on May 14.
During that meeting, the Union told the Company that its pre-
liminary findings revealed the Company’s increased expenses
were not due to labor costs, but rather, escalating costs for ma-
terial and supplies. It also apprised the Company there was still
outstanding financial information. Nevertheless, based on its
initial assessment of information received, the Union agreed to
a concession regarding its wage proposal, decreasing its re-
quested increase from 10 percent in each year of the agreement
to 7 percent in each year. On May 20, the Company provided
the Union with the remaining financial records. That financial
information was reviewed by the Union’s international, which
provided the Union with a written report on May 22.27

24 Schroeder’s testimony that Gilliam was not permitted to attend
bargaining because he did not sign a confidentiality agreement was not
credible for two reasons. First, the company representatives did not
raise that concern on May 8 and the consistent testimony of Schroeder
and Baumann reflects a view that Gilliam should be excluded because
he was terminated for cause. Second, the parties prepared a form that
was signed by all of the union representatives and there is no reason
why this could not have been made available to Gilliam. (Tr. 63–66,
317–319, 324–325, 469–471, 547–552, 644–645, 678–680.)
25 GC Exhs. 18–19; R. Exhs. 19–20.
26 GC Exh. 20.
27 Schroeder’s contention that nothing of significance was discussed
at the May 14 session is belied by Fisher’s credible and unrefuted tes-
timony, and corroborated by his notes, that the Union offered to reduce
its 10-percent wage hike demand to 7 percent. (Tr. 69–72, 341–342,
477–479; GC Exhs. 21–23, 34; R. Exhs. 22, 24.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
Anticipating that contentious negotiations lay ahead regard-
ing the economic issues, the parties agreed to continue negotia-
tions with the assistance of FMCS mediators Guy Serota and
James Kinney. Prior to the commencement of mediation, the
Union requested additional financial information from the
Company. The Company provided the information by e-mail to
the Union. It included audited financial statements and tax re-
turns for the Company for 2003, 2004, 2005, and 2006, as well
as the “draft” copy of the recently prepared audited 2007 num-
bers. The Company also provided the Union with its 2008 fi-
nancial forecast, based on its first quarter financial information.
Most notably, the 2008 information indicated that the Com-
pany’s lender, Bank of America, was threatening to foreclose
on approximately $1,800,000 in loans.28
Under the auspices of the FMCS, the parties met at the
FMCS office in New Jersey for an eighth bargaining session on
May 27. During that session, the parties focused mainly on the
outstanding economic issues. At those sessions, both sides
moved substantially from their initial proposals. The Union
decreased its requested wage proposal significantly, from the 7-
percent yearly increases to a wage freeze in the first year, with
a sign-in bonus and a 3-percent wage increase in each of the
second and third years. The Union also offered an additional
concession by suspending its demand for the employee birthday
holiday in the first year, with that holiday “snapping back” in
the second and third years The Union insisted, however, that it
still wanted the 10-percent increase in pension fund contribu-
tions required by the fund to maintain the current benefit level.
At this meeting, the Company offered a mélange of eco-
nomic proposals. Schroeder proposed for the first time the
elimination of company contributions to the union pension
fund. In lieu of a pension fund, he proposed the parties establish
instead a 401(k) plan with costs to be shared with the employ-
ees. Notwithstanding the previous tentative agreements,
Schroeder then proposed, also for the first time during negotia-
tions, the elimination of the union-security clause at article 3.2
of the contract.29
Schroeder tempered the bitterness of the proposed pension
cuts and union security elimination, however, by favorably
responding to the Union’s movement on wages. The Company
modified its wage proposal from a 30-percent wage cut to a 25-
percent wage cut in the first year for the first and second tiers,
and a 3-percent increase in the third and fourth years. In this
proposal, the Company effectively made its first proposal on
the contract length, seeking a 4-year term.30 The Company also

28 The record reveals steady progress by the parties on the non-
economic issues prior to their request for to move negotiations to the
FMCS, leading me to conclude that they expected contentious negotia-
tions ahead on the economic issues, commencing with the seventh
bargaining session. (GC Exh. 23; R. Exhs. 22, 24, 26.)
29 My findings regarding the May 27 session are based primarily on
Fisher’s credible testimony, which was not contradicted by Schroeder’s
vague testimony regarding the discussions at that session. Moreover,
Schroeder conceded that this was the first time that the Company
sought to remove the union-security clause. (Tr. 73–74, 77–79, 82, 343,
348-351, 365, 479–480, 485, 564, 568; GC Exhs. 24, 34.)
30 The Company’s proposal represented a significant change in its
position.
modified two other proposals. With respect to health benefits, it
proposed to pay half of required contributions, with employees
paying the other half. As to sick and personal leave, it proposed
six sick days, including two personal days. The Company did
not modify its offer of eight holidays, but added to its proposal
a fourth week of paid vacation for employees with more than
20 years of service.31
Notwithstanding significant progress made by the parties on
May 27, negotiations hit a bump after Krand asked if manage-
ment was willing to receive the same cuts that it was demand-
ing of bargaining unit employees. Krand also inquired as to
what happened to $500,000 in cash listed as an asset held by
the Company in its 2008 financial reports. Schroeder became
upset at the inquiry, believing Krand’s questions impugned
management’s honesty, and the bargaining session ended.32
The parties met for their ninth bargaining session on June 2.
The meeting began with Serota explaining that it was the Un-
ion’s turn to respond to the Company’s previous offer regarding
wages, health benefits, pension, sick leave and personal days,
holidays and vacation, the length of the contract, and union-
security. The parties then caucused in separate rooms. The Un-
ion, through Serota, conveyed to the Company for the first time
that it was willing to accept wage reductions, as follows: a 5-
percent wage cut in year one, flat in year two, and a 3-percent
raise in year three. The Company responded to the Union’s
proposal by reducing its previously proposed 25-percent wage
cut to 20 percent. The Union met to review the Company’s
proposals and prepare its complete response. When Fisher had
a question concerning the proposal, he went to look for the
mediator. He found him caucusing with management. Serota
told Fisher not to worry and assured he would be right over to
transmit an offer from the Company.33
F. Company’s “Final Proposal”
After speaking with the Company’s representatives for a pe-
riod of time on June 2, Serota recommended that the Company
present “a last and final offer” to the Union in anticipation of
the contract’s June 6 expiration. The Company then prepared a
proposal which its representatives described as its “best and
final offer,” accompanied by a warning that there would be no

31 Schroeder testified generally that, on May 27, the Company was
still seeking cuts in benefits and holidays, while the Union was still
seeking increases. (Tr. 480–481, 564.) That assertion was not credible.
First, he failed to rebut Fisher’s detailed testimony as to the proposals
exchanged on May 27. (Tr. 80–81, 350–351, 564.) Secondly, Schroe-
der’s testimony was contradicted by Baumann’s evasive and impeached
testimony on cross-examination, when he conceded his previously
sworn statement that “there was a lot of movement on that day. (Tr.
663–665.)
32 Schroeder’s denial that he became annoyed when Krand asked
whether the Company was hiding $500,000 was not credible, as he
previously told a Board investigator that he became “upset.” (Tr. 75–
77, 81, 354–355, 482, 586–588.)
33 As additional evidence of his unreliability on an important issue,
Schroeder testified generally on direct that during the morning of June
2, the Union presented an offer, and the Company presented a counter-
offer, but provided no details. He only became more specific when
pressed on cross-examination. (Tr. 77–85, 343, 351, 366–369, 371,
377, 480, 486–487, 564, 568–571.)
ATLAS REFINERY, INC. 11
further extensions to the contract, which would expire at mid-
night on June 6.
The Company’s “final” proposal included: a 5-year contract
and a reduction in wage rates for tiers one and two by 15 per-
cent in year one and 5 percent in year two, flat in year three, a
3-percent increase in year four, and again in year five. Signifi-
cantly, the Company proposed a term which was a year longer
than the Company’s previous offer and signaled a shift from its
wage proposal at the previous session for a 20-percent wage
cut. The Company’s proposal also included an offer to pay 60
percent of employees’ health insurance premiums, with em-
ployees paying 40 percent. This development also constituted
movement by the Company, which proposed on May 27 that
employees assume 50 percent of premium costs. The Company
also proposed: 6 personal days, including 2 days which could
be used for personal business; eight holidays, if the status quo
remained as to the pension fund; and nine paid holidays. This
proposal constituted an increase from the Company’s previous
offer of eight. The Company changed its position on pension
benefits on June 2 from its position taken on May 27. Rather
than cease contributing to the pension fund, or giving employ-
ees a choice between the pension fund and the Company’s
profit-sharing plan, the Company offered to continue contribut-
ing to the pension fund at the same rate as under the expiring
contract. It renewed its demand, however, that the Union delete
the union-security clause in article 3.2. Schroeder then in-
structed the union committee to “[g]o back to work.” The Un-
ion decided to conclude the session. It requested that the Com-
pany put its proposal in writing, which the Company did. Fisher
waited for the written version of the “final” proposal. The me-
diators did not schedule any additional session upon the presen-
tation of the Company’s final proposal.34
On June 5, the union representatives discussed the Com-
pany’s “final” proposal with the bargaining unit members at the
facility. The employees rejected the Company’s demands for
concession, including significant wage cuts, and directed Fisher
to resume negotiations. As a result, Fisher verbally conveyed
the employees’ sentiment to Schroeder and asked him to agree
to a contract extension beyond June 6. Fisher confirmed his
conversation with Schroeder by sending him an e-mail later that
evening and asking to resume bargaining on June 10. In addi-
tion, Fisher asked whether company management was willing
to cut its wages to the same or greater extent that it sought of
the bargaining unit members. Fisher also asked the Company to
provide the estimated savings created by the wage cuts it de-
manded of bargaining unit employees. Schroeder replied by e-
mail that the Company made significant cuts in “non-Union and
management compensations and costs, as previously shared

34 Schroeder’s contention that Serota told the Company’s representa-
tives that the parties were at impasse is not supported by the credible
testimony or other evidence, including the continued discussion of the
issues by the parties and the Company’s subsequent submission of a
revised final proposal. (Tr. 82–89, 367–369, 376–379, 487, 567–568,
570–571; GC Exhs. 6, 25.)
with [the Union]; including the President of the Company fore-
going his salary as of May 15th.”35
G. Company’s “Revised Final Proposal”
On June 6, the Company sent Fisher an e-mail containing a
“revised final proposal (see attachment) in an effort to arrive at
an immediate settlement. One of the points you made this
morning was that the Union still feels that the wage reductions
are too deep. Therefore, the Company is modifying the wage
rates accordingly.” Schroeder then proceeded to lay out a new
approach. First, the Company sought to reduce all tier I rates by
10 percent in year one, reduce 10 percent in year two, flat in
year three, increase 3 percent in year four and increase an addi-
tional 3 percent in year five. Secondly, the Company proposed
to reduce all tier II rates by 15 percent in year one, reduce 5
percent in year two, flat in year three, increase 3 percent in year
four, and increase an additional 3 percent in year five. Thirdly,
the Company proposed to establish a tier III rate for all new
hires at $11.50 per hour. The Company increased its health
benefit proposal by $100 to $300 per month for any employee
not participating in the health plan, and added a fifth week of
paid vacation for employees who worked over 30 years. More-
over, in contrast to the previous agreements on April 8 and May
9, the Company’s June 6 proposals did not include a retroactiv-
ity provision. Thus, to the extent the proposals involved de-
creased compensation, the June 6 proposals, because they did
not operate retroactively, resulted in a concession to the Union.
Schroeder’s e-mail concluded with a remark that “[t]he Com-
pany’s financial circumstances require us to resolve this con-
tract without any further delay. We cannot agree to any further
extensions. The [contract] expires tonight, June 6th, at mid-
night. Please meet with the union members as soon as possible
and advise of their decision prior to the start of work (6:30
a.m.) on Monday morning.” Fisher followed up with a tele-
phone call to Schroeder shortly thereafter and repeated the Un-
ion’s request to resume bargaining and asked for an additional
agreement to extend the contract. Schroeder refused Fisher’s
request and, as stated in his e-mail a few minutes later, re-
minded Fisher that the Company awaited the Union’s decision
on Monday morning.
On June 7, the Union sent an e-mail to the Company stating
that the Company had not responded to its earlier questions as
to whether it would cut management salaries to the comparable
extent sought of employees and the savings that would result
from its proposed employee reductions. The Union also added
that the Company was saving money because there were union
workers on layoff.
On Sunday, June 8, Schroeder wrote Fisher, describing
changes the Company made generally in management compen-
sation and personnel changes to try to save money. Schroeder
advised the Union that if it accepted its latest proposal, “every-
body works on Monday under the new terms. If it is rejected,
the Company will be implementing the new terms of employ-

35 Given Fisher’s conversation and e-mail to Schroeder on June 5,
the Company’s contention that the Union failed to respond to its first
“final” offer between June 2 and 6 is without merit. (Tr. 89–93, 362,
382–385, 571; GC Exh. 26.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
ment unilaterally and replacing any employees who choose not
to work.” Schroeder asked for the Union’s decision “by 6:29am
[sic] on Monday, June 9th.” 36
H. Company Locks Out Employees
Prior to 6:30 a.m. on June 9, the Company changed the em-
ployee access codes so employees would not be able to enter
the facility. In addition, contrary to its custom and practice, the
Company deployed security guards at the facility’s entrance on
June 9. Sometime between 6:15 and 6:25 a.m., Fisher arrived
and was informed that employees were locked out. He briefly
discussed the Company’s revised final proposal with the em-
ployees present and asked for a vote as to whether employees
should vote on the contract or seek to continue bargaining with
the Company. Most employees voted in favor of the Union
seeking to resume bargaining. At that point, Fisher and Alers
entered the Company’s reception area and encountered
Baumann and Schroeder. Fisher informed them that the bar-
gaining unit employees were locked out of the facility, did not
accept the Company’s revised final proposal, and wanted the
Company to return to the bargaining table. Schroeder con-
firmed that the employees were locked out because they did not
accept the terms of the revised final proposal. Fisher left, went
outside to tell the employees that management refused to bar-
gain and was implementing the terms of the second final offer.
He also advised them to go home and start collecting unem-
ployment.37
At 6:30 a.m., Schroeder, Bauman, and Stacey went out to the
gate where the employees and their union representatives gath-
ered. Schroeder told the employees who gathered that the
Company was open for business, and that anyone who would
like to come to work under the terms of the second final offer,
which he referred to as the “new contract,” was welcome to
come to work and to contact Bauman or Stacy.38
Six employees returned to work on June 9: John Carrasca,
Manuel Goncalves, Jason Malinowski, Edward Olander, Les
Porzio, and Ruben Quingalahua. A seventh employee, Carlos
Alers, was on approved leave, but telephoned management on
June 9 and informed them that he would return to work the
following week after his vacation concluded. The next morn-
ing, on June 10, Edmondo Maisonet also returned to work. The
Company also allowed two employees away on military leave,

36 There was fairly consistent testimony by Schroeder and Fisher, as
borne out by the e-mails, regarding their communications on June 6, 7,
and 8. (GC Exhs. 9, 18, 26–28; Tr. 93–95, 492–494, 586.)
37 The testimony of both Fisher and Porzio established that Fisher
put the question to a vote before entering the facility to speak with
management about the lockout. Fisher testified that only 2 employees
voted in favor of voting on the Company’s revised final offer, while
Porzio testified that 12 employees voted in favor of, and 5 opposed,
Fisher seeking further negotiations with the Company—it is undisputed
that a majority of bargaining unit members present did not want to vote
on the revised offer. (Tr. 96–97, 387–390, 571–573, 611–613.)
38 It is not disputed that the Company changed the entrance gate ac-
cess codes and that Schroeder issued the ultimatum that employees
agree to the terms and conditions of the revised final proposal in order
to be permitted to return to work. (Tr. 96, 110, 387, 414, 419–430, 433–
436, 495, 626, 637–638.)
Danny Rivera and Marco Sanchez, to return at the conclusion
of their tours.39
I. Company Implements the Revised “Final” Proposal
Shortly after the six employees reported to work on June 9,
Schroeder, Bauman, and Stacy gathered them for a meeting.
During the meeting, Schroeder informed the employees—
Carrasca, Goncalves, Malinowski, Olander, Porzio, and Quin-
galahua—that the Company implemented its revised “final”
proposal to the Union, which modified the contract as follows:
reduced wages, paid holiday benefits, sick and personal leave
benefits, and health benefits; eliminated employee severance
pay, recall rights of laid-off employees, union security and
contributions to the union pension fund; and established a
401(k) savings plan. He also told them there was no longer a
labor representative for employees at the Company and that in
order to return to work they would need to sign an agreement
containing the new terms and conditions of their employment.
Bauman then met individually with each employee, presented
the employee with an individual agreement establishing his
wages, benefits, and terms and conditions of employment, re-
viewed and discussed it with them.40
Since June 9, the Company has made additional changes in
terms and conditions of work, deviating from its revised final
proposal. It no longer contributes to the pension plan. The
Company does not apply the seniority provisions of the con-
tract, which were not changed in the revised final proposal. The
Company has also applied different terms from the revised final
proposal with respect to vacation, sick leave, and leave of ab-
sence for union business. Finally, the Company changed the
right of employees to be recalled from layoff.41
J. The Company Solicits Union Resignations
On June 9, Bauman and Schroeder, with the assistance of
Porzio, also urged each of the six returning employees to with-
draw their union membership. In furtherance of that objective,
they provided each of those employees with identical form
letters stating that they were resigning from the Union. Each
letter stated, “This letter confirms my verbal resignation from
the membership of the United Steel Workers of America
(USW) Local 4-406, given to Mike Fisher on the morning of
Monday June 9th, 2008.”42 One of the returning employees,
Goncalves, could not read English, yet Bauman told him to sign
it if he wanted to continue working for the Company.43

39 This finding is based on the fairly testimony of Fisher, Goncalves,
Maisonet and Porzio as to who returned to work on June 9. (Tr. 108,
122, 247, 614; GC Exh. 31.)
40 There is no dispute as to what Schroeder told the employees at this
meeting. (Tr. 189, 194, 239–240, 251, 255–256, 259, 568, 615–616,
658; R. Exh. 41; GC Exh. 32.)
41 The Company does not deny making these changes, but insists
that the lack of a contract permitted it do whatever it wanted. (Tr. 575,
591–595; GC Exh. 1, arts. 4.1(h) and 13.1; GC Exh. 28.)
42 The fact that the letters followed identical formats and were pro-
vided to employees by Baumann to sign as an ultimatum is clear and
convincing evidence that the resignation letter campaign was initiated
by the Company, not the employees. (GC Exh. 31.)
43 Goncalves’ subpoenaed testimony was confused and inconsistent
as to whether he was asked to sign the union resignation letter by
ATLAS REFINERY, INC. 13
Bauman presented Maisonet with a similar letter when he re-
turned to work on June 10. It stated: “This letter confirms my
resignation from the membership of the United Steel Workers
of America (USW) Local 4-406 on the morning of Tuesday
June 10th, 2008, Sincerely,” Maisonet read it and signed it.44
None of the returning employees who signed resignation let-
ters spoke with Fisher about resigning from the Union.45 As a
result, he first learned about the resignation letters when he
received a letter, dated June 13, from the Company withdraw-
ing its recognition of the Union as the exclusive collective-
bargaining representative of the unit based on the resignation
letter.46
K. Stacy Threatens Alers
After management addressed the returning employees, Stacy
placed a telephone call to Alers, the Union’s chief shop steward
and a member of the Union’s negotiating committee during the
2008 negotiations.47 Alers did not answer the call, so Stacy left

Porzio or Baumann. It is clear that Porzio and Baumann were both
involved in the circulation of the letter, but in this instance, I found the
most credible version to be Goncalves’ prior statement, as contained in
a sworn affidavit, indicating that Baumann asked him to sign it. (Tr.
187–192, 205–207, 224–225; GC Exh. 31.) Even if Porzio asked him to
sign the letter, I find that Porzio, admittedly interested in “a position
where you had particularly close relations with management,” would
have been acting at the request of Schroeder or Baumann. (Tr. 619–
620.)
44 Maisonet’s subpoenaed testimony was also confusing, evasive,
and revealed a witness under pressure. Asked whether he was given the
resignation letter by Porzio or Baumann, Maisonet’s testimony shifted
several times. After extensive cross-examination and redirect examina-
tion, however, he revealed that it was actually Schroeder who asked
him to sign the document. He qualified his final response by adding
that Schroeder said that Porzio told him to give it to Maisonet. Schroe-
der’s delivery of the letter, however, indicates that the Company was
involved in the effort to decimate the Union’s membership and decer-
tify it. (Tr. 234–235, 240–267.)
45 Les Porzio and John Carrasca, employees admittedly biased
against the Union and directed to testify by Stacy, testified that they
informed Fisher of their resignation from the Union before he entered
the facility on June 9. (Tr. 611–613, 617–620, 626, 631–634, 636, 662.)
Fisher, on the other hand, denied that anyone told him on June 9 that
they were resigning from the Union. (Tr. 108.) He was corroborated in
that respect by Goncalves, who credibly testified that he never spoke to
Fisher about resigning. (Tr. 188.) Such testimony by Fisher and Gon-
calves, as well as Porzio’s apologetic remark to Fisher that he needed a
salary and could not afford to go on strike, seemed more credible and
consistent with the overall testimony. Moreover, the credibility of tes-
timony by Porzio and Carrasca was diminished by Bauman’s evasive
response regarding the circumstances by which they came to testify.
(Tr. 662–663.) The overall testimony reflected a chaotic scene in which
employees were confronted with a sudden decision as to whether to
report to work or go home. Schroeder did not raise the issue of Union
representation at that moment and there is no reason to believe that
employees, faced with an excruciating decision, would have taken the
time to inform Fisher about their Union status.
46 GC Exh. 33.
47Stacy is an admitted supervisor and agent (complaint and answer).
He acts with apparent as well as actual agency. Any reasonable em-
ployee in Alers’ shoes would have understood Stacy to be communicat-
ing on behalf of the Company. Stacy’s words should thus be imputed to
the Company, regardless of Schroeder’s denial that Stacy was not au-
a message on his answering machine. In the message, Stacy
told Alers that two employees, “Eddie O” and “Ruben,” were
returning to work and that Eddie Maisonet was “on the verge”
of coming back. Stacy added: “Gilbert, if you don’t come to
work by the end of the day, Steve Schroeder says you’re never
coming back. . . . Today’s the last window of opportunity to
come back, Gilbert. If you come back, you’ll be taking 20 dol-
lars and 65 cents an hour. I don’t think you can find anything
out there. . . . Use your head, Gilbert, better come back today or
it’s over.” Alers returned Stacy’s call, declined Stacy’s advice
to return to work, and forwarded an audiotape of Stacy’s re-
corded telephone message to the Union..48
L. Company Terminates Remaining Nonworking Employees
During the afternoon of June 10, five additional employees
attempted to return to work—Alers, Ardiente, Dechavez, the
three employee members of the Union’s bargaining committee,
and two others, Aybar Braudilio and Alexander Nunez. They
were notified, however, that they had been discharged. Fisher
met with the employees on June 10. After conferring with the
employees, Fisher learned that a majority of the workers re-
turned to work. The remaining employees decided to inquire
about returning to work. As a result, Fisher told Bauman on
June 10 that the workers wanted to return to work under the last
proposal that the Company presented. Bauman said he would
check with Schroeder. Bauman relayed the offer to Schroeder.
Bauman returned and told Fisher to call Thomas Ryan, Esq.,
the Company’s counsel. Schroeder, after consulting with Ryan,
determined that the contract expired and the offer to return to
work was no longer on the table. Ryan notified Fisher by e-mail
of the Company’s position that the offer expired on Monday
morning, June 9, and that employees who had not returned to
work had been terminated.49
A letter, dated June 11, confirming the termination was is-
sued to each of the five remaining employees who did not re-
turn to work on June 9. The letter also explained that these
individuals would receive, under separate cover, information
with regard to benefit continuation and their COBRA rights.
The Company neither recalled any of these five employees, nor
provided them with severance pay. Instead, it replaced them
with two temporary workers.50
Analysis and Discussion
A. Motion to Amend the Complaint
The General Counsel’s belated motion to amend the com-
plaint to allege a direct dealing allegation in violation of Sec-

thorized to threaten employees to persuade them to return to work on
June 9. (Tr. 502.)
48 An audiotaped recording of Stacy’s telephone message was played
during the hearing and received in evidence. It corroborates Alers’
testimony as to the substance of Stacy’s ultimatum. (GC Exh. 38; Tr.
414–421, 424–429.)
49 It is not disputed that the five employees attempted to return to
work under the terms of the “final” offer and were rebuffed because
they had been terminated. (Tr. 36–37, 102, 106, 110, 397–399, 575,
577, 580, 665; GC Exhs. 5, 7, 10, 13, 15, 21, 29–30.)
50 The replacement of the five discharged employees by two tempo-
rary employees is not disputed. (GC Exh. 30; Tr. 100–101, 575.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
tion 8(a)(5) and (1) is premised on the following conduct by
Bauman on June 9:
Immediately after locking out employees, and permit-
ting those to work who agreed to the Employer’s terms,
and after proclaiming that there was no longer a Union at
Atlas, Operations Manager Bill Bauman,51 admitted super-
visor and agent engaged in direct dealing by (1) communi-
cating directly with the Union-represented employees who
returned to work (2) to establish wage and terms and con-
ditions of employment declared by the Employer (3) with-
out the presence of the Union. [Citations omitted.]
As previously noted, this is the first mention of such an
amendment, as the General Counsel did not raise it during or at
the conclusion of the trial. The Company opposes the motion
on the grounds that granting the motion would deny the Com-
pany due process by denying the Company a fair chance to
present a defense.
Section 102.17 of the Board’s Rules and Regulations allows
amendment to the complaint “as may be deemed just.” Addi-
tionally, as counsel for the General Counsel contends, an un-
pleaded matter may support an unfair labor practice finding if
the matter is “closely connected to the subject matter of the
complaint and has been fully litigated.” Pergament United
Sales, 296 NLRB 333, 334 (1989), enfd. 920 F.2d 130 (2d Cir.
1990). The General Counsel overlooks, however, the due proc-
ess requirement “that a company have notice of the allegations
against it so that it can present a defense.” Stallone Electrical
Contractors, 337 NLRB 1139 fn. 14 (2002).
The Administrative Procedure Act (APA), 5 U.S.C. Section
554(b)(3), provides that “[p]ersons entitled to notice of an
agency hearing shall be timely informed of . . . the matters of
fact and law asserted.” Counsel for the General Counsel offers
no justification for her failure to offer the amendment prior to
the close of the hearing and, thus, provide the Company with
the entire spectrum of allegations against it. See Medin Realty
Corp, 307 NLRB 497, 503 (1992) (denying a motion to amend
the complaint and noting that the General Counsel failed to
provide a reason for not amending the complaint at some point
prior to submitting post-trial brief).
In conclusion, the motion to amend the complaint was sub-
mitted extremely late—after the record closed and incorporated
into the General Counsel’s post-trial brief. Moreover, no justi-
fiable excuse was offered for the General Counsel’s failure to
move before the record closed to add an allegation consisting of
facts with which it was well aware long before trial. The fact
that the testimony crossed into the realm of direct dealing does
not absolutely convince me that the matter was fairly and fully
litigated. Bauman, the supervisor alleged to have engaged in
direct dealing, testified that he met with the employees either
on June 10 or 11 to discuss the terms of employment but denied
negotiating with the employees.52 Such testimony certainly
relates to a charge that the Company unilaterally changed em-
ployees’ terms and conditions. It appears, however, that the

51 “Bill” Baumann identified himself on the record as “William.”
(Tr. 640.)
52 Tr. 658.
Company approached that charge by having Bauman tersely
deny any allegations of direct dealing. As such, I am not con-
vinced that the Company would not have offered additional
testimony or other evidence had it known it was also facing a
direct dealing charge. Under the circumstances, the post-trial
motion to amend the complaint is denied.
B. The Company’s Refusal to Bargain if Gilliam was Involved
The complaint alleges that the Company violated Section
8(a)(5) and (1) by refusing to bargain with the Union as long as
Gilliam, a former chief steward, was part of its negotiating
committee. The Company contends that resumption of negotia-
tions was not conditioned on Gilliam’s absence. Additionally,
the Company contends that it was entitled to object to Gilliam’s
participation in negotiations based on the ill will of the Union
and the conflict of interest flowing from Gilliam’s conduct.
Generally, both parties have a right to choose whomever
they wish to represent them in negotiations, and neither party
can control the other party’s selection of representatives. Gen-
eral Electric Co. v. NLRB, 412 F.2d 512, 517 (2d Cir. 1969).
There have been exceptions to this general rule, however,
where there is a showing of persuasive evidence that the pres-
ence of the particular individual would create ill will and make
good-faith bargaining impossible. People Care, Inc., 327
NLRB 814, 824 (1999). The Board has permitted such refusals
in egregious situations, like those involving physical alterca-
tions or threats of violence. Pan American Grain Co., 343
NLRB 205 (2004); People Care, Inc., 327 NLRB at 824. On
the other hand, the mere fact that a union representative was
previously discharged by the employer is not a sufficient reason
to refuse to deal with that representative. Quality Food Man-
agement, 327 NLRB 885, 889 (1999).
The Company refused to continue bargaining with the Union
on May 8 if the latter was represented by Gilliam and filed an
unfair labor practice against the Union as a result. It maintained
its position in Ryan’s May 12 letter to the Union, which clearly
conditioned the resumption of bargaining on Gilliam’s exclu-
sion from the Union’s bargaining team. Invoking an essentially
symbolic reservation of rights to insist on Gilliam’s participa-
tion, the Union relented and agreed to resume negotiations
without him. As such, the Company’s assertion that the re-
sumption of negotiations was not conditioned on Gilliam’s
absence is a hollow one. The Company forced the Union to
proceed without Gilliam and the only issue that remains is the
reasonableness of the Company’s position.
The evidence demonstrates that the Company’s grounds for
insisting on Gilliam’s exclusion were shifting and baseless. The
Company’s witnesses initially relied on the fact that Gilliam
was no longer an employee and, thus, not entitled to be on
company property. When urged to move negotiations to a neu-
tral site—the New Jersey State Board of Mediation—the Com-
pany still refused. When confronted with that reality, the Com-
pany’s witnesses alluded to the fact that Gilliam had not signed
a confidentiality form. That excuse was also less than credible,
since commonsense suggests that such a concern would have
been addressed by the Company’s insistence that Gilliam sign
the same confidentiality form signed by the Union’s representa-
tives. None of the Company’s witnesses testified, however, that
ATLAS REFINERY, INC. 15
they raised such a concern to union representatives on May 8.
Finally, the Company’s witnesses suggested that Gilliam be-
came upset or annoyed when he learned that he would not be
able to participate in bargaining. They did not, however, de-
scribe any conduct on Gilliam’s part that seemed likely to spark
conflagration at the bargaining table. To the contrary, based on
their familiarity with Gilliam, they were merely describing
some of his well-known mannerisms.
The Company cites NLRB v. International Ladies’ Garment
Workers’ Union, AFL–CIO, 274 F.2d 376 (3d Cir. 1960), in
support of its position that the Union’s offer to bargain with
Gilliam was not made in good faith. Additionally, the Company
quotes a passage from International Ladies’ Garment Workers’
Union which cites NLRB v. Kentucky Utilities Co., 182 F.2d
810 (6th Cir. 1950), for the proposition that an employer may
refuse to negotiate with a union representative who evidenced
hostility to it by past activities. However, the facts in Interna-
tional Ladies’ Garment Workers’ Union and Kentucky Utilities
are easily distinguishable from the case at hand.
In Kentucky Utilities, the company indicated its willingness
to bargain with the Union through representatives other than Ira
Braswell. Braswell was previously discharged by the company
and expressed hostility toward it in several speeches. In those
speeches, Braswell stated he had a grudge to settle with the
company, accused company’s officials of being liars, and
hoped the company would collapse financially. Id. at 812. Ad-
ditionally, Braswell was withdrawn as a negotiator at the re-
quest of the company on two previous occasions and the Union
representatives had orally agreed that Braswell was not a proper
representative and would not be called upon to conduct any
negotiations. Id. at 813-814. Under the circumstances, the court
found that Braswell’s expressed hostility to the company and
desire to see it suffer financial harm made any attempt at good
faith bargaining a futility. Id. at 813.
In International Ladies’ Garment Workers’ Union, the Un-
ion refused to bargain with one of the company’s representa-
tives, Robert Mickus, because Mickus previously worked for
the Union for 10 years, holding highly confidential positions.
International Ladies’ Garment Workers’ Union, 274 F.2d at
377, 379. The company hired Mickus to perform the same
functions that he had with the union and there was evidence
that the company sought to use Mickus’ knowledge of Union
strategy to its advantage. Id. at 379. Under the circumstances,
the court held that the company’s ploy displayed an absence of
fair dealing and constituted bad faith bargaining. Id.
In this case, the Company simply asserts that there was ill
will and a conflict of interest given Gilliam’s conduct. How-
ever, the Company offered no credible evidence that Gilliam
displayed any hostility towards it or came into contact with any
confidential information while employed by the Company. The
only similarity between the case at hand, International Ladies’
Garment Workers’ Union and Kentucky Utilities Co. is the fact
that Gilliam was discharged by the Company and subsequently
took a job with another company. That similarity, however, is
not a satisfactory reason for refusing to bargain with Gilliam.
In Quality Food Management, 327 NLRB at 889, the em-
ployer refused to bargain with the union as long as the union’s
bargaining committee contained a formerly discharged em-
ployee. The Board upheld the judge’s ruling that the employer
violated Section 8(a)(5) and (1) because the employer failed to
provide any evidence that the formerly discharged employee
was an improper or disruptive member of the union’s bargain-
ing committee that would make good-faith bargaining impracti-
cable. Id. Similarly, Gilliam’s status as a discharged employee
was insufficient to support a refusal to bargain and the Com-
pany failed to produce persuasive evidence that Gilliam’s pres-
ence was improper or disruptive as to make good-faith bargain-
ing impracticable. Under the circumstances, the Company vio-
lated Section 8(a)(5) and (1) of the Act by refusing to bargain
with the Union as long as Gilliam was part of the bargaining
committee.
C. The Unilateral Change of Terms and Conditions of Em-
ployment
The complaint alleges that the Company violated Section
8(a)(5) and (1) on June 9 by changing bargaining members’
wages, hours, and other terms and conditions of employment
without affording the Union an opportunity to bargain. Specifi-
cally, it is alleged that the Company implemented its revised
final proposal on June 9, which included reductions in wages,
paid holidays, vacation, sick and personal leave, and health
benefits of employees in the unit, at a time when no impasse in
negotiations had been reached, and then proceeded to lock out
employees until such time as they would agree to work under
the terms that it had implemented. It is further alleged that such
a revised final proposal deviated from an earlier “final” offer
proposed during negotiations. The Company contends that a
“final” proposal was submitted to the Union, based largely on
the advice and opinion of the mediators, after the parties
reached impasse. Additionally, the Company contends that the
Union failed to respond to its “final” offer, so the Company
made minor modifications and asked for the Union’s response
to the Company’s revised final proposal by the morning of June
9. When the Union rejected the revised final proposal on June
9, the Company allowed employees to return to work under the
terms and conditions of that proposal.
Concerning unilateral implementation, an employer has “a
duty to refrain from implementation at all, unless and until an
overall impasse has been reached on bargaining for the agree-
ment as a whole.” Bottom Line Enterprises, 302 NLRB 373,
374 (1991), enfd. 15 F.3d 1087 (9th Cir. 1994). The Board re-
cently explained impasse in Area Trade Bindery Co., 352
NLRB 172, 175 (2008):
By definition, an impasse occurs whenever negotiations reach
that point at which the parties have exhausted the prospects of
concluding an agreement and further discussions would be
fruitless. Laborers Health & Welfare Trust Fund v. Advanced
Lightweight Concrete Co., 484 U.S. 539, 543 (1988). . . . “A
genuine impasse in negotiations is synonymous with a dead-
lock; the parties have discussed a subject or subjects in good
faith, and, despite their best efforts to achieve agreement with
respect to such, neither party is willing to move from its re-
spective position.” Hi-Way Billboards, Inc., 206 NLRB 22, 23
(1973).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
Factors to consider when determining whether or not an im-
passe exists include, “[t]he bargaining history, the good faith of
the parties in negotiations, the length of the negotiations, the
importance of the issue or issues as to which there is disagree-
ment, [and] the contemporaneous understanding of the parties
as to the state of the negotiations.” Taft Broadcasting Co., 163
NLRB 475, 478 (1967), enfd. sub. nom. Television Artists
AFTRA, 395 F.2d 622 (D.C. Cir. 1968). The party asserting
impasse as a defense to unilateral action bears the burden of
proof on the issue. North Star Steel Co., 305 NLRB 45 (1991),
enfd. 974 F.2d 68 (8th Cir. 1992).
In this respect, the Company relies on a statement made by a
mediator that the parties were at impasse. It also contends that
the Union refused to agree to any wage cuts, agreed only nomi-
nal benefit cuts, and that continued negotiations were futile.
However, as noted in footnote 34, the Company’s contention
that mediators advised its representatives that the parties were
at impasse was not supported by credible testimony or other
evidence.
The evidence revealed that the parties met for nine bargain-
ing sessions over a span of 3 months. The parties would have
had approximately 4 months of negotiations prior to the con-
tract expiration, except that the Company ignored the Union’s
initial letter requesting bargaining. As previously discussed,
had the Company responded to the Union’s January 22 letter, it
is reasonable to expect that negotiations would have gotten
underway in February instead of on March 11. Furthermore,
economic issues were only discussed during the final three
bargaining sessions. Economic issues were also going to be
addressed during the afternoon of the sixth bargaining session,
but that session ended when the Company, as noted above,
illegally prevented Gilliam from joining the Union’s bargaining
team. In any event, the first six sessions focused primarily on
numerous noneconomic issues because the Company needed to
provide the Union with financial statements, which the Union
then needed time to review.
During the seventh bargaining session, the Union discussed
its preliminary findings regarding the Company’s finances, but
requested more financial information. When the progress of
negotiations hit a snag, the parties agreed to continue negotia-
tions with the assistance of FMCS mediators. The eighth bar-
gaining session on May 27 focused on economic issues and the
parties made “a lot of movement on that day.”53 Those discus-
sions led to the ninth bargaining session on June 2, when the
Union conveyed to the Company for the first time that it was
willing to accept wage reductions. The Company responded by
reducing its previously proposed wage cut. The Company then
proposed a “final” proposal to the Union, to which the Union
responded by requesting the proposal in writing and concluding
the bargaining session. Subsequently, the Union rejected the
“final” proposal and requested resumption in bargaining. The
Company responded by e-mail on June 6 with a revised final
proposal reducing its previously proposed wage cuts. Notwith-
standing such movement, as well as the difference in the Com-
pany’s evolving economic proposals, it contends that the Union
rejected its revised final proposal by requesting continued bar-

53 Tr. 664–665.
gaining. Such a stance by the Union, however, is hardly indica-
tive of a party unwilling to make additional wage concessions.
Even though the parties met nine times, the important eco-
nomic issues were only discussed during the last three sessions
and there was clear movement on the part of the Union. Indeed,
by Baumann’s own admission, the parties made a lot of pro-
gress during the eighth bargaining session. Applying the Taft
factors, the scant number of bargaining sessions on the eco-
nomic issues and the movement of the parties concerning those
issues indicate the absence of an impasse. See Beverly Farm
Foundation, Inc., 144 F.3d 1048, 1052–1053 (7th Cir. 1998)
(upholding Board finding that no impasse existed after 19 bar-
gaining sessions where economic issues were only discussed at
three of those sessions and the union continued to be flexible);
A.M.F. Bowling Co., 314 NLRB 969 (1994) (finding no im-
passe after seven bargaining sessions where the employer’s
three detailed economic proposals differed from one another
and the union demonstrated flexibility throughout the course of
bargaining).
The last of the Taft factors, the “contemporaneous under-
standing of the parties as to the state of negotiations,” also sup-
ports a finding of no impasse if either negotiating party remains
willing to move further toward an agreement. Teamsters Local
639 v. NLRB, 924 F.2d 1078, 1084 (D.C. Cir. 1991). In Grin-
nell Fire Protection Systems Co., 328 NLRB 585 (1999), the
Board concluded that the employer’s assertion that it reached
its final position did not amount to an impasse because the un-
ion declared and demonstrated its willingness to be flexible.
Similarly, an impasse did not exist in this situation because the
Union indicated its willingness to be flexible when it conceded
that it was willing to accept wage reductions directly before the
Company proposed its “final” proposal.
Assuming, arguendo, that an impasse arose, it would have
merely suspended, but not terminated, bargaining. NLRB v.
Tex-Tan, Inc., 318 F.2d 472 (5th Cir. 1963); Philip Carey Mfg.
Co., 140 NLRB 1103 (1963). As such, an employer may make
unilateral changes upon impasse, but such changes must “not
[be] substantially different . . . than any [offers] which the em-
ployer . . . proposed during the negotiations.” Atlas Tack Corp.,
226 NLRB 222, 227 (1976), enfd. 559 F.2d 1201 (1st Cir.
1977).
Since June 9, the Company has made additional changes in
terms and conditions of work, deviating from its revised final
proposal: it no longer contributes to the pension plan; it does
not apply the seniority provisions of the contract, which were
not changed in the revised final proposal; it has applied differ-
ent terms from the revised final proposal regarding vacation,
sick leave, and leave of absence for union business; and it has
modified the right of employees to be recalled from layoff.
Under the circumstances, the Company violated Section
8(a)(5) and (1) of the Act by unilaterally implementing its re-
vised final proposal on June 9 without affording the Union an
opportunity to continue bargaining.
D. Lockout
The complaint alleges that the Company violated Section
8(a)(5) and (1) by locking out its employees until such time as
they would agree to work under the terms that it implemented.
ATLAS REFINERY, INC. 17
The Company concedes that it changed the locks to the plant,
anticipating strike activity, prior to the commencement of work
on June 9, but denies that its actions constituted a lockout be-
cause employees were free to return to work under the terms of
the Company’s revised final proposal.
A lockout arises when an employer withholds employment
from its employees for the purpose of either resisting their de-
mands or gaining a concession from them. See Irwin’s Barker
& Beauty Supply, 220 NLRB 1212, 1216 (1975). The Company
changed the access codes to the employee entrance gate so
employees could not enter the facility. That tactic enabled
Schroeder to inform employees that they were free to enter the
facility and report to work, but only under the terms of the re-
vised final proposal. Thus, the Company denied its employees
entry into the Company’s facility in order to compel acceptance
of the terms of its revised final proposal or face discharge.
Clearly, this action constituted a lockout.
“Proper analysis of the problem [lockout] demands that the
simple intention to support the employer’s bargaining position .
. . be distinguished from a hostility to the process of collective
bargaining which could suffice to render a lockout unlawful.”
American Ship Building Co., 380 U.S. 300, 309 (1965). An
employer does not violate the Act when it locks out employees
after an impasse has been reached, for the sole purpose of
bringing economic pressure to bear in support of its legitimate
bargaining position. Id. at 318. However, “[w]hen an employer
locks out its employees for the purpose of evading its duty to
negotiate with the employees’ bargaining representative, the
employer violates sections 8(a)(5) and (1) of the Act.” Team-
sters Local 639 v. NLRB, 924 F.2d 1078, 1085 (D.C. Cir.
1991).
The Company’s lockout of employees was unlawful, as it
was not instituted in support of a legitimate bargaining position.
The Company locked employees out to force acceptance of the
unilaterally implemented terms and conditions of employment.
As previously discussed, such implementation was also unlaw-
ful, as no impasse existed at the time. Under the circumstances,
the violated Section 8(a)(5) and (1) of the Act by locking out its
employees in order to evade its duty to bargain with the Union.
E. Employee Threats
The complaint alleges that plant manager Stacy, acting as the
Company’s agent, violated Section 8(a)(1) by threatening to
discharge employees who would not return to work under the
new terms implemented by the Company. The Company denies
that it threatened to discharge employees who did not return to
work under the Company’s revised final proposal. Additionally,
the Company contends that Stacy’s call to Alers was not made
on behalf of, or with the knowledge of, the Company nor was it
made to coerce or intimidate Alers.
In analyzing an 8(a)(1) charge, “[t]he test is whether the em-
ployer engaged in conduct which, it may reasonably be said,
tends to interfere with the free exercise of employee rights un-
der the Act.” American Freightways Co., 124 NLRB 146, 147
(1959). Section 8(a)(1) violations do not turn on the employer’s
motive or on whether the coercion succeeded or failed. Id.
Stacy’s subjective motive in making the call is not relevant.
As noted at footnote 7, Stacy, the plant manager, was acting as
an agent of the Company. He accompanied Schroeder and
Bauman to the entrance gate when Schroeder addressed em-
ployees and issued the ultimatum of returning to work under
the new contract or going home. Given Stacy’s position and
role, a reasonable person would believe that Stacy was convey-
ing a message on behalf of the Company. That message could
reasonably be construed as threatening Alers with termination
if he refused to accept the Company’s unlawfully implemented
terms and conditions of employment and abandon his right to
engage in protected concerted activity, that is, support the Un-
ion’s request to continue bargaining over employees’ terms and
conditions of employment. Stacy’s telephone call to Alers es-
sentially confronted the latter with a Hobson’s choice—accept
the Company’s unfair labor practice or face discharge. Under
the circumstances, Stacy’s statement to Alers constituted a
threat in violation of Section 8(a)(1).
F. The Solicitation of Employees to Withdraw from the Union
The complaint alleges that the Company solicited employees
on June 9 to withdraw their membership in the Union in viola-
tion of Section 8(a)(1). The Company denies any involvement
in the decision of bargaining unit members to resign as mem-
bers of the bargaining unit. It contends that its employees vol-
untarily withdrew their union membership and sought to end
the Union’s designation as exclusive collective-bargaining
representative.
An employer may not “initiate a decertification petition, so-
licit signatures for the petition or lend more than minimal sup-
port and approval to the securing of signatures and the filing of
the petition.” Eastern States Optical Co., 275 NLRB 371, 372
(1985). A violation will not be found, however, “if preparation,
circulation, and signing of the petition constituted the free and
uncoerced act of the employees concerned.” KONO-TV-
Mission Telecasting Corp., 163 NLRB 1005, 1006 (1967).
The credible evidence strongly suggests that the Company
initiated or promoted the effort to have employees resign from
the Union. The resignation letters signed by employees fol-
lowed identical formats and were provided to employees by
Schroeder, Baumann, or Porzio. While not alleged in the com-
plaint to have acted as the Company’s agent, Porzio was admit-
tedly biased against the Union and interested in pleasing man-
agement. Moreover, the employees were presented the union
resignation letters to sign shortly after returning to work and
being forced to sign letters acknowledging the unilaterally im-
posed terms and conditions of the new contract. The Company,
in its proof, provided no credible evidence to demonstrate that
the resignation effort was initiated solely by employees and that
its role was limited to one of clerical support. Under the cir-
cumstances, the Company’s effort to have employees resign
from the Union created an atmosphere of coercion in violation
of Section 8(a)(1).
G. The Discharge of Bargaining Unit Members
The complaint alleges that the Company discharged Alers,
Dechavez, Braudilio, Nunez, and Ardiente in violation of Sec-
tion 8(a)(3) and (1) because they assisted the Union and en-
gaged in protected concerted activities, and to discourage em-
ployees from engaging in these activities. The Company denies
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
that it had discriminatory motivation in discharging these em-
ployees and contends that it legally terminated those employees
who chose not to return to work.
The 8(a)(3) and (1) violations are established based on the
Company’s discriminatory conduct that was motivated by an
antiunion purpose. Under Wright Line, 251 NLRB 1083 (1980),
enfd. 662 F.2d 899 (1st Cir. 1982), the General Counsel must
first show, by a preponderance of the evidence, that protected
conduct was a motivating factor in the employer’s adverse ac-
tion. A prima facie case requires that the General Counsel dem-
onstrate protected activity, employer knowledge of that activity,
and animus against protected activity. If these elements are met,
the burden of persuasion shifts to the employer to show that it
would have taken the same adverse action even in the absence
of the protected activity. If, however, the evidence establishes
that the reasons given for the employer’s action are pretextual,
the employer fails by definition to show that it would have
taken the same action for those reasons, and thus there is no
need to perform the second part of the Wright Line analysis.
United Rentals, supra at 951–952 (citing Golden State Foods
Corp., 340 NLRB 382, 385 (2003); Limestone Apparel Corp.,
255 NLRB 722 (1981), enfd. 705 F.2d 799 (6th Cir. 1982)).
Conduct violative of Section 8(a)(5) may evidence union ani-
mus. Overnite Transportation Co., 335 NLRB 372, 375 (2001).
On June 9, the five employees, Alers, Dechavez, Braudilio,
Nunez, and Ardiente, engaged in protected concerted activity.
As members of the bargaining unit, the five employees sup-
ported the Union’s position that the Company’s revised final
proposal was unacceptable and the employees were in favor of
continued bargaining. The Union informed the Company that
the employees took this position. The Company responded by
unilaterally implementing changes to their terms and conditions
of employment and illegally locking them out. The employees
chose not to return to work under the newly implemented
changes. On June 10, the five employees returned and informed
the Company of their intention to return to work, but the Com-
pany discharged them.
In conclusion, the five employees, Alers, Dechavez,
Braudilio, Nunez, and Ardiente were “forced to make the
Hobson’s choice of leaving their jobs or forfeiting their statu-
tory rights in order to remain employed under the working con-
ditions unlawfully set by their employer.” Noel Corp., 315
NLRB 905, 909 (1994); RCR Sportswear, 312 NLRB 513
(1993). Under Wright Line, the employees engaged in protected
activity by insisting on further bargaining. The Company was
aware of the protected activity based on the statements made to
management by Fisher that employees supported continued
bargaining. The Company’s antiunion animus is established by
its Section 8(a)(5) and (1) violations of unilaterally implement-
ing terms and conditions of employment and illegally locking
out employees. Lastly, the Company failed to offer evidence
that it would have discharged the employees even in the ab-
sence of their protected activity. Under the circumstances, the
Company violated Section 8(a)(3) and (1) of the Act by dis-
charging the five employees because they supported the Un-
ion’s request to continue bargaining over their terms and condi-
tions of employment.
CONCLUSIONS OF LAW
1. The Company is an employer engaged in commerce and a
business affecting commerce within the meaning of Section
2(6) and (7) of the Act.
2. Local 4-406, United Steel, Paper and Forestry, Rubber,
Manufacturing, Energy, Allied Industrial and Service Workers
International Union, AFL–CIO is a labor organization within
the meaning of Section 2(5) of the Act.
3. At all material times the Union has been the designated
exclusive collective-bargaining representative of the following
bargaining unit of the Company’s employees:
All production and maintenance employees employed by the
Company at its Newark facility, excluding all office clerical
employees, professional employees, guards and supervisors,
as defined in the Act.
4. The Company violated Section 8(a)(1) of the Act by
threatening to discharge employees who would not return to
work under the new terms and conditions of employment im-
plemented by the Company and soliciting employees to with-
draw from the Union.
5. By discharging Gilbert Alers, Raymond Ardiente, Bibiano
Dechavez, Aybar Braudilio, and Alexander Nunez because they
supported the Union’s efforts to continue collective bargaining,
the Company violated Section 8(a)(3) and (1) of the Act.
6. By refusing to bargain with the Union as long as Jeff
Gilliam was part of the bargaining committee, unilaterally im-
plementing new terms and conditions of employment on June 9
without affording the Union an opportunity to bargain, and
locking out employees in order to evade its duty to bargain with
the Union, the Company violated Section 8(a)(5) and (1) of the
Act.
7. The aforementioned practices affect commerce within the
meaning of Section 8(a)(1), (3), and (5), and Section 2(6) and
(7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent having discriminatorily discharged employ-
ees, it must offer them reinstatement and make them whole for
any loss of earnings and other benefits, computed on a quarterly
basis from date of discharge to date of proper offer of rein-
statement, less any net interim earnings, as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended54

54 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended 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.
ATLAS REFINERY, INC. 19
ORDER
The Respondent, Atlas Refinery, Inc., of Newark, New Jer-
sey, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening to discharge employees because of their sup-
port for the Union during collective bargaining.
(b) Soliciting employees to withdraw from the Union.
(c) Discharging or otherwise discriminating against any em-
ployee for supporting Local 4-406, United Steel, Paper and
Forestry, Rubber, Manufacturing, Energy, Allied Industrial and
Service Workers International Union, AFL–CIO or any other
union.
(d) Refusing to bargain with the Union as the labor represen-
tative of its employees and placing restrictions as to who can be
on the Union’s bargaining committee.
(e) Unilaterally implementing new terms and conditions of
employment without affording the Union an opportunity to
bargain.
(f) Locking out employees in order to evade its duty to bar-
gain with the Union.
(g) 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 effec-
tuate the policies of the Act.
(a) On request, bargain with the Union as the exclusive rep-
resentative of the employees in the following appropriate unit
(the bargaining unit) concerning terms and conditions of em-
ployment and, if an understanding is reached, embody the un-
derstanding in a signed agreement:
All production and maintenance employees employed by the
Company at its Newark facility, excluding all office clerical
employees, professional employees, guards and supervisors,
as defined in the Act.
(b) Within 14 days from the date of this Order, offer Gilbert
Alers, Raymond Ardiente, Bibiano Dechavez, Aybar Braudilio,
and Alexander Nunez full reinstatement to their former jobs or,
if those jobs no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or any other rights or
privileges previously enjoyed.
(c) Make Gilbert Alers, Raymond Ardiente, Bibiano
Dechavez, Aybar Braudilio, and Alexander Nunez 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.
(d) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful discharges, and within 3
days thereafter notify the employees in writing that this has
been done and that the discharges will not be used against them
in any way.
(e) Preserve and, within 14 days of a request, or such addi-
tional 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 re-
cords, 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.
(f) Within 14 days after service by the Region, post at its fa-
cility in Newark, New Jersey, copies of the attached notice
marked “Appendix A”55 in both English and Spanish. Copies of
the notice, on forms provided by the Regional Director for Re-
gion 22 after being signed by the Respondent’s authorized rep-
resentative, 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. Rea-
sonable 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 pro-
ceedings, 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 May 8, 2008.
(g) Within 14 days after service by the Region, mail copies
of the attached notice marked Appendix A, in both English and
Spanish, at its own expense, to all employees in the bargaining
unit who were employed by the Respondent at its Newark, New
Jersey facility at any time from the onset of the unfair labor
practices found in this case until the completion of these em-
ployees’ work at that jobsite. The notice shall be mailed to the
last known address of each of the employees after being signed
by the Respondent’s authorized representative.
(h) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
Dated, Washington, D.C. August 7, 2009
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 be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT threaten to discharge or discharge employees,
or otherwise discriminate against any of you for supporting

55 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD20
Local 4-406, United Steel, Paper and Forestry, Rubber, Manu-
facturing, Energy, Allied Industrial and Service Workers Inter-
national Union, AFL–CIO, or any other union.
WE WILL NOT solicit employees to withdraw from the Union.
WE WILL NOT refuse to bargain with the Union as the labor
representative of our employees and place restrictions as to who
can be on the Union’s bargaining committee.
WE WILL NOT unilaterally implement new terms and condi-
tions of employment without affording the Union an opportu-
nity to bargain.
WE WILL NOT lock out employees in order to evade our duty
to bargain with the Union.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
WE WILL, on request, bargain with the Union and put in writ-
ing and sign any agreement reached on terms and conditions of
employment for our employees in the bargaining unit:
All production and maintenance employees employed by us
at our Newark facility, excluding all office clerical employees,
professional employees, guards and supervisors, as defined in
the Act.
WE WILL, within 14 days from the date of this Order, offer
Gilbert Alers, Raymond Ardiente, Bibiano Dechavez, Aybar
Braudilio, and Alexander Nunez full reinstatement to their for-
mer jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed.
WE WILL make Gilbert Alers, Raymond Ardiente, Bibiano
Dechavez, Aybar Braudilio, and Alexander Nunez whole for
any loss of earnings and other benefits resulting from their
discharge, less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of this Order, remove
from our files any reference to the unlawful discharges of Gil-
bert Alers, Raymond Ardiente, Bibiano Dechavez, Aybar
Braudilio and Alexander Nunez, and WE WILL, within 3 days
thereafter, notify each of them in writing that this has been
done and that the discharges will not be used against them in
any way.
LOCAL 4-406, UNITED STEEL, PAPER AND FORESTRY, RUB-
BER,MANUFACTURING, ENERGY, ALLIED INDUSTRIAL AND
SERVICEWORKERS INTERNATIONAL UNION, AFL–CIO