Oberthur Technologies

National Labor Relations Board - Board Decisions

Aug 27, 2015

362 NLRB No. 198 (N.L.R.B. 2015)

362 NLRB No. 198
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.
Oberthur Technologies of America Corporation and
Graphic Communications Conference Interna-
tional Brotherhood Of Teamsters, Local 14-M.
Cases 04-CA-086325, 04-CA-087233, and 04-RC-
086261
August 27, 2015
DECISION, ORDER, AND CERTIFICATION
OF REPRESENTATIVE
BY MEMBERS MISCIMARRA, HIROZAWA,
AND JOHNSON
On February 20, 2013, Administrative Law Judge
Raymond P. Green issued the attached decision. The
Respondent filed exceptions, a supporting brief, answer-
ing briefs, and reply briefs. The General Counsel filed
exceptions, a supporting brief, an answering brief, and a
reply brief. The Charging Party filed cross-exceptions, a
supporting brief, and a brief in opposition to the Re-
spondent’s exceptions.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions2
only to the extent consistent with this Decision, Order,
and Certification of Representative, to amend his reme-
dy, and to adopt his recommended Order as modified and
set forth in full below.3
I. THE UNFAIR LABOR PRACTICE CASES
This proceeding consolidates two unfair labor practice
cases with a representation case. In the unfair labor prac-
tice cases, the General Counsel alleged that, following
the advent of a union campaign at the Respondent’s fa-
cility, the Respondent committed several unfair labor
practices. The judge found merit in most of the allega-

1 The Respondent has implicitly excepted to some of the judge’s
credibility findings. The Board’s established policy is not to overrule
an administrative law judge’s credibility resolutions unless the clear
preponderance 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.
2 We have amended the judge’s Conclusion of Law 1 to reflect the
violation found.
3 We shall modify the judge’s recommended Order to conform to our
findings herein and the Board’s standard remedial language and in
accordance with Don Chavas, LLC d/b/a Tortillas Don Chavas, 361
NLRB No. 10 (2014). Further, we shall substitute a new notice to
conform to the Order as modified and in accordance with our decision
in Durham School Services, 360 NLRB No. 85 (2014).
tions. We adopt the judge’s findings that the Respondent
violated Section 8(a)(1) of the Act by telling employees
that they could not discuss the Union in work areas or
during worktime,4 and telling employees that bonuses,
wage increases, transfers, and promotions were being put
on hold until after the election. We also adopt the
judge’s finding that the Respondent violated Section
8(a)(3) and (1) by delaying and withholding wage in-
creases, bonuses, transfers, and promotions.5
II. THE REPRESENTATION CASE
The Stipulated Election Agreement entered into by the
parties and approved by the Regional Director provided
for the following unit:
Included: All full-time employees employed by the
Employer in litho printing, finishing card and sheet,
ink, facilities janitorial, card auditing plastics, pre-press
composition, QC [quality control], smart card embed-

4 In adopting the judge’s finding that the Respondent violated Sec.
8(a)(1) by telling employees that they could not discuss the Union in
work areas or on worktime, we find the instruction unlawful on the
basis that it constituted a discriminatory restriction on union-related
speech. See Jensen Enterprises, Inc., 339 NLRB 877, 878 (2003)
(“[A]n employer violates the Act when employees are forbidden to
discuss unionization, but are free to discuss other subjects unrelated to
work, particularly when the prohibition is announced or enforced only
in response to specific union activity in an organizational campaign.”).
5 The judge found that the Respondent unlawfully failed to grant
spot bonuses (among other bonuses) to employees who may have been
approved for them during the period from August 1, 2012, until after
the September 7, 2012 election. However, he stated that the failure to
grant spot bonuses did not warrant a make-whole remedy because of
the small amount of the spot bonuses and the difficulty of determining
who would have received a spot bonus. The General Counsel excepts
to this conclusion, and we find merit in his exception. A traditional
backpay remedy, with interest, is appropriate for those employees who
would have received spot bonuses but for the Respondent’s unlawful
conduct, and we leave for compliance the identification of employees
unlawfully denied spot bonuses and the determination of the amount
they should receive, including interest. The Respondent may renew at
compliance its contention that this determination would involve im-
proper speculation.
We agree with the judge that the Respondent did not violate Sec.
8(a)(1) by prohibiting an employee from using the Respondent’s copier
to copy union literature, or by telling an employee that it preferred she
hand out union literature rather than place it on a cafeteria table. Final-
ly, there are no exceptions to the judge’s dismissal of the allegation that
the Respondent violated Sec. 8(a)(1) by interrogating employees.
Member Hirozawa, contrary to his colleagues, would find that the
employer did violate the Act when a supervisor called a subordinate
employee into his office and stated “the company” preferred that she
distribute union flyers by hand rather than leaving the flyers on tables
in the breakroom. The majority agrees with the judge that the state-
ment was not coercive because the supervisor merely expressed a pref-
erence. In Member Hirozawa’s view, however, if a supervisor calls an
employee into his office in order to express the company’s preference
that the employee not engage in a specific protected activity, the em-
ployee would reasonably understand the communication as a direction
to cease that activity.
2
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ding, screen making, screen printing, production expe-
ditor, quality systems analyst, warehouse plastic, cus-
tomer service manufacturing, and maintenance depart-
ments at its facility located at 523 James Hance Court,
Exton, Pennsylvania.
Excluded: All other employees, temporary and season-
al employees, confidential employees, guards and su-
pervisors as defined in the Act.
On September 7, 2012, the Board conducted a secret-
ballot election to determine whether employees in the
stipulated unit wished to be represented by the Union for
purposes of collective bargaining. The tally of ballots
showed that, out of approximately 229 eligible voters,
108 cast votes for the Union and 106 cast ballots against
representation. The Union filed several objections to the
election and challenged the ballots of Scott Hillman,
John DiTore, and Ben Sahijwana.6 The Respondent did
not file any objections to the election or challenge any
ballots.
The judge sustained the challenges to DiTore’s and
Sahijwana’s ballots on the ground that they are profes-
sional employees under Section 2(12) of the Act.7 The
judge observed that, because DiTore and Sahijwana are
professional employees under Section 2(12), they cannot
be included in the stipulated unit as a matter of law ab-
sent an election that conforms to the requirements of
Sonotone Corp., 90 NLRB 1236 (1950).8
The Respondent argues that the judge incorrectly
found that DiTore and Sahijwana are professional em-

6 There are no exceptions to the judge’s recommendation to overrule
the challenge to Hillman’s ballot. In light of our decision in this case,
however, Hillman’s ballot is not determinative and will not be opened
or counted. Nor do we reach the Union’s objections, which are mooted
by our Certification of Representative.
7 The judge also found that, even if DiTore and Sahijwana were not
professional employees, they were ineligible to vote because they did
not share a community of interest with the employees in the stipulated
unit. In light of our disposition of the representation case, we find it
unnecessary to pass on this issue.
8 Sec. 9(b)(1) of the Act provides that the Board shall not “decide
that any unit is appropriate . . . if such unit includes both professional
employees and employees who are not professional employees unless a
majority of such professional employees vote for inclusion in such
unit[.]” Thus, “the Act effectively grants professional employees the
right to decide by majority vote whether they wish to be included in a
unit with nonprofessional employees.” American Medical Response,
Inc., 344 NLRB 1406, 1408 (2005). To safeguard that right, the Board
adopted the procedure that is commonly known as a Sonotone election.
In a Sonotone election, the ballots for the professional employees in-
clude two questions. The first question asks the professionals if they
want to be included in a unit of professional and nonprofessional em-
ployees. The second question asks the professionals if they wish to be
represented by the union or unions involved. See American Medical
Response, 344 NLRB at 1408; Sonotone Corp., 90 NLRB at 1241.
ployees and thus that, contrary to the judge, the challeng-
es to their ballots should be overruled. In the alternative
and for the first time, the Respondent now argues that if
the judge is correct that DiTore and Sahijwana are pro-
fessionals, then he erred by not ordering a Sonotone elec-
tion for them. In support of this alternative argument, the
Respondent contends that, in analyzing these individuals’
eligibility, the judge failed to apply the test set forth in
Caesar’s Tahoe, 337 NLRB 1096 (2002), for resolving
determinative challenged ballots in cases involving stipu-
lated bargaining units. The Respondent contends that the
stipulated unit unambiguously includes DiTore and
Sahijwana because they both work in a department—
Quality Control—listed in the stipulated unit, but that
their inclusion renders the stipulated unit inappropriate
under Section 9(b)(1) unless DiTore and Sahijwana vote
for inclusion in the unit. Accordingly, the Respondent
concludes, if DiTore and Sahijwana are professionals,
the Board must set aside the election and direct a second
election that conforms to the requirements of Sonotone.
The Union contends that the judge correctly found that
DiTore and Sahijwana are professional employees. It
further contends that although the judge did not cite Cae-
sar’s Tahoe, supra, he implicitly and correctly concluded
that the stipulated unit description is ambiguous with
respect to DiTore and Sahijwana, that DiTore and
Sahijwana do not share a community of interest with the
rest of the unit employees, and that the challenges to
their ballots should be sustained and the Union certified
as the unit employees’ representative.
We agree with the judge, for the reasons stated in his
decision, that DiTore and Sahijwana are professional
employees under Section 2(12) of the Act. Thus, we
conclude that he properly sustained the challenges to
their ballots even if we were to assume that the parties
intended to include DiTore and Sahijwana in the stipulat-
ed unit.9 A contrary ruling would arguably permit the
parties to stipulate to a conventional election, even
though at least two professional employees (DiTore and
Sahijwana) were part of the stipulated unit. Giving effect
to the parties’ stipulation in that circumstance would con-
travene Section 9(b)(1) of the Act, which permits a bar-
gaining unit to include professional and nonprofessional
employees only if the professional employees are afford-
ed a separate self-determination election.10 Here, if the
stipulated unit excluded DiTore and Sahijwana, the chal-
lenges to their ballots would be sustained. Conversely, if
the stipulated unit were assumed to include DiTore and

9 As described in his separate concurring opinion, Member Hirozawa
believes that the parties excluded DiTore and Sahijwana from the unit.
10 See, fn. 8, above.
3
OBERTHUR TECHNOLOGIES OF AMERICA CORP.
Sahijwana, the challenges to their ballots would have
been properly sustained because Section 9(b)(1) prohibits
the type of election to which the parties also stipulated—
a conventional election, with no separate self-deter-
mination vote for DiTore and Sahijwana.
The Respondent asserts for the first time in exceptions
that the engineers are professionals, are included in the
stipulated unit, and are therefore entitled to a self-
determination election. The Respondent did not file ob-
jections to the conduct of the election on any basis, let
alone on the specific grounds concerning the engineers.
Instead, the Respondent argued for the first time in its
exceptions that the entire election must be nullified be-
cause the engineers were eligible to vote and were im-
properly denied a Sonotone election. The Respondent’s
failure to file objections, or in any other way raise its
concerns at the appropriate time, limits the issues that it
has preserved for our consideration. See Tekweld Solu-
tions, 361 NLRB No. 18, slip op. at 2 (2014). In effect,
the Respondent seeks to have its exceptions to the
judge’s decision treated as if they were objections, de-
spite being filed long after the objections deadline and
with no explanation—let alone reasonable justification—
for its failure to timely raise the issue.11 As we explained
in Tekweld, the Board’s practice is not to set aside an
election based only on challenged ballots and in the ab-
sence of objections to the election.12 Id., slip op. at 2.

11 This case, therefore, is clearly distinguishable from American
Medical Response, 344 NLRB at 1408–1409 (setting aside election and
directing a new election providing for Sonotone ballots for RNs, where
RNs—stipulated to be professional employees—had not been given
Sonotone ballots). In American Medical Response, the employer timely
objected.
12 The result might differ in a case in which the stipulated unit vio-
lates Sec. 9(b)(1) on its face, and therefore the stipulation should not
have been approved, see Sunrise, Inc., 282 NLRB 252 (1986), or where
timely objections have been filed based on the failure to conduct a self-
determination election among professional employees, see, e.g., Ponti-
ac Osteopathic Hospital, 327 NLRB 1172 (1999). But this is not such
a case. Here, it was not readily apparent from the face of the stipulation
that the reference to quality control employees might have entailed the
inclusion of professional employees in a mixed professional-
nonprofessional unit. Moreover, as noted in the text, the Employer has
filed no objections to the election in this case.
In Sunrise, supra, the Board dealt with an election where the stipu-
lated unit on its face expressly included “registered nurses” (who were
found to be professional employees) and expressly excluded “all pro-
fessional employees.” Even in the absence of objections, based on Sec.
9(b)(1)’s prohibition of a mixed professional-nonprofessional unit
without a self-determination election, the Board concluded that it would
“best effectuate the purposes of the Act to set aside the election, vacate
the stipulation, and remand [the] proceeding to the Regional Director to
resume processing of the petition by either assisting the parties to reach
agreement on a new stipulation or, in the absence of a new stipulation,
conducting a hearing on the unit issue.” Id. Here, to the contrary, the
stipulated unit did not appear on its face to include professional em-
ployees.
As in Tekweld, we decline to deviate from our estab-
lished procedural requirements.13 The above analysis
results in a ballot tally of 108 votes in favor of the Union,
106 votes against representation, and one
nondeterminative challenged ballot. Accordingly, we
find that a certification of representative should be is-
sued.
AMENDED CONCLUSION OF LAW
Substitute the following for Conclusion of Law 1.
“1. The Respondent violated Section 8(a)(1) of the
Act by telling employees that they could not talk about
the Union in work areas or during work time.”
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 unlaw-
fully delayed and withheld employees’ wage increases,
bonuses (including spot bonuses), transfers, and promo-
tions, we shall order the Respondent to make the em-
ployees whole for any loss of earnings and other benefits
attributable to its unlawful conduct. Backpay for the
discriminatees shall be computed as prescribed in Ogle
Protection Service, 183 NLRB 682 (1970), enfd. 444
F.2d 502 (6th Cir. 1971), with interest at the rate pre-
scribed in New Horizons, 283 NLRB 1173 (1987), com-
pounded daily as prescribed in Kentucky River Medical
Center, 356 NLRB No. 8 (2010). The General Counsel
shall be permitted to establish, during compliance, the
identity of employees who did not receive a scheduled
wage increase and/or bonus (including spot bonuses),
without prejudice to the Respondent’s right to contend
that identifying who would have received spot bonuses is
unduly speculative.14
Further, we shall require the Respondent to rescind its
unlawful prohibition against employees talking about the
Union in work areas or during worktime.
ORDER
The National Labor Relations Board orders that the
Respondent, Oberthur Technologies of America Corpo-

13 Although the Respondent now asserts that another employee, Kha-
lid Husain, is also an engineer, his ballot was not challenged and no
argument was timely raised about his status. The judge therefore did
not address the matter, and neither can we. See NLRB v. A. J. Tower,
329 U.S. 324 (1946) (voter eligibility cannot be challenged after ballot
is cast and commingled with others).
14 The judge specifically identified one individual, Efrain Marrero,
as entitled to a wage increase from the date he was scheduled to receive
it to the date of his resignation.
4
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ration, Exton, Pennsylvania, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Prohibiting employees from talking about the Un-
ion in work areas or during worktime.
(b) Delaying the payment of scheduled wage increas-
es, bonuses, transfers, and promotions during the pen-
dency of a representation election to discourage union
support.
(c) Telling employees that their scheduled wage in-
creases, bonuses, promotions, and transfers have been
delayed as the result of the pendency of a representation
election.
(d) 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) Make employees whole for any loss of earnings
and other benefits suffered as a result of having their
bonuses, scheduled wage increases, promotions, or trans-
fers delayed as a result of the discrimination against
them, in the manner set forth in the remedy section of the
judge’s decision as amended in this decision.
(b) Compensate employees for the adverse tax conse-
quences, if any, of receiving lump-sum backpay awards,
and file a report with the Social Security Administration
allocating the backpay awards to the appropriate calendar
quarters for each employee.
(c) Rescind the instruction prohibiting employees
from talking about the Union in work areas or during
worktime.
(d) Preserve and, within 14 days of a request or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents all payroll records, social
security payment records, timecards, personnel records
and reports, and all other records, including an electronic
copy of such records if stored in electronic form, neces-
sary to analyze the amount of back pay due under the
terms of this Order.
(e) Within 14 days after service by the Region, post in
its facility in Exton, Pennsylvania, copies of the attached
notice marked “Appendix.”15 Copies of the notice, on

15 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.”
forms provided by the Regional Director for Region 4,
after being signed by the Region’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places, including
all places where notices to employees are customarily
posted. In addition to physical posting of paper notices,
notices shall be distributed electronically, such as by
email, posting on an intranet or internet site, and/or other
electronic means, if the Respondent customarily com-
municates with its employees by such means. Reasona-
ble steps shall be taken by the Respondent to ensure that
the notices are not altered, defaced, or covered by any
other material. If the Respondent has gone out of busi-
ness or closed its facility in Exton, Pennsylvania, 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 October 1, 2011.
(g) Within 21 days after service by the Region, file
with the Regional Director for Region 4 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots have
been cast for Graphic Communications Conference, In-
ternational Brotherhood of Teamsters, Local 14-M, and
that it is the exclusive collective-bargaining representa-
tive of the employees in the following appropriate unit:
Included: All full-time employees employed by the
Employer in litho printing, finishing card and sheet,
ink, facilities janitorial, card auditing plastics, pre-press
composition, QC [quality control], smart card embed-
ding, screen making, screen printing, production expe-
ditor, quality systems analyst, warehouse plastic, cus-
tomer service manufacturing, and maintenance depart-
ments at its facility located at 523 James Hance Court,
Exton, Pennsylvania.
5
OBERTHUR TECHNOLOGIES OF AMERICA CORP.
Excluded: All other employees, temporary and season-
al employees, confidential employees, guards and su-
pervisors as defined in the Act.
Dated, Washington, D.C. August 27, 2015
______________________________________
Kent Y. Hirozawa, Member
______________________________________
Harry I. Johnson, III, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER HIROZAWA, concurring.
I agree with the majority decision upholding the chal-
lenges, finding that the Respondent failed to timely raise
its argument that a Sonotone election was required, and
that a certification of representative should issue. I
would find in addition that the Respondent’s argument
fails on the merits.
In Caesar’s Tahoe, 337 NLRB 1096 (2002), the Board
adopted the “three-prong approach to resolving stipulated
unit cases” set forth in Associated Milk Producers, Inc. v.
NLRB, 193 F.3d 539 (D.C. Cir. 1999):
Under [this] test, the Board must first determine wheth-
er the stipulation is ambiguous. If the objective intent
of the parties is expressed in clear and unambiguous
terms in the stipulation, the Board simply enforces the
agreement. If, however, the stipulation is ambiguous,
the Board must seek to determine the parties’ intent
through normal methods of contract interpretation, in-
cluding the examination of extrinsic evidence. If the
parties’ intent still cannot be discerned, then the Board
determines the bargaining unit by employing its normal
community-of-interest test.
Caesar’s Tahoe, 337 NLRB at 1097. Here, the paragraph
of the stipulation describing the voting unit included the
“full-time employees” in over a dozen named departments
and excluded “all other employees,” a phrase that encom-
passed, as both parties knew well, the Engineering depart-
ment. The paragraph of the stipulation that specifies the
ballot language clearly provides for an election with no self-
determination question.1 On the basis of these provisions,

1 The Board’s Casehandling Manual provides that stipulations for
self-determination elections contain, in the stipulation’s ballot-language
paragraph, specific language set forth in the manual for the self-
and in light of the absence of anything in the stipulation
suggesting that engineers or any other professional employ-
ees were intended to be included in the voting unit, I con-
clude that the stipulation clearly and unambiguously pro-
vides for a nonprofessional unit, excluding all professional
employees.2 For these reasons, in conjunction with the
judge’s rationale for finding that DiTore and Sahijwana are
professional employees, I would sustain the challenges to
their ballots.
The Respondent argues that because DiTore and
Sahijwana were employed in a department named in the
“included” part of the stipulated unit description, the
stipulation clearly and unambiguously provides for the
inclusion of professional employees. I reject this argu-
ment for the reasons explained above. Moreover, even if
the “included” list were read to cover the two engineers,
the stipulation should at the very least be deemed ambig-
uous for purposes of the first step of the Caesar’s Tahoe
analysis, because the stipulated voting unit would then be
irreconcilable with the stipulated ballot language. Such
an internal inconsistency, which would produce an ab-
surd result, would preclude a finding that the stipulation
is unambiguous. See NLRB v. Detective Intelligence
Services, 448 F.2d 1022, 1025–1026 (9th Cir. 1971).
The inquiry would proceed to, and end with, the second
Caesar’s Tahoe step, “determin[ation of] the parties’
intent through normal methods of contract interpreta-
tion.” The record establishes beyond dispute that the
Petitioner sought to represent a unit of nonprofessional
employees. That is precisely why its observer chal-
lenged the ballots of the engineers when they appeared to
vote. There is nothing in the record to suggest that the
Respondent intended to agree to a mixed professional-
nonprofessional unit without a self-determination elec-
tion. The record contains no indication that either party
knew that there were any professional employees in the
listed departments, and it supports a strong inference that
neither party thought that any professional employee was
covered. Indeed, if the Respondent had known at the
time of the stipulation that the voting unit included pro-

determination question. NLRB Casehandling Manual, Part Two, Rep-
resentation Proceedings, Secs. 11091, 11091.1.
2 The cases relied on by the Respondent, Pontiac Osteopathic Hospi-
tal, 327 NLRB 1172 (1999), and Valley View Hospital, 252 NLRB
1146 (1980), are inapposite because they involved stipulated election
agreements that were facially contrary to the Act or where the parties
and Regional Director were on notice that there was a dispute over the
terms of the stipulated election agreement. The Board recognized this
distinction in Hollywood Medical Center, 275 NLRB 307, 308 (1985)
(denying objection that the stipulated nonprofessional job classifica-
tions included professional employees because “the stipulation on its
face is neither contrary to Board policy nor violative of Section 9(b)(1)
of the Act.”).
6
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
fessional employees, but failed to disclose the fact and
stipulated to a nonself-determination election, it would
be estopped from objecting on that basis. See Cruis
Along Boats, 128 NLRB 1019, 1019–1021 (1960) (pre-
cluding petitioner from pursuing challenges inconsistent
with preelection stipulation). Finally, it is a well-
established canon of contract interpretation that a reading
that gives an agreement lawful and effective meaning is
preferred to one that renders it unlawful or of no effect.
Restatement (Second) of Contracts, § 203 (1981). Under
accepted principles of contract interpretation, pursuant to
Caesar’s Tahoe, the Respondent’s reading of the stipula-
tion must be rejected.
Dated, Washington, D.C. August 27, 2015
______________________________________
Kent Y. Hirozawa, Member
NATIONAL LABOR RELATIONS BOARD
MEMBER MISCIMARRA, dissenting in part.
I agree with my colleagues that the Respondent violat-
ed Section 8(a)(1) of the Act by telling employees that
they could not discuss the Union in work areas or during
worktime (based on Jensen Enterprises, Inc., 339 NLRB
877, 878 (2003)) and telling employees that bonuses,
wage increases, transfers, and promotions were being put
on hold until after the election. I also join in adopting
the judge’s finding that the Respondent violated Section
8(a)(3) and (1) by delaying and withholding wage in-
creases, bonuses, transfers, and promotions, and in fur-
nishing a make-whole remedy for the Respondent’s fail-
ure to grant “spot bonuses.” And I agree with my col-
leagues that the Respondent did not violate Section
8(a)(1) by prohibiting an employee from using the Re-
spondent’s copier to copy union literature, and with
Member Johnson that the Respondent did not violate
Section 8(a)(1) by telling an employee that it preferred
she hand out union literature rather than place it on a
cafeteria table.
I do not join my colleagues, however, in their disposi-
tion of the representation case. I agree that DiTore and
Sahijwana are professional employees, but I disagree
regarding two other points.
First, contrary to the views expressed in Member
Hirozawa’s concurring opinion, I believe the stipulated
unit unambiguously includes DiTore and Sahijwana.
Although they are both professional employees, they
both unquestionably fall within the stipulated unit’s de-
scription, which encompasses all “full-time employees
employed by the Employer in . . . QC [quality control].”
Therefore, the fact that the stipulated unit expressly ex-
cludes “[a]ll other employees” does not apply to DiTore
and Sahijwana. The stipulated unit’s express exclusions
make no reference to “professional employees.”1 The
fact that the stipulated unit operates to exclude engineers
employed as professional employees in the Respondent’s
separate Engineering Department has no bearing on the
stipulation’s express inclusion of all full-time employees
employed in the QC Department. Moreover, in my view,
the scope of the stipulated unit is not rendered ambigu-
ous based on the parties’ failure to provide for a self-
determination election. See Caesar’s Tahoe, 337 NLRB
1096, 1097 (2002) (setting out a three-step test for re-
solving ballot challenges in stipulated unit cases, includ-
ing an initial determination whether the stipulation is
ambiguous). I am unaware of any precedent in which the
Board has looked beyond the language of the stipulated
unit description—i.e., the language that sets forth who is
included in and who excluded from the stipulated unit—
in determining whether a stipulation is ambiguous.
Second, I believe this case is controlled by Sunrise,
Inc., 282 NLRB 252 (1986), where the Board addressed
a stipulated election agreement that provided for the in-
clusion of professional employees in a mixed profession-
al/nonprofessional unit without a self-determination elec-
tion. Here, as in Sunrise, supra, I believe it would “best
effectuate the purposes of the Act to set aside the elec-
tion, vacate the stipulation, and remand [the] proceeding
to the Regional Director to resume processing of the peti-
tion by either assisting the parties to reach agreement on

1 In this respect, the instant case differs from a situation where the
stipulated unit expressly excludes “all professional employees.” See,
e.g., Sunrise, Inc., 282 NLRB 252 (1986).
7
OBERTHUR TECHNOLOGIES OF AMERICA CORP.
a new stipulation or, in the absence of a new stipulation,
conducting a hearing on the unit issue.” Id.2
Dated, Washington, D.C. August 27, 2015
______________________________________
Philip A. Miscimarra, Member
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
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT prohibit you from talking about the Union in
work areas or during worktime.
WE WILL NOT delay the payment of scheduled wage
increases, bonuses, transfers, and promotions during the
pendency of a representation election to discourage you
from supporting the Union.
WE WILL NOT tell you that your scheduled wage in-
creases, bonuses, promotions, and transfers have been
delayed as the result of the pendency of a representation
election.

2 I acknowledge, as stated in my partial dissenting opinion in
Tekweld Solutions, Inc., 361 NLRB No. 18, slip op. at 3–4 (2014)
(Member Miscimarra, dissenting in part), that when dealing with ballot
challenges—in the absence of election objections—the Board might
“reasonably limit its review to the question of whether or not the dis-
puted votes should be counted.” However, Tekweld did not involve a
stipulation that provided for a conventional election in a mixed unit of
professional and nonprofessional employees without a self-deter-
mination election, which is directly contrary to the requirements of Sec.
9(b)(1). Moreover, even in Tekweld, I favored a rerun election on the
basis that our “regular procedures [were] deficient” and “we should
satisfy our overriding statutory responsibility to ‘assure to employees
the fullest freedom in exercising the rights guaranteed by [the] Act.’”
Id., slip op. at 4 (quoting Sec. 9(b)). In any event, I believe the issues
presented here are governed by Sunrise, where the Board held the ap-
propriate action was a remand to resume processing the petition.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL make employees whole for any loss of earn-
ings and other benefits suffered as a result of having their
bonuses, scheduled wage increases, promotions, or trans-
fers unlawfully delayed, plus interest.
WE WILL compensate employees for the adverse tax
consequences, if any, of receiving lump-sum backpay
awards, and WE WILL file a report with the Social Securi-
ty Administration allocating the backpay awards to the
appropriate calendar quarters for each employee.
WE WILL rescind the instruction prohibiting employees
from talking about the Union in work areas or during
work-time.
OBERTHUR TECHNOLOGIES OF AMERICA
CORPORATION
The Board’s decision can be found at
www.nlrb.gov/case/04-CA-086325 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations
Board, 1015 Half Street, S.E., Washington, D.C. 20570, or
by calling (202) 273-1940.
Randy Girer, Esq., for the General Counsel.
Kevin C. McCormick, Esq., for the Respondent.
Thomas H. Kohn, Esq., for the Union.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. I heard the-
se consolidated cases on November 28, 29, and 30, 2012, and
January 2 and 3, 2013. The Petition in Case 04–RC–086261
was filed on July 30, 2012. On August 8, 2012, the Regional
Director approved a Stipulated Election Agreement pursuant to
which an election was held on September 7, 2012. The tally of
ballots showed that of about 229 eligible voters, 108 cast votes
for the Union, 106 cast ballots against representation and 3
persons cast challenged ballots. The challenged voters were
8
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
John DiTore, Ben Sahijwana, and Scott Hillman and these chal-
lenges were determinative of the outcome of the election.
The Union also filed objections to the election and these al-
leged as follows:
1. That on or about July 31, 2012, the Employer falsely ac-
cused an employee of using company property to make union
flyers and told her that she could not leave them on cafeteria
tables.
2. That on or about August 2, 2012, the Employer told em-
ployees that there would be no wage increases or promotions
until the union matter was resolved.
3. That during the course of the election, employee Debbie
Lester left a stack of antiunion T-shirts on a table within the
polling areas.
4. That on or about August 13, 2012, the Employer engaged
in surveillance of Union Supporter Donald Deputy in the park-
ing lot.
5. That during the election, Laura McCarthy, a nonunit em-
ployee, stood in the doorway to the voting room and urged
voters to vote no while wearing a red shirt with the word “NO”
in large black letters and wearing a button having a union bust-
er logo on it.
The unfair labor practice charge in Case 04–CA–086325 was
filed by the Union on July 31, 2012, and the charge in Case 04–
CA–087233 was filed on August 14, 2012. A consolidated
complaint was issued on October 22, 2012. This alleged as
follows:
1. That on or about July 11 and 25, 2012, the Respondent
implemented and enforced a new policy prohibiting employees
from discussing the Union in work areas.
2. That on or about July 18, 2012, the Respondent by Dorsey
and Newman, interrogated employees about their union sympa-
thies.1
3. That on or about July 31, 2012, the Respondent by Roman
Young, a supervisor, prohibited an employee from making
copies of prounion flyers using company copy machines and
told the employee to hand them out instead of placing them on
a cafeteria table.
4. That on or about August 2, 2012, the Respondent by An-
thony Ganci, a supervisor, told employees that they would not
receive promotions or wage increases until the union matter
was resolved.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed, I
make the following
FINDINGS AND CONCLUSIONS
I. JURISDICTION
It is admitted and I find that the Respondent is an employer
engaged in commerce within the meaning of Section 2(1), (6),
and (7) of the Act. I also find that the Union is a labor organi-
zation within the meaning of Section 2(5) of the Act.

1 At the hearing the General Counsel withdrew one of the interroga-
tion allegations.
II. THE CHALLENGED BALLOTS
The employer is a multinational enterprise, with its head-
quarters in Paris, France. The facility involved in the present
case is located in Exton, Pennsylvania, where it is engaged in
the manufacture of credit cards, debit cards, smart cards, gov-
ernmental identifications (for the United States and foreign
governments), and related products. This is not simply a print-
ing operation. Rather, the creation of these types of cards is a
high-tech operation involving, inter alia, the embedding of data,
holograms, and other security devices into these types of cards
and identification products.
The Stipulated Election Agreement defined the appropriate
collective-bargaining unit essentially by describing employees
in various departments instead of defining employees by job
title or job descriptions. The unit was defined as follows:
Included: All full-time employees employed by the Employer
in litho printing, finishing card and sheet, ink, facilities janito-
rial, card auditing plastics, pre-press composition, QC [quality
control], smart card embedding, screen making, screen print-
ing, production expeditor, quality systems analyst, warehouse
plastic, customer service manufacturing and maintenance de-
partments at its facility located at 523 James Hance Court, Ex-
ton, Pennsylvania.
Excluded: All other employees, temporary and seasonal em-
ployees, confidential employees, guards and supervisors as
defined in the Act.
It should be noted that although the Employer utilizes leads
in many of its departments, the evidence is that the parties in-
tended to include them in the bargaining unit. Indeed, one of
the employee organizers for the Union (Richard Crabtree) was
a lead in the production department. He also acted as the Un-
ion’s observer at the election.
I also note that that all of the employees who voted in the
election (except for DiTore and Sahijwana), were hourly paid
workers, most of whom were paid in the range of from $8.28
per hour to a maximum of $36.55 per hour.2 In the case of
Scott Hillman, he was, until 2012, paid on a salary basis but
was thereafter changed to an hourly employee.
A. Scott Hillman
Hillman’s title is strategic account manager, he works under
the supervision of Dave Domsohn, the manager of Client Ser-
vice Manufacturing. Also in his department are seven other
employees who have titles of client service representatives. All
of these employees (who like Hillman are hourly paid),3 are
responsible for making sure that customer orders are processed

2 This means that these employees are considered to be covered by
the Fair Labor Standards Act and are entitled to overtime for work over
40 hours per week. It also means that the Employer keeps track of their
time. Salaried employees are those who are paid on a biweekly basis
irrespective of the amount of time that they work during a given week.
The salaried employees at Oberthur include managers, supervisors, and
engineers.
3 The evidence indicates that that people in this department are paid
in the range of $14.18 per hour to $28.93 per hour. Hillman is the
highest paid of these employees.
9
OBERTHUR TECHNOLOGIES OF AMERICA CORP.
from the time they come in to the time they go out. The only
difference between Hillman and the other account representa-
tives is that he is responsible for the largest account, that being
American Express. Almost all of their work is done in the se-
cond floor offices and basically involves tracking the custom-
ers’ orders from beginning to end.
The Stipulated Election Agreement specifically includes em-
ployees in the customer service manufacturing department and
other than Hillman, the other client representatives all voted in
the election without challenge. In my opinion, Hillman’s job,
despite the nomenclature of manager, is essentially the same as
the other persons in this department. There was no evidence
that he exercised either managerial or supervisory authority.
Therefore, I conclude that he was an eligible voter.
B. John DiTore and Ben Sahijwana
Both of these gentlemen are persons with engineering de-
grees who, in my opinion, do jobs that require the independent
use of the skills and advanced knowledge, acquired through
their engineering education and work histories. They are em-
ployed in the Company’s quality control department under the
supervision of Joe Blossic who also has an engineering degree.
In the latter regard, Blossic testified that although he does su-
pervisory functions instead of engineering tasks, his back-
ground in engineering enables him to understand what DiTore
and Sahijwana are doing. In addition to these two employees,
the quality control department employs a relatively small group
of hourly paid employees who receive much less compensation
than either DiTore or Sahijwana. They are individuals who
have high school degrees.
Both DiTore and Sahijwana are paid on an salaried basis.
All of the other employees whom the Union and the Employer
agreed were eligible to vote, are paid on an hourly basis and are
subject to the wage and hour provisions of the Fair Labor
Standards Act.
The Company has an engineering department but neither
DiTore nor Sahijwana are assigned to it. The people employed
in the engineering department were not included in the voter
eligibility list and did not vote. Although not either explicitly
included or excluded from the Stipulated Election Agreement’s
voting unit, I think that it would be reasonable to assume that
both parties implicitly understood that engineers in the engi-
neering department should be considered professional employ-
ees who, as a matter of law, would not be permitted to be in-
cluded in the unit, except as a result of a self-determination
election. Sonotone Corp., 90 NLRB 1236, 1241–1242 (1950)
John DiTore was hired as a “Lean Engineer.” In this respect,
the description for the job is that it requires a B.S. Degree in
Engineering. In addition to holding a degree in mechanical
engineering, DiTore has a Master’s of Business Administration
and a Master’s of Science Degree from Temple University.
Also, he has taken specific courses in lean manufacturing in
conjunction with a previous employer. The testimony shows
that lean engineering is a subspecialty in engineering and that it
involves the use of science, engineering, and applied mathemat-
ics to configure a workplace and the flow of work so as to re-
duce waste, human exertion, and to maximize the production of
goods and services. As testified to by DiTore and Blossic, he is
responsible for taking on ad hoc projects and applying his
knowledge and skills to assemble teams of employees to ana-
lyze manufacturing processes and problems.
DiTore was hired at a salary of $72,000 which is substantial-
ly higher than any of the other employees who both sides
agreed were in the voting unit. In 2009, he received a bonus of
$800 which is the type of bonus only given to managerial em-
ployees. In 2010, DiTore received a merit increase that brought
his annual salary to $73,098. He received another raise in 2011
and a discretionary bonus in 2012 that is paid only to manageri-
al employees. His 2011 evaluation was done on the form used
for managers and professionals and his position was listed as a
“process improvement manager.”
In 2008, Ben Sahijwana was hired for the position of quality
engineer at a salary of $65,000 per year.4 Like DiTore, he is
considered as and is treated by the Company as being exempt
from the Fair Labor Standards Act (FLSA) wage and hour re-
quirements. Sahijwana has a College Degree from India and a
Bachelors Degree in engineering from Florida Institute of
Technology. He has a Masters Degree in engineering from
Villanova University and an MBA from Widener University.
Finally, he has a six sigma green belt, which as far as I under-
stand is a type of certification from a course or courses in man-
ufacturing quality standards.
Based on the testimony, it seems to me that Sahijwana is re-
sponsible for determining the cause and cure for items that
come out as defects. This is not simply a matter of reaching
into a conveyer line and removing and discarding those items
with imperfections. Rather, this is a process, whereby
Sahijwana is responsible for determining the cause of a defect
and the means by which the defect can be corrected and pre-
vented in the future. As he testified, this requires his utilization
of various scientific and/or engineering skills including pres-
sure and temperature analysis. It also requires that he have
knowledge of and understand the materials that are used by the
Company to manufacture its items, such as inks and plastics.
Although Sahijwana does work with some of the other employ-
ees in the quality control department, his function involves a
level of advanced knowledge and independent judgment which
is, in part, a product of his educational background. The evi-
dence shows that he will meet suppliers to determine the cause
of a problem and sometimes visit their factories in an effort to
find out the cause of a defect. Additionally, he will communi-
cate with the Company’s customers about manufacturing is-
sues.
In 2010, Sahijwana received a 1.5-percent-merit increase and
in 2011, he received a 1-percent-merit increase. His current
salary is $67,967 per year.
Whereas DiTore is principally concerned with how to make
the manufacturing process itself more efficient, Sahijwana’s job
is to make sure that the products once manufactured are done so
without defects and that they meet appropriate standards.
In my opinion, both of these employees should be classified
as professional employees within the meaning of Section 2(12)

4 A prerequisite for obtaining the job was that the applicant needed,
at a minimum, to have a Bachelor of Science Degree with knowledge
of statistics and statistical process control.
10
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of the Act. Their work is, in my opinion, predominantly intel-
lectual and varied as opposed to being routine or standardized.
In Westinghouse Electric Corp., 163 NLRB 723, 725–726
(1967), the Board concluded that the duties and responsibilities
performed by a group of engineers was essentially professional
in nature. The Board noted that the performance of such work
required a high degree of technical competence and the use of
independent judgment with respect to matters of importance to
the employer's financial and other managerial interests, and that
“such characteristics are typical of the work which Section
2(12) . . . defines as ‘professional’ work.”5
Having concluded that DiTore and Sahijwana are profes-
sional employees within the meaning of the Section 2(12) of
the Act, they cannot, in the absence of a Sonotone election, be
included in the stipulated unit as a matter of law.6 Moreover,
even the Board concluded that their jobs did not meet the crite-
ria of Section 2(12), I would still conclude that because of their
positions within the Company that they do not share a commu-
nity of interest with the employees in the stipulated voting unit
and therefore were ineligible to vote.
III. ALLEGED UNFAIR LABOR PRACTICES
A. No-Solicitation Admonitions
The Union commences its campaign in or about the spring of
2012 and it filed a petition for an election on July 30, 2012.
Even before the petition was filed, the Employer commenced
its own campaign in July 2012. This consisted of meetings,
videos, and written materials by which the Company communi-
cated its position regarding unionization.
On or about July 25, 2012, a group of employees consisting
of Kevin Connaghan, Scott Grove, Harvey Werstler, and Jerry
Thompson were talking on the plant floor about a flyer that the
Company had just put out in response to a union flyer.
Soon thereafter, employees Connaghan and Grove were
summoned to Belcher’s office. According to Connaghan,
Belcher said that they could not talk about union matters on the
plant floor; that they could only talk about it on breaks or in the
parking lot. Scott Grove testified that Belcher said that he had
gotten complaints about them talking about the Union and that
they should not speak about the Union on the plant floor.
Werstler testified that he and Thompson were also called
over by Bechler who told them that they had to refrain from
talking about the Union on the plant floor.
Linda Thompson, another employee testified that on an oc-
casion in late July or early August 2012, Belcher told employ-

5 Other Board cases where engineering employees were construed to
be professionals would include Chrysler Corp., 154 NLRB 352 (1965)
(manufacturing engineers held to be professionals); and Ryan Aeronau-
tical Co., 132 NLRB 1160 (1961) (various types of engineers held to be
professional employees). Cf. A. A. Mathews Associates, 200 NLRB
250 (1972), where engineer inspectors as opposed to engineers were
held to be nonprofessional employees.
6 In Pontiac Osteopathic Hospital, 327 NLRB 1172 (1999), the
Board held that were it has sufficient information to put it on notice that
there is an issue regarding the professional status of an employee, it
must make its own inquiry and cannot rely on the failure of the parties
to raise the issue.
ees in the tacking/lamination area that they should not discuss
the Union in their work space or on the work floor; that they
should discuss the Union outside the SMAK doors, which are
doors setting off the Company’s secured space from its more
public areas. She testified that Belcher told the employees that
if they wanted to discuss the Union they should do so in the
locker area hallway, in the cafeteria, or outside the plant.
Thompson testified that Belcher repeated these or substantially
similar comments to her on two other occasions in August
2012.
Finally employee Efrain Marrero testified that in early July
at a departmental meeting for about 12 to 13 first-shift employ-
ees, Supervisor Anthon Ganci told them that “he didn’t want
any outside distractions coming in and onto the floor.”
In an affidavit given by Belcher, he states that at a meeting
of about 26 third-shift employees that he told them:
I did tell employees during a production huddle in approxi-
mately June 2012 (I do not know the exact date) that I was in-
structed by the company to tell them that discussions about
the Union or organizing had to take place in common areas,
not work areas, so that production was not affected. I speci-
fied the common areas as the break room, parking area, bulle-
tin board area, and the hallway. Present for this comment
were all of the employees under my supervisor.
Since the admission by Belcher is consistent with the cor-
roborative testimony of the General Counsel’s witness, I am
going to credit their testimony.
Based on the credited testimony, I find that Belcher told em-
ployees that they could not talk about the Union to other em-
ployees except in areas other than the work floor or on
nonworktime. This restriction was, in my opinion, overly broad
and would prohibit employees from talking about the Union at
times and places which would not interfere with either their
own work or the work of others. The evidence shows that the
Company did not have any preexisting rule about solicitations
and permitted employees to talk while working.7 Since Belch-
er’s instructions to employees were directed only at discussion
about the Union, it must be concluded that this was improper
under Section 8(a)(1) of the Act. Austal USA, LLC, 356 NLRB
No. 65, slip op. at 39 (2010); Southwest Gas Corp., 283 NLRB
543 (1987); Marathon Letourneau Co. v NLRB 699 F2.d 248
(5th Cir. 1983); Lawson Co., 267 NLRB 463 (1983).
B. Alleged Interrogation
The General Counsel offered testimony by Robert Thompson
that in mid-July, before coming out as an active union support-
er, Nicole Dorsey a lead employee said that she wanted to ask
him a question that he didn’t have to answer, but she wanted to
know how he thought about the Union. He testified that re-
sponded that although he thought that the Company would run
better with a union, he was up in the air and hadn’t decided
how to vote.

7 At most, a supervisor may have told employees on occasion that
they were talking too much and that they should be paying more atten-
tion to their work.
11
OBERTHUR TECHNOLOGIES OF AMERICA CORP.
Efrain Marrero testified that in June 2012, before he started
advertising his union support, Alex Newman, another lead em-
ployee, asked if he was supporting the Union. Marrero re-
sponded affirmatively.
The parties agree that lead employees are not supervisors as
defined in the Act. The Union and the Company also agreed
that lead employees were eligible to vote in the election. There
is no evidence that lead employees were ever instructed or au-
thorized to speak for management during the election cam-
paign. Indeed, one of the leads was an active union supporter
and acted as the Union’s observer at the election.
Having agreed that lead employees should be eligible to
vote, it is reasonable to assume that both the Union and the
Company had expectations that these leads would talk to other
employees about the pros and cons of unionization and that,
being part of the voting unit, would ask other employees what
they thought about the Union.
Given the circumstances described above I do not conclude
that these alleged interrogations should be deemed to be coer-
cive under Rossmore House, 269 NLRB 1176 (1984), affd. 760
F.2d 1006 (9th Cir. 1985). I therefore recommend that these
allegations of the complaint be dismissed.
C. Allegation that Respondent prohibited an
Employee from Using a Copy Machine to Copy
Union Literature and Prohibited her from
Distributing them in the Cafeteria
Sandra Smith, a union supporter, testified that on July 31,
2012, at the beginning of her shift, she used a company copying
machine in the press room to make copies of some union litera-
ture which she later put on tables in the cafeteria.
Shortly thereafter, Smith was called to the office of Supervi-
sor Roman Young who told her that she was not allowed to
make copies of “this” on company property. He made the
statement while holding up a union flyer. She denied that she
made the copies that he showed her asserting that she did not
even know how to make color copies. She testified that he then
told her that the Company preferred that she distribute union
flyers by hand. Her understanding of this was that he was tell-
ing her that she should not leave union flyers on tables in the
cafeteria. In her affidavit, Smith acknowledged that Young did
not tell her that she could not hand out union literature in the
cafeteria; only that he preferred that she not do it.”
There is no evidence that Smith was in any way disciplined
or threatened with discipline for either making copies of union
literature on company machines or for distributing union flyers
to employees in the cafeteria or anywhere else. At most, she
was told that she shouldn’t use company machines to make
union flyers and that Young would prefer that if she distributed
union flyers that she do so by hand instead of leaving them on
cafeteria tables. In my opinion, this entire transaction is trivial
and essentially noncoercive. I would therefore recommend that
this allegation of the complaint be dismissed.
D. Alleged Delay in Implementing Wage
Increases, Bonuses, Promotions, etc.
On August 1, 2012, Diane Ware, the director of human re-
sources, sent out an email to the Company’s managers and
supervisors. This stated:
All increases, promotions, transfers and even spot bonuses are
on “hold” as they could be perceived as if we are trying to
“buy” the employees’ “NO” vote. We need to “maintain the
status quo.” It is unfortunate that we have to do this, but I
think it is warranted. If one of your employees is waiting for
an increase—please use the following phrase; “During this
period, we have to keep the status quo on all issues related to
wages, transfers and promotions.” PLEASE NOTE: We can-
not say things like, “it’s because of the union” or “your pro-
motion will be processed once we vote the union down.” The-
se phrases although very likely true, will be viewed as a
promise and we need to make sure that doesn’t happen.
Hopefully, with the phrase, “during this period,” employees
will realize that it may be linked to unions, but we cannot
draw that conclusion for them.
This email was not directly transmitted to unit employees.
Nevertheless, the message got out and before long many em-
ployees became aware of this policy. Moreover, there were a
number of employees directly affected by the freeze who did
not receive bonuses or pay increases that they otherwise would
have received but for the freeze.
Ware admitted that from August 1 to the date of the election,
September 7, 2012, there were a number of instances where
employees who had been approved for spot bonuses before
August 1, 2012, had the payment of the bonuses delayed until
after the election.8 Additionally, the evidence shows that there
were employees who were recommended for and or approved
for spot bonuses after August 1, but where payment was de-
layed until after the election. The Company concedes that the
payments of these bonuses were in fact delayed during the pe-
riod leading up to the election, but asserts that they ultimately
were paid after the election.9
In addition to spot bonuses the Company also has a program
whereby employees who have been transferred or promoted to
new job can get a wage increase, or if the difference between
the job wage scales are significant, a series of scheduled in-
creases over a defined period of time.
For example, Efrain Marrero, was transferred to a new job in
April 2011 and was recommended for a $.25 wage increase in
May 2012. Although this wage increase was submitted to the
regional human resource vice president in July 2012, Marrero

8 Since 2007, the Company has had a policy of providing spot bo-
nuses in modest amounts for doing extra work, for spotting errors, or
for other specific activities worthy of reward. Although the program
has been in existence for quite a while, the granting of specific spot
bonuses is ad hoc and event driven. These bonuses range from $50 to
$150 and hourly paid employees can receive multiple spot bonuses but
no more than $1000 per year.
9 In her brief, the General Counsel suggests that at least one employ-
ee, Borkee Phethsarath, was nominated for two spot bonuses in August,
may not have received payment after the election.
12
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
did not receive it. On August 2, 2012, Marrero asked his su-
pervisor, Ganci, why he hadn’t received the increase and Ganci
read from and email on his computer and stated that no raises
or promotions were going to be handed out until further notice.
A few days later Marrero resigned and he never got his $.25
increase.
A somewhat different example involves an employee named
Marcellus Barnett. He, and a number of other employees, were
all promoted in April 2011. As arranged, these employees were
to receive quarterly wage increases over a period of 18 months
to 2 years. In August 2012, Barnett heard Ware tell some em-
ployees that all raises were on hold until after the election. He
asked Ware if his increase was being affected by this union
thing and she responded that the raises were on hold until the
outcome of the election. Barnett said that he didn’t think that
this was fair because his wage increase had been scheduled
before the Union came on the scene.
Notwithstanding this conversation, Barnett’s next scheduled
wage increase was not affected by the freeze because it was
scheduled for October. There were, however, a number of
other employees in Barnett’s same circumstance who did have
scheduled wage increases delayed until after the election.10
The evidence shows that the Respondent did not tell employ-
ees that the freeze was going to be temporary and that withheld
bonuses and wage increases would only be deferred until after
the election regardless of the outcome.
In my opinion, the Respondent violated Section 8(a)(3) and
(1) of the Act by withholding bonuses and scheduled wage
increases during the period of time between the filing of the
petition and the holding of the election. I also conclude that by
telling employees that bonuses, wage increases, promotions,
and transfers were being put on hold until after the election, the
Respondent violated Section 8(a)(1) of the Act.
It is unlawful for an employer to either grant or withhold
employee benefits if the decision to do so is motivated by union
activity. Even in the absence of direct evidence of illegal moti-
vation an employer, during the period between the filing of an
election petition and the holding of an election, may be pre-
cluded from changing the status quo ante with respect to wages,
benefits, and other terms and conditions of employment. This
means that a company can neither grant new benefits to its
employees nor withhold benefits that its employees would oth-
erwise have received. In NLRB v. Aluminum Casting & En-
graving Co., 230 F.3d 286 (7th Cir. 2000), the court affirmed
the Board’s finding that an employer violated the act by failing
to give annual across-the-board increases during an organiza-
tional campaign.
In Noah’s Bay Area Bagels, LLC, 331 NLRB 188, 189
(2000), a Board majority held that an employer violated Section
8(a)(3) and (1) by withholding health benefits only at a store
involved in an election during the critical period preceding an
election. Citing Llampi, LLC, 322 NLRB 502 (1996), and

10 The General Counsel points out that wage increases scheduled for
Alejandra Garcia, Sio Doe, Lorraine Dolowski, and Yaritz Jimenez-
Perez were delayed until after the election. She also notes that these
people were paid retroactively.
quoting from United Airlines, Services Corp., 290 NLRB 954
(1988), the Board stated:
It is well established that the mere grant of benefits during the
critical period is not, per se, grounds for setting aside an elec-
tion. Rather, the critical inquiry is whether the benefits were
granted for the purpose of influencing the employees’ vote in
the election and were of a type reasonably calculated to have
that effect. As a general rule, an employer’s legal duty in de-
ciding whether to grant benefits while a representation pro-
ceeding is pending is to decide that question precisely as it
would if the union were not on the scene. In determining
whether a grant of benefits is objectionable, the Board has
drawn the inference that benefits that are granted during the
critical period are coercive, but it has allowed the employer to
rebut the inference by coming forward with an explanation,
other than a pending election for the timing of the grant or an-
nouncement of such benefits.
The Respondent argues that it was on the horns of a dilemma
and that it did not want to either give the impression that it was
bribing employees to vote against unionization or that it was
punishing them for being in favor of unionization. The answer
to this “paradox” is explained in Noah’s Bay Area Bagels, su-
pra, where the Board stated that although an employer is not
allowed to inform employees that it is withholding benefits
because of a pending election, “it may, in order to avoid creat-
ing the appearance of interfering with the election, tell employ-
ees that implementation of expected benefits will be deferred
until after the election—regardless of the outcome.” The Board
concluded that:
[T]he respondent unlawfully withheld restoration of the Pru-
dential plan at the Telegraph store while at the same time law-
fully restoring it at all of its other stores, without providing the
Telegraph store employees with assurances that the withhold-
ing of the Prudential plan at that store was only temporary and
that it would be restored retroactively to them following the
election, regardless of its outcome.
We also do not agree with our colleague that if the Respond-
ent had restored the Prudential plan to the Telegraph store at
the same time it was restoring it to all of other locations it
would have run afoul of precedent holding that it is unlawful
for an employer to grant benefits while an election is pending
unless the employer can establish that the benefit had been
planned prior to the union’s arrival on the scene, or that the
grant of the benefit was part of an established past practice.
IV. THE OBJECTIONS TO THE ELECTION
The Union filed eight objections to the election but withdrew
Objections 1, 2, and 4. Some of the remaining objections over-
lapped with the unfair labor practice allegations and some did
not.
In order to balance the interests of insuring that employees
have a fair chance to express their choice with the requirement
that elections have at least a reasonable degree of finality, the
Board has set forth a set of standards by which to judge wheth-
er conduct (by either party), will be sufficient to set aside an
13
OBERTHUR TECHNOLOGIES OF AMERICA CORP.
election. In Taylor Wharton Harsco Corp., 336 NLRB 157,
158 (2001), the Board stated:
[T]he proper test for evaluating conduct of a party is an objec-
tive one- whether it has “tendency to interfere with the em-
ployees’ freedom of choice.” Cambridge Tool Mfg., 316
NLRB 716 (1995). In determining whether a party’s miscon-
duct has the tendency to interfere with employees’ freedom of
choice, the Board considers: (1) the number of incidents; (2)
the severity of the incidents and whether they were likely to
cause fear among the employees in the bargaining unit; (3) the
number of employees in the bargaining unit subjected to the
misconduct; (4) the proximity of the misconduct to the elec-
tion; (5) the degree to which the misconduct persists in the
minds of the bargaining unit employees; (6) the extent of dis-
semination of the misconduct by the opposing party to cancel
out the effects of the original misconduct; (8) the closeness of
the final vote; and (9) the degree to which the misconduct can
be attributed to the party. See, e.g. Avis Rent-a-Car, 280
NLRB 580, 581 (1986).
In the present case, the evidence shows that the Employer
put a freeze on pending wage increases and bonuses during the
period from the filing of the petition (July 30, 2012), to the date
of the election. The evidence also establishes that after August
1, 2012, various unit employees were told by supervisors and
managers that bonuses and wage increases were put on hold
during the pendency of the election. These employees, in turn
told other employees about their conversations so it would fair
to conclude that by the time of the election, many if not most of
the employees in the voting unit were aware of this policy.
I have concluded above that the Employer violated Section
8(a)(3) and (1) by implementing this policy of withholding
existing benefits during the pendency of the election and by
notifying employees of this policy. Given the degree of dis-
semination of this policy within the voting group and the close-
ness of the election outcome, it is my opinion that this conduct
should reasonably be construed as adversely affecting the out-
come of the election.
I shall therefore sustain the Union’s Objection 5 and con-
clude that this conduct is sufficient to set aside the election.11

11 I would dismiss the other objections. Although I have concluded
that the Employer violated Sec. 8(a)(1) of the Act by telling employees
that they should not talk about the Union on company time or in work-
ing areas, all of those incidents except two involving a single employee,
occurred before the petition was filed and therefore were outside the
critical period. Ideal Electric Mfg. Co., 134 NLRB 1275 (1961). The
Union also alleged that a nonsupervisory employee entered the polling
area and placed a stack of antiunion T-shirts on a table. In my opinion,
this third party conduct does not constitute objectionable conduct. The
Union alleged that when Donald Deputy, an active union supporter was
on his way back from lunch, he was told that a HR person had called
and wanted to know why he (Deputy) had been in the parking lot. To
me, this does not rise to a level that could be construed as being surveil-
lance or giving the impression of surveillance. Finally, the Union pro-
duced evidence that Laura McCarthy, a nonsupervisory employee who
was not in the voting unit, on two short occasions, stood in the doorway
of the voting room while wearing an antiunion button, and a red Vote
NO T-shirt. Even assuming that this version is correct, I do not con-
clude that this constituted improper electioneering under Milchem, Inc.,
CONCLUSIONS OF LAW
1. The Respondent violated Section 8(a)(1) of the Act when,
in the absence of a preexisting valid no solicitation rule, its
supervisors told employees that they could not talk about the
Union in work areas or during worktime.
2. The Respondent violated Section 8(a)(3) and (1) of the
Act by implementing a policy of freezing bonuses, wage in-
creases, and/or other benefits during the period of time the fil-
ing of the representation petition and the election.
3. The Respondent violated Section 8(a)(3) and (1) by noti-
fying employees of the aforesaid freeze policy.
4. Scott Hillman is an eligible voter and the challenge to his
ballot should be overruled.
5. John DiTore and Ben Sahijwana are professional employ-
ees who are ineligible to vote and therefore the challenges to
their ballots should be sustained.
6. Objection 5 is sustained and would be the basis for setting
aside the election.
7. Except to the extent found herein, the Respondent has not
violated the Act in any other manner.
8. The unfair labor practices affect commerce within the
meaning 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 evidence in this case shows that during the period from
August 1 to September 7, 2012, the Respondent unlawfully
delayed the payments of certain bonuses and wage increases
that were scheduled or approved during that period. The evi-
dence also shows that except for perhaps a few people, such as
Efrain Marrero, all those employees who should have received
these benefits did so retroactively in October 2012. As to Mar-
rero, he is entitled to his wage increase from the date that he
was scheduled to receive it to the date of his resignation. To the
extent that there may have been an individual or individuals
who did not received either a scheduled increase or an ap-
proved bonus, whose name was not mentioned or known at the
time of the hearing, the General Counsel can determine that in
compliance.
The General Counsel contends that the affected employees
should receive interest on the amount of money for which there
was a delay. Technically, she is right. But in this case, the
amount of interest on the small bonuses or wage increases for
the short time that they were delayed would be vanishingly
small, especially given the interest rate that is currently in
place. Frankly, I don’t think that the Regional compliance
department should be put to the task of figuring out how many
cents each employee would receive in interest. But if the Gen-
eral Counsel wants to undertake that task, that is her preroga-

170 NLRB 362 (1968). I note that in Queen Kapiolani Hotel, 316
NLRB 655, 668 (1995), and U-Haul of Nevada, Inc., 341 NRB 195
(2004), the Board even held that the wearing of a union T-shirt by an
observer during the election is not objectionable as improper election-
eering.
14
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tive. I therefore shall agree with the General Counsel that in-
terest should be charged for the minimum loss of money suf-
fered by these employees. Interest on any moneys owed should
be paid at the rate prescribed in New Horizons, 283 NLRB
1187 (1987), compounded daily as prescribed in Kentucky Riv-
er Medical Center, 356 NLRB No. 8 (2010).
The General Counsel also contends that with respect to spot
bonuses, I should compel the Respondent to grant spot bonuses
to employees who might have been approved for them during
the period from August 1 to September 2012. I do not agree.
Spot bonuses are relatively small ad hoc rewards for employees
who earn them by their work, initiative, etc. Although the rec-
ord shows that the Company froze the approval of spot bonuses
during the election period, it is my opinion that it would be
speculative for me to determine who, if anyone, might have had
a spot bonus recommended and approved during the period of
time in question. Moreover, since this policy ceased after little
more than a month, the degree of prejudice to any given em-
ployee would not only be speculative but be slight.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended12
ORDER
The Respondent, Oberthur Technologies of America Corpo-
ration, Exton, Pennsylvania, its officers, agents, and assigns,
shall
1. Cease and desist from
(a) Telling employees, in the absence of a valid no-
solicitation rule, not talk to each other about the Union or their
union activities in work areas or during working time.
(b) Delaying the payment of scheduled wage increases and
approved bonuses during the pendency of an NLRB conducted
election.
(c) In any like or related manner interfering with, restraining,
or coercing employees in the rights guaranteed to them by Sec-
tion 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order and to the ex-
tent not already paid retroactively, pay any employee whose
approved bonus or scheduled wage increase was delayed be-
cause of the Respondent’s policy to freeze such benefits during
the pendency of the election.
(b) 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 rec-
ords, 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 money
due under the terms of this Order.

12 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 adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
(c) Within 14 days after service by the Region, post at its Ex-
ton, Pennsylvania facility, copies of the attached notice marked
“Appendix.”13 Copies of the notice, on forms provided by the
Regional Director for Region 4, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such as by
email, posting on an intranet or an internet site, and/or other
electronic means, if the Respondent customarily communicates
with its employees by such means. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not a
altered, defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Respondent
has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time
since June 26, 2009.
(d) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the challenge to the ballot of
Scott Hillman be overruled but that the challenges to the ballots
of John DiTore and Ben Sahijwana be sustained.
IT IS FURTHER ORDERED that Case 04–RC–086261 be severed
from Cases 04–CA–086324 and 04–CA–087233 and that it be
remanded to the Regional Director for Region 4 to take action
consistent with this Decision.
Dated, Washington, D.C. February 20, 2013
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
the National Labor Relations Act and has ordered us to post and
abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of their
own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected con-
certed activities.

13 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 Judgment
of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board.”
15
OBERTHUR TECHNOLOGIES OF AMERICA CORP.
WE WILL NOT tell employees, in the absence of a valid no-
solicitation rule that they cannot talk to each other about the
Union or union affairs in the facility or during worktime.
WE WILL NOT delay payment of approved bonuses or sched-
uled wage increases during the pendency of an NLRB conduct-
ed election, because employees join or support Graphic Com-
munications Conference, International Brother-hood of Team-
sters, Local 14-M.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce employees in the rights guaranteed to them by
Section 7 of the Act.
WE WILL make whole employees who had their bonus or
wage increase payments delayed because of a freeze imposed
by us during the pendency of the election.
OBERTHUR TECHNOLOGIES OF AMERICA
CORPORATION