Roemer Industries

National Labor Relations Board - Board Decisions

May 23, 2019

367 NLRB No. 133 (N.L.R.B. 2019)

367 NLRB No. 133
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.
Roemer Industries, Inc. and United Steel, Paper and
Forestry, Rubber, Manufacturing, Energy, Al-
lied Industrial and Service Workers Interna-
tional Union, AFL–CIO, CLC.1 Cases 08–CA–
188055, 08–CA–192702, and 08–CA–204521
May 23, 2019
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS MCFERRAN
AND KAPLAN
On September 24, 2018, Administrative Law Judge
Sharon Levinson Steckler issued the attached decision.
The Respondent Roemer Industries, Inc., filed exceptions
and a supporting brief, the General Counsel filed excep-
tions and an answering brief to the Respondent’s excep-
tions, and the Respondent filed a reply brief.
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 briefs2 and has decided to

1 We have corrected inadvertent errors in the judge’s case caption.
2 The record in this case suggests that the Respondent’s attorney,
Matthew D. Austin, has not conformed to the standards of ethical and
professional conduct required of practitioners appearing before the
Agency under Sec. 102.177(a) of the Board’s Rules and Regulations.
To begin with, Judge Steckler granted the General Counsel’s motion to
strike six portions of Counsel Austin’s posthearing brief because the
brief “misrepresented portions of the transcript and/or included facts . .
. that were not in the transcript.” The judge noted that this was not the
first instance of similar conduct, citing Roemer Industries, 362 NLRB
828, 831 fn. 7 (2015), enfd. 688 Fed.Appx. 340 (6th Cir. 2017). There,
a different administrative law judge criticized a posthearing brief filed
by Counsel Austin as “contain[ing] many assertions not based on any
record evidence,” and a purported offer of proof that that judge charac-
terized as “entirely improper.” Id. Other documents filed with the
Board in this matter by Counsel Austin maintain apparently frivolous
positions, repeat claims previously found unsupported by Judge Steck-
ler, and otherwise make statements that appear to be knowingly false.
For example, the Respondent’s briefs misrepresent the timing of several
bargaining proposals related to the Respondent’s unilateral wage in-
crease. And the briefs maintain, without record support, that the Re-
spondent asked the Union to limit the scope of its request for infor-
mation about the Respondent’s security surveillance cameras before the
Respondent failed and refused to provide the requested information. In
light of what appears to be a persistent pattern of misrepresentation by
Counsel Austin, we have concluded that it is appropriate under Sec.
102.177(d) and (e)(1) of the Board’s Rules and Regulations to refer
allegations concerning Austin’s conduct to the attention of the Investi-
gating Officer for investigation and such disciplinary action as may be
appropriate. We shall therefore modify the judge’s recommended
Order to include the referral. See Deep Distributors of Greater NY
d/b/a Imperial Sales, Inc., 365 NLRB No. 95, slip op. at 3–4 & fn. 15, 5
(2017) (Board modified judge’s recommended Order to refer apparent
hearing misconduct for investigation), enfd. 740 Fed.Appx. 216 (2d
affirm the judge’s rulings, findings,3 and conclusions4
and to adopt the judge’s recommended Order as modified
and set forth in full below.5

Cir. 2018); see also Earthgrains Co., 351 NLRB 733, 733 fn. 3, 741
(2007) (Board adopted judge’s recommended Order provision includ-
ing Sec. 102.117(e) referral, while noting better practice is for judges to
submit misconduct allegations directly to the Investigating Officer);
Bethlehem Temple Learning Center, 330 NLRB 1177, 1177 fn. 3, 1178
(2000) (Board referred alleged attorney misconduct to the Investigating
Officer for appropriate disciplinary action); McAllister Towing &
Transportation Co., 341 NLRB 394, 398 fn. 7 (2004) (same), enfd. 156
Fed.Appx. 386 (2d Cir. 2005).
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.
We adopt the judge’s findings that statements made to employees by
the Respondent’s owner Joe O’Toole on January 3, 2017, had a reason-
able tendency, under all the circumstances, to interfere with, restrain, or
coerce employees in the exercise of their Sec. 7 rights in violation of
Sec. 8(a)(1). See, e.g., El Paso Electric Co., 350 NLRB 151, 152
(2007) (stating standard), enfd. 272 Fed.Appx. 381 (5th Cir. 2008). In
doing so, we note that to the extent O’Toole might have intended to
imply, when he asked employees whether they wanted to keep working
for the Respondent, that the Union’s bargaining positions imperiled the
survival of the company, O’Toole presented no objective basis for such
an implication as would be required for his question to fall within the
protection of Sec. 8(c). See, e.g., Reeves Bros., Inc., 320 NLRB 1082,
1083 (1996) (citing NLRB v. Gissel Packing Co., 395 U.S. 575, 618
(1969)). We further agree with the judge that in the context of
O’Toole’s unlawful implied threat to employees’ continued employ-
ment, combined with his unlawful attempt to undercut the Union by
dealing directly with employees, employees would reasonably under-
stand O’Toole’s statement that he had hired a union-busting lawyer as a
coercive threat to interfere with their right to act collectively through
their selected bargaining representative.
In adopting the judge’s finding that the Respondent unlawfully sus-
pended and discharged employee Bruce Haas because of his protected
union activity, we note that the judge inadvertently misstated certain
aspects of Haas’ disciplinary record. Specifically, the judge stated that
Haas received a 5-day suspension pending discharge in 2008 (he re-
ceived a 3-day suspension) and that Haas received a 1-day suspension
on November 4, 2015 (he received a written warning). The judge also
incorrectly stated that Haas was disciplined in the summer of 2016—
and that the Union grieved the discipline—after O’Toole observed
Haas by camera talking to a UPS driver. Haas testified that O’Toole
“chewed him out” for the UPS driver incident, but he was not disci-
plined. However, O’Toole disciplined Haas for conduct observed by
camera in 2013 (which discipline the Union grieved). Finally, the
judge correctly found that Haas had previously reached the 5-day sus-
pension level without being discharged, but incorrectly stated that this
happened in 2008 (it happened in 2002 and 2003). No party filed ex-
ceptions to these inadvertent misstatements by the judge, which do not,
in any case, affect our analysis. Additionally, in adopting the judge’s
finding that the Respondent offered pretextual reasons for disciplining
and discharging Haas, we find it unnecessary to rely on the judge’s
finding that the discipline imposed was not in proportion to Haas’ work
infraction.
4 In affirming the judge’s conclusion that the Respondent violated
Sec. 8(a)(5) and (1) by unilaterally increasing employees’ wages, we
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
ORDER
The National Labor Relations Board orders that the
Respondent, Roemer Industries, Inc., Masury, Ohio, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening employees’ continued employment
because of their support for the United Steel, Paper and
Forestry, Rubber, Manufacturing, Energy, Allied Indus-
trial and Service Workers International Union, AFL–
CIO, CLC (the Union) or the Union’s bargaining posi-
tions.
(b) Threatening to interfere with employees’ right to
act collectively through their selected collective-
bargaining representative.
(c) Threatening to change employees’ wage structure
because of the Union’s bargaining positions.
(d) Telling employees it had to take back wage in-
creases because the Union had filed an unfair labor prac-
tice charge with the Board.
(e) Suspending, discharging, or otherwise discriminat-
ing against employees because of their support for and
activities on behalf of the Union or any other labor or-
ganization.
(f) Changing the terms and conditions of employment
of its unit employees because the Union filed an unfair
labor practice charge with the Board on their behalf.
(g) Changing the terms and conditions of employment
of its unit employees, including by raising and lowering
their wages, without first notifying the Union and giving
it an opportunity to bargain.
(h) Bypassing the Union and dealing directly with its
employees regarding wages, hours, and terms and condi-
tions of employment.
(i) Refusing to bargain collectively with the Union by
failing and refusing to furnish it with requested infor-
mation that is relevant and necessary to the Union’s per-
formance of its functions as the collective-bargaining
representative of the Respondent’s unit employees.
(j) 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.

note that, while the judge’s conclusions of law give the date of the
wage increase as May 19, 2017, the record shows (and the judge cor-
rectly found elsewhere) that O’Toole authorized the wage increase on
May 10, 2017. Further, in affirming the judge’s conclusions that the
Respondent’s July 2017 reduction of employee wages violated Sec.
8(a)(5), (4), and (1) of the Act, we do not affirm the judge’s apparently
inadvertent conclusion that the same conduct also violated Sec. 8(a)(3).
No such 8(a)(3) violation was alleged, litigated, or discussed in the
analysis section of the judge’s decision.
5 We shall modify the judge’s recommended Order to conform to
the violations found and to the Board’s standard remedial language, and
we shall substitute a new notice to conform to the Order as modified.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Bruce Haas full reinstatement to his former job or, if that
job no longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority or any other rights
or privileges previously enjoyed.
(b) Make Bruce Haas whole for any loss of earnings
and other benefits suffered as a result of the discrimina-
tion against him, in the manner set forth in the remedy
section of the decision.
(c) Compensate Bruce Haas for the adverse tax conse-
quences, if any, of receiving a lump-sum backpay award,
and file with the Regional Director for Region 8, within
21 days of the date the amount of backpay is fixed, either
by agreement or Board order, a report allocating the
backpay award to the appropriate calendar year(s).
(d) Within 14 days from the date of this Order, re-
move from its files any reference to the unlawful suspen-
sion and discharge of Bruce Haas, and within 3 days
thereafter, notify Haas in writing that this has been done
and that the suspension and discharge will not be used
against him in any way.
(e) Before implementing any changes in wages, hours,
or other terms and conditions of employment of unit em-
ployees, notify and, on request, bargain with the Union
as the exclusive collective-bargaining representative of
employees in the following bargaining unit:
All production and maintenance employees of the
Company except those individuals occupying watch-
man, confidential clerical, salaried or supervisory posi-
tions of assistant foreman level or above.
(f) On request by the Union, rescind the changes in
terms and conditions of employment for its unit employ-
ees that were unilaterally implemented in May and July
2017.
(g) Make unit employees whole for any loss of earn-
ings and other benefits suffered as a result of the unlaw-
ful unilateral changes in the manner set forth in the rem-
edy section of the decision.
(h) Compensate affected employees for the adverse
tax consequences, if any, of receiving lump-sum backpay
awards, and file with the Regional Director for Region 8,
within 21 days of the date the amount of backpay is
fixed, either by agreement or Board order, a report allo-
cating the backpay awards to the appropriate calendar
year(s) for each employee.
(i) Furnish to the Union in a timely manner the infor-
mation requested by the Union on May 8, 2017.
(j) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
ROEMER INDUSTRIES 3
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 rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(k) Within 14 days after service by the Region, post at
its Masury, Ohio facility copies of the attached notice
marked “Appendix.”6 Copies of the notice, on forms
provided by the Regional Director for Region 8, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places, including
all places where notices to employees are customarily
posted. 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. Rea-
sonable 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
business or closed the facility involved in these proceed-
ings, 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 September 30, 2016.
(l) Within 21 days after service by the Region, file
with the Regional Director for Region 8 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 alleged misconduct by
the Respondent’s counsel, Matthew D. Austin, as set
forth above, is referred to the Investigating Officer, the
Associate General Counsel, Division of Operations Man-
agement, pursuant to Section 102.177(e) of the Board’s
Rules and Regulations.
Dated, Washington, D.C. May 23, 2019
______________________________________
John F. Ring, Chairman

6 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.”
______________________________________
Lauren McFerran, Member
Marvin E. Kaplan, 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
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 threaten your continued employment be-
cause of your support for the United Steel, Paper and
Forestry, Rubber, Manufacturing, Energy, Allied Indus-
trial and Service Workers International Union, AFL–
CIO, CLC (the Union) or the Union’s bargaining posi-
tions.
WE WILL NOT threaten to interfere with your right to
act collectively through your selected collective-
bargaining representative.
WE WILL NOT threaten to change your wage structure
because of the Union’s bargaining positions.
WE WILL NOT tell you that we have to take back wage
increases because the Union filed an unfair labor practice
charge with the Board.
WE WILL NOT suspend, discharge, or otherwise dis-
criminate against you because of your support for the
Union or your activities on behalf of the Union or any
other labor organization.
WE WILL NOT change your terms or conditions of em-
ployment because the Union filed an unfair labor practice
charge with the Board on your behalf.
WE WILL NOT unilaterally change the terms and condi-
tions of your employment, including by raising or lower-
ing your wages, without first notifying the Union and
giving it an opportunity to bargain.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
WE WILL NOT bypass the Union and deal directly with
you regarding your wages, hours, or terms and conditions
of employment.
WE WILL NOT refuse to bargain collectively with the
Union by failing and refusing to furnish it with requested
information that is relevant and necessary to the Union’s
performance of its functions as your collective-
bargaining representative.
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, within 14 days from the date of the Board’s
Order, offer Bruce Haas full reinstatement to his former
job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
any other rights or privileges previously enjoyed.
WE WILL make Bruce Haas whole for any loss of earn-
ings and other benefits resulting from his suspension and
discharge, less any net interim earnings, plus interest,
and WE WILL also make him whole for reasonable search-
for-work and interim employment expenses, plus inter-
est.
WE WILL compensate Bruce Haas for the adverse tax
consequences, if any, of receiving a lump-sum backpay
award, and WE WILL file with the Regional Director for
Region 8, within 21 days of the date the amount of back-
pay is fixed, either by agreement or Board order, a report
allocating the backpay award to the appropriate calendar
year(s).
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful suspension and discharge of Bruce Haas, and WE
WILL, within 3 days thereafter, notify him in writing that
this has been done and that the suspension and discharge
will not be used against him in any way.
WE WILL, before implementing any changes in wages,
hours, or other terms and conditions of employment of
unit employees, notify and, on request, bargain with the
Union as the exclusive collective-bargaining representa-
tive of our employees in the following bargaining unit:
All production and maintenance employees of
the Company except those individuals occupy-
ing watchman, confidential clerical, salaried or
supervisory positions of assistant foreman level
or above.
WE WILL, on request by the Union, rescind the changes
in terms and conditions of employment for our unit em-
ployees that were unilaterally implemented in May and
July 2017.
WE WILL make unit employees whole for any loss of
earnings and other benefits suffered as a result of our
unlawful unilateral changes in terms and conditions of
employment, plus interest.
WE WILL compensate affected employees for the ad-
verse tax consequences, if any of receiving lump-sum
backpay awards, and WE WILL file with the Regional
Director for Region 8, within 21 days of the date the
amount of backpay is fixed, either by agreement or
Board order, a report allocating the backpay awards to
the appropriate calendar year(s) for each employee.
WE WILL furnish to the Union in a timely manner the
information requested by the Union on May 8, 2017.
ROEMER INDUSTRIES, INC.
The Board’s decision can be found at
www.nlrb.gov/case/08-CA-188055 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.
Kelly Freeman, Esq., for the General Counsel.
Keith L. Pryatel and Matthew D. Austin, Esqs., for the Re-
spondent.
Anthony Resnick, Esq., for Charging Party Union.
DECISION
STATEMENT OF THE CASE
SHARON LEVINSON STECKLER, Administrative Law Judge.
This case was tried in Cleveland, Ohio, on April 24–26, 2018.
Charging Party United Steel, Paper, & Forestry, Rubber Manu-
facturing, Energy Allied Industries and Services Workers Inter-
national Union, AFL–CIO, CLC (Union) filed the charge in
Case 08–CA–188055 on November 14, 2016, and amended the
charge on December 1, 2016; the Union filed the charge in
Case 08–CA–192702 on February 8, 2017, and amended it on
March 29, 2017; the Union filed the charge in Case 08–CA–
ROEMER INDUSTRIES 5
204521 on August 17, 2017. General Counsel issued the order
consolidating cases, consolidated complaint on April 27, 2017,
and issued an order further consolidating cases, second consoli-
dated complaint and notice of haring (complaint) on November
30, 2017. Respondent filed timely answers.
General Counsel, Charging Party and Respondent filed time-
ly briefs. On June 7, 2018, General Counsel filed a motion to
strike 6 portions of Respondent’s brief. I ordered Respondent
to show cause why I should not grant General Counsel’s mo-
tion. Respondent provided a timely response to the Order to
show cause but responded to only three of the six areas General
Counsel proposed to strike. I grant the motion as Respondent
misrepresented portions of the transcript and/or included facts
in its brief that were not in the transcript. Nor is this the first
time that Respondent and its attorney have claimed information
in its brief not supported by the hearing record. See Roemer
Industries, Inc., 362 NLRB 828, 831 fn. 7 (2015), enfd. 688
Fed.Appx. 340 (6th Cir. 2017). Some of these are discussed in
more detail below in the appropriate section of the decision.1
On the entire record, including my observation of the de-
meanor of the witnesses,2 and after carefully considering the
briefs, I make the following

1 Unsupported in the record is whether O’Toole had a foot injury
and where he had to park or access the stairs. Also unsupported is
whether the Union has filed a surface bargaining or bad faith bargain-
ing charge against Respondent, and furthermore the information is
irrelevant to the allegations in this case. Nor was there any evidence
that O’Toole was “frustrated” with the Union for cancelling and refus-
ing to schedule bargaining dates. These references in the brief are
struck.
2 Although I have included citations to the record to highlight par-
ticular testimony or exhibits, my findings and conclusions are not based
solely on those specific record citations, but rather upon my review and
consideration of the entire record for this case. My findings of fact
encompass the credible testimony, evidence presented, and logical
inferences. The credibility analysis may rely upon a variety of factors,
including, but not limited to, the context of the witness testimony, the
weight of the respective evidence, established or admitted facts, inher-
ent probabilities, and reasonable inferences that may be drawn from the
record as a whole. Double D Construction Group, 339 NLRB 303,
303–305 (2003); Daikichi Sushi, 335 NLRB 622, 623 (2001) (citing
Shen Automotive Dealership Group, 321 NLRB 586, 589 (1996)), enfd.
56 Fed.Appx. 516 (D.C. Cir. 2003). Credibility findings regarding any
witness are not likely to be an all-or-nothing determination and I may
believe that a witness testified credibly regarding one fact but not on
another. Daikichi Sushi, 335 NLRB at 622.
When a witness may reasonably be assumed to be favorably dis-
posed to the party, an adverse inference may be drawn regarding any
factual question on which the witness is likely to have knowledge.
International Automated Machines, 285 NLRB 1122, 1123 (1987),
enfd. 861 F.2d 720 (6th Cir. 1988). This is particularly true where the
witness is the Respondent’s agent. Roosevelt Memorial Medical Cen-
ter, 348 NLRB 1016, 1022 (2006). Testimony from current employees
tend to be particularly reliable because it goes against their pecuniary
interests when testifying against their employer. Gold Standard Enter-
prises, 234 NLRB 618, 619 (1978); Federal Stainless Sink Division,
197 NLRB 489, 491 (1972); Gateway Transportation Co., 193 NLRB
47, 48 (1971); Georgia Rug Mill, 131 NLRB 1304, 1305 fn. 2 (1961).
FINDINGS OF FACT
I. JURISDICTION
Respondent, an Ohio corporation, is engaged in the manufac-
ture and nonretail sale of custom graphic industrial identifica-
tion products at its facility in Masury, Ohio, where it annually
sells and ship products, goods, and materials valued in excess
of $50,000 directly from points outside the State of Ohio. Re-
spondent admits, and I find, that Respondent is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.3
II. RESPONDENT ROEMER’S MANAGEMENT AND OPERATIONS
Respondent’s owner is Joe O’Toole. His management team
consists of: AnnFraley, the production manager; Connie Bi-
starkey, administrative services and custodian of records;
Amanda Shinkovich, the quality manager; Jill Palumbo, engi-
neer; and Mike Farmer, general manager.
Fraley is a long-time employee. She initially worked in the
bargaining unit before eventually being promoted to production
manager. She reports directly to O’Toole.
Bistarkey works in administrative services. She maintains
records, including disciplinary records and employee apprais-
als. She apparently has a role in making sure pay is correct.
Shinkovich, a 3-year employee at the time of hearing, main-
tains the quality management system, handles customer com-
plaints and driver questions, and assists Fraley with her duties,
particularly when related to the parts manufactured. She can
discipline employees at the lower levels of discipline, but can-
not suspend or terminate them. However, if Fraley is on vaca-
tion, she can issue a suspension.
The facility, including the parking lot, is equipped with cam-
eras that have been in place for 10 years. O’Toole and Fraley
have access to the camera feed through their computers. How-
ever, the collective bargaining agreement precludes using the
information from the cameras for certain types of discipline.
III. HISTORY OF UNIONIZATION AND RECENT BARGAINING
The facility has been unionized since 1973. The Union cur-
rently represents Respondent’s 17 to 21 production and mainte-
nance employees.4 The facility has only one maintenance em-
ployee, Harold Hrabowy. The parties’ last collective-bargaining
agreement was in effect from February 22, 2013 until its expi-
ration date of April 22, 2016. (GC Exh. 2.)
The parties’ collective-bargaining agreement was in effect
from February 22, 2013, through April 22, 2016. In March
2016, before the collective-bargaining agreement expired, the
parties began negotiating for the successor collective-
bargaining agreement. Throughout the negotiations, the parties

3 The Union local representing the employees has changed its num-
ber due to mergers in the area. Respondent does not challenge that the
Union remains the bargaining representative.
4 Respondent’s answer denies that the longstanding bargaining unit
is inappropriate. Because Respondent adduced no evidence to support
its answer and the collective-bargaining agreement contains the bar-
gaining unit description, I find that Respondent failed to demonstrate
that the longstanding unit is appropriate.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
exchanged versions of proposals and revisions utilizing the red-
line method. As the parties continued, they marked certain
proposals with “TA”—tentative agreement. However, those
portions were tentative only and subject to further negotiations
In the negotiations, Respondent was represented throughout
negotiations by attorney Matthew Austin; sometimes O’Toole
attended. The Union was represented by Jose Arroyo and Ron
Merrick. Arroyo is the current Union staff representative, a
position he held for three years. Merrick5 is the Unit chairper-
son.6
Throughout negotiations, Respondent maintained that the un-
ion shop and dues checkoff provisions could no longer be in-
cluded in the collective-bargaining agreement. O’Toole stated
that he believed it would be an impediment to selling the com-
pany.
On November 21, 2016, the Union offered proposal #14 to
strike the term “successor” from the portion ofthe agreement
that bound any one or entity should O’Toole sell the company.
However, this offer was limited to Respondent withdrawing its
proposals on union security and checkoff. (GC Exh. 11.) By
this time, the Union was clear that it rejected Respondent’s
wage proposals and countered with its own. It also discussed
withdrawing its proposal on overtime should Respondent with-
draw a proposal on overtime.
On November 28, the Union offered its proposal #15. The
Union revised its proposal regarding use of the cameras, includ-
ing limiting the number of cameras in each production area to a
single camera. (GC Exh. 12.)
By this hearing, the parties had not concluded negotiations.
Outstanding issues included wages and union security and dues
checkoff. Despite the prior collective-bargaining agreements
maintaining union security and dues checkoff, Respondent
insisted that it could not include those provisions because it
believed it could damage prospects for selling the operation.
IV. ON JANUARY 3, 2017, O’TOOLE, SHIMKOVICH AND FRALEY
MEET WITH THREE EMPLOYEES
A. Facts
On January 3, 2017, after their first break, employee Hra-
bowy and two operators were called to a meeting with O’Toole,
Shimkovich and Fraley. None of these employees were on the
bargaining team.

5 General Counsel called Merrick in her case-in-chief. Respondent
declined to cross-examine Merrick and, after General Counsel closed
her case, called Merrick in its case-in-chief. Only then did Respondent
request Merrick’s affidavits from General Counsel. General Counsel
objected and I sustained the objection based upon Sec. 102.118(b) of
the Board’s Rules and Regulations. That rule restricts release of the
affidavit only when the witness has testified and the statement will be
used to cross-examine the witness. The Board finds that the plain lan-
guage of the rule is specific to the limitation for purposes of cross-
examination. Wal-Mart Stores, Inc., 339 NLRB 64 (2003). Despite
Merrick’s status as an adverse witness who already testified, the pur-
pose of Respondent’s examination was a direct examination, not cross-
examination. Film Inspection Service, 144 NLRB 1040, 1041 fn. 1
(1963).
6 Merrick was a discriminatee in a previous Board case involving
Respondent. Roemer Industries, 362 NLRB 828 fn. 7 (2015), enfd. 688
Fed.Appx 340 (6th Cir. 2017).
O’Toole asked the employees for ideas to propel contract
negotiations and that he wanted to discuss these ideas with his
attorney, Matt Austin. O’Toole stated that Arroyo probably
lost his bargaining notes and talked of Austin’s notes. O’Toole
told the employees that Austin was a “union busting attorney.”7
Hrabowy asked O’Toole if he really thought he needed “one of
those.” (Tr. 101.)
Hrabowy told O’Toole he should take the open shop pro-
posal off the table. O’Toole said no to that idea. O’Toole then
asked Fraley and Shimkovich whether they wanted to continue
to work there. Both said yes. He then asked the employees
whether they wanted to continue to works there. One employee
stated he wanted a contract so that they could continue work-
ing. The other employee was quiet.
B. Analysis
General Counsel alleges that, within this conversation,
O’Toole coercively stated that he hired a union busting attorney
and threatened the employees’ jobs in violation of Section
8(a)(1) and additionally violated Section 8(a)(5) by directly
dealing with the employees. Respondent contends that the
“union busting attorney” statement is protected by Section 8(c)
of the Act.
Hrabowy’s testimony was clear, straightforward, detailed,
and uncontroverted. Respondent did not ask Fraley any ques-
tions regarding this meeting and did not call O’Toole or Shim-
kovich in its case in chief. I take an adverse inference because
these Respondent witnesses would have had knowledge of this
meeting and “reasonably be assumed to be favorably disposed
to the party.” Grimmway Farms, 314 NLRB at 73, fn. 2, citing
Property Resources Corp., 285 NLRB 1105 fn.2 (1987), enfd.
863 F.2d 964 (D.C. Cir. 1988).
Statements that have a reasonable tendency to interfere, re-
strain or coerce employees in the exercise of their Section 7
rights, when taken in context, violate Section 8(a)(1). Erickson
Trucking Service, Inc. d/b/a Erickson’s Inc., 366 NLRB No.
171, slip op. at 2 fn. 6 (2018) (Pearce, dissenting). The state-
ment is assessed in the context in which it is made and whether
it tends to coerce a reasonable employee. Westwood Health
Care Center, 330 NLRB 935, 940 fn. 17 (2000). The standard
for assessing alleged 8(a)(1) threats is objective, not subjective.
Multi-Add Services, 331 NLRB 1226, 1228 (2000), enfd. 255
F.3d 363 (7th Cir. 2001). Any subjective interpretation from an
employee is not of any value to this analysis. Miami Systems
Corp., 320 NLRB 71, 71 fn. 4 (1995), affd. in relevant part 111
F.3d 1284 (6th Cir. 1997).
I find the threatening question about whether the employees
wanted to continue to work at Respondent’s facility violates
Section 8(a)(1). O’Toole, Respondent’s owner, had called in
three employees, who faced three managers. O’Toole dispar-
aged the Union during the conversation. The implication is the
wrong answer will get the employees fired—the labor equiva-
lent of capital punishment.
Regarding O’Toole stating that he hired a “union busting at-
torney,” Respondent is not protected by Section 8(c). The con-

7 Despite Respondent’s assertions in brief, no record evidence sup-
ports Respondent’s contention that employees were using that term.
ROEMER INDUSTRIES 7
versation included Respondent’s highest ranking official ques-
tioning whether the employees wished to continue their em-
ployment while bragging he hired a “union busting attorney.”
Calling someone “union busting” is not unlike putting together
two different words to create a specific meaning, like “Hulk”
and “smash.” Put together, the words mean that Hulk, a well-
known hero in the Marvel Comic Universe, is about to smash
something to bits. In context, O’Toole, the highest ranking
officer, threatened to get rid of the Union while impliedly
threatening the employees’ livelihoods. See generally Treanor
Moving & Storage Co., 311 NLRB 371, 373 (1993). Also see
NLRB v. Thill, Inc., 980 F.2d 1137, 1142 (7th Cir. 1992) (the
Act is concerned with, inter alia, unwarranted union busting) 8
In distinguishing the statement from Springfield Hospital,
281 NLRB 643, 681 (1986), General Counsel differentiates
whether the statement is hyperbole or telling employees he
wants to get rid of the Union. General Counsel cites Pratt
(Corrugated Logistics), LLC, 360 NLRB 304, 312 (2014), in
which the consultant agent who was noted as a “union buster”
also violated the Act by soliciting grievances. Similarly here,
O’Toole bragged intent of union busting with a threat about
continued employment.
This situation is also differentiated from Erickson Trucking,
supra. In Erickson, the company president called the union
business manager “the most arrogant son-of-a bitch I’ve ever
met” and said the business manager ran the union like Hitler.
While “flip and intemperate,” the Board found the statement
contained no threats or otherwise interfered with employees’
Section 7 rights; it was a lawful expression of opinion under
Section 8(c). Erickson, 366 NLRB No. 171, slip op. at 2. In
contrast, O’Toole’s statement conveyed a threat to interfere
with employees’ rights to act collectively through their selected
bargaining representative.
For direct dealing, the long-held three-part test is:
(1) Respondent communicated directly with employees rep-
resented by a Union, for the purpose of
(2) Setting or changing wages, hours, and conditions of em-
ployment or undercutting the Union; and,
(3) The communication excluded the Union.
Southern California Gas Co., 316 NLRB 979 (1995).
O’Toole specifically asked the employees for collective-
bargaining proposals, without the Union present. Bargaining for
a successor collective-bargaining agreement was still in pro-
cess. Thus, elements 1 and 3 are met. Regarding whether
O’Toole undermines the Union, General Counsel notes, and I
agree, that O’Toole’s statement about Arroyo and his notes
were disparaging per Thill, Inc., 298 NLRB 669, 670–671
(1990), enfd. in relevant part 980 F.2d 1137 (7th Cir. 1992).
O’Toole, who made comments about Arroyo’s bargaining
notes, had no intent except to undermine the Union. O’Toole’s
requests for bargaining proposals indeed was unlawful direct
dealing. El Paso Electric Co., 355 NLRB 544 (2010).9

8 I pass no judgment on O’Toole’s claim that Austin is a union bust-
ing attorney.
9 Respondent implies that the Union refused to continue to bargain
and interact with Respondent. (R. Br. at 41.) He cites no record evi-
V. THE UNION MAKES AN INFORMATION REQUEST REGARDING THE
CAMERAS (COMPLAINT ¶¶12–13)
A. Facts
In the letters of understanding attached to the expired collec-
tive-bargaining agreement, the parties include Item 5, which
addresses the use of electronic video at the facility:
The use of electronic video (video, electronic data collection,
et al), may be collected, without audio equipment, within the
operation. This will continue and not be limited by number or
technology in the future. In the use of this technology, no dis-
ciplinary action will be taken, except for material theft, sexual
or physical harassment, or fraud, safety violations or insubor-
dination.
For all other disciplinary procedures, the Company and the
Union agree not to use or refer to the cameras or use of cam-
eras throughout the grievance procedure including arbitration.
The use of or reference to cameras in the grievance procedure
or arbitration will grant the grievance as requested by the Un-
ion or withdraw the grievance as requested by the Company.
[GC Exh. 2.]
The Union made several proposals to eliminate or reduce the
scope of the surveillance cameras. Union Proposal # 2, dated
June 28 or 29, 2016, proposed elimination of the cameras en-
tirely. On November 28, the Union offered its proposal #15.
The Union revised its proposal regarding use of the cameras,
including limiting the number of cameras in each production
area to a single camera. (GC Exh. 12.) Nonetheless the camer-
as continued to be at issue in negotiations.
On May 8, 2017, during a caucus, Arroyo emailed Austin
that he had an information request for him. (GC Exh. 13.)
They met and Arroyo handed him the information request,
which was a pattern inquiry about cameras. (GC Exh. 14.)
Arroyo testified, without controversy, that when he handed the
information request to Austin, Austin stated Arroyo would have
to file a charge to obtain the information. (Tr. 317). Arroyo
said he would do it.
The information requested was:
1. What is the total number of cameras currently in the
plant?
2. Does the company have further plans to install addi-
tional cameras?
3. Are the cameras operational as yet?
4. Who has access to these cameras?
5. Where are these cameras monitored from? What are
the make and model numbers of the monitors?
6. Are these cameras able to record? If so, who has ac-
cess to the recording?
7. Do the cameras have remote access?
8. Why were these cameras installed? For security?
For discipline? For strike possibilities?

dence to support this conclusion and I find no record evidence shows
such. In addition, Respondent claims the statements do not violate Sec.
8(a)(3). (R. Br. at 40–42). However, General Counsel did not allege
the statements violate that section of the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
9. Please provide information on any and all security
breaches [sic] we have had in the last 5 years.
10. Why are the cameras pointed in the direction they
are?
11. Who decided on the locations?
12. What field of view does each camera have?
13. What is the resolution of each camera?
14. Do the cameras pan.or zoom? if the cameras pan or
zoom, list which ones do.
15. If they pan or zoom, how is it controlled? By who?
And where is this accomplished?
16. Do we have the access to do this in case we possi-
bly think that someone shouldn't be in the plant?
17. Will the local have access to view these cameras to
verify the information provided from this request?
18. What is the cost of this surveillance project and is
there any annual upkeep associated with this service? If
so, who is doing it?
19. Has the company done a study on the need for such
a project? If so, please provide the study results in whole.
20. Are the video feeds being sent elsewhere?
[GC Exh. 14.]
On June 14 and 16, 2017, Arroyo emailed Attorney Austin
about dates for upcoming negotiations and asked that Respond-
ent fulfill the outstanding information request regarding the
surveillance cameras. Arroyo testified that he wanted the in-
formation to assist with negotiations. (Tr. 318). Respondent
never requested to limit the scope of the information request
and the Union never withdrew the information request.
The Union never received the information. None of Re-
spondent’s witnesses for Respondent testified otherwise, and no
documents reflect any response from Respondent. For the
hearing, General Counsel subpoenaed, “Any and all documents
reflecting communications between Roemer and the Union
regarding the Union’s May 8, 2017 information request related
to Roemer’s use of surveillance cameras” and bargaining notes.
(GC Exh. 33.) Respondent produced no documents in response
to these subpoena requests.
B. Analysis
1. Applicable law for information requests
When the certified bargaining agent of the employees re-
quests information, an employer can fulfill its “bargaining obli-
gation under Section 8(a)(5) of the Act” by providing relevant
information. Diponio Construction Co., 357 NLRB 1206, 1217
(2011), citing United Aircraft Corp., 192 NLRB 382, 389
(1971). The rationale for Section 8(a)(5)’s requirement is:
Employees' certified representative is entitled to information
that “will enable[ ] the union to negotiate effectively and to
perform properly its other duties as bargaining representa-
tive.” Oil, Chemical & Atomic Workers Local Union No.6–
418 v. NLRB, 711 F.2d 348, 358 (D.C. Cir. 1983) (internal
quotes omitted). The information requested must be relevant
to the union's representation, but the threshold for relevance is
low. See NLRB v. Acme Industrial Co., 385 U.S. 432, 437–38
(1967). Information related to the wages, benefits, hours,
working conditions, etc. of represented employees is pre-
sumptively relevant to collective bargaining. See Oil, Chemi-
cal & Atomic Workers, 711 F.2d at 359.
Country Ford Truck, Inc. v. NLRB, 229 F.3d 1184, 1191–1192
(D.C. Cir. 2000), enfg. 330 NLRB 328 (1999).
Once an initial showing of relevance is made, an employer
has a burden of proof to demonstrate the lack of relevance or
give sufficient reason(s) “’as to why he cannot, in good faith,
supply such information.’” ATV/Vancom of Nevada Ltd. Part-
nership, 326 NLRB 1432, 1434 (1998), citing San Diego
Newspaper Guild Local 95 v. NLRB, 548 F.2d 863 (9th Cir.
1997). When information is clearly relevant, the Board is not
required to determine whether all of it is relevant. Hughes Tool
Co., 100 NLRB 208, 210 (1952). The requesting party is not
required to demonstrate a”[a] ll possible ways in which the
requested information may be useful” because all potential uses
“may not be foreseen.” Bacardi Corp., 296 NLRB 1220,
1222–1223 (1989), citing NLRB v. Acme Industrial Co., 385
U.S. 432, 437 (1967). Respondent is required to make a rea-
sonable effort to provide the information or otherwise explain
why it did not present it. See generally Hanson Aggregates
BMC, Inc., 353 NLRB 287 (2008).
2. Respondent failed to provide necessary and
relevant information
An employer might be required to provide information re-
quested by the Union when the information has a probability of
relevance and it will be of use to the union as it executes its
statutory duties. National Steel Corp. v. NLRB, 324 F.3d 928,
934 (7th Cir. 2003), enfg. 335 NLRB 747 (2001). An employer
has an obligation to provide relevant information to a union for
contract negotiations. ATC/Vancom, 326 NLRB at 1434.
Surveillance cameras are a mandatory subject of bargaining.
Colgate-Palmolive Co., 323 NLRB 515 (1997). A mandatory
subject is one that is “plainly germane to the ‘working envi-
ronment’” and “not among those ‘managerial decision, which
lie at the core of entrepreneurial control . . . .” Brewers and
Maltsters Local No. 6 v. NLRB, 414 F.3d 36, 41 (D.C. Cir.
2005), quoting Ford Motor Co. v. NLRB, 441 U.S. 488, 498
(1979) (additional quotation marks deleted).
The expired collective-bargaining agreement contains provi-
sions regarding cameras and their usage regarding discipline.
Because the collective-bargaining agreement contains provi-
sions regarding the cameras, Respondent recognizes the rele-
vance of this topic. Detroit Newspaper Agency, 317 NLRB
1071, 1071 (1995). Respondent may have hidden cameras that
are not apparent to the employees. The Union has an interest in
determining not only the placement of the cameras, but the
technical requirements. The information is germane to the
union’s statutory duties and should be provided. National Steel
Corp. v. NLRB, 324 F.3d at 934–935. That one mechanic may
have some knowledge of the cameras does not relieve Re-
spondent of its duty to provide the requested information. De-
troit Newspaper Agency, 317 NLRB at 1072 (having an alterna-
tive source of information does not excuse employer from
providing information).
Attorney Austin immediately told Arroyo that he would have
to file a charge to obtain the information. (Tr. 317). However,
Respondent’s brief, citing this transcript page, contends that:
ROEMER INDUSTRIES 9
During discussion at the table and in the hallway, the under-
signed [Austin] informed Arroyo that the request was too
broad, sought information that the union already knew or can
easily ascertain, sought information that the Union is not enti-
tled to receive, and unless USW restricts the scope of the let-
ter, the Company is not going to give the Union all this infor-
mation. From that, Arroyo deduced, he “would have to file a
charge to get this information.” HT 317.
Respondent’s version of the facts is not supported on that
page or anywhere else in the record. Austin, who wrote the
brief and was present throughout the hearing, never testified.
Respondent provided no record evidence to show it objected to
the information request in the detail Respondent’s brief
claims.10
Respondent further shoots itself in the foot when it argues no
testimony demonstrated that the cameras changed, that there are
too many cameras, that the video was used for unlawful pur-
poses, or that Respondent could not afford them. (R. Br. at
47.) Indeed, some of the information requested asked for the
same information. For example, whether Respondent intends
to install more cameras remains relevant and per Hughes Tool,
supra, the Board is therefore not required to determine the en-
tire relevance here. Because Respondent failed to answer the
information request regarding the cameras at all, Respondent
violated Section 8(a)(5) of the Act.11
VI. RESPONDENT GIVES UNILATERAL PAY INCREASES, THEN TAKES
THEM AWAY BECAUSE THE UNION PURSUED A BOARD CHARGE
(COMPLAINT ¶¶ 8(D), 14(A), 14(B), 14(E), 14(F))
A. Facts
On May 10, 2017, O’Toole gave all employees, including
the bargaining unit employees, a pay increase of 6 percent. He
also ordered the certification and advancement program pay
(CAP) to be increased by 15 cents. Employees advised Union
Chair Merrick that they saw pay increases in their checks.
Merrick went to HR Manager Bistarkey and asked her about it.
Bistarkey said O’Toole told her to give everyone (not just bar-
gaining unit) a 6 percent raise; those with certification and ad-
vancement program (CAP) pay received a 15-cent raise. Re-
spondent never gave a previous mid-year raise.
On May 16, 2017, Arroyo wrote to O’Toole about the wage
increases and proposed an additional 6 percent increase in the
collective-bargaining negotiations. He demanded that Re-
spondent bargain in good faith immediately over these issues;
otherwise the Union “will seek relief under any and all availa-
ble legal options.” (GC Exh. 20.) At this time, the parties had
not reached any interim agreement on wages. (Tr. 372, 379.)
On June 22, 2017, Arroyo, on behalf of the Union, filed a
charge that Respondent violated Section 8(a)(5) by circumvent-
ing the Union, failing to provide information and “refusing to

10 I grant General Counsel’s motion to strike this portion of Re-
spondent’s brief.
11 Respondent also argues that the Union was bargaining in bad faith
and cancelling sessions. As the Union made the request during a meet-
ing and continued to ask for the information, Respondent has no evi-
dence of bad-faith bargaining that would excuse it from providing the
requested information.
bargain over mandatory subjects.” (GC Exh. 22.)
On July 7, 2017, O’Toole ordered Bistarkey to rescind the
bargaining unit’s pay increase. O’Toole also conducted an
employee meeting about the rescission. Fraley also instructed
employees to meet in the break area during break time. Approx-
imately 19 to 20 people, including managers, were in attend-
ance. O’Toole was the only manager that spoke. O’Toole first
discussed some of his health issues and then moved to the re-
cent pay raise. He announced he was rescinding the pay raise,
and, citing Arroyo and Merrick by name, the reason was be-
cause the Union was pursuing Board charges. Hrabowy testi-
fied that O’Toole said that he did not know whether the em-
ployees would have to pay back the money from their raises.
(Tr. 104.)
The employees’ next paychecks proved O’Toole meant what
he said: The 6 percent increase was gone. On August 17, 2017,
the Union filed charge 08–CA–204521 regarding the unilateral
implementation of the wage increases and the unilateral and
retaliatory rescission of the wage increases in July. Respondent
restored the bargaining unit employees’ pay increases.
B. Analysis
General Counsel alleges Respondent violated Section 8(a)(1)
by O’Toole telling employees the Union caused Respondent to
take away the pay increases. General Counsel also alleges that
the pay decrease violated Section 8(a)(4), and the pay increase
and decrease violated Section 8(a)(5). None of Respondent’s
managers testified about this meeting, so the General Counsel
witness testimony is unchallenged. Respondent also provides
no evidence that it notified the Union of its plans for the pay
increase or decrease. I find Respondent violated the Act as
alleged.
The relevant inquiry under Section 8(a)(1) is an objective
one: Whether the employer's statements or actions would tend
to coerce a reasonable employee and chill the exercise of that
employee’s Section 7 rights. See Wyman-Gordon Co. v. NLRB,
654 F.2d 134, 145 (1st Cir. 1981); Idaho Pacific Steel Ware-
house Co., 227 NLRB 326, 331 (1976). I find that O’Toole’s
statement to the employees that he was rescinding the wage
increase because the Union is pursuing charges is a threat.
O’Toole’s statement reflects getting even with the employees
as a threat of reprisal for the Union acting to protect its bargain-
ing role. The statement violates Section 8(a)(1) of the Act.
Anheuser-Busch, Inc., 337 NLRB 3, 15 (2001), enfd. 338 F.3d
267 (4th Cir. 2003), cert. denied 541 U.S. 973 (2004). Also see
Erickson Trucking, supra, 366 NLRB No. 171, slip op. at 2 fn.
5 (per Member Emanuel, statement expressly identifying the
Union as the cause for respondent’s adverse action is unlawful
on its face). The Board recently reminded that a statement is
not an action. Green Apple Supermarket of Jamaica, Inc., 366
NLRB No. 124, slip op. at 1, fn. 2 (2018). Here, O’Toole made
good on his threat, and in doing so, violated Section 8(a)(4) and
(5).
Section 8(a)(5) and (d) define the duty to bargain collective-
ly, which requires an employer “to meet . . . and confer in good
faith with respect to wages, hours, and other terms and condi-
tions of employment.” NLRB v. Katz, 369 U.S. 736, 742-743
(1962). A violation of Section 8(a)(5) does not require a finding
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
of bad faith. Id. at 743 and 747. The Act prohibits an employer
from unilaterally changing wages and pay, which are mandato-
ry subjects of bargaining.
A unilateral change acts no differently than a “flat refusal” to
bargain by skipping the union’s input when the union has so
requested to do so. Id. at 743. An unlawful unilateral change
“frustrates the objectives of Section 8(a)(5),” because such a
change “’minimizes the influence of organized bargaining’ and
emphasizes to the employees ‘that there is no necessity for a
collective bargaining agent.’” Pleasantview Nursing Home v.
NLRB, 351 F.3d 747, 755 (6th Cir. 2003) (quoting Katz, supra
at 744, and Loral Defense Systems-Akron v. NLRB, 200 F.3d
436, 449 (6th Cir. 1999)); Mercy Hospital of Buffalo, 311
NLRB 869, 873 (1993).
Respondent had a duty to notify the Union and, upon re-
quest, meet and confer before granting or rescinding pay raises
or pay decreases. Instead it made changes without notification
to or entering into bargaining discussions with the Union,
which is textbook “fait accompli.” Tesoro Refining & Market-
ing Co., 360 NLRB 293, 295 fn. 10 (2014). The wage increase
and decrease both are unlawful unilateral changes, violating
Section 8(a)(5).
The July pay decrease violates Section 8(a)(4) of the Act.
Section 8(a)(4) prohibits discrimination against employees
because of access to the Board processes. I find no need to rely
on the Wright Line analysis, which is reserved for mixed mo-
tive cases. O’Toole made crystal clear he had a single, straight-
forward motive: He rescinded the pay increase because the
Union, the employees’ exclusive bargaining representative,
filed a Board charge to redress Respondent’s unlawful unilat-
eral change of the May pay increase. Although Respondent
later restored the pay increase, doing so did not resolve the
unfair labor practice under the conditions set forth in Passavant
Memorial Area Hospital, 237 NLRB 138 (1978). See Mohawk
Liqueur Co., 300 NLRB 1075 fn. 1 (1990). To be an effective
repudiation, notice would be timely, unambiguous, specific in
nature to the coercive conduct and free from other proscribed
illegal conduct. Boch Imports Inc. v. NLRB, 826 F.3d 558, 566
(1st Cir. 2016), citing, inter alia, Passavant, supra. Respondent
provides no evidence that reinstatement of the pay increases
was accompanied by repudiation or disavowal of coercive con-
duct that Respondent would not interfere with employees’ Sec-
tion 7 right, much less any publication of a repudiation of un-
lawful conduct. Sequoyah Spinning Mills, Inc., 194 NLRB
1175, 1192 (1972); Passavant, 237 NLRB at 138–139.
VII. IN MID-JUNE 2017, OWNER O’TOOLE THREATENS AN
EMPLOYEE (COMPLAINT ¶8(C))
A. Facts
In about mid-June 2017, a few days after a union meeting,
Production Manager Fraley directed employee and Unit chair
Ron Merrick to meet with O’Toole and Bistarkey. Throughout
the meeting, O’Toole repeated that there would be a “closed
shop” over his dead body.
In the meeting, O’Toole asked Merrick whether the union
had taken a strike vote at the recent meeting. Merrick said yes.
O’Toole demanded to know the results. Merrick told him that
the ballots were locked in an office. O’Toole then said to Mer-
rick that the employees were gullible, that no one trusted him
[Merrick] and nobody liked him. O’Toole, as before, said that
over his dead body would there be a “closed shop.”12
O’Toole said that if Arroyo pursued more than a 15 cent
raise for the CAP program, he would eliminate the program.
O’Toole then asked Merrick if he believed him and again made
his comments about having the “closed shop” over his dead
body. Merrick just shrugged his shoulders. O’Toole, referring
to elimination of the union shop provision, demanded to know
what it would cost to get “that.”
B. Analysis
General Counsel alleges that O’Toole’s statement to Merrick
regarding elimination of the certification bonus violates Section
8(a)(1). Merrick’s testimony is uncontroverted and was open.
Merrick also is a prior discriminatee in a Board proceeding.
Roemer, 362 NLRB No. 96. He testified in the face of the same
respondent: His employer, the entity controlling his paycheck,
previously suspended him for union activity. Respondent’s
failure to call witnesses under its control, Bistarkey and
O’Toole, demonstrates that they likely would have testified
adversely to Respondent. Ryder Student Transportation Ser-
vices, Inc., 333 NLRB 9, 13 (2001); Champion Rivet Co., 314
NLRB 1097, 1105 (1994). Here, I fully credit Merrick.
The statement, taken in context, is a threat to remove part of
the wage structure in response to the Union’s bargaining de-
mands. The circumstances were coercive: two managers, one
of whom was the company owner, were talking to one employ-
ee. O’Toole’s repeated statements about keeping a “closed
shop” over his dead body, indicated O’Toole was “dead seri-
ous” about his threat. O’Toole’s diatribe berated and personally
attacked Merrick. I find that this statement violates Section
8(a)(1) of the Act.
VIII. RESPONDENT UNLAWFULLY SUSPENDED AND
DISCHARGED HAAS
A. Facts
1. Respondent’s claimed desire for efficiency
“Theory of Constraints,” which outlines certain concepts and
practices to promote efficiency. Fraley testified that she be-
came acquainted with the “Theory of Constraints” when she
joined the management team and left the bargaining unit.
O’Toole gave her a book describing the theory. The collective-
bargaining agreement has no reference to the “Theory of Con-
straints” but requires employees to work efficiently. Direction
on a job comes through training and supervision, but Respond-
ent never trained the bargaining unit employees about the
“Theory of Constraints.”
To assist employees with processing jobs, Respondent’s en-
gineering department determines the most efficient way to
move from one job process to another. Employees receive
training and are supervised to promote efficiency. Work in-
structions are available on the computers. In addition, the em-
ployees have job travelers, which are written router instructions

12 Although O’Toole testified that the provision was a “closed shop,”
the collective-bargaining agreement contains lawful union shop and
dues-checkoff provisions.
ROEMER INDUSTRIES 11
for each job. The job travelers go with each order in employee
envelopes, moving with the work to the next phase in the pro-
duction process. The job traveler includes, for example, the part
to be made, what size and/or paint. The name of the customer
is on the front page of the envelope and the job traveler itself.
The work envelopes also include whether the job is a rush job.
The envelopes are kept for at least 7 years after the work is
performed, sometimes longer.
2. The collective-bargaining agreement mandates
progressive discipline
Disciplinary records are kept on forms entitled “employee
warning notice.” The employee warning notice classifies disci-
plinary offenses in at least one of three areas: attendance; qual-
ity of work; and intolerable offense. Quality of work offenses
include, but are not limited to, “carelessness, unsatisfactory
work performance and failure to follow work instructions, etc.”
Intolerable offenses include, but are not limited to, “theft, vio-
lence, insubordination, inappropriate behavior, dam-
age/destruction of company property, violation of safety poli-
cies or rules, violation of company procedures, Union business
on company time, vacating work area/not working.”
The collective-bargaining agreement contains a provision re-
quiring Respondent to notify the Union and the employee dur-
ing the suspension if Respondent decides to terminate the em-
ployee. (GC Exh. 2, art. IV, at p. 6.)
3. Respondent’s disciplinary system
Bistarkey keeps the employee warning notices. Any manag-
er wishing to discipline an employee pursuant to progressive
discipline must call Bistarkey to determine what level of disci-
plinary action would be appropriate based upon prior discipline.
The disciplinary records are kept in the employee’s personnel
file for one year as long as the employee does not receive a
write-up for the same offense. (Tr. 156.)
O’Toole testified differently about how long the discipline
remained in the file. O’Toole testified he retains discretion
over terminations. He also testified that he has the authority to
throw out the disciplinary system. (Tr. 63–64.) He also testi-
fied that he disciplines employees immediately if he sees a
violation.
Regarding writing any other records of discipline or inci-
dents that might require discipline, Production Manager Fraley
rarely keeps any anecdotal notes for employee discipline.
For insubordination offenses, Fraley testified that employees
are usually sent home immediately. (Tr. 580.) Indeed, in 2015,
O’Toole changed a one–day suspension for employee Mike
Robertson to a 3-day suspension for a first instance of insubor-
dination. (Tr. 580–583; GC Exhs. 50–52.) On May 12, 2015,
O’Toole decreed that anyone with a first incident of insubordi-
nation must be sent home immediately.
4. Haas’s history at work and union activities
Haas had been an employee with Respondent for 42 years.
He worked in the fabrication, where he ran machines such as
dies, grinders, punch presses and shears. Since 2006, Fraley
supervised him. On October 11, 2016, Respondent terminated
him.
During the summer of 2016, Haas displayed the “Fair Con-
tract Now” sign in his car and continued to do so. Haas had a
special parking spot in the front of the south lot, near the en-
trance, for having over 25 years of service. Others, including
Hrabowy, displayed the sign as well.
In August 2016, Haas asked Shinkovich whether the stress
levels in the office were as high as in the shop due to the ex-
tended contract negotiations. Shinkovich said she thought the
office was okay. (Tr. 193.) The next day, Bistarkey retrieved
Haas and made him repeat the question he asked of Shinkovich.
Owner O’Toole then directed Haas to repeat the question in
front of Bistarkey, Attorney Austin, and Manager Farmer.
O’Toole also ordered Haas, with Bistakrey’s escort, to go to
each and every employee in the office area and asked if they
were stressed over the contract negotiations, which of course
they did.
Haas took it upon himself to procure and distribute a special
sticker about the negotiations, addressing in particular the union
shop issue. He contacted his niece to make “No Open Shop”
stickers. Once he received them, Haas passed them out to em-
ployees in the south parking lot before work and left them in
his car for others to take between mid-September to late into
the month. He had about 24 made and about half were left in
the car. He displayed the “No Open Shop” sticker in his car’s
rear window, with the “Fair Contract Now” sign. Hrabowy
also displayed the “No Open Shop” sticker on his motorcycle.
When Haas distributed the sticker is controverted. Merrick
thought the distribution took place about two months before
Haas’s termination. Haas testified that he received and distrib-
uted the “No Open Shop” stickers about mid-September 2016.
Hrabowy testified that Haas distributed the stickers about two
weeks before the termination. Hrabowy stated he was still
riding his motorcycle at the time instead of driving a vehicle,
and although he sometimes rode his motorcycle in January, it
did not occur in January.
Fraley denied seeing the “No Open Shop” stickers before
October 11, 2016. The employees park in the south parking lot.
In addition, O’Toole and Fraley park in the same lot and enter
through the same entrance as the employees. However, Fraley
and O’Toole both park in that lot and apparently must pass
Haas’s car, parked in its special spot, to enter or exit. In addi-
tion, Fraley usually arrives before anyone else at the facility.
Both she and O’Toole have live camera feed from the parking
lot. Shinkovich had seen the stickers in employee cars; she
had no recollection of when she saw them.
5. Respondent suspends, then terminates Haas
a. Haas twice carries sheared parts from the machine to a rack
On September 14, 2016, Haas was shearing metal pieces and
hand-carried some of his completed work from the machine to
a shelf. The parts were flat aluminum rectangles. O’Toole
noticed Haas carrying the parts and chided him for not using a
cart to transport the parts.
Later that day, Fraley heard O’Toole telling Haas to use a
cart to transport the parts. Fraley testified that she came out of
her office and into the shop area, where Haas was carrying
“several” parts, which she later said was “20” to the rack. Fra-
ley said Haas was bent over about 30 degrees, with his hands
down around his knees, carrying the parts. Fraley testified that
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
the unsheared parts were aluminum, flimsy and weighed about
one pound each. She never testified to the weight or size of the
products Haas sheared, which Haas testified were significantly
smaller. Haas testified no cart was nearby, that the order was a
rush and he was trying to get the parts to the racks so that the
next person could begin the next phase of processing. Fraley
testified she was able to grab a nearby cart and directed Haas to
follow O’Toole’s instructions. Fraley denied that the order was
a rush. Haas received no discipline that day.
Fraley testified that at the end of the day, she told O’Toole
that Haas should be written up and mentioned nothing about
insubordination. Fraley agreed that Haas was not sent home
immediately for insubordination, as O’Toole previously decid-
ed and she could not recall that O’Toole previously directed the
management team to send home immediately any insubordinate
employee with a 3-day suspension. (Tr. 580–583.)
b. Respondent suspends Haas
On September 30, 2016, Haas was presented with an em-
ployee warning notice from Shinkovich, who was acting super-
visor in Fraley’s absence. The notice, which had been written
by O’Toole himself, marked that Haas’s quality of work was at
issue on September 14, 2016, between 10:38 a.m. and 12:48
p.m. It cites an order and parts number and described Haas’s
conduct as:
Not utilizing “Theory of Constraints” methodology. Specifi-
cally, hand carrying, in a piecemeal manner, work to a shelf
near next work station instead of using an available cart, one
trip and using said cart as an in-processing storage device.
Haas testified that he responded that the disciplinary action
was harassment and wrote his disagreement on the form: “It
would have taken me longer to find empty carts than to move
parts in two handfuls.” The 5-day suspension was scheduled to
begin after Haas’ vacation, on October 10, 2016 through Octo-
ber 14, 2016.13 Haas did not sign, but Merrick did. (GC Exh.
5.) The disciplinary record contains nothing about insubordina-
tion or that Haas was to be terminated.14 The first step griev-

13 This incident was not the only time Respondent scheduled suspen-
sions in advance.
14 Respondent’s brief states, “O’Toole had left town again prior to
September 30, 2016.” Respondent further contends, “Fraley testified
that Company President Joe O’Toole was in fact, not at the facility.”
Fraley’s last day to work was September 27, 2016, and left for Las
Vegas the following day. The testimony that Respondent cites to sup-
port its factual statement is as follows:
Q. And then, we know you go on your—
you take off work on September 27th to depart for Vegas on
the 28th, correct?
A. Yes.
Q. Now—so, you were in the following week of the 14th,
right? Or whatever week that would have
been. That would have been the week of September 19th?
A. Yes.
Q. Okay. Was Mr. O'Toole in that week?
A. I don't believe so. I didn't see him.
Q. Do you know where he was?
A. No, I do not.
[Tr. 558.]
Fraley’s testimony conveys she was unsure of where O’Toole was
and that she returned to work on October 4. This portion of Respond-
ance was handled at the same time, from Shinkovich’s notes.
On October 4, 2016, Fraley returned from vacation and no-
ticed Haas was not present. Fraley asked Shinkovich about
Haas’ whereabouts. Shinkovich informed her that Haas was on
vacation and then serving a suspension. (Tr. 557.)
c. Respondent terminates Haas
At some unknown point between October 4 and October 11,
Respondent decided to terminate Haas. Respondent’s witness-
es gave inconsistent versions of how that decision was made.
O’Toole testified that he conducted a meeting with his man-
agement team, but did not know which members of the team
were present for the meeting. He claimed he listened to what
the team had to say and “Everybody wanted him terminated.”
(Tr. 69.) When asked why, O’Toole testified:
Because he’s a pain in the ass. He didn’t follow orders, he did
things his way, he was not a well-liked employee as far as his
output and work. And the reason I get the group together is
because I do not spend that much time on the shop floor, and I
learn a lot of things that I didn’t know.

[Tr. 69–70.]
Neither Fraley nor any other management team member cor-
roborates O’Toole’s version about a management meeting.
Fraley testified that, upon her return from vacation, O’Toole
asked her what to do about Haas and she said he should not be
brought back. Then Fraley admitted that she first testified in an
affidavit that she “did not remember” having a role in deciding
to terminate Haas and did not testify anywhere in the affidavit
she told O’Toole not to bring Haas back. (Tr. 593.) In an ironic
tone of voice Fraley testified, “If you know my owner, he
makes his own decisions.” (Tr. 597.)
On October 13, 2016, Haas went to the plant for a free flu
shot. Upon seeing him, Bistarkey told him he could not be
present at the plant. When asked why, Bistarkey told Haas he
was terminated by letter two days before. The termination
letter, dated October 11, 2016 and signed by Bistarkey, con-
tained no reasons for Haas’s termination. (GC Exh. 24.)
The Union filed a timely grievance regarding the termination
and processed it through the third step. The Union offered to
arbitrate the matter, but could not force the matter because the
collective-bargaining agreement expired and O’Toole declined
the offer.
O’Toole also testified that Haas was insubordinate in a sub-
sequent incident by failing to make a timely entry into a
maintenance request log. Upon further questioning, O’Toole
admitted that he did not learn about that incident until months
later and the incident played no role in determining to terminate
Haas. (Tr. 70–71.) As no further disciplinary records were
presented for Haas after the September 14, 2016 incident, Re-
spondent apparently failed to suspend Haas immediately for his
alleged insubordination.

ent’s brief unsupported in the record, that O’Toole was out of town. I
therefore grant General Counsel’s motion to strike this portion of the
brief.
ROEMER INDUSTRIES 13
6. Haas’ disciplinary record and performance appraisals
a. Haas’s disciplinary record
Haas has a long disciplinary history. Respondent presented
his disciplinary actions from 1990 to his 2016 termination and
O’Toole mentioned the claimed additional incident of insubor-
dination for which Haas received no discipline. Haas did not
agree with all the disciplinary actions, but he admitted to some.
Some of the disciplines were for incorrectly following instruc-
tions; others were for failing to correctly process orders and
insubordination.
Merrick told Respondent that Haas was not going to change;
it is not clear whether Merrick made this statement on Septem-
ber 30, 2016 or at another time. I highlight only a few of the
more recent disciplinary actions.
In 2008, Haas received a 5-day suspension pending dis-
charge for allegedly letting a job continue when he knew the
job was set up incorrectly. Haas returned to the job.
On about September 4, 2009, Haas received discipline for an
alleged safety violation. About October 25, 2009, Haas re-
ceived a verbal warning for allegedly failing to follow instruc-
tions to wash hands when he entered the building the previous
day.
In September 2010, Haas received a written warning for
questioning why he had to work on an order when he thought
other people were available. Less than a month later, about
October 12, 2010, he received another written warning for mak-
ing a part that had to be scrapped and reprinted. On about Oc-
tober 22, 2010, O’Toole gave Hass a verbal warning for taking
too long at lunch and break.
About 7 months later, about May 5, 2011, Respondent gave
Haas a 3-day suspension for insubordination and disruptive
behavior. According to Respondent’s documentation, Haas
slammed down product and began to sand it incorrectly, when
he was corrected. He yelled and said he would go home, which
he did. Respondent’s records show no response from Haas.
About August 22, 2011, Respondent gave Haas a one-day
suspension for failing to verify a set-up, which caused incorrect
product.
About May 23, 2013, Respondent gave Haas a verbal warn-
ing for “wasting time” and taking more steps than Respondent
expected, plus not having carts around him to minimize the
steps. Haas disagreed with Respondent’s assessment. A little
over a month later, about June 24, 2013, Respondent gave Haas
a written warning for causing waste by incorrectly shearing
product. A week later, about June 28, 2013, Respondent as-
sessed that Haas was “wasting time & motion” walking around
a cart that could have been moved instead and gave him a 1-day
suspension. Haas disagreed, saying he needed to stretch his
back and legs instead of standing in 1 place for 8 hours. On
about September 4, 2013, Haas received a 3-day suspension for
alleged variance on shear strips.
In July 2015, Respondent gave Haas a verbal warning for
making parts that did not conform to customer needs, resulting
in customer rejection of the order. Haas agreed. Less than 4
months later, about November 4, 2015, Haas received a 1-day
suspension for creating 90 percent scrap. Haas again agreed.
In April 2016, about 5 months after the previous discipline,
Haas agreed to a 1-day suspension for bad parts. On the same
day, he received a 3-day suspension for another set of badly
made parts. Haas again agreed.
During the summer of 2016, O’Toole observed Haas by
camera for allegedly talking to a UPS driver too long and gave
him discipline. The Union grieved the discipline, ostensibly as
the discipline assessed violated the collective-bargaining
agreement.
b. Haas’s performance appraisals
Haas’ last three performance appraisals were presented. Fra-
ley documents her perceptions of the employee’s performance
on Respondent’s forms, then gives them to Bistarkey to give to
O’Toole. O’Toole then changes to what he believes the ulti-
mate performance appraisal should be and adds his own com-
ments. The forms show various items that rated on a scale of 1
to 4. A rating of 4 is excellent and 3 is “as expected, good.”
The performance appraisals reflect that Fraley routinely rated
Haas higher than O’Toole; ironically at one point O’Toole
complained that Haas should have all 4s because of his seniori-
ty, instead of 3s. In 2015, O’Toole included negative com-
ments, such as “Get the lead out” and complained of Haas’s
lack of efficiency. Yet in 2014 and 2015, Haas had no rating
lower than 3, and most of his ratings in efficiency were at 4.
(GC Exhs. 53, 55).
Shenkovich, the quality manager, testified consistently with
performance appraisals about Haas’s work. She stated he could
be relied upon to show up when scheduled. He had his own
way of performing work, but was knowledgeable about his
work and “he would let you know if he wanted to do it a differ-
ent way.” (Tr. 84.)
7. Discipline of others
On November 28, 2016, employee Richard Ellison received
documentation of a partial day suspension on November 23,
2016, after he questioned O’Toole, apparently on his own time.
O’Toole, who signed the disciplinary action, labeled the ques-
tion an “intolerable offense” of insubordination. (GC Exh. 7.)
This partial suspension occurred after O’Toole required imme-
diate suspension for any instance of insubordination.
Consistent with O’Toole’s claim that he would throw out the
disciplinary system if he desired, employee Shane Merchant
received a written warning for Quality of Work, yet less than a
year later, gave him a verbal warning for the same type of dis-
cipline. Had the progressive disciplinary system been fol-
lowed, the punishment would have been more severe, not less
severe.
Otherwise Respondent’s response to the subpoena presented
no additional evidence to demonstrate it consistently applied
the disciplinary system for such an offense.
B. Analysis
1. Credibility
I partially credit Haas’s testimony.15 Haas admitted that he

15 Haas testified that O’Toole told him that he knew about his role
with the “No Open Shop” stickers about the third week in September
2016. General Counsel suggests that I credit this testimony because
O’Toole never controverted it; in the alternative, the statement is not
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
sheared the parts and carried them to the rack. He also admit-
ted that he stated it would make no sense to look for a cart. He
made mistakes in testimony, such as no having discipline for
creating scrap. He also sometimes was inconsistent on details
on who was present during events.
I also credit Hrabowy, particularly regarding the timing of
when Haas distributed the “No Open Shop” stickers. Despite
Respondent trying to insist that it could have been at any time,
Hrabowy stuck to his guns, that it was about 2 weeks before
Haas’s termination. Thus, the timing corroborates Haas’s claim
that the distribution took place in mid to late September.
The weight of the parts and whether the order was a rush job
are controverted. Respondent presented the unfinished alumi-
num plate, but did not present an exemplar of the unfinished
plate. Assuming that Fraley was correct that the unfinished
plate was about 1 pound, she never testified how much the
sheared product weighed.
Fraley testified contradictorily when she stated she came out
to see Haas carrying parts “down to his knees” and then stated
she did not observe him. She first said he was carrying several
parts, yet then estimated 20. Several usually does not reach 20.
She talked about the unfinished parts but never stated how large
the sheared parts were. Given how small the sheared parts
were and how light the aluminum pieces are, I find it improba-
ble that Haas was hunched over carrying the parts, much less
that it was a heavy load.
Regarding these questions about the order and whether the
order was a rush job, Respondent could have presented the job
traveler and its work envelope to contradict Haas did not do so.
Respondent maintained these records but did not present them.
I take an adverse inference that the job was as heavy as Fraley
testified, much less a regular order. I credit Haas’s testimony
over Respondent’s version.
Fraley also contradicted herself about being able to suspend
someone immediately for insubordination, but did not immedi-
ately suspend Haas for insubordination. Fraley also was dis-
credited whether she made a recommendation about terminat-
ing Haas. When confronted with her affidavit testimony, Fraley
admitted she never testified that she told O’Toole not to bring
back Haas. (Tr. 593, 597–598.) O’Toole, Fraley and Shinko-

necessary to establish knowledge. Haas never raised the statement in
his affidavit or during his direct testimony, and I therefore cannot credit
it. It plays no role in my analysis. Toll Manufacturing Co., 341 NLRB
832, 835 (2004) (public interest in vindicating Act outweighed evil of
insignificant trespass on the trust when administrative law judge found
the false testimony was a small part of otherwise credible testimony
and plays no part in outcome of the case). Also see Sunrise Senior
Living, Inc. v. NLRB, 183 Fed.Appx. 326, 333–334 (4th Cir. 2006),
enfg. 344 NLRB 1246 (2005).
Regarding this statement, Respondent suggests that I find Haas per-
jured himself. At hearing, Respondent demanded that, based upon the
Casehandling Manual, I order General Counsel to pursue proceedings
against Haas for perjury. The Casehandling Manual is not binding
upon the Board. As I pointed out at hearing, even the preface to the
Casehandling Manual makes that statement. If I found Haas perjured
himself, then I would also have to find the same of Respondent’s wit-
nesses who testified contradictorily or were discredited on the stand. I
decline to do find perjury on any witness and limit the scope of my
determinations to credibility.
vich were externally inconsistent about how they ultimately
discussed Haas’ termination. O’Toole maintains he conducted
a management meeting. Fraley testified O’Toole “approached
her” after she returned from vacation and asked what to do with
Haas; she testified she said to terminate him, which was incon-
sistent with her affidavit. Shinkovich was very tentative about
attending a meeting with O’Toole and could not recall who else
attended such a meeting or when it occurred. She took no notes
and had no recollection of what was discussed. Shenkovich
also previously testified that she had no role in Haas’s termina-
tion. I therefore discredit Fraley and Shinkovich about recom-
mending Haas’s termination or participating in a management
meeting.
O’Toole’s performance appraisal statement, that he knows
better than an employee how things should be done, further
undermines his claim that he knows little of events on the shop
floor and relies upon his management team: He changed rat-
ings and added a number of negative comments to Haas’s ap-
praisals. Fraley’s statement, with her ironic tone of voice,
about her boss making his own decisions, was quite credible
and telling. NLRB v. So-White Freight Lines, Inc., 969 F.2d
401, 407 (7th Cir. 1992), enfg. 301 NLRB 223 (1991) (credibil-
ity is not only what witness says, but how said). Due to these
inconsistencies and Fraley’s statement, I find it inherently like-
ly that Fraley had nothing to do with the decision and O’Toole
made his own decision to terminate Haas.
O’Toole’s statement that he has full authority to change the
disciplinary system at his whim is credited only to the extent he
believes it and acts upon it, which does not change the language
of the collective-bargaining agreement. The inconsistent appli-
cations of discipline, such as with Merchant, support O’Toole’s
belief he can do what he pleases with discipline.
O’Toole’s application of the “Theory of Constraints” and
complaints about efficiency are also questionable. He com-
plained about the method Haas used to carry parts, yet when it
suited his purposes, instead of having Haas work, in August
2016, he instructed Bistarkey to drag Haas around the office to
ask 12 office staff about whether they too were stressed, in
front of a manager no less. Obviously, this incident does not
promote efficient use of an employee’s time on production.
The unrefuted testimony of this incident, O’Toole’s imperious
demeanor at hearing, the 8(a)(1) violations and personal attacks
described above, and O’Toole’s description of his personal
authority to change the disciplinary system as he pleases, all
convince me that O’Toole brooks no challenge to his authority.
I also consider that O’Toole raised a new, undocumented in-
cident of Haas’s alleged insubordination while testifying. This
incident allegedly occurred after the September 14 incident but
before termination. O’Toole testified later that he did not rely
upon this discipline as he had no knowledge of it at the time.
Such testimony is an effort to pack on irrelevant information
and I discredit any import Respondent claims with it.
2. Applicable law
Section 8(a)(3) prohibits employers from discriminating in
regard to an employee’s “tenure of employment . . . to encour-
age or discourage membership in any labor organization.” An
employer violates Section 8(a)(3) by disciplining employees for
ROEMER INDUSTRIES 15
antiunion motives. Equitable Resources, 307 NLRB 730, 731
(1992). To establish a violation of Section 8(a)(3) and (1) in
cases where a discipline and discharge is alleged, General
Counsel has the burden to prove that the disciplinary action or
discharge was motivated by employer antiunion animus.
In determining whether adverse employment actions are at-
tributable to unlawful discrimination, the Board applies the
analysis set forth in Wright Line, 251 NLRB 108 (1980), enfd.
662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982).
The Wright Line framework requires proof that an employee's
union or other protected activity was a motivating factor in the
employer's action against the employee. 251 NLRB at 1089.
The elements required to support such a showing are union or
protected concerted activity, employer knowledge of that ac-
tivity, and union animus on the part of the employer. Fremont-
Rideout Health Group, 357 NLRB 1899, 1902 (2011); Consol-
idated Bus Transit, 350 NLRB 1064, 1065 (2007), enfd. 577
F.3d 67 (2d Cir. 2009).
Proof of animus and discriminatory motivation may be based
on direct evidence or inferred from circumstantial evidence.
Robert Orr/Sysco Food Services, 343 NLRB 1183, 1184
(2004); Purolator Armored, Inc. v. NLRB, 764 F.2d 1423,
1428–1429 (11th Cir. 1985). Because direct evidence of unlaw-
ful motivation is seldom available, the General Counsel may
rely upon circumstantial evidence to meet the burden. See Na-
omi Knitting Plant, 328 NLRB 1279, 1281 (1999). Circum-
stantial evidence is used frequently to establish knowledge and
animus because an employer is unlikely to acknowledge im-
proper motives in discipline and termination. NLRB v. Health
Care Logistics, 784 F.2d 232, 236 (6th Cir. 1986), enfg. in part
273 NLRB 822 (1984). A showing of animus need not be spe-
cific towards an employee’s union or protected concerted activ-
ities. Colonial Parking, 363 NLRB No. 90, slip op. at 1, fn. 3
(2016).
An employer does not satisfy its burden merely by stating a
legitimate reason for the action taken, but instead must per-
suade by a preponderance of the credible evidence that it would
have taken the same action in the absence of the protected con-
duct. Manno Electric, Inc., 321 NLRB 278, 280 fn. 12 (1996);
T & J Trucking Co., 316 NLRB 771 (1995).
3. Applying Wright Line
a. Haas’ union activities and Respondent’s knowledge of the
union activities
Haas engaged in a number of union activities. He invoked
the collective-bargaining agreement by filing grievances. One
of his grievances was the underlying issue in Roemer, supra, so
it would be difficult for Respondent to deny knowledge of the
grievances.
O’Toole testified that Haas was terminated because he was a
pain in the ass. Haas often “complained,” according to Fraley’s
testimony and O’Toole’s statements on Haas’ performance
appraisals. When asked what complaints Haas made, Fraley’s
testimony was general and never specified what the complaints
were about. O’Toole did not testify to what the statements on
the appraisals referred. Some of Haas’s complaints, however,
were about working conditions and O’Toole himself.
Haas also engaged in union activities regarding the “Fair
Contract” signs, which Merrick distributed as well as his own
“No Closed Shop” stickers. Similar to circulating a list of con-
cerns, Haas reached out to fellow employees regarding Re-
spondent’s bargaining proposal of the open shop when he of-
fered the stickers, which some employees accepted. Haas’
conduct was concerted and protected. NLRB v. So-White
Freight, 969 F.2d at 406.
Beyond the events of No Closed Shop” stickers, O’Toole
and the management staff knew of Haas’s union sympathies
and views. In August 2016, O’Toole also took great offense
when Haas asked Shinkovich about any stress level in the of-
fice staff due to the negotiations. O’Toole made him repeat the
question to him and the management staff, and then directed
Bistarkey to take Haas to each and every member of the office
staff to ask the same question. It is this event that demonstrates
both Respondent’s knowledge of Haas’s union sympathies and,
as seen below, its antipathy to his position.
To demonstrate Respondent’s knowledge of Haas last union
activities—distribution of the “no open shop” stickers—General
Counsel uses small plant doctrine. Small plant doctrine is an
inference from the size of the plant16 and its usage has been
debated for some time. The implication of the doctrine is not a
presumption. NLRB v. Health Care Logistics, Inc., 784 F.2d at
236–237. The application of small plant doctrine “rests on the
view that an employer at a small facility is likely to notice un-
ion activities at the plant because of the closer working envi-
ronment between management and labor.” Health Care Logis-
tics, 734 F.2d at 236 (internal quotes and cites omitted). The
appropriate application is that the size of the plant is only one
factor to give rise to an inference of knowledge of union activi-
ty. Almet, Inc., 305 NLRB 626 fn. 5 (1991). The doctrine
should not be used as the “sole basis for finding knowledge.”
Basin Frozen Foods, Inc., 307 NLRB 1406, 1408 (1992).
Small plant doctrine applies when the facility is small and
open, the work force is small, the employees make no great
effort to conceal their union activities, and management per-
sonnel are located in the immediate vicinity of the protected
activity, which increases likelihood of knowledge. NLRB v.
Mid State Sportswear, Inc., 412 F.2d 537, 540 (5th Cir. 1969).
I concur with General Counsel, in light of other evidence of
knowledge, that Respondent knew of Haas’ union activities,
including distributing the “no open shop” stickers. I do not rely
upon small plant doctrine alone, as Haas testified without con-
tradiction about O’Toole questioning him about the statement
of stress due to negotiations and then directing Bistarkey to
drag him from office employee to office employee to ask the
same question.
b. Evidence of animus in general and towards Haas
Determining the employer’s motivation for termination is a

16 Size may vary. See, e.g.: Custom Wood Interiors, Inc., 248 NLRB
187, 189 (18 persons); Famet, Inc., 202 NLRB 409 (1973), enfd. 490
F.2d 293 (9th Cir. 1973) (nine employees with supervisors or managers
almost working continuously around the employees); Wiese Plow
Welding Co., 123 NLRB 616, 619 (13 employees). Small plant size has
its limitations. Springfield Garment Mfg. Co., 152 NLRB, 1054 (1965)
(400 employees, noting Board also refused to apply in 275-employee
plant in a small community).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
fact-based inquiry and evidence may be direct or circumstan-
tial. SCA Tissue North America LLC, 371 F.3d 983, 988-989
(7th Cir. 2004), enfg. 338 NLRB 1130 (2003). Factors which
may support an inference of antiunion motivation include em-
ployer hostility toward unionization, other unfair labor practic-
es committed by the employer contemporaneous with the ad-
verse action, the timing of the adverse action in relation to un-
ion activity, the employer's reliance on pretextual reasons to
justify the adverse action, disparate treatment of employees
based on union affiliation, and an employer's deviation from
past practice. Purolator, 764 F.2d at 1429; W.F. Bolin Co. v.
NLRB, 70 F.3d 863, 871 (6th Cir. 1995), denying rev. 311
NLRB 1118 (1993). Respondent’s conduct demonstrates ani-
mus towards union activities not only a general level, but also
specifically to Haas.
(1) Evidence of general animus
General animus is seen through Respondent’s conduct in the
prior Board decision and the findings above after Haas’ termi-
nation. In Roemer, 362 NLRB No. 92, the Board findings show
Respondent’s history of animus, which is considered back-
ground evidence of animus for this case. Grand Rapids Press
of Booth Newspapers, Inc., 327 NLRB 393, 395 (1998), enfd.
215 F.3d 1327 (6th Cir. 2000). The prior case, after the Sixth
Circuit affirmed the Board’s decision in 2017, was not closed
on compliance until August 20, 2018, months after this hearing.
Respondent’s certification of posting in the prior case was not
received until June 1, 2018.17 Thus, the prior unfair labor prac-
tices were not resolved until after the hearing. I do not give
“independent and controlling weight” to events occurring be-
fore the 10(b) period, but such evidence may be considered to
give background on a “respondent’s motivation for conduct
within the 10(b) period.” Grimmway Farms, 314 NLRB 73, 74
(1994), enfd. in part 85 F.3d 637 (9th Cir. 1996). In addition,
the the Board may rely upon events “long passed” to identify
the motivation behind a termination. SCA Tissue, 371 F.3d at
989
Respondent, without citing any case law, contends that I
cannot take administrative notice of that case because the
charge was filed 4 years ago, the case was “resolved” and is
irrelevant to the case at hand. Respondent is incorrect for two
reasons. First, the decision was enforced by the Sixth Circuit in
2017 and the case therefore remained open during events at
hand. The case was not “resolved” until about June 1, 2018,
when Respondent supplied its certification of notice posting.
Secondly, the Board is entitled to take administrative notice of
its own proceedings. Metro Demolition Co., 348 NLRB 272 fn.

17 This information is available through the NLRB’s public website
at www.nlrb.gov/case/08-CA-124110. Fed.R.Evid. 201(b) permits
judicial notice of a fact that is not subject to reasonable dispute when it
is either: (1) generally known within the court’s jurisdiction; or, (2) can
be readily determined from an indisputably accurate source. Fed, R,
Evid. 201(c) permits a court to take judicial notice on its own. Federal
government websites are a frequent source of information for judicial
notice. U.S. v. Garcia, 855 F.3d 615, 621–622 (4th Cir. 2017). Here,
the source is the Agency’s website.
3 (2006).18 The evidence here is not used to prove a time-barred
unfair labor practice but instead provides information about the
“true character” of events within the time period here. Machin-
ists Lodge 1424 (Bryan Mfg. Co.) v. NLRB, 362 U.S. 411, 416
(1960). This information is not the only basis for making this
determination and therefore is permissible. Id. at 417–418.
After Haas’ termination, Respondent’s statements and con-
duct in 2017 demonstrated additional animus. In January 2017,
Respondent directly dealt with employees and made coercive
statements. When O’Toole told employees he hired a union
busting attorney, he told employees how much he disliked the
Union. Aliante Gaming, LLC d/b/a Aliante Casino & Hotel,
364 NLRB No. 78 fn. 5 (2016) (even if statement was a lawful
expression of opinion against a union, it could support a finding
of animus). Since March 2016, Respondent’s so-called “union
busting” attorney was negotiating for a successor agreement,
months before Haas’s termination.
Respondent also made fait accompli unilateral changes re-
garding pay and coercively told employees that the removal of
a pay raise was because the Union sought to exercise its right to
file charges before the Board. These events also provide signif-
icant evidence of motivation. SCA Tissue, 371 F.3d at 990.
(2) Evidence of animus towards Haas
O’Toole testified that a reason for terminating Haas was that
Haas was a pain in the ass. O’Toole statement “provide[s] a
nexus for evaluating the true causation of [the] discharge.”
Boston Mutual Life Insurance Co., 259 NLRB 1270, 1281
(1982), enfd. 692 F.2d 169 (1st Cir. 1982) (pain in the ass).
The term “pain in the ass,”19 taken with other anti-union state-
ments from an employer, demonstrates animus towards an al-
leged discriminatee. USF Dugan, Inc., 332 NLRB 409, 413
(2000) (pain in the butt). Also see United States Steel Corp.,
279 NLRB 16 fn. 1 (1986) (in context, use of term “trouble-
maker” showed animus). The statement also reflects O’Toole’s
“subjective evaluation of the merits of the complaints,” that
Haas made throughout his employment, which are not control-
ling. Arrow Electric Co., Inc., 323 NLRB 968, 970-971 (1997),
enfd. 155 F.3d 762 (6th Cir. 1998). Haas’s employment history
is pocked with O’Toole complaining about Haas’s complaints
about management (usually O’Toole) and working conditions.
Animus can be inferred from the relatively close timing be-
tween an employee’s protected concerted activity and his disci-

18 Respondent’s brief restates its version of the events in the earlier
case, but without any case cites to show where these findings are sup-
ported in Roemer, 362 NLRB 828. (R. Br. at 47–48.) Respondent’s
version was neither credited by the judge nor relied upon by the Board
or Sixth Circuit. Respondent did not present these facts to this tribunal
and, in any event, would have been precluded from doing so as a waste
of resources. Voith Industrial Services, 363 NLRB No. 109, slip op. at
1 fn. 2 (2016). I therefore disregard Respondent’s self-serving and
inaccurate rehash of Roemer, 362 NLRB No. 96.
19 “In informal English, if you call someone or something a pain or a
pain in the neck, you mean that they are very annoying or irritating.
Expressions such as a pain in the arse and a pain in the backside in
British English, or a pain in the ass and a pain in the butt in American
English, are also used, but most people consider them offensive.” Col-
lins English Dictionary. at www.collinsdictionary.com
/us/dictionary/english/a-pain-in-the-arse (August 16, 2018).
ROEMER INDUSTRIES 17
pline. Corn Brothers, Inc., 262 NLRB 320, 325 (1982) (timing
of discharge within a week of union organizing meeting evi-
dence of antiunion animus); Sears Roebuck & Co., 337 NLRB
443, 451 (2002) (timing of discharge, several weeks after em-
ployer learned of protected concerted activities, indicative of
retaliatory motive); La Gloria Oil & Gas Co., 337 NLRB 1120
(2002) (timing of discipline imposed 4 months after service on
bargaining team and ULP hearing appearance suspect). Even
without the “No Open Shop” stickers, Respondent displayed
significant animus towards Haas in August 2016, within 2
months of such activity.
Respondent’s failure to claim “an asserted reason for adverse
action at the time the action is taken can indicate a discrimina-
tory motive.” Royal Development Co. v. NLRB, 703 F.2d 363,
372 (9th Cir. 1983). Shifting reasons for Respondent’s action
also support finding unlawful motivation. Scientific Ecology
Group, Inc., 317 NLRB 1259, 1259 (1995). Also see NLRB v.
Aquatech, Inc., 926 F.2d 538, 547 (6th Cir. 1991), enfg. 297
NLRB 711 (1990) (inconsistencies in proffered reason and
employer’s actions lead to inference of antiunion animus).
Respondent inconsistently claimed that Haas was insubordi-
nate, yet the disciplinary action taken on September 30 made no
such claim. Fraley was discredited regarding her claim that she
recommended action for insubordination, particularly because
O’Toole required insubordinate employees to be sent home
immediately: That did not happen here.
Animus also can be inferred by previously terminating an
employee and taking him back. Garvey Marine, Inc. v. NLRB,
245 F.3d 819, 825 (D.C. Cir. 2001), enfg. 328 NLRB 991
(1999). A final conclusion that an employer is ultimately ex-
hausted by an employee’s bad behavior is not persuasive. Id. at
825–826. Haas was taken back before, and eight years later
Respondent wants to impress that Haas’s actions now warrant
termination.
4. Pretext
Respondent is required to show it would have taken the same
action for legitimate reasons even in the absence of the protect-
ed activity. Monroe Mfg., 323 NLRB 24, 27 (1997); T & J
Trucking Co., 316 NLRB 771, 771 (1995), enfd. mem.86 F.3d
1146 (1st Cir. 1996). “. . . [A] finding of pretext necessarily
means that the reasons advanced by the employer either did not
exist or were not in fact relied upon, thereby leaving intact the
inference of wrongful motive established by the General Coun-
sel.” Limestone Apparel Corp., 255 NLRB 722, 722 (1981),
enfd. 705 F.2d 799 (6th Cir. 1982). A number of factors point
out that Respondent’s defenses are pretextual, and Respondent
therefore failed to meet its responsive burden.
Shifting explanations for Respondent’s disciplinary actions
constitute strong evidence that Respondent’s asserted reasons
are pretextual. See, e.g., Lucky Cab Co., 360 NLRB 271, 274
(2014). According to O’Toole’s May 2015 edict, any employee
who is insubordinate must be immediately suspended, even if it
is a first instance of discipline. Respondent was not consistent
in applying his own rules. With Haas, the timeline demon-
strates O’Toole waited over two weeks to suspend Haas and
allowed him to continue to work. In other cases, Respondent
failed to enforce its own edicts on insubordination. O’Toole’s
belated understanding that Haas was insubordinate after his
September 14 cart incident and before termination reinforces
that Respondent did not consistently require insubordinate em-
ployees to be sent home immediately. Respondent’s after-the-
fact claim that Haas was insubordinate again reflects a shifting
defense as well, and shows Respondent’s claims are pretextual.
Kingman Regional Medical Center, 363 NLRB No. 145 (2016)
(respondent’s shifting defenses implies grasping for reasons to
justify unlawful conduct) (cite omitted).
Also unsupported is O’Toole’s claim of Haas’s insufficien-
cies and poor work quality. His performance appraisals reflect
ratings in good or excellent and Shinkovich, the quality manag-
er, did not present any complaints at hearing about his perfor-
mance. Haas admitted mistakes when he made them and took
the discipline. However, Respondent tolerated Haas’s perfor-
mance and rated his as good or excellent on most items. Thus,
Respondent’s complaints regarding his performance are pre-
textual.
The level of discipline Respondent gave to Haas was not in
proportion to the offense:
It has been held that a trier of fact is not permitted to substitute
his or her judgment for that of the employer with regard to
discipline imposed. Super Tire Stores, 236 NLRB 877 fn. 1
(1978); Liberty House Nursing Home, 245 NLRB 1194 fn. 2
(1979). However, “if the employee is a good worker and his
breach of the work rules trivial, the more rational explanation
for discharge may be invidious motivation.” Neptune Water
Meter Co. v. NLRB, 551 F.2d 568, 570 (4th Cir. 1977). See
also Flowers Baking Co., 240 NLRB 870, 870-872 (1970).
And “overreaction to a violation of a rule or accepted standard
may itself be an indication of pretext.” Sea-Land Service, 240
NLRB 1146, 1147 (1979).
Bell Halter, Inc., 276 NLRB 1208, 1222 (1985).
Respondent applied the “Theory of Constraints” when it
suited its purposes. First, Respondent never instructed employ-
ees in the bargaining unit about the “Theory of Constraints.”
Secondly, Respondent makes much of the need for efficiency,
including working in the most efficient manner. However,
O’Toole required Haas, with a manager present, ask each and
every person in the office about whether they were stressed
about collective-bargaining agreement negotiations. This ca-
nard not only cost Haas’s production time, but it also cost the
manager’s time and caused interruptions to each and every
person in the office. Such action is not consistent with the effi-
ciency O’Toole claims he requires in his operations. As sug-
gested above, the rule violation for carrying parts is trivial
compared to O’Toole’s reaction to Haas’s question about stress
in the office. It also demonstrates that O’Toole’s vindictive-
ness when it came to the Union and pending negotiations.
O’Toole stated a reason for terminating Haas was that he
was not changing. Respondent presented a lengthy history of
Haas’s discipline, dating back to the 1990s, to show how bad of
an employee Haas was. Given Haas’s frequent flier status for
discipline, surely O’Toole and Respondent knew years ago that
Haas was not going to change. No doubt, Haas had a signifi-
cant disciplinary history. He had been up and down the pro-
gressive disciplinary ladder numerous times, including a 5-day
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
suspension pending termination in 2008, and he had not been
terminated. O’Toole, who stated he could change the discipli-
nary system at his whim, decided this time to terminate Haas.
Respondent tolerated Haas for many years before this time.
Similarly, Respondent’s documentation noted that it believed
Haas was a chronic complainer and to take action after years of
complaining smacks of pretext. Because Respondent tolerated
for Haas’ alleged poor performance and complaining for years,
Respondent’s reasons are pretextual. Andronaco, Inc. d/b/a
Andronaco Industries, 364 NLRB No. 142, slip op. at 13
(2016), citing Phillips Petroleum Co., 339 NLRB 916, 919
(2003).
Nor did Respondent consistently apply the progressive disci-
plinary system. As O’Toole noted he could do what he wanted
when he wanted, the suspension and termination also point to
pretext.
5. Completion of the Wright Line test
General Counsel established a prima facie case for Haas’
suspension and termination. Respondent was well aware of
Haas’s union sympathies and views in August 2016 and
O’Toole clearly was angered by Haas’s question. The “no open
shop” stickers, by timing, also infer that Respondent took ac-
tion because of Haas’s union views.
Many of Respondent’s reasons for its actions contradictory
and unsupported, further demonstrating animus and pretext.
Respondent failed to satisfy its burden under Wright Line to
show that it would have suspended and terminated Haas even in
the absence of his protected concerted and union activities.
CONCLUSIONS OF LAW
1. Respondent Roemer Industries, Inc. is an employer within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The following are Respondent’s supervisors within the
meaning of Section 2(11) and/or agents within the meaning of
Section 2(13) of the Act:
Joe O’Toole owner/president
Mike Farmer general manager
Anna Fraley production manager
Amanda Shinkovich quality manager
Connie Bistarkey administrative services and custo-
dian of records
3. The United Steel, Paper & Forestry, Rubber Manufactur-
ing, Energy Allied Industries and Service Workers International
Union, AFL–CIO, CLC (Union) is a labor organization within
the meaning of Section 2(5) of the Act, representing:
All production and maintenance employees of the Company
except those individuals occupying watchman, confidential
clerical, salaried or supervisory positions of assistant foreman
level or above.
4. Respondent, by Joe O’Toole, violated Section 8(a)(1) of
the Act, by:
a. On January 3, 2017, impliedly threatening the em-
ployees’ continued employment.
b. On January 3, 2017, telling employees that he hired
a union busting attorney.
c. About June 15, 2017, threatening employees with
eliminate the CAP if the Union pursued increased
wages in bargaining.
About July 2017, told employees that the Union was the rea-
son it was rescinding a wage increase.
5. Respondent violated Section 8(a)(3) and (1) of the Act by
suspending Bruce Haas on September 30, 2016 and terminating
him on October 11, 2016.
6. Respondent violated Section 8(a)(4), (3) and (1) of the
Act in July 2017 by rescinding wage increases after the Union
sought relief before the National Labor Relations Board.
7. Respondent violated Section 8(a)(5) of the Act by:
a. By O’Toole, on January 3, 2017, directly dealing
with employees.
b. Since May 8, 2017, failing and refusing to provide
information regarding surveillance cameras, which is
necessary and relevant to the Union’s role as the ex-
clusive collective-bargaining representative of the
Unit.
c. On May 19, 2017, unilaterally implementing wages
increases without first notifying or giving the Union an
opportunity to bargain.
d. On about July 14, 2017, unilaterally implementing
wage decreases without first notifying or giving the
Union an opportunity to bargain.
The unfair labor practices committed by Respondent affect
commerce within the meaning of Section 2(6) and (7) of the
Act.
REMEDY
Having found that Respondent Roemer Industries, Inc. has
engaged in certain unfair labor practices, I find that it must be
ordered to cease and desist therefrom and to take certain af-
firmative action designed to effectuate the policies of the Act.
Respondent, having unlawfully discharged Bruce Haas, must
offer him reinstatement to his former job or if that job no longer
exists, to a substantially equivalent position without prejudice
to his seniority or any other rights or privileges previously en-
joyed. The Respondent shall make Bruce Haas whole for any
loss of earnings and other benefits suffered as a result of the
discrimination against him. The make whole remedy shall be
computed in accordance with F. W. Woolworth Co., 90 NLRB
289 (1950), with interest at the rate prescribed in New Hori-
zons, 283 NLRB 1173 (1987), compounded daily as prescribed
in Kentucky River Medical Center, 356 NLRB 6 (2010). In
accordance with King Soopers, Inc., 364 NLRB No. 93 (2016),
the Respondent shall compensate Bruce Haas for search-for-
work and interim employment expenses regardless of whether
those expenses exceed his interim earnings. Search-for-work
and interim employment expenses shall be calculated separately
from taxable net backpay, with interest at the rate prescribed in
New Horizons, supra, compounded daily as prescribed in Ken-
tucky River Medical Center, supra. In accordance with Don
Chavas, LLC d/b/a Tortillas Don Chavas, 361 NLRB 101
(2014), the Respondent shall compensate Bruce Haas for the
adverse tax consequences, if any, of receiving lump sum back-
pay awards, and, in accordance with AdvoServ of New Jersey,
ROEMER INDUSTRIES 19
Inc., 363 NLRB No. 143 (2016), the Respondent shall, within
21 days of the date the amount of backpay is fixed either by
agreement or Board order, file with the Regional Director for
Region 8 a report allocating backpay to the appropriate calen-
dar year for each employee. The Regional Director will then
assume responsibility for transmission of the report to the So-
cial Security Administration at the appropriate time and in the
appropriate manner. The Respondent shall also be required to
remove from its files any references to the unlawful discharge
of Bruce Haas and to notify him in writing that this has been
done and that the discharge will not be used against him in any
way
Respondent, having unlawfully changed the terms and condi-
tion of employment, shall rescind the changes that was/were
unilaterally implemented in mid-July 2017, and make all af-
fected employees whole for any loss of earnings and other ben-
efits suffered as a result of the unilateral changes. The make-
whole remedy shall be computed in accordance with Ogle Pro-
tective Service, 183 682 (1970), enf’d. 444 F.2d 502 (6th Cir.
1971), with interest as prescribed in New Horizons, 283 NLRB
1173 (1987), and compounded daily as prescribed in Kentucky
River Medical Center, 356 NLRB 6 (2010). In accordance with
Don Chavas, LLC d/b/a Tortillas Don Chavas, 361 NLRB 101
(2014), the Respondent shall compensate any employees ad-
versely affected by the unlawfully changed policies for the
adverse tax consequences, if any, of receiving lump-sum back-
pay awards, and in accordance with AdvoServ of New Jersey,
Inc., 363 NLRB No. 143 (2016), Respondent shall, within 21
days of the date the amount of backpay is fixed, either by
agreement or Board order, file with the Regional Director for
Region 8 a report allocating backpay to the appropriate calen-
dar year for each employee. The Regional Director will then
assume responsibility for transmission of the report to the So-
cial Security Administration at the appropriate time and in the
appropriate manner.
Respondent shall post an appropriate informational notice, as
described in the attached appendix. This notice shall be posted
in the Respondent's Masury, Ohio facility or wherever the no-
tices to employees are regularly posted for 60 days without
anything covering it up or defacing its contents. 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 Respondent cus-
tomarily communicates with its employees by such means. In
the event that, during the pendency of these proceedings, Re-
spondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since September 30, 2016. When the notice is issued
to Respondent, it shall sign it or otherwise notify Region 8 of
the Board what action it will take with respect to this decision.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended20

20 If no exceptions are filed as provided by Section 102.46 of the
Board’s Rules and Regulations, the findings, conclusions and recom-
mended Order shall, as provided in Section 102.48 of the Rules, be
ORDER
Respondent Roemer Industries, Inc., located in Masury,
Ohio, its officers, agents, successors, and assigns shall
1. Cease and desist from
(a) Threatening employees with termination because of the
union support.
(b) Terminating employees for union and/or protected union
activity.
(c) Threatening employees because unfair labor practices
charges were filed on their behalf.
(d) Unlawfully suspending and terminating employees for
union and/or protected concerted activity.
(e) Unilaterally changing wages, hours and terms and condi-
tions of employment.
(f) Bypassing the Union and directly dealing with employ-
ees regarding wages, hours and terms and conditions of em-
ployment.
(g) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guaran-
teed them by Section 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, offer Bruce
Haas full reinstatement to his former jobs, or, if that job no
longer exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privileges previ-
ously enjoyed.
(b) Make Bruce Haas whole for any loss of earnings and
other benefits suffered as a result of the discrimination against
him, in the manner set forth in the remedy section of this deci-
sion.
(c) Compensate Bruce Haas for the adverse tax consequences,
if any, of receiving a lump-sum backpay award and file with
the Regional Director for Region 8 within 21 days of the date
the amount of backpay is fixed, either by agreement or board
order, a report allocating the backpay award to the appropriate
calendar year for Haas.
(d) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful discharge and within 3
days thereafter, notify Bruce Haas in writing that this has been
done and that the discharge will not be used against him in any
way.
(e) On request, bargain with the Union as the exclusive collec-
tive-bargaining representative of the employees in the follow-
ing appropriate 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 of the Company
except those individuals occupying watchman, confidential
clerical, salaried or supervisory positions of assistant foreman
level or above.
(f) Upon request of the Union, rescind the charges in the
terms and conditions of employment for its unit employees that
were unilaterally implemented on mid-July 2017 and May

adopted by the Board and all objections to them shall be deemed
waived for all purposes due under the terms of this Order.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD20
2017.
(g) Furnish to the Union in a timely manner the information
requested on May 8, 2017.
(h) 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 backpay
due under the terms of this Order.
(i) Within 14 days after service by the Region, post at its
Masury, Ohio facility copies of the attached notice marked
“Appendix.”21 Copies of the notice, on forms provided by the
Regional Director for Region 8, after being signed by Respond-
ent’s authorized representative, shall be posted by 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 an internet site, and/or other electronic means, if
Respondent customarily communicates with its employees by
such means. Reasonable steps shall be taken by Respondent to
ensure that the notices are not altered, defaced, or covered by
any other material. If Respondent has gone out of business or
closed the facility involved in these proceedings, the Respond-
ent shall duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees em-
ployed by the Respondent at any time since September 30,
2016.
(j) Within 21 days after service by the Region, file with the
Regional Director for Region 8 a sworn certification of a re-
sponsible 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 inso-
far as it alleges violations of the Act not specifically found.
Washington, DC, September 24, 2018
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the Unites States Government
The National Labor Relations Board has found that we violated
federal labor law and has ordered us to post and abide by 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

21 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."
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT interfere with, restrain or coerce our employees
in the exercise of these rights, guaranteed to them by Section 7
of the National Labor Relations Act.
WE WILL NOT impliedly threaten you about your continued
employment with us.
WE WILL NOT by telling you we have hired a “union busting”
attorney.
WE WILL NOT threaten to change wages, hours and terms and
conditions of employment due to the Union’s position in collec-
tive-bargaining agreement negotiations.
WE WILL NOT coerce you by telling you we changed terms
and conditions of employment because the Union sought assis-
tance from the National Labor Relations Board.
WE WILL NOT threaten you with changes in wages, hours and
terms and conditions of employment because of your union
and/or other protected concerted activities.
WE WILL NOT suspend or discharge you because you engaged
in Union and/or protected concerted activities.
WE WILL NOT changes wages, hours and other terms and
conditions of employment because charges have been filed with
the Board on your behalf.
WE WILL NOT refuse to bargain in good faith with the United
Steel, Paper and Forestry, Rubber, Manufacturing, Energy,
Allied Industrial and service Workers International Union,
AFL–CIO in the following appropriate unit by unilaterally
changing your terms and conditions of employment, including
but not limited to changes in your wages, without first provid-
ing the Union with notice and an opportunity to bargain. The
bargaining unit is:
All production and maintenance employees of the Company
except those individuals occupying watchman, confidential
clerical, salaried or supervisory positions of assistant foreman
level or above.

WE WILL NOT withhold from the Union that is necessary and
relevant to its responsibilities as exclusive-bargaining repre-
sentative of the above bargaining unit.
WE WILL NOT bypass the Union and deal directly with our
employees in the above-described bargaining unit concerning
your wages, benefits, or other terms and conditions of employ-
ment.
WE WILL NOT, in any like or other related manner interfere
with, restrain, or coerce you in the exercise of the rights guaran-
teed to you by Section 7 of the Act.
WE WILL offer Bruce Haas immediate and full reinstatement
to her former job, or if that job no longer exists, to a substan-
tially equivalent position, without prejudice to his seniority or
any other rights and privileges she previously enjoyed.
WE WILL remove from our files all references to the suspen-
sion and discharge of Bruce Haas and WE WILL notify him in
writing that this has been done and that the suspension and
discharge will not be used against him in any way.
WE WILL pay Bruce Haas for the wages and other benefits he
lost, with interest, because of our unlawful suspension and ter-
ROEMER INDUSTRIES 21
mination of him.
WE WILL, before implementing any changes in wages, hours
or other terms and conditions of your employment, notify and
on request, bargain with the Union as your exclusive collective-
bargaining representative.
WE WILL, to the extent we have not already done so, upon
request by the Union, rescind any changes in terms and condi-
tions of employment for the unit employees that we unilaterally
unilaterally implemented beginning May 2017 and mid-July
2017, including changes to our unit employees’ rates of pay.
WE WILL make our unit employees whole for any losses they
sustained due to the unlawfully imposed changes to their terms
and conditions of employment, with interest.
WE WILL compensate affected employees for the adverse tax
consequences, if any, of receiving lump-sum backpay awards,
and WE WILL file with the Regional Director for Region 8, with-
in 21 days of the date the amount of backpay is fixed, either by
agreement or Board order, a report allocating the backpay
awards to the appropriate calendar years for each employee.
WE WILL provide the Union with the information requested
on May 8, 2017 regarding the camera system.
ROEMER INDUSTRIES, INC.
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/08-CA-8055 or by using the QR code be-
low. 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.
D D