Wendt Corporation

National Labor Relations Board - Board Decisions

Jul 29, 2020

369 N.L.R.B. 135 (N.L.R.B. 2020)

369 NLRB No. 135
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.
Wendt Corporation and Shopmen’s Local Union No.
576. Cases 03–CA–212225, 03–CA–220998, and
03–CA–223594
July 29, 2020
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN
AND EMANUEL
On February 15, 2019, Administrative Law Judge Ira
Sandron issued the attached decision. The Respondent
filed exceptions and a supporting brief, the General Coun-
sel filed an answering brief, and the Respondent filed a
reply brief. The General Counsel filed cross-exceptions
and a supporting brief, and the Respondent filed an an-
swering brief.
The National Labor Relations Board has considered the
decision and the record in light of the exceptions, cross-
exceptions, and briefs and has decided to affirm the
judge’s rulings,1 findings,2 and conclusions only to the ex-
tent consistent with this Decision and Order and to adopt
the recommended Order as modified and set forth in full
below.3
1 The Respondent excepts to the judge’s denial of its request that it
be provided with all employee witness statements at the outset of the
hearing. We find no merit in that exception. The judge’s determination
comports with the Board’s longstanding rule that employee witness
statements be supplied to opposing counsel only after a witness has tes-
tified. See Sec. 102.118(e) of the Board’s Rules & Regulations; H. B.
Zachry, 310 NLRB 1037, 1038 (1993); Edwards Trucking, 129 NLRB
385, 386 fn. 1 (1960).
2 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 preponderance
of all the relevant evidence convinces us that they are incorrect. Stand-
ard 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. In addition, some of the Respondent’s exceptions
allege that the judge’s rulings, findings, and conclusions demonstrate
bias against it. On careful examination of the judge’s decision and the
entire record, we are satisfied that the Respondent’s contentions are with-
out merit.
3 We amend the judge’s recommended remedy to provide that make-
whole relief for the employees unlawfully laid off by the Respondent
shall be computed in accordance with F. W. Woolworth Co., 90 NLRB
289 (1950), while the make-whole remedy applicable to the Respond-
ent’s additional unfair labor practices shall be computed in accordance
with Ogle Protection Service, Inc., 183 NLRB 682 (1970), enfd. 444
F.2d 502 (6th Cir. 1971), with interest in all of these instances as set forth
in the judge’s decision. We further amend the recommended remedy to
provide for rescission of the Respondent’s unlawful removal of unit
work. “‘Pursuant to the Board’s established policy, in cases such as this
involving a violation of Sec. 8(a)(5) based on an employer’s unilateral
I. BACKGROUND
The Respondent designs and manufactures systems and
machinery used by the scrap-metal recycling industry. On
June 23, 2017, the Board certified a unit of the Respond-
ent’s production and maintenance employees, consisting
of approximately 33 individuals. The parties commenced
negotiations in July 2017, meeting 36 times without reach-
ing agreement or impasse. The judge found that the Re-
spondent, during the bargaining process, committed mul-
tiple violations of Sections 8(a)(1), (3), and (5) of the Act.
We affirm in part and reverse in part.
II. DISCUSSION
A. The 8(a)(1) Findings
The judge found that the Respondent, by its Plant Man-
ager Daniel Voigt, committed numerous violations of Sec-
tion 8(a)(1) of the Act during the bargaining period by
threats and other statements to prounion employees. The
Respondent does not dispute the vast majority of these
findings, which we adopt in the absence of exceptions.4
The Respondent has excepted, however, to the judge’s
finding that the Respondent violated Section 8(a)(1) of the
Act by its written evaluation of Dmytro Rulov and by re-
fusing employee John Fricano’s request for a Weingarten5
representative. For the reasons set forth in his decision,
we adopt the judge’s findings that the Respondent violated
Section 8(a)(1) of the Act as alleged.6
alteration of terms and conditions of employment, it is customary to or-
der restoration of the status quo ante to the extent feasible.’” Capitol
Ford, 343 NLRB 1058, 1059 fn. 6 (2004) (quoting Detroit News, 319
NLRB 262, 262 fn. 1 (1995)). We have modified the judge’s recom-
mended Order in accordance with our recent decision in Danbury Ambu-
lance Service, Inc., 369 NLRB No. 68 (2020), and to conform to the vi-
olations found and to the Board’s standard remedial language. We have
substituted a new notice to conform to the Order as modified.
4 The Respondent has not excepted to the judge’s findings that the
Respondent, by Voigt, violated Sec. 8(a)(1) of the Act by (a) interrogat-
ing Dale Thompson about his union support; (b) threatening Thompson
with unspecified reprisals for wearing a union logo; (c) implying Thomp-
son would receive a wage increase if he ceased his support for the Union;
(d) informing Thompson that union supporters would be laid off; (e)
threatening Thompson with reprisals by implying he should not support
the Union because he had a family to support; (f) on multiple occasions
creating the impression of surveillance of employees’ protected activity;
(g) impliedly instructing Jeff George to remove union insignia; (h) in-
forming George that prounion employees were targeted for future layoff;
(i) instructing George to remove a prounion photograph from his Face-
book page; and (j) threatening Dmytro Rulov during his annual perfor-
mance review.
Having adopted the judge’s finding that the Respondent unlawfully
interrogated Thompson, we find it unnecessary to pass on whether the
judge properly dismissed the allegation that Plant Manager Voigt vio-
lated Sec. 8(a)(1) of the Act by interrogating George because such an
additional finding would not affect the remedy.
5 NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975).
6 The disciplinary document given to Fricano, with the option for him
to check a box that he agreed or disagreed with the above statements
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
B. The 8(a)(3) Findings
The judge found that the Respondent violated Section
8(a)(3) and (1) of the Act by suspending Dennis Bush for
alleged violation of its anti-harassment policy, assigning
William Hudson exclusively to saw work and refusing
him overtime, and failing to provide annual performance
reviews and accompanying wage increases to unit em-
ployees from about November 2017 through April 2018.
We agree with each of these findings as further discussed
below.
We reverse, however, the judge’s finding that the Re-
spondent violated Section 8(a)(3) and (1) of the Act by
temporarily laying off 10-unit employees in February
2018. The complaint does not allege that the Respondent
violated Section 8(a)(3) and (1) in this regard, the General
Counsel conceded at the hearing that he was making no
such allegation, and the issue was not litigated. Accord-
ingly, we reverse the judge’s finding of this unalleged and
unlitigated violation.
1. The suspension of Dennis Bush
The Respondent receives products from a German com-
pany in boxes printed with “F.A.G.” in black letters. With
the Respondent’s apparent knowledge and consent, em-
ployees frequently re-use the boxes in the course of their
work. On December 21, 2017, Bush delivered such a box
to employee Robert Domaradski, who had requested a box
for work. Bush was an active union supporter and was
wearing a union shirt during this incident. Plant Manager
Voigt saw Bush delivering the box to Domaradski. Bush
held up the box and laughed. Manager Voigt took no ac-
tion to caution Bush, prevent delivery of the box, or oth-
erwise intervene. Instead, he snickered approvingly.
Bush continued walking toward Domaradski, set the box
down and said, “Here’s your box.” Both he and Do-
maradski laughed. Bush left. The Respondent thereafter
suspended Bush for 3 days without pay for violating its
anti-harassment policy.
The judge found, and we agree, that the Respondent vi-
olated Section 8(a)(3) and (1) of the Act by suspending
Bush for this incident. The Respondent does not contest
that the General Counsel established a prima facie case of
discrimination under Wright Line.7 Rather, the Respond-
ent excepts to the judge’s finding that it did not meet its
describing the incident and a section for comments, was minimally suf-
ficient to convert the meeting into a Weingarten interview. See Baton
Rouge Water Works Co., 246 NLRB 995, 997 (1979) (finding that if an
employer seeks facts or evidence in support of a disciplinary action or to
have an “employee admit his alleged wrongdoing or to sign a statement
to that effect” during a meeting to issue predetermined discipline, then
an employee’s right to union representation attaches).
7 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982). Even if the Respondent had not conceded,
Wright Line defense burden of showing it would have sus-
pended Bush, even absent his union activity, for violating
its anti-harassment workplace policy and to prevent a hos-
tile work environment.
Like the judge, we recognize that the Respondent main-
tains a zero-tolerance policy for workplace harassment
and that it is not our place to second-guess discipline the
Respondent imposes for violations of that policy. But
having carefully reviewed the record, we find little support
for the Respondent’s defense that its motive in suspending
Bush was to vindicate its policy of eliminating sexual har-
assment in its workplace.
Rather, we find that the Respondent did not treat the in-
cident as one of bona fide harassment. Although the Re-
spondent’s policy provides that complaints of harassment
“will be investigated promptly,” the Respondent did not
interview Bush, Domaradski, or others who witnessed the
event.8 Where, as here, an employer’s policy or practice
is to investigate misconduct allegations, its failure to con-
duct an investigation indicated that it did not treat the in-
cident as misconduct, and thus that its purported justifica-
tion for discipline was pretext. And where the employer’s
proffered reasons “are pretextual—that is, either false or
not in fact relied upon—the [employer] fails by definition
to show that it would have taken the same action for those
reasons, absent the protected conduct.” Golden State
Foods Corp., 340 NLRB 382, 385 (2003) (citing Lime-
stone Apparel Corp., 255 NLRB 722 (1981), enfd. 705
F.2d 799 (6th Cir. 1982)).
Moreover, the Respondent’s defense burden under
Wright Line is not to identify legitimate grounds for which
it could impose discipline, but to persuade that it would
have disciplined the employee even absent his or her pro-
tected activity. E.g., Roure Bertrand Dupont, Inc., 271
NLRB 443, 443 (1984). The Respondent has failed to do
so because its actions are strikingly inconsistent with its
expressed concerns regarding workplace harassment. An
employer that maintains materials in the workplace that
are printed with initials such as “F.A.G.” for legitimate
commercial reasons may well be oblivious to the possibil-
ity that they are susceptible to misuse. One would expect,
however, that an employer concerned about harassment in
its workplace would take action after being apprised of
such misuse. Yet here, even though the Respondent’s
in its exceptions brief, that the General Counsel satisfied his initial bur-
den, we would have no trouble concluding that he did so.
8 The Respondent argues that its failure to investigate is irrelevant
because Bush admitted to engaging in misconduct. We disagree. Bush
admitted to saying “here’s your box” and laughing. He did not admit
that this was misconduct, and whether or not it was, the Respondent did
not treat it as such by adhering to its policy and investigating. Its failure
to do so suggests a determination to avoid discovering potentially miti-
gating circumstances.
WENDT CORP. 3
management was purportedly concerned enough to hand
out a 3-day suspension based on Bush’s conduct, the Re-
spondent did nothing. It did not take immediate steps to
remove the boxes from the workplace or implement any
other measure to mitigate the potential for misuse, such as
requiring the letters to be covered up. Indeed, Domaradski
still had the box under his workbench at the time of the
hearing, with the prominent letters “F.A.G.” facing out
and visible to all other employees, managers, and visitors.
The Respondent’s conduct is simply not consistent with
that of an employer seeking to prevent harassment in the
workplace.
An employer concerned about workplace harassment
also would have required more of its managers, particu-
larly a manager involved in the specific incident. Yet the
Respondent took no action against Plant Manager Voigt,
who condoned and participated in the incident by laughing
along with Bush. There is no evidence that the Respond-
ent reminded Voigt and other managers of their responsi-
bility to prevent workplace harassment, let alone disci-
plined Voigt for making light of what the Respondent
deemed an anti-gay slur. The Respondent also took no
action against Voigt for failing to file a complaint about
the incident despite having witnessed it and despite being
required to report it under the Respondent’s anti-harass-
ment policy.9 The Respondent’s “zero tolerance” defense
simply cannot be squared with its conspicuous failure to
take any action against workplace harassment other than
singling out a leading union supporter for discipline.10
2. The assignment of William Hudson to saw work
We agree with the judge, for the reasons set forth by him
as further discussed below, that under Wright Line the Re-
spondent violated Section 8(a)(3) and (1) of the Act by as-
signing highly-skilled welder and prominent union activist
William Hudson exclusively to low-skilled saw work
upon his return from layoff and refusing him any oppor-
tunity to work overtime.
The Respondent primarily excepts to the judge’s find-
ing of animus. The judge’s finding is premised on the nu-
merous undisputed unlawful threats and statements by
Plant Manager Voigt. The Respondent asserts that there
9 Under the Respondent’s policy, “[t]he reporting of all incidents of
. . . harassment . . . is mandatory.” Moreover, supervisors or managers
who witness harassment but fail to intervene or report it expose their em-
ployer to liability. See, e.g., McKenzie v. Illinois Department of Trans-
portation, 92 F.3d 473, 480 (7th Cir. 1996) (employer liability for har-
assment by coworkers limited to situations where employer knows or
should have known about harassment), cited favorably in Burlington In-
dustries, Inc. v. Ellerth, 524 U.S. 742, 760 (1998).
10 In rejecting the Respondent’s defense, we reiterate the Board’s
commitment to administering the NLRA in harmony with prohibitions
on workplace sexual harassment specifically and federal employment
discrimination law generally. See General Motors LLC, 369 NLRB No.
is an insufficient causal connection between Voigt’s
threats and its treatment of Hudson to merit finding that
the General Counsel met his initial burden under Wright
Line of showing that the Respondent’s union animus was
a motivating factor in its decision to assign Hudson to low-
skilled saw work and deny him overtime.
In Tschiggfrie Properties, 368 NLRB No. 120, slip op.
at 1 (2019), the Board held that “to meet the General
Counsel’s initial burden [under Wright Line], the evidence
of animus must support finding that a causal relationship
exists between the employee’s protected activity and the
employer’s adverse action against the employee.” The
Board explained:
[W]e emphasize that we do not hold today that the Gen-
eral Counsel must produce direct evidence of animus
against an alleged discriminatee’s union or other pro-
tected activity to satisfy his initial burden under Wright
Line . . . . We continue to adhere to the Board’s
longstanding principle that proof of discriminatory mo-
tivation can be based on direct evidence or can be in-
ferred from circumstantial evidence based on the record
as a whole . . . . [E]vidence that an employer has stated
it will fire anyone who engages in union activities, while
undoubtedly “general” in that it is not tied to any partic-
ular employee, may nevertheless be sufficient, under the
circumstances of a particular case, to give rise to a rea-
sonable inference that a causal relationship exists be-
tween the employee’s protected activity and the em-
ployer’s adverse action. In contrast, other types of cir-
cumstantial evidence—for example, an isolated, one-on-
one threat or interrogation directed at someone other
than the alleged discriminatee and involving someone
else’s protected activity—may not be sufficient to give
rise to such an inference.[11]
Applying this standard, we find that the General Coun-
sel has adduced evidence of the Respondent’s union ani-
mus that is more than sufficient to support a reasonable
inference of a causal relationship between Hudson’s union
activities and the Respondent’s adverse actions against
Hudson. The Respondent’s repeated threats, while made
127 (2020); Park ‘N Fly, Inc., 349 NLRB 132, 136 (2007) (“Employers
have a legitimate interest in preventing workplace sexual harassment and
an obligation to respond when such incidents occur.”); see also Southern
Steamship Co. v. NLRB, 316 U.S. 31, 47 (1942) (“[T]he Board has not
been commissioned to effectuate the policies of the Labor Relations Act
so single-mindedly that it may wholly ignore other and equally important
Congressional objectives. Frequently the entire scope of Congressional
purpose calls for careful accommodation of one statutory scheme to an-
other.”).
11 Tschiggfrie Properties, slip op. at 8 (quotations and citations omit-
ted; emphasis in original).
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
in each instance to a single employee, expressed a general
threat to all employees by, for example, threatening to tar-
get union supporters for layoff and to get rid of “a lot of”
shop employees. The Respondent additionally invoked its
entire work force when, on multiple occasions, it unlaw-
fully created the impression of surveillance, telling em-
ployees it had cameras that could “see everything that
[employees were] doing on the internet.” These are not
the type of isolated, one-on-one threats or statements in
which animus is properly cabined to the recipient under
Tschiggfrie Properties. Further, circumstantial evidence
of animus under Tschiggfrie Properties is clearly estab-
lished by the Respondent’s disparate treatment of Hudson.
The Respondent singled him out from the other laid-off
welders by denying only him any welding work and any
overtime work opportunities, and instead making him the
sole welder assigned exclusively to the low-skill saw. See
Overnite Transportation Co., 335 NLRB 372, 375 (2001)
(unlawful motive inferred from evidence of disparate
treatment), cited with approval in Tschiggfrie Properties,
slip op. at 8.
We accordingly find that the General Counsel has met
his burden of showing animus under Tschiggfrie Proper-
ties, and thus agree with the judge that the General Coun-
sel has met his Wright Line burden of showing that the
Respondent was unlawfully motivated in limiting Hud-
son’s work. We further agree with the judge, for the rea-
sons set forth by him, that the Respondent failed to meet
its defense burden of showing it would have taken the
same action towards Hudson even absent his protected un-
ion activity.
3. The delay in performance reviews and wage increases
The Respondent’s employment manual provides for an-
nual performance reviews for employees. In 2016, the Re-
spondent provided unit and nonunit employees perfor-
mance reviews in the same time frame, and shortly there-
after gave wage increases to all employees based on the
evaluations. Following the Union’s certification, how-
ever, nonunit employees received their reviews and con-
comitant wage increases in late 2017, but unit employees
did not receive their reviews and wage increases until mid-
April 2018.
12 See id., slip op. at 8; W.F. Bolin Co. v. NLRB, 70 F.3d 863, 871
(6th Cir. 1995); Zengel Bros., 298 NLRB 203, 206 (1990) (employer’s
failure to offer a consistent account of its actions permits an inference
that the real reason for its conduct is not among those asserted).
13 Indeed, the judge essentially discredited the Respondent’s “too
busy” defense on demeanor grounds.
14 See Sound One Corp., 317 NLRB 854, 858 (1995) (where an em-
ployer has shifted reasons for its actions, “an inference may be drawn
that the real reason for its conduct is not among those asserted”) (citation
and internal quotation omitted), enfd. mem. 104 F.3d 356 (2d Cir. 1996);
Fluor Daniel, Inc., 304 NLRB 970, 970 (1991) (noting that “it is . . . well
We agree with the judge’s finding that the Respondent
violated Section 8(a)(3) and (1) of the Act by delaying re-
views and thus depriving unit employees of their pay in-
creases for approximately 6 months. The Respondent
again invokes Tschiggfrie Properties to argue that the
General Counsel failed to satisfy his burden of showing
animus by the Respondent towards union or protected ac-
tivity sufficient to support an inference of unlawful moti-
vation for its dilatory conduct vis-à-vis unit employees.
Contrary to the Respondent’s arguments, the record
here clearly establishes substantial evidence of animus.
First, as explained above, the Respondent made the very
types of general threats specified in Tschiggfrie Properties
as potentially sufficient without more to sustain the Gen-
eral Counsel’s burden of proof. Second, compelling cir-
cumstantial evidence of the Respondent’s discriminatory
motive is established here under Tschiggfrie Properties
based on the inconsistencies in its proffered reasons for
the 6-month delay.12 Thus, the Respondent asserts that the
shop where unit employees worked was too busy with or-
ders in late 2017 to allow any time for performance re-
views for unit employees, and that production demands
did not ease sufficiently until mid-April 2018, when it fi-
nally had the time to complete the reviews. This explana-
tion is flatly contradicted, however, by the Respondent’s
conflicting assertion that it was compelled to lay off 10
shop employees on February 8, 2018, because the shop
had so little work at that time.13 The Respondent also as-
cribes its delay in granting unit employees a wage increase
to its obligation to negotiate over the increases, but this
explanation is belied by its contemporaneous refusal to
bargain with the Union on this topic. When the Union re-
quested bargaining over the wage amounts on November
3, 2017, the Respondent refused. The Respondent’s prof-
fered reasons for its delay in furnishing performance re-
views and corresponding wage increases to unit employ-
ees are inconsistent and shifting; as such, they provide sig-
nificant additional evidence that the delay was unlawfully
motivated.14 In addition, those same proffered reasons are
plainly pretextual, which defeats any attempt on the Re-
spondent’s part to sustain its Wright Line defense bur-
den.15 We accordingly agree with the judge that the
settled . . . that when a respondent’s stated motives for its actions are
found to be false, the circumstances may warrant an inference that the
true motive is an unlawful one that the respondent desires to conceal”),
enfd. mem. 976 F.2d 744 (11th Cir. 1992).
15 See Golden State Foods Corp., 340 NLRB 382, 385 (2003) (“[I]f
the evidence establishes that the reasons given for the [r]espondent’s ac-
tion are pretextual—that is, either false or not in fact relied upon—the
[r]espondent fails by definition to show that it would have taken the same
action for those reasons, absent the protected conduct, and thus there is
no need to perform the second part of the Wright Line analysis.”).
WENDT CORP. 5
General Counsel satisfied his initial burden under Wright
Line with respect to the delay and that the Respondent has
failed to prove its affirmative defense of demonstrating
that it would have taken the same action even in the ab-
sence of the employees’ protected activities.16
C. The 8(a)(5) Findings
The judge found that the Respondent violated Section
8(a)(5) and (1) of the Act by temporarily laying off em-
ployees and by removing bargaining unit work and trans-
ferring it to newly created supervisory positions. We
agree with these findings as further discussed below.
However, consistent with our recent decision in 800 River
Road Operating Company, LLC d/b/a CareOne at New
Milford, 369 NLRB No. 109 (2020), we reverse the
judge’s finding that the Respondent violated Section
8(a)(5) and (1) of the Act by imposing discipline on em-
ployees without giving the Union prior notice and an op-
portunity to bargain. We address each of these issues in
turn below.17
1. The layoff of employees
The Respondent temporarily laid off 10 shop employees
on February 8, 2018. It gave the Union advance notice of
the layoffs, but the layoffs were carried out at a time when
the parties had not reached overall impasse in negotiations
for a collective-bargaining agreement as a whole. The
judge found that the layoffs violated Section 8(a)(5) and
(1) of the Act under Bottom Line Enterprises because the
Respondent implemented the layoffs in the absence of
overall impasse. 302 NLRB 373 (1991), enfd. mem. sub
nom. Master Window Cleaning v. NLRB, 15 F.3d 1087
(9th Cir. 1994).18
The Respondent argues that it was privileged to imple-
ment the layoffs unilaterally pursuant to its past practice
under Raytheon Network Centric Systems, 365 NLRB No.
16 The Respondent also argues that the Union “waived” its claim that
the Respondent’s delay violated Sec. 8(a)(3) and (1) when, in May 2018,
the Union agreed to the Respondent’s proposals at bargaining regarding
wage increase amount and retroactivity. This argument lacks merit. The
judge credited testimony that the parties agreed at that time to further
bargaining on retroactivity. As noted, we find no basis for reversing the
judge’s credibility determinations.
17 We adopt the judge’s findings, for the reasons set forth by him, that
the Respondent violated Sec. 8(a)(5) and (1) of the Act by unilaterally
requiring employees to work mandatory overtime and by failing to pro-
vide the Union with requested information. We likewise adopt the
judge’s finding that the Respondent violated Sec. 8(a)(5) and (1) of the
Act by failing to afford the Union an opportunity to bargain over provid-
ing annual performance reviews and accompanying wage increases to
unit employees from about November 2017 through April 2018. In
adopting the latter finding, we note that the Respondent did not except to
the judge’s finding that it had an established past practice of providing
reviews and increases at the same time to unit and nonunit employees.
Member Emanuel, in adopting the 8(a)(5) violation regarding perfor-
mance reviews and wage increases, does not rely on the judge’s finding
161 (2017). It also contends that it was excused from bar-
gaining to overall impasse under the “economic exigen-
cies” exceptions set forth in RBE Electronics of S.D., 320
NLRB 80 (1995). We have carefully examined the record
and find that the Respondent has failed to meet its burden
of establishing either affirmative defense.
In Raytheon, the Board held that an employer may uni-
laterally continue to take actions that are consistent with
an operational past practice. See Mike-Sell’s Potato Chip
Co., 368 NLRB No. 145, slip op. at 3 (2019). Such actions
maintain the status quo of the past practice, and therefore
they effect no change requiring that the union be given
prior notice of the contemplated action and opportunity to
bargain. See, e.g., Raytheon, supra, slip op. at 5. The
party asserting the existence of a past practice bears the
burden of proving that the practice occurred with such reg-
ularity and frequency that employees could reasonably ex-
pect the practice to reoccur on a consistent basis. Mike-
Sell’s Potato Chip Co., supra.19 For example, the Board
in Raytheon found that the employer there satisfied its bur-
den of establishing a regular and consistent past practice
by showing that it had taken the same action for 11 straight
years. Raytheon, supra, slip op. at 17.
Applying Raytheon here, we find that the Respondent
has failed to show that the temporary layoffs in February
2018 were consistent with a longstanding past practice.
Prior to 2018, the Respondent’s last temporary layoff oc-
curred in 2009, and before that in 2001. The Respondent’s
use of temporary layoffs twice in 17 years falls well short
of establishing a regular and consistent practice sufficient
to privilege unilateral action. Further, the 2018 layoff was
different in kind from the 2009 layoff because only shop
(i.e. unit) employees were laid off in 2018, while the 2009
layoff involved both nonunit office and unit shop employ-
ees in equal numbers. Thus, prior to 2018, the last time
that the Respondent failed to give the Union timely notice and oppor-
tunity to bargain over wage increases.
18 When “the parties are engaged in negotiations, an employer’s ob-
ligation to refrain from unilateral changes extends beyond the mere duty
to give notice and an opportunity to bargain; it encompasses a duty to
refrain from implementation at all, unless and until an overall impasse
has been reached on bargaining for the agreement as a whole.” 302
NLRB at 374.
19 See Raytheon, 365 NLRB No. 161, slip op. at 16 (“[A]n employer’s
past practice constitutes a term and condition of employment that permits
the employer to take actions unilaterally that do not materially vary in
kind or degree from what has been customary in the past.”); Id., slip op.
at 19 fn. 89 (“[U]nder Katz, an employer modification that is consistent
with any regular and consistent past pattern of change is not a change in
working conditions at all.”) (quotation marks omitted); Mike-Sell’s Po-
tato Chip Co., supra, slip op. at 4 (“To establish the existence of a past
practice, it is enough to show that frequent, recurrent, and similar actions
have been taken[.]”) (emphasis in original).
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the Respondent temporarily laid off only the Respondent’s
shop employees was 17 years previously.20 While a past-
practice defense under Raytheon is not susceptible to
mathematical specificity, the evidence adduced by the Re-
spondent of two temporary layoffs in 17 years comes no-
where near meeting its burden of proving an established
past practice that would have justified unilateral action.
Cf. Mike-Sell’s Potato Chip Co., supra, slip op. at 3 (past
practice established where employer sold 51 company
driver routes between 1998 and 2016 even though, in sev-
eral of those years, there were no sales).
We further find that the Respondent’s conduct was not
privileged by economic exigencies. The Respondent con-
tends that it acted lawfully under RBE Electronics, which
established that there may be economic exigencies that,
although not sufficiently compelling to excuse bargaining
altogether, allow an employer to implement a change if it
first gives notice to the union and bargains to impasse on
the particular matter. RBE Electronics, 320 NLRB at 81.
It argues that the layoffs were driven by economic exigen-
cies because certain contracts were expiring at the time of
the layoffs and thus the shop had insufficient billing to re-
main at full employment.
The Board has consistently maintained a narrow view
of the economic exigency exception. As such, it has lim-
ited the RBE exception “only to those exigencies in which
time is of the essence and which demand prompt action.”
Id. at 82. Thus, the Board “require[s] an employer to show
a need that the particular action proposed be implemented
promptly. Consistent with the requirement that an em-
ployer prove that its proposed changes were ‘compelled,’
the employer must additionally demonstrate that the exi-
gency was caused by external events, was beyond the em-
ployer’s control, or was not reasonably foreseeable.” Id.
(footnotes omitted). The party asserting the exigency ex-
ception bears a “heavy burden.” Id. at 81.
The Respondent has failed to meet this heavy burden.
The Respondent does not assert that it was losing money
or was otherwise in financial distress. It points to no con-
temporaneous pressure from creditors or compelling fi-
nancial liabilities. Rather, the Respondent’s dominant de-
sign and engineering division remained busy and was not
subject to the layoffs. The Respondent’s other revenue-
generating operations likewise continued unabated during
the shop layoffs. The Respondent’s desire to save money
in its shop operations,21 however understandable, does not
constitute an economic exigency where its economic
20 The Respondent’s permanent layoff of 17 employees in 2015 is
different in kind and degree than the temporary layoffs in 2018 and is not
an appropriate comparator.
health is not even asserted to be in question. An exigency
is not shown where, as here, an employer is not threatened
in any manner by straitened financial circumstances but
simply seeks some monetary savings. See Oak Hill, 360
NLRB 359, 405 (2014) (collecting cases).
The Respondent has not, moreover, demonstrated that
its economic condition necessitated prompt action. The
Respondent acknowledges it operates in a cyclical busi-
ness and does not dispute that it knew more than 5 months
before the layoff of the expiring contracts for shop work.
This long gap between the time when the Respondent first
raised the issue of the layoffs and the time it implemented
them refutes that the Respondent faced an economic exi-
gency in which time was of the essence. See Pleasantview
Nursing, 351 F.3d 747, 755–756 (6th Cir. 2003), enfg. 335
NLRB 961, 962 (2001). The issue was entirely foreseea-
ble. The Respondent’s desire for cost savings is certainly
an appropriate topic for bargaining, but it does not consti-
tute an economic exigency justifying piecemeal bargain-
ing under RBE Electronics.
For all these reasons, we agree with the judge that the
Respondent violated Section 8(a)(5) and (1) of the Act by
temporarily laying off 10 shop employees.
2. The promotion of unit employees and the removal of
bargaining unit work
Prior to the Union’s certification in June 2017, the Re-
spondent had two direct supervisors for the shop employ-
ees. Shortly after certification, one of the supervisors left
the Respondent’s employ. In late August, the Respondent
posted openings for “three shop supervisors.” On Septem-
ber 25, the Respondent promoted unit employees Donald
Fess II, Americo Garcia, Jr., and Daniel Norway from
their unit positions to the one vacated and two newly cre-
ated supervisory positions.22 Fess, Garcia, and Norway
are “working” supervisors, and the record establishes that
they perform unit work in their new positions. The Re-
spondent did not hire any new shop employees to fill the
vacated unit positions.
The Union requested bargaining over the newly created
positions. The Respondent refused, asserting that it was
privileged to act unilaterally because it had a past practice
of shop supervisors performing shop work.
The judge found that the Respondent violated Section
8(a)(5) and (1) by removing unit work and transferring it
to the three newly appointed supervisors. The judge found
the violation under the “settled [rule] that an employer
must notify and offer to bargain with a union about
21 The shop builds goods that constitute only between 3 percent and
5 percent of the goods sold by the Respondent by cost. The layoff of shop
employees saved the Respondent between $60,000 and $70,000.
22 No party excepts to the judge’s finding that Fess, Garcia, and Nor-
way are statutory supervisors in their new positions.
WENDT CORP. 7
removal of bargaining unit work before it may assign such
work to newly created supervisory positions.” University
of Pittsburgh Medical Center, 325 NLRB 443, 443
(1998), enfd. mem. 182 F.3d 904 (3d Cir.1999). The Re-
spondent does not dispute the rule. Rather, it excepts that
the change in unit work here is de minimis and thus insuf-
ficient to constitute an unfair labor practice, and again
raises a past practice defense under Raytheon.23
We find the Respondent’s de minimis defense meritless.
An employer’s duty to bargain with the exclusive repre-
sentative of its employees before making a change in
wages, hours, or other working conditions arises only if
the change is a material, substantial, and significant one
affecting the terms and conditions of employment of bar-
gaining unit employees. See, e.g., North Star Steel Co.,
347 NLRB 1364, 1367 (2006). The Respondent acknowl-
edges that the three former unit employees, who are now
statutory supervisors, still each perform unit work 22 per-
cent of their work time, amounting to a loss of 1,372 man-
hours from the unit annually, which is more than 26 hours
of unit work lost each week. This is plainly a significant
loss of unit work and constitutes a material and substantial
change requiring bargaining. Cf. Ironton Publications,
321 NLRB 1048, 1048 fn. 2, 1067 fn. 25 (1996) (23
minutes a week of unit work lost not a material change).
The Respondent’s contention that the promotion of
Fess, Garcia, and Norway from unit jobs to supervisory
positions caused no harm because it did not diminish unit
work is not supported by the evidence. For one thing, the
foregoing evidence establishes that some work was re-
moved from the unit by virtue of being performed by Su-
pervisors Fess, Garcia, and Norway. Moreover, the Re-
spondent does not dispute that it never filled the three va-
cated unit positions, nor does it contend that the work that
did not follow Fess, Garcia, and Norway out of the unit
has been permanently lost by the Respondent or redistrib-
uted in some fashion to remaining unit employees (e.g., by
use of overtime). Rather, the Respondent’s senior manag-
ers, Operations Director Richard Howe and Vice-Presi-
dent of Finance Joseph Bertozzi, and former Supervisor
Kenneth Scheidel testified that they compensated for the
loss of three-unit positions by adding nonunit temporary
workers and by subcontracting. The record as a whole
fully supports that the Respondent removed from the unit
the work of three-unit positions.
We find meritless the Respondent’s defense that its uni-
lateral removal and transfer of unit work was privileged
23 No party excepts to the judge’s findings that the Respondent did
not violate Sec. 8(a)(5) and (1) of the Act by promoting the three indi-
viduals to supervisory positions or granting them wage increases.
24 Indeed, the Respondent’s conduct here was not the product of a
regular and consistent past practice, as Raytheon requires. Instead, it was
by its past practice of having supervisors perform some
bargaining unit work. The issue is not whether the Re-
spondent may continue a past practice of supervisors per-
forming some unit work, but whether the Respondent,
when it promoted the three shop employees to supervisory
positions, effectively removed their work from the unit en-
tirely and did not replace it. The Respondent has not
shown any evidence of similar past conduct. The Re-
spondent has failed to meet its burden of showing the sig-
nificant criteria of similarity, regularity, and frequency set
forth in Raytheon as requisite to establishing a past prac-
tice defense.24
We accordingly find that the Respondent has failed to
establish that its unilateral elimination and transfer of unit
work was consistent with an established past practice, and
thus, we adopt the judge’s finding that the Respondent by
its conduct violated Section 8(a)(5) and (1) of the Act. See
Plymouth Locomotive Works, Inc., 261 NLRB 595, 602
(1982).
3. The imposition of discretionary discipline
The judge found that the Respondent exercised discre-
tion in disciplining Dennis Bush for his involvement in the
box incident and John Fricano for a safety infraction. In
Total Security Management Illinois 1, LLC, 364 NLRB
No. 106 (2016), the Board held that an employer has a
duty to bargain before imposing discretionary discipline
on unit employees when, as here, a union has been certi-
fied or lawfully recognized as the employees’ representa-
tive but has not yet entered into a collective-bargaining
agreement. Applying Total Security Management, the
judge found that the Respondent violated Section 8(a)(5)
and (1) of the Act by imposing discretionary discipline on
employees Bush and Fricano without giving the Union
prior notice and an opportunity to bargain.
Subsequent to the judge’s decision, the General Counsel
joined the Respondent in requesting that the Board recon-
sider Total Security Management and dismiss the allega-
tion. Recently, we overruled Total Security Management
in 800 River Road Operating Company, LLC d/b/a Care-
One at New Milford and decided to apply that decision ret-
roactively. 369 NLRB No. 109 (2020). Under 800 River
Road, an employer has no duty to give its unit employees’
bargaining representative notice and opportunity to bar-
gain prior to disciplining a unit employee in accordance
with an established disciplinary policy or practice, includ-
ing where application of that policy or practice involves
the exercise of discretion. There is no allegation here that
the result of a brand-new reorganization the Respondent devised in Au-
gust/September 2017 to restructure the shop along lines of physical
space.
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the Respondent did not apply established disciplinary
rules when disciplining Bush and Fricano. Accordingly,
we find that the Respondent did not violate Section 8(a)(5)
and (1) by failing to give the Union notice and opportunity
to bargain before it disciplined Bush and Fricano.
ORDER
The National Labor Relations Board orders that the Re-
spondent, Wendt Corporation, Cheektowaga, New York,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Interrogating employees about their union sympa-
thies.
(b) Creating the impression that it is engaged in surveil-
lance of its employees’ union or other protected concerted
activities.
(c) Informing or implying to employees that employees
who support Shopmen’s Local Union No. 576 (the Union)
will be laid off.
(d) Threatening employees with reprisals if they sup-
port the Union or any other labor organization.
(e) Threatening employees with unspecified reprisals
for wearing union insignia.
(f) Implicitly promising employees a wage increase if
they stop supporting the Union.
(g) Instructing employees to remove union insignia.
(h) Instructing employees to remove prounion photo-
graphs from social media.
(i) Denying employees’ requests for union representa-
tion at interviews that they reasonably believe can result
in discipline.
(j) Discriminating against employees for supporting the
Union by delaying their performance reviews and wage
increases, suspending them, assigning them to undesirable
work, or denying them overtime.
(k) Unilaterally changing the terms and conditions of
employment of its unit employees by laying them off,
mandating overtime, removing unit work and transferring
it to supervisors, or delaying their performance reviews
and wage increases.
(l) 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 rep-
resentative of the Respondent’s unit employees.
(m) Failing to recognize and bargain with the Union as
the exclusive representative of employees in the bargain-
ing unit by refusing to bargain regarding the retroactivity
of pay increases conferred in 2018.
(n) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Make employees who were not timely provided
their performance evaluations and wage increases, those
who were laid off, and Dennis Bush and William Hudson
whole for any loss of earnings and other benefits suffered
as a result of the Respondent’s unlawful conduct, in the
manner set forth in the remedy section of the judge’s de-
cision as amended in this decision.
(b) Compensate employees who were not timely pro-
vided their performance evaluations and wage increases,
those who were laid off, and Dennis Bush and William
Hudson for the adverse tax consequences, if any, of re-
ceiving lump-sum backpay awards, and file with the Re-
gional Director for Region 3, 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 years for these individuals.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful suspension of
Dennis Bush, and within 3 days thereafter notify him in
writing that this has been done and that the suspension will
not be used against him in any way.
(d) Within 14 days from the date of this Order, remove
from Dmytro Rulov’s 2018 performance review the lan-
guage that he should focus on work, and within 3 days
thereafter notify him in writing that this has been done.
(e) Rescind its unlawful unilateral removal of unit work
and restore the status quo ante with respect to any reduc-
tions in the work performed by unit employees due to the
unlawful employment of supervisors to perform unit
work.
(f) 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 em-
ployees in the following bargaining unit:
All full-time and regular part-time janitors, welders, ma-
chine operators, maintenance mechanics, fitters, assem-
blers, painters, machinists, leadmen and shipping and re-
ceiving clerks employed by the Respondent at its facility
located at 2555 Walden Avenue, Buffalo, New York
14225, but excluding office clerical employees, guards,
professional employees, and supervisors as defined in
the Act.
(g) On request, bargain with the Union regarding the
retroactivity of pay increases conferred in 2018.
(h) Furnish to the Union in a timely manner the infor-
mation requested by the Union since on about May 24,
2018, regarding the dates of performance reviews and
wage increases to nonunit employees.
WENDT CORP. 9
(i) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, social
security payment records, timecards, personnel records
and reports, and all other records, including an electronic
copy of such records if stored in electronic form, neces-
sary to analyze the amount of backpay due under the terms
of this Order.
(j) Post at its facility in Cheektowaga, New York, cop-
ies of the attached notice marked “Appendix.”25 Copies
of the notice, on forms provided by the Regional Director
for Region 3, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Respondent
and maintained for 60 consecutive days in conspicuous
places, including all places where notices to employees are
customarily posted. In addition to physical posting of pa-
per 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 custom-
arily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to en-
sure that the notice is 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 1, 2017.
(k) Within 21 days after service by the Region, file with
the Regional Director for Region 3 a sworn certification
of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to com-
ply.
IT IS FURTHER ORDERED that the amended consolidated
complaint is dismissed insofar as it alleges violations not
specifically found.
Dated, Washington, D.C. July 29, 2020
______________________________________
John F. Ring, Chairman
25 If the facility involved in these proceedings is open and staffed by
a substantial complement of employees, the notices must be posted
within 14 days after service by the Region. If the facility involved in
these proceedings is closed due to the Coronavirus Disease 2019
(COVID-19) pandemic, the notices must be posted within 14 days after
the facility reopens and a substantial complement of employees have re-
turned to work, and the notices may not be posted until a substantial com-
plement of employees have returned to work. Any delay in the physical
_____________________________________
Marvin E. Kaplan, Member
_____________________________________
William J. Emanuel, 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 vi-
olated 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 ac-
tivities.
WE WILL NOT coercively interrogate you about your un-
ion sympathies.
WE WILL NOT give you the impression that we are en-
gaged in surveillance of your union or other protected con-
certed activities.
WE WILL NOT inform you or imply to you that employ-
ees who support Shopmen’s Local Union No. 576 (the Un-
ion) will be laid off.
WE WILL NOT threaten you with reprisals if you support
or show support for the Union or any other labor organi-
zation.
WE WILL NOT threaten you with unspecified reprisals
for wearing union insignia.
WE WILL NOT implicitly promise you a wage increase if
you stop supporting the Union.
WE WILL NOT instruct you to remove union insignia.
posting of paper notices also applies to the electronic distribution of the
notice if the Respondent customarily communicates with its employees
by electronic means. If this Order is enforced by a judgment of a United
States court of appeals, the words in the notice reading “Posted by Order
of the National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board.”
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL NOT instruct you to remove prounion photo-
graphs from social media.
WE WILL NOT deny your requests for union representa-
tion at interviews that you reasonably believe can result in
discipline.
WE WILL NOT discriminate against you for supporting
the Union by delaying your performance reviews and
wage increases, suspending you, assigning you to undesir-
able work, or denying you overtime.
WE WILL NOT change your terms and conditions of em-
ployment by laying you off, delaying your performance
reviews and wage increases, mandating overtime, or re-
moving unit work and transferring it to supervisors, or oth-
erwise change your terms and conditions of employment
without first notifying the Union and giving it an oppor-
tunity to bargain.
WE WILL NOT refuse to bargain collectively with the Un-
ion by failing and refusing to furnish it with requested in-
formation that is relevant and necessary to the Union’s
performance of its functions as the collective-bargaining
representative of our unit employees.
WE WILL NOT fail to bargain with the Union as the ex-
clusive representative of our employees in the bargaining
unit by refusing to bargain regarding the retroactivity of
pay increases conferred in 2018.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL make employees who were laid off whole for
any loss of earnings and other benefits suffered as a result
of our unlawful conduct, less any net interim earnings,
plus interest, and WE WILL also make them whole for rea-
sonable search-for-work and interim employment ex-
penses, plus interest.
WE WILL make Dennis Bush, William Hudson, and em-
ployees who were not timely provided their performance
evaluations and wage increases whole for any loss of earn-
ings and other benefits suffered as a result of our unlawful
conduct, plus interest.
WE WILL compensate employees who were not timely
provided their performance evaluations and wage in-
creases, those who were laid off, and Dennis Bush and
William Hudson for the adverse tax consequences, if any,
of receiving lump-sum backpay awards, and WE WILL file
with the Regional Director for Region 3, within 21 days
of the date the amount of backpay is fixed, either by agree-
ment or Board order, a report allocating the backpay
awards to the appropriate calendar years for these individ-
uals.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlawful
suspension of Dennis Bush, and WE WILL, within 3 days
thereafter, notify him in writing that this has been done
and that the suspension will not be used against him in any
way.
WE WILL, within 14 days from the date of the Board’s
Order, remove from Dmytro Rulov’s 2018 evaluation the
language that he should focus on work, and WE WILL,
within 3 days thereafter, notify him in writing that this has
been done.
WE WILL rescind our unlawful unilateral removal of unit
work and restore the status quo ante with respect to any
reductions in the work performed by unit employees due
to the unlawful employment of supervisors to perform unit
work.
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 full-time and regular part-time janitors, welders, ma-
chine operators, maintenance mechanics, fitters, assem-
blers, painters, machinists, leadmen and shipping and re-
ceiving clerks employed by the Respondent at its facility
located at 2555 Walden Avenue, Buffalo, New York
14225, but excluding office clerical employees, guards,
professional employees, and supervisors as defined in
the Act.
WE WILL, on request, bargain with the Union regarding
the retroactivity of pay increases conferred in 2018.
WE WILL provide the Union with the information that it
requested since on about May 24, 2018, regarding the
dates of performance reviews and wage increases to non-
unit employees.
WENDT CORPORATION
The Board’s decision can be found at
www.nlrb.gov/case/03-CA-212225 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.
WENDT CORP. 11
Jessica Noto and Jesse Feuerstein, Esqs., for the General Coun-
sel.
Ginger Schroder and Alice Rood, Esqs. (Schroder Joseph & As-
sociates), for the Respondent.
DECISION
STATEMENT OF THE CASE
IRA SANDRON, Administrative Law Judge. This case is before
me on an August 22, 2018 consolidated complaint and notice of
hearing (the complaint) stemming from an unfair labor practice
charges that Shopmen’s Local Union No. 576 (the Union) filed
against Wendt Corporation (the Respondent or the Company),
alleging violations of Sections 8(a)(1), (3), and (5) of the Act,
following the Union’s certification in June 2017.
I conducted a trial in Buffalo, New York, on September 10–
14 and November 5–7, 2018, at which I afforded the parties full
opportunity to be heard, to examine and cross-examine wit-
nesses, and to introduce evidence.
ISSUES
Based on the unopposed motions to amend the complaint that
the General Counsel made at trial, the issues before me are:1
(1) Did Plant Manager Daniel Voigt (Voigt) violate Section
8(a)(1) by:
(a) In about September 2017, interrogating Dale
Thompson (Thompson) about his support for the Union by
asking whether Thompson would change his vote if a new
election was held.
(b) On about January 25, 2018, creating the impression
of surveillance by informing Thompson that the Respond-
ent could observe all of employees’ Facebook activities re-
gardless of whether they chose to block or limit access to
their Facebook pages.
(c) On the same date, threatening Thompson with un-
specified reprisals for wearing a t-shirt that contained a pro-
union message and union logo.
(d) On that same date, creating the impression of sur-
veillance by informing Thompson that the Respondent had
cameras covering the exterior of the facility and that these
cameras could see any activity occurring outside the facil-
ity.
(e) On that same date, implying that Thompson would
receive a wage increase if he ceased support for the Union
(f) On that same date, informing Thompson that em-
ployees who supported the Union would be selected for
layoff.
(g) On that same date, threatening Thompson with un-
specified reprisals by implying that he should not support
the Union because he had a family to support.
(h) On about January 10, 2018, impliedly instructing
Jeff George (George) to remove a t-shirt that displaced un-
ion insignia.
1 As per the Board’s November 13, 2018 Order (2018 WL 5964286),
I deny the General Counsel’s opposed motion to amend the complaint to
add the allegation that the Respondent violated Section 8(a)(1) through
(i) On that same date, informing George that pro-union
employees were targeted for a future layoff.
(j) On about January 24, 2018, creating the impression
of surveillance by informing George that the Respondent
had seen a pro-union photograph posted on George’s Face-
book page.
(k) On that same date, instructing George to remove a
prounion photograph from George’s Facebook page.
(l) On about January 25, interrogating George about his
union activities and sympathies by asking George about his
conversations with other union members.
(m) On about April 10, 2018, threatening Dmytro
Rulov (Rulov) with unspecified reprisals for supporting the
Union
(n) Did the Respondent, on that same date, violate Sec-
tion 8(a)(1) by implying in Rulov’s written performance re-
view that he should focus on work rather than on union ac-
tivity.
(2) Did the Respondent violate (a) Section 8(a)(3) and (1) by
suspending Dennis Bush (Bush) on December 27, 2017, for al-
leged violation of the Company’s policy against harassment;
and (b) Section 8(a)(5) and (1) by exercising discretion in im-
posing the discipline, without affording the Union notice and
an opportunity to bargain.
(3) Did the Respondent violate Section 8(a)(3) and (1) by (a)
assigning William Hudson (Hudson) to work the saw from
April through June 2018, after he came back from layoff; and
(b) refusing to offer him overtime during that period.
(4) Did the Respondent violate (a) Section 8(a)(1) on October
25, 2017, by conducting an interview with John Fricano
(Fricano) after Voigt denied Fricano’s request to be represented
by the Union, when Fricano had reasonable cause to believe
that such interview would result in disciplinary action against
him; and (b) Section 8(a)(5) and (1) by exercising discretion in
imposing a suspension on Fricano, without affording the Union
notice and an opportunity to bargain.
(5) Did the Respondent violate Section 8(a)((3), (5), and (1) on
February 8, 2018, by laying off 10 bargaining unit employees,
for discriminatory reasons and without affording the Union an
opportunity to bargain.
(6) Did the Respondent violate (a) Section 8(a)(3) and (1) by
failing to provide annual performance reviews and accompa-
nying wage increases to bargaining unit employees from about
October 2017 through April 2018; and (b) Section 8(a)(5) and
(1) by failing to afford the Union an opportunity to bargain.
(7) Did the Respondent violate Section 8(a)(5) and (1) since
on about May 24, 2018, by failing and refusing to furnish the
Union with information that it requested regarding the date(s)
of wage increase for its nonunit employees.
(8) Did the Respondent violate Section 8(a)(5) and (1) on Sep-
tember 25, 2017, by removing Donald Fess II (Fess), Americo
Garcia, Jr. (“Junior”) (Garcia), and Daniel Norway (Norway)
from the bargaining unit by promoting them to supervisory po-
sitions, without the Union’s consent.
its counsel’s cross-examination of Derek Muench, without prejudice to
the General Counsel’s right to litigate the issue in a separate proceeding.
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(9) Did the Respondent on about that same date violate Section
8(a)(5) and (1) by unilaterally removing bargaining work from
the unit and transferring it to those supervisors, without afford-
ing the Union prior notice and an opportunity to bargain.
(10) Did the Respondent violate Section 8(a)(5) and (1) in Jan-
uary 2018, by granting wage increases to Fess, Garcia, and
Norway without affording the Union notice and an opportunity
to bargain.
(11) Did the Respondent violate Section 8(a)(5) and (1) on
about January 29, 2018, by changing its policy concerning light
duty work assignments when it placed Garcia on light duty,
without affording the Union notice and an opportunity to bar-
gain.
(12) Did the Respondent violate Section 8(a)(5) and (1) in
about late November 2017, by changing its overtime policy to
require the two shipping and receiving clerks to work manda-
tory overtime, without affording the Union notice and an op-
portunity to bargain.
Witnesses and Credibility
The General Counsel called:
Union administrator Anthony Rosaci (Rosaci);
Former Shop Foreman Kenneth Scheidel (Scheidel);
Former Leadman Harley Kenney (Kenney);
Current unit employees: Bush, Fricano, George, Hudson
Rulov, Robert Domaradski (“Demo”) (Domaradski), Zachary
Krajewski, Sean McCarthy (McCarthy), Derek Muench
(Muench); and
Former unit employee David Greiner (Greiner).
The Respondent’s witnesses were:
Vice-President of Finance Joseph Bertozzi (Bertozzi);
Supply Chain Manager Michael Dates (Dates);
Operations Director Richard Howe (Howe);2
Warehouse Supervisor Michael Hoerner (Hoerner);
Shop Supervisors Fess, Garcia, and Norway; and
Former Plant Manager Steven Jastrzab (Jastrzab).
On certain matters, the testimony of witnesses for the General
Counsel and witnesses for the Respondent was consistent, con-
sidering the natural lack of precision in recall. Where credibility
resolution is important, I have taken into account several estab-
lished principles:
Firstly, a witness may be found partially credible; the mere
fact that the witness is discredited on one point does not auto-
matically mean that he or she must be discredited in all respects.
Golden Hours Convalescent Hospitals, 182 NLRB 796, 799
(1970). Rather, a witness’ testimony is appropriately weighed
with the evidence as a whole and evaluated for plausibility. Id.
at 798–799; see also MEMC Electronic Materials, Inc., 342
NLRB 1172, 1183 fn. 13 (2004), quoting Americare Pine Lodge
Nursing, 325 NLRB 98, 98 fn. 1 (1997), enf. granted in part, de-
nied in part 164 F.3d 867 (4th Cir. 1999); Excel Container, 325
NLRB 17, 17 fn. 1 (1997). As Chief Judge Learned Hand stated
in NLRB v. Universal Camera Corp., 179 F.2d 749, 754 (2d Cir.
2 On the various organizational charts (R. Exhs. 9, 9(a)), Bertozzi,
Dates, and Howe are on the same level in the Company’s management
hierarchy, directly reporting to President Tom Wendt Jr.
1950), regarding witness testimony, “[N]othing is more common
in all kinds of judicial decisions than to believe some and not
all.”
Secondly, “[T]he testimony of current employees that contra-
dicts statements of their supervisors is likely to be particularly
reliable because these witnesses are testifying adversely to their
pecuniary interests.” Flexsteel Industries, 316 NLRB 745, 745
(1995), enfd. 83 F.3d 419 (5th Cir. 1996), citing Gold Standard
Enterprises, 234 NLRB 618, 619 (1978), enf. denied for other
reasons, 607 F.2d 1208 (7th Cir. 1979) and Georgia Rug Mill,
131 NLRB 1304, 1304 fn. 2 (1961); see also Federal Stainless
Sink Div. of Unarco, 197 NLRB 489, 491 (1972).
Thirdly, an administrative law judge normally has the discre-
tion to draw an adverse inference based on a party’s failure to
call a witness who may reasonably assumed to be favorably dis-
posed to the party and who could reasonably be expected to cor-
roborate its version of events, particularly when the witness is
the party’s agent and thus within its authority or control. Roose-
velt Memorial Medical Center, 348 NLRB 1016, 1022 (2006);
see also Martin Luther King, Sr. Nursing Center, 231 NLRB 15,
15 fn. 1 (1977); Underwriters Laboratories Inc. v. NLRB, 147
F.3d 1048, 1054 (9th Cir. 1998). In that event, drawing an ad-
verse inference regarding any factual question on which the wit-
ness is likely to have knowledge is appropriate. International
Automated Machines, 285 NLRB 1122, 1123 (1987), enfd. mem.
861 F.2d 720 (6th Cir. 1988). See also Interstate Circuit v. U.S.,
306 U.S. 208, 225–226 (1939).
Here, the Respondent offered no explanation for why Plant
Manager Voigt was not available as a witness. Accordingly, the
Respondent’s failure to call him leads to an adverse inference
that his testimony would have been unfavorable to the Respond-
ent, and I credit the unrebutted and credible accounts of wit-
nesses who testified about incidents in which he participated. I
draw a similar adverse inference for the Respondent’s not calling
Human Resources (HR) Coordinator Janet Semsel (Semsel), an
admitted agent, to testify about HR practices and policies and
about disciplinary interviews that she attended.
Similarly, to the extent that management witnesses were not
questioned about certain events to which General Counsel’s wit-
nesses testified, I draw an adverse inference since, as manage-
ment representatives, they reasonably would be assumed to be
favorably disposed to the Respondent. See Daikichi Corp., 335
NLRB 622, 622 (2001); Colorflow Decorator Products, 228
NLRB 408, 410 (1977), enfd. mem. 583 F.2d 1288 (9th Cir.
1978).
Finally, I note that when credibility resolution is not based on
observations of witnesses’ testimonial demeanor, the choice be-
tween conflicting testimonies rests on the weight of the evidence,
established or admitted facts, inherent probabilities, and reason-
able inferences drawn from the record as a whole. Taylor Mo-
tors, Inc., 366 NLRB No. 69 slip op. 1 at fn. 3 (2018); Lignotock
Corp., 298 NLRB 209, 209 fn. 1 (1990).
I will discuss the credibility of witnesses on particular matters
during my recitation of the facts. At this point, I will address the
WENDT CORP. 13
overall credibility of former Foreman Scheidel, who testified on
the General Counsel’s behalf. The Respondent contends that his
testimony should be discredited in its entirety (R. Br. at 21–22).
Scheidel was laid off on February 9, 2018, and terminated on
March 14, 2018 (see R. Exh. 3), after being a foreman for about
13-1/2 years, with two breaks in employment. Scheidel has filed
an age discrimination against the Respondent with the New York
State Division of Human Rights (ibid). Although these circum-
stances can be considered as providing him a motive to testify
against the Company, and he indeed might naturally have some
animosity, Scheidel testified freely and in considerable detail
throughout his testimony, both on direct and cross-examination,
and neither his testimony nor his demeanor suggested any at-
tempt to slant his answers to hurt the Respondent. Indeed, at
times he volunteered information that supported some of the Re-
spondent’s positions; for example, concerning “working fore-
man” Stephen Quarcini (Quarcini). In light of these conclusions
and his many years of serving as a management official, I find
that his testimony was reliable.
Facts
Based on the entire record, including testimony and my obser-
vations of witness demeanor, documents, written and oral stipu-
lations, and the thoughtful posttrial briefs that the
General Counsel and the Respondent filed. I find the follow-
ing.
Background
At all times material, the Respondent has been a corporation
with an office and place of business in Cheektowaga, New York
(the facility), where it designs, develops, and manufactures prod-
ucts and processes for the scrap metal recycling industry
throughout North America. Jurisdiction as alleged in the com-
plaint is admitted, and I so find.
The facility includes about 110,000 square feet of working
space in the 5 bays where unit employees work in conjunction to
complete projects (see R. Exh. 10, a schemata). Formerly, the
manufacturing now done at the facility was performed at the Re-
spondent’s facility on Military Road in Cheektowaga that now
serves as a small processing plant or technical service center.
About 100 people work at the facility. On June 23, 2017, the
Regional Director certified the Union as the exclusive collective-
bargaining representative of all full-time and regular part-time
janitors, welders, machine operators, maintenance mechanics,
fitters, assemblers, painters, machinists, and shipping and receiv-
ing clerks employed at the facility, excluding office clerical em-
ployees, guards, professional employees, and supervisors as de-
fined in the Act. The voter eligibility list for the election (Jt.
Exh. 1) listed 33 employees. At particular times, all have re-
ported to the same supervisors/managers except for the shipping
and receiving clerks (see R. Exhs. 9 and 9(a), organizational
charts).
At the time of certification, the Union contended that the three
leadmen should be in the unit, whereas the Respondent took a
contrary position. Because their ballots were not determinative
of the election results, the Regional Director neither included
them nor excluded them from the certified unit. However, the
3 Tr. 347.
Company later agreed to their inclusion (see GC Exh. 25, a mem-
orandum of agreement of September 22, 2017), and the parties
at trial so stipulated.
The parties first met for negotiations in July 2017 and there-
after met approximately 36 times. They have not reached agree-
ment on a contract, but no impasse has been declared, and they
continue to meet. Attorney Ginger Schroder (Schroder) has been
the Company’s chief spokesperson, with Rosaci serving as the
Union’s chief spokesperson. Other members of the Company
attending bargaining have been Bertozzi, Dates, and Howe. Em-
ployees on the Union’s bargaining committee have been Do-
maradski, Fricano, Greiner, Hudson, and Noel Pauley (Pauley).
General Counsel’s Exhibit 3 includes photos of Wendt em-
ployees showing support for the Union that the Union sent by
certified mail to the Respondent. The parties stipulated that the
certified mail receipt, signed by Semsel, reads January 29, 2018.
Rosaci identified 17 employees in three photographs, including
Bush and Hudson. Howe testified that he was aware that active
union supporters included Bush, Domaradski, Fricano, George,
Greiner, Hudson, Krajewski, Muench, Thompson, and six or
seven other unit employees. On an ongoing basis, employees
have engaged in picketing outside the facility on nonwork hours.
8(a)(1) Statements
As I stated earlier, Voigt did not testify, and I draw an adverse
inference based on his failure to deny or otherwise testify as to
statements that George, Rulov, and Thompson attributed to him.
Furthermore, all of them testified with appropriate detail and did
not appear to try to exaggerate what Voigt told them, and I do
not believe that they concertedly fabricated their accounts. I
therefore credit them. I note that George’s testimony was sub-
stantially corroborated by notes that he took of his conversations
with Voigt (GC Exh. 41, based on notes that he wrote down on
a pad within an hour of the conversations and then transferred to
his phone). I also note that statements Rulov made in his affida-
vit were substantially consistent with his testimony and corrob-
orated it in substance rather than impeached him. In crediting
Rulov, I take into account that his first language is Russian.
A. To Thompson
On an afternoon in September 2017, Thompson was in eFab
when Voigt came over and asked how he was liking it. Thomp-
son replied that it was something different, and he did. Voigt
then asked if there was a re-vote, would Thompson change his
mind. Thompson made mention of the company firing many of
his friends and coworkers, and Voigt stated, “There’s[sic] a lot
of bad employees here, and I’d like to get rid of them in the shop,
and also one in the office as well.”3
On a morning in January 2018, Thompson was again in eFab
when Voigt approached. Approximately a day earlier, Thompson
had blocked Voigt on his Facebook. Voigt stated that he did not
care that Thompson had blocked him on Facebook because
Thompson was liking the Union but that Voigt could create a
fake profile and see whatever Thompson was viewing or liking.
He further stated that there were “two people up in the office”
who “could see everything that we’re doing on the internet.”4
Voigt returned about half an hour later. He stated that he
4 Tr. 348.
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
really liked Thompson and had a good opinion of him and did
not want to see him get laid off and that Thompson had young
kids. Voigt further stated that the Company was going to lay off
people who were with the Union. Thompson said that he was
loyal to his friends and to the Company and that he did not think
the layoffs were right. Voigt further said that there were cameras
outside that could zoom in and see everything. He mentioned
that they had zoomed in on Fess’ shirt and could read what was
on it and could see the color of somebody’s underwear if he was
bent over.
B. To George
On January 10, 2018, George was at work wearing a union t-
shirt that was visible under his Company button-up work shirt,
which was not buttoned up all the way. He had two conversa-
tions with Voigt that morning at the north end of the paint shop.
In the first, Voigt approached and asked what George was doing
with the union shirt on. George responded that it was given to
him, and Voigt responded, “Well, I’d take that off if I was[sic]
you. That’s how guys get into trouble around here.”5 He then
suggested that George button up his work shirt and not let any-
body else see the t-shirt.
Within 1–1-1/2 hours, George called Voigt over and said that
Voigt’s earlier comments had made him nervous because he had
family and could not afford to lose his job over the Union. Voigt
assured him that he was safe because the Company had a list of
shop employees that the Company could not afford to lose.
George asked how he could be safe when the Company had to
lay off by seniority. Voigt replied that they would absolutely not
lay off by seniority and had ways around it. In this conversation,
George asked Voigt if the Company was busy. Voigt responded,
“Yes, we have plenty of work, don’t worry, you know, we’re
busy.”6 George then said, “Oh, so it’s only by design that we’re
slow?,” and Voigt replied “Yeah, we’re just taking it in the ass
until all this goes away.”7 He further stated that once the Com-
pany started to ramp up again, they would bring in all new peo-
ple.
On January 22, George changed his Facebook profile, to in-
clude a shirt with a prounion logo (see GC Exh. 42, an accurate
snapshot of the changed profile). On the morning of January 24,
George was working in the welding shop. Voigt approached and
said, “Some of the office personnel and I see you have a new
Facebook picture.”8 George asked, “What are you guys doing,
spying on me?,” and Voigt then said, “I’d take that down if I was
[sic] you.”9 He further stated that George would probably get in
less trouble “wearing the stupid shirt” than putting it on the in-
ternet.10 Within a few days later, George changed his profile
name, taking out his last name and replacing it with his middle
name, because he did not want anyone spying on him (see GC
Exh. 42). Around the same time, he changed his profile from
public to private.
On the morning of January 25, George was working in the
paint shop area when Voigt approached and asked if there was
5 Tr. 270.
6 Tr. 272.
7 Ibid. According to George’s notes, Voigt specifically tied this state-
ment to the Company’s “attempt to get rid of the union.” GC Exh. 41 at
5.
anything George needed to tell him about the meeting last night.
George responded that there was no meeting. Voigt said no, the
negotiations meeting, and he asked if Domaradski or any of the
other attendees had said anything him to him about layoffs or
anything. George replied that he really did not know because he
was not on the bargaining committee. Voigt responded that if he
heard anything that he thought Voight should know, to tell him,
and Voigt would be a good friend and do the same for him.
C. To Rulov
On the afternoon of April 10, 2018, in a conference room,
Voigt presented Rulov with his annual review. Supervisor Gar-
cia was also present. During the process of signing the review,
Voigt pointed with a pen to Rulov’s left shoulder and said Rulov
should work more overtime, concentrate on the job, and forget
about any outside source or words to that effect. Rulov pointed
to the union pin on his left shoulder (see GC Exh. 44) and said,
“[Y]ou mean, this?” and Voigt said yes.11 The comments section
of the evaluation (GC Exh. 43 at 4) reads: “Dymytro has been
with Wendt for a long time and has a large variety of skills. He
is the kind of person who knows the task at hand and does it. He
is a steady force in the manufacturing of our products. Dmytro
needs to focus more on the job at hand and worry less about non
work related activities.”
Analysis and Conclusions
The Respondent is liable for any threats or other statements
that Voigt made because he was its supervisor. The Board has
long recognized that “Section 2(13) of the statute makes it clear
that an employer is bound by the acts and statements of its su-
pervisors whether specifically authorized or not.” Dorothy
Shamrock Coal Co., 279 NLRB 1298, 1299 (1986), enfd. 833
F.2d 1263 (7th Cir. 1987); see also Storer Communications, 294
NLRB 1056, 1077 (1989); Jays Foods, Inc., 228 NLRB 423
(1977), enfd. on this point 573 F.2d 438, 445 (7th Cir. 1978).
The standard for determining whether a supervisor’s state-
ment to employees violates Section 8(a)(1) of the Act is whether
such statements would reasonably tend to interfere with the free
exercise of employee rights under the Act. NLRB v. Gissel Pack-
ing Co., 395 U.S. 575 (1969). The test is whether a supervisor’s
statement would reasonably coerce the employee to whom it is
made. Egelhand Corp., 342 NLRB 46, 60–61 (2004), enfd. 437
F.3d 374 (3d Cir. 2006).
I conclude the following, based on the employees’ unrefuted
testimony:
(a) Voigt asked Thompson in September 2017 whether he
would vote differently if there was a new election. In evaluating
the interrogation of known union supporters, the Board uses a
totality of circumstances approach for determining unlawful co-
erciveness, applying a four-pronged test: (1) background; (2) na-
ture of the information sought; (3) identify of the questioners;
and (4) the place and method of interrogation. Rossmore House,
269 NLRB 1176, 1177, 1178 fn. 20 (1984), enfd. sub nom. Hotel
8 Tr. 281. George and Voigt were not Facebook “friends.”
9 Ibid.
10 Ibid.
11 Tr. 405. Garcia did not testify about the meeting and therefore did
not rebut Rulov’s account.
WENDT CORP. 15
Employees and Restaurant Employees Union, Local 11, 760 F.2d
1006 (9th Cir. 1985). Significantly, Plant Manager Voigt was a
management official who had authority over the first-level su-
pervisors and reported directly to Director Howe, and he initiated
the conversation. Moreover, during the conversation, Voigt
stated that he wanted to get rid of a lot of bad shop employees,
suggesting a link between his question and termination of union
supporters. Accordingly, Voigt engaged in unlawful interroga-
tion.
(b) Voigt informed Thompson in January 2018, that although
Voigt did not care if Thompson had blocked him on Facebook
because Thompson liked the Union, Voigt and people in the of-
fice could still see whatever Thompson was viewing and liking
on Facebook. The Board’s test for determining whether an em-
ployer has created an unlawful impression of surveillance is
whether under all of the circumstances, reasonable employees
would assume that their union activities had been placed under
surveillance. Orchids Paper Products Co., 367 NLRB No. 33,
slip op. at 1 (2018), citing Stevens Creek Chrysler Jeep Dodge,
357 NLRB 633 (2011), enfd. sub nom. Matthew Enterprises,
Inc., v. NLRB, 498 Fed Appx. 45 (DC Cir. 2012). Thompson
reasonably could have assumed such, and Voigt therefore unlaw-
fully created the impression of surveillance of Thompson’s un-
ion activities.
(c) Voigt, on that same date, unlawfully created the impres-
sion of surveillance by informing Thompson that the Company
had cameras outside that could zoom in and see everything, in-
cluding what was on employees’ shirts (Thompson was wearing
a union t-shirt at the time). See the above cases.
(d) Voigt, in the same conversation, violated Section 8(a)(1)
when he informed Thompson that employees who supported the
Union would be laid off.
(e) Voigt, in that same conversation, violated Section 8(a)(1)
when he implicitly threatened Thompson with reprisals if he sup-
ported the Union by telling him the above and referring to
Thompson’s children. See Metro One Loss Prevention Services
Group, 356 NLRB 89, 89 (2010), holding that an employer’s
communication to employees that they will jeopardize their job
security, wages, or other working conditions if they support the
union violates Section 8(a)((1). See also Kellwood Co., 299
NLRB 1026, 1026–1027 (1990), enfd. 948 F.2d 1297 (11th Cir.
1991).
(f) The allegation that Voigt threatened Thompson in that
conversation with unspecified reprisals for wearing a t-shirt that
contained a prounion message and union logo is subsumed by
the violations found in (c) and (e) above and is redundant. This
allegation is therefore dismissed.
(g) Thompson’s testimony does not support the allegation that
Voigt in that conversation implied that Thompson would receive
a wage increase if he ceased support for the Union. Therefore,
this allegation is also dismissed.
(h) Voigt, on about January 10, 2018, unlawfully threatened
George with retaliation for wearing a prounion T-shirt by telling
him that wearing such shirts got employees into trouble.
I find a violation on this basis rather than on the complaint
allegation that Voigt impliedly instructed George (George) to re-
move a t-shirt that displaced union insignia.
(i) Voigt, later that day, violated Section 8(a)(1) when he
implied to George that prounion employees were going to be tar-
geted for a future layoff by stating that the Company was busy
but was contending to the contrary “until all this goes away,” in
order to replace them.
(j) Voigt, on about January 24, 2018, unlawfully created the
impression of surveillance by informing George that the Re-
spondent had seen a prounion photograph posted on George’s
Facebook page.
(k) Voigt, in the same conversation, unlawfully threatened
George with retaliation for having that prounion photograph on
his Facebook page by stating that it could get George into trou-
ble.
I find a violation on this basis rather than on the complaint
allegation that Voigt instructed George to remove the photo-
graph.
(l) George’s testimony revealed that on about January 25,
2018, Voigt asked him if he had heard from employees on the
Union’s bargaining team what was said at negotiations the pre-
vious evening, including the subject of layoffs. The General
Counsel alleges that this constituted interrogation about
George’s union activities and sympathies. I recognize that Voigt
had no reason to question George about what was said at negoti-
ations because he could have obtained such information from
company representatives who were present. However, Voigt
was not asking for anything that went to employees’ internal un-
ion activities and sympathies, and what the parties said at nego-
tiations was open knowledge and not confidential. Accordingly,
I do not believe that Voigt’s question was coercive and find no
violation.
(m) Voigt, on about April 10, 2018, when giving Rulov his
annual performance review, unlawfully implicitly threatened
Rulov with unspecified reprisals for supporting the Union by
pointing to the union pin that Rulov was wearing and stating that
Rulov should concentrate on his job and forget about any outside
source.
(n) The General Counsel alleges that on same date, the Re-
spondent violated Section 8(a)(1), by implying in Rulov’s writ-
ten performance review that he should focus on work rather than
on union activity, thereby implicitly threatening him with un-
specified reprisals for supporting the Union.
In this regard, the comments section of the evaluation is para-
doxical, first lauding Rulov’s performance but ending with
“Dmytro needs to focus more on the job at hand and worry less
about non work related activities.” In the absence of an expla-
nation for this inconsistency, and in light of Voigt’s comments
during the interview, I sustain this allegation.
Bush’s Suspension—8(a)(3) and (5)
The Company has employed Bush for about 6-1/2 years, as a
welder for approximately the last three. Bush has attended union
rallies, and at work worn a union button and a long-sleeve shirt
with the union log. He also has stickers saying “Local 576” on
his welding helmets and union stickers on the back of his jeep.
About a month after the election, he was in bay 5 in the morning
when Foreman Scheidel asked what he was doing wearing the
union colors on his shirt. Bush replied that he was supporting
his fellow union brothers. Scheidel knew of Bush’s open support
16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of the Union, and Howe conceded the Company had such
knowledge.
The Company’s employee manual (GC Exh. 23 at 8–9) con-
tains an anti-harassment policy stating a zero tolerance policy
against discrimination or harassment based on, inter alia, na-
tional origin or sexual orientation. Harassing conduct includes,
inter alia, slurs or denigrating jokes. Any reported allegations of
such conduct “will be investigated promptly, thoroughly and im-
partially. The investigation may include individual interviews
with the parties involved and, where necessary, with individuals
who may have observed the alleged conduct or may have other
relevant knowledge [sic].”
The shipping and receiving department takes product out of
heavy-duty boxes or crates; some are from a German company
and have “F.A.G.” in black letters on their sides. After they are
emptied, the boxes are stored outside shipping/receiving. Many
employees, including Domaradski, use these empty boxes for
wood trimmings that they put in a box under their tables, for use
in performing their work.
On December 21, 2017, Bush wore a long-sleeved union shirt
at work. At about 1:45 p.m., he welded a conveyer in bay 5. He
was aware that Domaradski was looking for a box for wood
pieces. The only one empty sturdy, heavy-duty box in his area
was a F.A.G. box. Bush put it on the conveyor, which he then
“craned” to the other end of the aisle.
Voigt was in his office and looked up at him. Bush held up
the box and laughed. Voigt snickered. Bush walked over to Do-
maradski’s area and set the box down and said jokingly, “Here’s
your box.” 12 Both he and Domaradski laughed, and he then left.
Bush did not see employee Joe Kraebel (Kraebel), but Do-
maradski testified that he was in the general area. Bush testified
that he was in a great mood that day and laughing casually. I
note that Bush displayed an exuberant and colorful personality
as he testified.
On the afternoon of December 27, Bush was informed that
Semsel of HR wanted to see him, and he met with her and Denise
Williams, also of HR, in the conference room. They brought up
the December 21 incident and what the box said. Bush con-
firmed that it had “F.A.G.” on the sides, and Williams stated that
someone could be offended. Bush asked if she was kidding, and
she said no. Bush explained that the box came from shipping
and receiving and that employees used them in their work areas
because they were nice and heavy-duty. Semsel stated that he
was getting a 3-day suspension (without pay) for the incident and
to leave at 2 p.m.
General Counsel’s Exh. 22 is the final written warning and 3-
day suspension that Bush received, for a “direct violation of
Wendt’s Non-Harassment Policy.” The narrative states that “On
12/21/17, Dennis Bush held up a shipping box that was from a
company named Fag, approached the Plant Supervisor, Dan
Voigt, and pointed to the box and to his co-worker and said,
‘Look what I have. It’s Rob’s tool box’ [sic] Dennis then placed
the shipping box on his co-workers work station. . . .”
The morning that Bush returned from the suspension, Voight
came to Bush’s area in bay 5. Bush told him that the box incident
12 Tr. 859 (Bush), 803 (Domaradski).
13 Tr. 872.
was water under the bridge, to which Voigt responded, “[I]t has
nothing to do with me. I didn’t do it, you know? He goes on it
was somebody else.”13
Bush testified that Domaradski was present during that con-
versation, but Domaradski did not testify about it. However, I
credit Bush’s account in the absence of a denial from Voigt. I
note that Bush’s overall credibility was not undermined by the
discrepancy in his testimony on cross-examination that he had
received a coaching from Scheidel in the first 6 months of his
employment, and the statement in one of his affidavits that he
had no prior disciplines before the suspension. In this regard,
Bush testified that the coaching was verbal talking to, that he re-
ceived nothing in writing, and that he believed it occurred during
his 90-day probation period. I also note Bush’s volunteering on
cross-examination that during his employment, “I’ve had a per-
fect everything with [the] company,”14 contraindicative of any
intention to skew his testimony against the Respondent.
Domaradski testified that he found the word (F.A.G.) humor-
ous but not offensive. He never complained about the incident
and was never interviewed about it. Domaradski still has the box
under his bench, with the letters F.A.G. facing out and visible to
people walking by. At no time has the Company issued any kind
of instruction or directive to employees regarding use of the
F.A.G. boxes.
Bertozzi testified that it was explained to him that, holding the
box, Bush had yelled to Voigt, “[H]ey look, it’s Demo’s toolbox,
and just laughed.”15 Bertozzi further testified that Voigt and
Kraebel had brought it to management’s attention, and that he
made the decision to suspend Bush. Neither Semsel nor Wil-
liams testified, Voigt told Bush that he was not behind the sus-
pension, and the Respondent submitted no documentation show-
ing any investigation or written records of any complaints.
Bertozzi averred that the suspension of Bush was consistent
with discipline meted out to other employees for violation of the
anti-harassment policy. Thus, in May 2016, Domaradski re-
ceived a 3-day suspension for, on two occasions, using an ethnic
slur (“gooks” and “chigger”) toward an Asian-American
coworker in the presence of that coworker and other employees
(R. Exh. 35). And, on December 1, 2017, Kraebel received a 3-
day suspension for calling Domaradski a “polack” (R. Exh. 36).
Although documentation of the incident is not in the record, Gar-
cia testified that he recommended a written write-up for Rulov
for making a gesture that was taken the wrong way by a
coworker, who felt it was an offensive physical contact.
General Counsel’s Exhibit 62 is a coaching note issued in
March 2017 to Pauley, for disrespectful behavior toward a
coworker: “Noel told his co-worker what to do with the garbage
and ‘kicked’ it in his co-workers[sic] direction.” General Coun-
sel’s Exhibit 63 is a coaching note (verbal warning) issued in
December 2017 to Kevin Moore for becoming aggressive and
threatening to “kick another co-workers[sic] ass.”
I will later address the allegations that the Respondent violated
Section 8(a)(5) by exercising discretion in disciplining Bush and
Fricano, without affording the Union notice and an opportunity
to bargain over the exercise of that discretion.
14 Tr. 880.
15 Tr. 1672.
WENDT CORP. 17
Hudson’s Assignment and Denial of Overtime—8(a)(3)
The Company has employed Hudson as a welder since De-
cember 2011. Hudson was the Union’s initial contact in the or-
ganizing drive and played a large role therein.16 He served as the
Union’s observer at the election. Along with Domaradski and
Greiner, he has been on the Union’s negotiating committee, and
he has attended almost all of the bargaining sessions. He has
openly supported the Union at work by wearing daily various
shirts with union insignia and union buttons, and he has regularly
participated in picketing outside the facility. Foreman Scheidel
knew of Hudson’s open support for the Union, and Director
Howe conceded at trial Company knowledge of this.
I note former Leadman Kenny’s unrebutted testimony that in
late April or early May 2017, Foreman Quieri came by with a
sheet indicating which employees should attend one of the three
company meetings concerning unionization. When Quieri in-
formed Kenny, Kenny saw that the sheet had certain names in
boldface, including his, Hudson’s, and Domaradski’s. Kenny
asked why his name was in bold, and Quieri replied, “Well, be-
cause you’re a union initiator.”17
Prior to the February 8, 2018 layoffs, Hudson performed
welding. A certified welder, he had a reputation for being one
of the best welders, as Bush, Domaradski, Kenney, Krajewski,
and Thompson testified;18 and Sheidel, who supervised Hudson
for most of his tenure with the Company, considered him an
“outstanding” welder.19 When Howe was asked about Hudson’s
performance as a welder, he agreed that Hudson was one of the
most talented welders but that he was not the most productive,
adding that Hudson was “often distracted ….,”20 without ex-
plaining what he meant.
Before the layoffs, Charles Braswell (Braswell) was the full-
time saw person, operating the large or band saw for cutting
heavier-gauge steel, and a smaller saw (the cold saw) (jointly
called “the saw”). He was assisted by temps. After he was laid
off, Thompson, a welder/fitter, mainly ran the saw; Rob Showler
operated the main saw on a couple of days. Hudson, Kenney,
Krajewsk, and Scheidel, all testified that operating the saw is not
skilled work, with Kenny considering it the “lowest job.”21 Con-
sistent with their testimony, Garcia testified that training for the
big saw is “not that involved” and primarily consists of knowing
how to read a tape measure.22 In this regard, Foreman Scheidel
assigned less experienced and lower skilled welders to run the
saws when he needed someone to operate them.
Braswell did not return from layoff. Thompson returned to
welding/fitting upon his recall. When Hudson was called back
and reported to work on April 6, Supervisor Garcia told him that
he would be working in bay 1 under Supervisor Norway. Hud-
son responded that he had always worked in bay 5 and asked why
he was going there. Garcia did not give him a direct response.
When Hudson reported to Norway, he asked what he would be
doing, and Norway replied the saw. Hudson responded that was
16 Krawjeski testified (at Tr. 669) that Hudson was nicknamed “The
President” because he organized most of the employees.
17 Tr. 180.
18 Domaradski and Krajewski testified that Hudson’s nickname is
“Golden Rod.” Tr. 808, 675.
19 Tr. 532.
ironic because he had gotten a zero rating on the saw. Norway
replied that they all knew that he could work the saw. Hudson
considered this assignment a punishment because the saw was
an easy job not requiring skill. He had operated the bandsaw
only two or three times for 20–30 minutes each within the first
year of his employment but never thereafter.
Hudson’s reference to a zero rating on the saw referred to rat-
ings that the Company assigned to various employees per cate-
gory of work when it was proposing to lay off employees based
on their skills and abilities (see R. Exh. 6).23 In each of 16 oper-
ations in the shop, employees received a rating of 5 if they were
deemed capable of performing the work without any training, a
rating of 3 if they required only a reasonably brief period of train-
ing, and a rating of 0 if they needed a week or more of reasonable
training. Hudson received a zero rating in all 15 work classifi-
cations other than weld b, including, inter alia, saw, machining,
weld a, assembly, assembly eFab, material, and paint. At nego-
tiations, Hudson expressed displeasure at his ratings. I note that
Howe testified in an equanimous manner throughout his long tes-
timony, with the exception of showing irritation in his voice and
manner when he testified about Hudson’s protest over his rat-
ings.
Welder Bush has never had to work the saw, and he testified
that no fulltime welder other than Hudson has been assigned to
work them for an extended period. Bush testified about a con-
versation with Norway shortly after his recall from layoff, in
Bush’s new work area in bay 1. Bush asked why Hudson was
on the saw. Norway replied that Gino (last name unknown), the
floating temp, did not know how to use the saw so they would
just keep Hudson on it. However, Domaradski testified that after
Hudson was injured in July while operating the saw, Gino ran
the saw as well as welded. Norway did not rebut Bush’s and
Domaradski’s testimony, and I credit them.
Originally, either Garcia or Norway told Hudson that he
would be on the saw for 2 weeks, but he ended up on it until
August 13 (see GC Exh. 64, Hudson’s labor detail reports).
During this period, Bush, Domaradski, Gino, Krajewski, and
Scott Rammacher all performed welding.
Garcia testified that he, Fess, and Norway discussed with
Voigt the placement of employees after they returned from
layoff, to maximize efficiency and to afford some employees an
opportunity to expand their skill sets and be more versatile.
These included Bush, who went from a conveyor welder to a fit-
ter/welder; Krajewski, who was given an opportunity to work in
paint; Mario Rojas, who moved from doing welding in building
1 to do welding on larger structures in building 5; Rulov, who
went from a fitter to a finder-fitter; and Hudson. Garcia was
aware that Bush and Rojas had requested such changes in their
assignments. Other than Hudson, all of them continued to per-
form at least some welding work after they were recalled. Garcia
testified that he advocated putting Hudson on the saw because
20 Tr. 1237.
21 Tr. 229.
22 Tr. 1414.
23 Howe testified that he rated Hudson a zero because he had “never
operated the saw in a production manner.” Tr. 1215.
18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Hudson had experience in welding and assembling, but he had
not personally seen Hudson work on the saw.24
I credit the follow unrebutted testimony of witnesses for the
General Counsel. When Hudson returned from the layoff he was
aware that all other welders and fitters were working overtime
and he asked Norway if he could also work overtime. Norway
replied that he had not been approved yet for Hudson to work
overtime. Hudson asked Norway again for overtime during the
first couple of weeks that he was back and received the same
response. Overtime was offered to welders after the recalls from
layoff. A couple of months after the recall, Thompson was as-
signed to work the cold saw for a couple of days, while Hudson
operated the main saw. Thompson was permitted to work over-
time on those occasions.
Fricano’s Suspension—8(a)(1) and (5)
Fricano has been a paint finisher for the Company for over 7
years. On October 23, 2017, he was assigned to paint a finder
bed. He and the whole paint crew put it on a forklift and pulled
it into the paint booth. Fricano was preparing to paint with the
forklift inside when, at Voigt’s request, Howe came to the paint
booth. He asked Fricano what he was doing and if he felt that
painting with the fork truck inside was safe, “And [Fricano’s]
eyes doubled in size as he glared at me and immediately began
to accuse other people of telling him to do it.”25 Fricano agreed
it was unsafe and took out the forklift before painting.
Two days later, Voigt approached Fricano and told him to
come to the main office, to ask him some questions about the
incident. Fricano then asked for a steward or a representative (he
was uncertain if he used the word “union”), to which Voigt re-
sponded that he did not need that because they were just going
to ask him a few questions about what had happened.26 In a con-
ference room in the office, Williams handed Fricano General
Counsel’s Exhibit 19, an unpaid suspension for 3 days for an
egregious violation of health, safety, or fire codes that could have
resulted in severe injury to him and others. She stated that he
would be terminated the next time and asked him to sign the
warning. He refused and notated a disagreement. During the
course of the meeting, Fricano asked for Howe, who came to the
conference room. Howe stated that management had already
made the decision and that he could not do anything about it. In
the past 6 months, Fricano had received one discipline—a coach-
ing note or written warning for insubordination.
Turning to the discretionary discipline allegation concerning
Fricano and Bush, the Company’s employment manual (GC
Exh. 23 at 50–51) sets out disciplinary policies and distinguishes
between “major” and “general” offenses. Major offenses include
such misconduct as possession or consumption of intoxicants,
acts of violent, harassing or interfering with coworkers in the
performance of their duties, theft or intentional damage to com-
pany equipment, insubordination, and damaging equipment.
These are grounds for immediate dismissal. “General” offenses
are listed as misconduct such as non-compliance with plant
safety rules, use of obscene or threatening language, and
24 R. Exh. 6 contradicts Garcia’s testimony since Hudson received a
zero in assembly.
25 Tr. 1249 (Howe).
repetitive tardiness or absenteeism. For general offenses, a dis-
ciplinary action sequence is set out as: (1) verbal warning (with
a written memo in the employee’s file) for a first offense; (2)
written warning for a second offense; (3) written warning and 3-
day suspension without pay for a third offense; and (4) termina-
tion for the fourth offense. Following this sequence is a note:
“Penalties imposed as a result of infractions of our rules may be
modified by the Company when extenuating circumstances are
found.”
Bertozzi is the final decision maker on all disciplines, after
input from the supervisor and Semsel of HR, who checks the file
for prior disciplines and determines the appropriate level of dis-
cipline to be imposed. A supervisor’s recommendation for dis-
cipline is normally accepted.
Prior to October 9, 2017, Rosaci was informed that Krajewski
had been disciplined without notification to the Union. That day,
Rosaci requested copies of all disciplinary actions issued to bar-
gaining unit employees, and the basis of the discipline imposed,
since the Union’s certification (GC Exh. 15). He stated that this
constituted a standing request for notification of future discipli-
nary actions and the bases for such, as well as a request to bar-
gain prior to their imposition.
Schroder responded on October 11 (GC Exh. 16), stating that
the Company was gathering the information that he requested.
She further said that there had been no unilateral changes in the
Company’s disciplinary practices since the certification and that
the status quo as per the handbook (with progressive discipline)
and the code of conduct (including past practice on implementa-
tion of steps) would continue to be followed until there was an
agreement with the Union to the contrary. The code of conduct
is not in the record.
Rosaci on November 10 (GC Exh. 17) requested to meet and
negotiate employee discipline prior to its issuance, stating that
the Union’s review of the Company’s policies and actions indi-
cated that the Company exercised discretion in issuing disci-
pline.
At around this time, the Company furnished to the Union a
copy of the discipline that it had imposed against Fricano, as well
as copies of two others for safety violations (GC Exhs. 20, 21).
In the first, Pauley, a painter, received a written warning on No-
vember 9 for unsafely operating a crane, resulting in damage to
company property and endangering the safety of coworkers in
the area. In the preceding 6 months, Pauley had received 5 dis-
ciplines, including a final written warning, one of which was for
a safety violation. In the second, Supervisor Norway received a
written warning on November 14 for improperly tacking equip-
ment, causing the tacked-on piece to break off and endangering
coworkers in the area. He had received no prior disciplinary ac-
tion for the past 6 months.
At around this time, in a bargaining session, Rosaci brought
up the discipline issued to Krajewski and said that it was inap-
propriate to give him discipline in the circumstances, consider-
ing his inexperience and the nature of the assignment. Bertozzi
26 The Respondent (R. Br. 16) points to certain inconsistencies be-
tween Fricano’s testimony and his affidavit, but their substances are not
necessarily inconsistent, and they therefore do not undermine his credi-
bility.
WENDT CORP. 19
responded that the Company had considered giving him a verbal
warning but had decided to give him a written warning. They
discussed a number of other disciplines, copies of which the
Company had furnished to the Union after their issuance.
Bertozzi stated that the Company did not “discipline everybody
for everything,” and give warnings to everybody for everything
and “we let some of them go.”27 Rosaci conceded that Howe
responded to most of the Union’s questions on the discipline,
such as whether the employee had received training and the
amount of any damage.
Howe testified that he, Bertozzi, and Voigt discussed how to
discipline Fricano, including termination, but decided on a sus-
pension based on the Company’s progressive discipline policy.
Thus, although Fricano had some write-ups in his folder, none of
them were for safety violations, and it was unusual for Fricano
to be so careless. Accordingly, “[W]e decided to exercise some
discretion and landed on a suspension.”28 Howe later added that
they believed that they had grounds to terminate him but decided
to be lenient and instead suspend him. Bertozzi’s testimony
comported with Howe’s. Thus, Bertozzi testified that he looked
back at Fricano’s prior disciplines as per the Company’s proce-
dure and found a written warning for insubordination and that in
conjunction with the egregiousness of Fricano’s safety violation,
“[F]rankly, we should’ve terminated him but we didn’t.”29 I dis-
cussed earlier Bertozzi’s testimony about his decision to suspend
Bush.
General Counsel’s Exhibits 59–61 are other disciplines that
the Company has issued for safety violations:
(1) A written warning in August 2011, for deliberately tamper-
ing with settings on a machine on which a fellow employee was
working, horseplay, and a safety violation that could have re-
sulted in injury;
(2) A written warning in November 2011, for having a high-
pressure bottle unsecured to a weld machine, which fell over
(“extremely dangerous”); and
(3) A suspension in December 2017, to Norway, for welding
in an area near the paint booth that was within an unsafe dis-
tance, creating a potential safety hazard that could have resulted
in severe injury to him and others. The previous month, he had
received a written warning for a safety violation.
Analysis and Conclusions
Bush and Hudson—8(a)(3) Allegations
The following analysis applies to all 8(a)(3) allegations in the
complaint, including the January 2018 layoffs of 10 shop em-
ployees and the delay in providing performance reviews and
wage increases, which I will later discuss.
In cases in which the issue is the motive behind an employer’s
action against an employee (was it legitimate or based on animus
on account of the employee’s union or protected concerted ac-
tivities?), the appropriate analysis is provided by Wright Line,
251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982). See Auto Nations, Inc., 360 NLRB
1298, 1301 (2014), enfd. 801 F.3d 767 (7th Cir 2015).
Under Wright Line, the General Counsel has the burden of
27 Tr. 62–63 (Rosaci). Bertozzi did not deny making such statements.
28 Tr. 1250.
establishing that the employee’s protected activity was a moti-
vating factor in the adverse employment action. The elements
commonly required to support such a showing are union or other
protected activity by the employee, employer knowledge of that
activity, and antiunion animus on the part of the employer. East
End Bus Lines, Inc., 366 NLRB No. 180 (2018), slip op. at 1; see
Allstate Power Vac., Inc., 357 NLRB 344, 346 (2011), citing
Willamette Industries, 341 NLRB 560, 562 (2004); see also Aus-
tal USA, LLC, 356 NLRB 363, 363 (2010).
Once the General Counsel makes that showing, the burden of
persuasion “shift[s] to the employer to demonstrate that the same
action would have been taken even in the absence of the pro-
tected conduct.” East End Bus Lines, Inc., above, slip op. at 1;
Allstate Power Vac., above at 346 (quoting Donaldson Bros.
Ready Mix, Inc., 341 NLRB 958, 961 (2004); see also Austal
USA, above at 364. To establish this affirmative defense, “An
employer cannot simply present a legitimate reason for its action
but must persuade by a preponderance of the evidence that the
same action would have taken place even in the absence of the
protected activity.” Consolidated Bus Transit, 350 NLRB 1064,
1066 (2007), quoting W. F. Bolin Co., 311 NLRB 1118, 1119
(1993), petition for review denied 70 F.3d 863 (6th Cir. 1995),
enfd. mem. 99 F.3d 1139 (6th Cir. 1996).
Where the General Counsel makes a strong showing of dis-
criminatory motivation, the employer’s defense burden is sub-
stantial. East End Bus Lines, Inc., above, slip op. at 1; see also
Bally’s Park Place, Inc., 355 NLRB 1319, 1321 (2010) (revers-
ing judge and finding violation because judge “did not consider
the strength of the General Counsel’s case in finding that the Re-
spondent met its Wright Line rebuttal burden”), enfd. 646 F.3d
929 (D.C. Cir. 2011); NLRB v. CNN America, Inc., 865 F.3d 740,
759 (D.C. Cir. 2017).
Initially, I note that the Respondent’s counsel has pointed out
(R. Br. 113) that the Company had knowledge that numerous
employees actively supported the Union and yet has never taken
any adverse actions against many of them. Thus, some of the
known union adherents were not among those laid off, and some
even received work assignments that they desired.
However, this fact does not serve as evidence that the Com-
pany’s actions against the alleged discriminatees were not moti-
vated by antiunion animus. The Board, with approval by the
courts, has long held that an employer’s unlawful discrimination
against some union supporters and activists is not negated simply
because the employer did not discriminate against all union sup-
porters. Handicabs, Inc., 318 NLRB 890, 897–898 (1995), enfd.
95 F.3d 681 (8th Cir. 1996); Nabors, W.C. Co., 89 NLRB 538,
541–542 (1950), affd. 196 F.2d 272, 276 (5th Cir. 1952), cert.
denied 344 U.S. 865 (1952); see also Rust Engineering v. NLRB,
445 F.2d 172, 174 (6th Cir. 1971) (“The punitive lay off of a
single dissident may have—and may be intended to have—an in
terrorem effect on others. . . .”); NLRB v. Shedd-Browning Mfg.
Co., 213 F.2d 163, 175 (7th Cir. 1954), citing NLRB v. Link-Belt
Co., 311 U.S. 584, 602 (1941) (discouragement of protected ac-
tivity may be effected by making some employees “an exam-
ple.”). In sum, selective discrimination has a naturally chilling
29 Tr. 1667.
20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
effect on all employees, and discriminatory conduct need not af-
fect all prime union activists. See, e.g., Glenoaks Convalescent
Hospital, 273 NLRB 488, 491 (1984); NLRB v. Challenge-Cook
Brothers of Ohio, Inc., 374 F.2d 147, 152 (6th Cir. 1967); W.C.
Nabors Co., 196 F.2d 272, 276 (5th Cir. 1952), cert. denied 344
U.S. 865 (1952).
Furthermore, as to all three 8(a)(3) allegations, I draw an in-
ference that they were motivated by animus based on Voigt’s
threats of adverse consequences to George and Thompson in Jan-
uary 2018, and Rulov in April 2018, for their support of the Un-
ion, and his telling Thompson in January 2018 that employees
who supported the Union would be laid off. See East End Bus
Lines, above at slip op. 9, in which the Board stated that 8(a)(1)
violations occurring close in time to an adverse action against an
employee are “particularly relevant” as far as showing unlawful
motivation. See also St. Mary Medical Center, 339 NLRB 381,
381(2003) (“Animus can be inferred from the 8(a)(1) violations
found by the judge.…”).
Bush’s Suspension
The sole basis for Bush’s 3-day suspension without pay was
the incident on December 21, 2017, involving the F.A.G. box.
Bush engaged in union activity both at and away from the facil-
ity, and Director Howe, Foreman Scheidel, and Plant Manager
Voigt knew of his support for the Union; on the day of the sus-
pension, Bush testified without controversion that Voigt saw him
wearing a union shirt. Animus is inferred from Voigt’s state-
ments, described above.
Animus against Bush can also be inferred from the following:
(1) The Respondent failed to conduct a full and fair investiga-
tion (see Hewlett Packard Co., 341 NLRB 492, 492 fn. 1
(2004); Firestone Textile Co., 203 NLRB 89, 95 (1973)), and
did not even interview Bush or afford him an opportunity to
defend against the accusation of harassment. See Joseph Chev-
rolet, Inc., 343 NLRB 7, 8 (2004); Tubular Corp. of America,
337 NLRB 99, 99 (2001).
Thus, the Respondent did not interview either Bush or Domar-
daski—the coworker directly involved in the incident—before
making the decision to issue Bush the suspension. The Respond-
ent did not provide the testimony of either Voigt or Kraebel, or
any witness to what occurred; the testimony of either Semsel or
Williams of HR; or any documentation showing an investigation.
In this regard, Voigt told Bush that he was not behind the sus-
pension, so who, if anyone, complained about Bush’s conduct,
and what was reported, remains unknown.
(2) Related to this, the Respondent did not follow its own
stated disciplinary procedures and policies. See Fayette Cotton
Mill, 245 NLRB 428 (1979); Keller Mfg. Co., 237 NLRB 712,
713–714 (1978).
The Company’s employee manual specifically states that any
reported allegations of discrimination or harassment “will be in-
vestigated promptly, thoroughly and impartially. The investiga-
tion may include individual interviews with the parties involved
and, where necessary, with individuals who may have observed
the alleged conduct or may have other relevant knowledge.”
Yet, neither Bush nor Domaradski were even interviewed.
(3) The Respondent treated Bush disparately vis-à-vis other
employees who have engaged in more egregious conduct yet
received lesser disciplines. See Arigas USA, LLC, 366 NLRB
No. 104, slip op. at 1 (2018); Comaco Lorain Mfg. Plant, 356
NLRB 1182, 1185 (2011).
Even according to Bertozzi, who made the decision to suspend
Bush, Bush’s conduct did not entail any threats or aggressive
conduct toward any coworker. Yet, an employee who, in March
2017, apparently used an obscenity to a coworker and kicked
garbage at him received only a coaching note (verbal warning,
the least severe level of discipline). The same discipline was is-
sued in December 2017 to an employee who became “aggres-
sive” and threatened to “kick another co-workers[sic] ass.” Fi-
nally, although there is no documentation in the record, Garcia
testified that he recommended a written-write up for Rulov for
making a gesture that a coworker felt was “an offensive physical
contact.” Moreover, in those situations, the affected coworkers
apparently complained, whereas Domaradski did not. I realize
that it is not my prerogative to second-guess how the Respondent
decides to discipline types of misconduct, but one must question
why employees who engaged in expressly threatening and offen-
sive behavior received lesser discipline, only verbal warnings in
two cases, whereas Bush received the most severe discipline
short of termination.
I now turn to whether the Respondent has rebutted the General
Counsel’s prima facie case. I will first address the Respondent’s
defense that Bush’s suspension was consistent with discipline is-
sued to other employees who have violated the anti-harassment
policy. The Respondent cited two cases where employees re-
ceived a 3-day suspension, one in May 2016, the other in De-
cember 2017. In both, the suspended employee used overtly ra-
cial or ethnic slurs to coworkers (“gooks,” “chigger,” “polack”),
who obviously took umbrage. In contrast, Bush’s remark was
ambiguous and not expressly homophobic—he did not use the
word “fag” or any other derogatory term—and Domaradski took
no offense.
Bush was providing Domaradski with a heavy-duty box that
he wanted to use in his work. In giving him the “F.A.G.” box,
Bush set it down and simply said jokingly, “Here’s your box.”
Domaradski found it humorous and laughed. He certainly was
not harassed, either subjectively or objectively speaking. Even
according to the narrative in the suspension notice, Bush simply
held up the box, approached Voigt and pointed to the box and
Domaradski, and said, “Look what I have. It’s Rob’s tool box
. . . .” The innocuousness of Bush’s conduct on this record did
not justify any kind of discipline, let alone a 3-day suspension
without pay.
Accordingly, I conclude that the Respondent has not rebutted
the General Counsel’s prima facie case and that its suspension of
Bush violated Section 8(a)(3) and (1) of the Act.
Hudson’s Assignment and Denial of Overtime
Hudson initiated the Union’s organizing campaign among the
employees, served as the Union’s observer at the election, was
on the Union’s negotiating team, participated in union demon-
strations outside the facility, and openly wore union insignia at
work. Foreman Scheidel knew of Hudson’s open support for the
Union, and Director Howe conceded at trial the Company’s
WENDT CORP. 21
knowledge of this. The element of animus is satisfied by Voigt’s
statements to employees threatening retaliation for their union
support, as described earlier. Accordingly, the General Counsel
has set out a prima facie case of an 8(a)(3) violation.
I now turn to whether the Respondent has rebutted the General
Counsel’s prima facie case regarding Hudson’s assignment to
the saw. Prior to the February 8, 2018, Hudson, a certified
welder, performed welding and had a reputation for being one of
the best welders. He had practically no experience working the
saws, which was considered the work in the shop requiring the
least amount of skill and to which less experienced and lower
skilled welders were assigned when welders were needed to op-
erate them.
No fulltime welder other than Hudson has been assigned to
work the saw. After the recall, all other welders continued to
perform welding work, as did Gino, a temporary employee.
When Bush asked Supervisor Norway why Hudson was on the
saw, Norway replied that Gino did not know how to use the saw.
However, after Hudson was injured in July while operating the
saw, Gino ran the saw as well as welded. Among the regular
welders, Thompson was the only one assigned to work the saw
during this period; he worked the small saw for a couple of days
a couple of months after the recall, while Hudson operated the
large saw.
Supervisor Garcia unsuccessfully attempted at trial to paint
Hudson’s assignment to the saw as a benefit rather than as an
adverse action. Thus, he testified that he, Voigt, and the other
supervisors discussed the placement of employees after they re-
turned from layoff, to maximize efficiency and to afford some
employees an opportunity to expand their skill sets and be more
versatile. However, of the other four employees who were given
new assignments after the layoff, three were afforded opportuni-
ties to enhance their skills as welders, and the fourth (Krajewski)
was given the opportunity to work in the paint department. All
of them continued to perform at least some welding work. Gar-
cia testified that he advocated putting Hudson on the saw be-
cause Hudson had experience in welding and assembling, but he
had not personally seen Hudson work on the saw. However, Re-
spondent’s Exhibit 6 contradicts Garcia’s testimony that Hudson
had experience in assembling. Indeed, if the Respondent wanted
to give Hudson a wider range of skills to enhance his abilities as
an employee, he could have been assigned to another type of
work that required skill, as was Krajewski, not the least-skilled
work in the shop. In sum, Hudson’s assignment to the saw can
scarcely be described as an “opportunity;” rather, he properly
characterized it as “punishment.”
Accordingly, I conclude that the Respondent has failed to re-
but the General Counsel’s prima facie case and that Hudson’s
assignment to the saw violated Section 8(a)(3) and (1) of the Act.
As to the denial of overtime, Hudson repeatedly requested
overtime from Norway when he returned from layoff and was
assigned to the saw. Norway responded that Hudson was not
approved to work overtime. However, overtime was offered to
welders after the recall. Most significantly, when Thompson op-
erated the cold or small saw for a couple of days, while Hudson
operated the main saw, Thompson was permitted to work over-
time.
Accordingly, I conclude that the Respondent has failed to re-
but the General Counsel’s prima facie case and that Hudson was
denied overtime in violation of Section 8(a)(3) and (1) of the Act.
Fricano’s Interview
Pursuant to NLRB v. J. Weingarten, 420 U.S. 251 (1975), the
Board has held that an employee has a right to union representa-
tion in an investigative interview when the employee reasonably
believes the interview may result in discipline. Here, Howe’s
testimony clearly revealed that Fricano knew on October 23,
2017, that he had committed a serious safety offense. Thus,
when Howe came over to Fricano and in essence told him that
what he was doing was unsafe, “[H]is eyes doubled in size as he
glared at me and immediately began to accuse other people of
telling him to do it.”
Therefore, when Voigt told Fricano to come to the main office
to answer some questions about the incident, Fricano had rea-
sonable cause to believe that the interview might result in disci-
pline. Fricano was uncertain if he used the word “union” when
he asked for a steward or a representative, but that does not affect
the validity of his request: “Board law is clear that ‘[n]o magic
or special words are required [to trigger a Weingarten request]
. . . . It is enough if the language used by the employee is reason-
ably calculated to apprise the [e]mployer that the employee is
seeking such assistance.’” Circus Circus Casinos, Inc., 366
NLRB No. 110, slip op. at 1 (2018), citing Houston Coca Cola
Bottling Co., 265 NLRB 1488, 1497 (1982); see also Consoli-
dated Edison Co. of New York, 323 NLRB 910, 916 (1997).
Accordingly, the Respondent violated Section 8(a)(1) when
Voigt denied Fricano’s request to have a union representative
present at an interview that he reasonably thought could result in
discipline (and in fact did), and then proceeded with the inter-
view.
Discretionary Discipline
The testimony of both Bertozzi and Howe, and documents of
record, establish that the Respondent does exercise considerable
discretion in determining what discipline is appropriate in a par-
ticular situation. Discretionary discipline is a mandatory subject
of bargaining. Total Security Management Illinois1, LLC, 364
NLRB No. 106, slip op. at 10 (2016), wherein the Board set out
a new policy concerning bargaining over employee discipline. It
held that an employer must provide the union with notice and an
opportunity to bargain over the discretionary aspects of its deci-
sion before imposing serious discipline (absent a showing that
the employee’s continued presence at work presented an immi-
nent danger to its business or employees). It stated that an em-
ployer need not await an overall impasse in bargaining before
imposing discipline, provided that it exercises its discretion
within existing standards and procedures; however, it still must
continue to bargain over its action, including the possibility of
rescinding it, until reaching agreement or impasse. Ibid, slip op.
at 12.
The Board has not yet applied Total Security in any subse-
quent decisions, so its interpretation remains in uncharted terri-
tory. In any event, the Respondent did not engage in any bar-
gaining with the Union before it issued suspensions to Bush and
Fricano, and it thereby violated Section 8(a)(5) and (1).
22 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
February 8, 2018 Layoffs—8(a)(3) and (5)
Since 2001, there were three major layoffs prior to 2018, oc-
curring in 2001, 2009, and 2015. Bertozzi testified that all three
were due to the status of the Company’s business operations. In
2001, 15–20 employees were laid off, apparently on a temporary
basis (see R. Exh. 25); the breakdown between shop and office
(engineering or purchasing departments) is unknown. In 2009,
approximately 20 people were laid off for lack of work orders.
About half were in the office, including engineers; the other half
were in the shop. On January 8, 2015, there was a permanent
layoff of 10 shop employees and seven office employees (see GC
Exh. 38 at 1–2).
Concerning the February 8, 2018 layoffs of 10 shop employ-
ees, Howe testified that the Respondent had a slowdown in book-
ings in the fourth quarter 2017 and the one large booked job was
in Canada, where most of the work was going to be subcon-
tracted to local businesses. The Company realized around Labor
Day 2017 that there would be less billable work in the coming
year and told the Union during negotiations that because of this,
there might be a layoff.
Rosaci recalled that the first time that the subject of layoffs
was mentioned to the Union was at the September 24, 2017 ne-
gotiations session, when Schroder stated that the Company was
going to have a layoff due to a sudden downturn in work. Rosaci
asked the extent and anticipated date. She replied, 8–12 employ-
ees, tentatively on either February 9 or 16, 2018. At subsequent
meetings, the parties exchanged proposals, some oral and others
in writing, but reached no agreement.
In Respondent’s Exhibit 16, sent to the Union on February 2,
2018, Howe set out the methodology that the Company was go-
ing to use for the planned layoff of shop employees by skills and
abilities in various categories of work, to ensure continued pro-
duction during the layoff.30 The Company anticipated the layoff
to be 6–8 weeks. This became the basis of the Company’s initial
proposal to the Union.
Respondent’s Exhibit 2 consists of proposals and counter-pro-
posals made between January 24 and February 8 regarding the
criteria that would be used for selecting employees for layoff.
As per the Company’s proposal to base layoffs on skills and abil-
ities, a chart of employees’ ratings was presented to the Union
on February 1, designating 10 employees necessary to run the
shop regardless of their ratings (R. Exh. 6). The Union’s coun-
terproposals were for layoffs to be in order of least plantwide
seniority, with recalls to be by most such seniority.
The parties met on February 8. The Company informed the
Union that 10 named production employees were being laid off
that day (see GC Exh. 40).31 They exchanged proposals regard-
ing the laid off employees, and Schroder stated that it was the
Company’s final proposal (see R. Exh. 2 at 11–14). It provided
for layoffs to be in order of least seniority within a classification
and recalls to be by skill and ability. Laid off employees were to
be recalled no later than April 9, absent a drastic change in busi-
ness circumstances. There were also provisions regarding med-
ical and other benefits to laid off employees. It is undisputed that
30 Unless otherwise specified, written communications between the
Union and the Company outside of negotiations were by email
the parties did not bargain to agreement over the terms of the
layoffs. Subsequently, two employees were recalled prior to
April 9; the rest on April 9.
George and Thompson testified about conversations with
Voigt that bore on the layoffs. Voigt did not testify thereon,
George’s testimony was corroborated by notes he took of their
conversation (GC Exh. 41), and I find the following.
As described earlier, Voigt told George on January 10, 2018,
that the Company had “plenty of work” but was going to stage a
layoff and then “bring in all new people.”
On February 8, 2018, the day of the layoffs, Thompson at-
tended a union rally that took place outside the facility during the
lunch hour. After lunch, he was in his work area at around 1:30
p.m. when Voigt came over. Voigt stated that he was “really
pissed” because people were blocking him from leaving the
parking lot, yelling at him, and taking pictures of his license
plate.32 Thompson replied that he did not agree with that but that
also did not agree with the layoffs. Voigt responded that the
same people who were laid off were the ones who were going to
keep on getting laid off.
Analysis and Conclusions
As to the 8(a)(3) allegation concerning the layoffs, I have al-
ready discussed how the element of animus has been satisfied as
far as the General Counsel making out a prima facie case of dis-
crimination. Specifically, as to layoffs, Voigt told Thompson on
January 25, 2018, that employees who supported the Union
would be laid off. Furthermore, on the day of the layoffs, after
Voigt complained about the union rally outside the facility, he
told Thompson that the people who were laid off were the same
ones who were going to keep on being laid off. Such statement
implicitly suggested that certain employees were targeted to be
laid off, both then and in the future. On January 10, 2018,
George asked Voigt if the Company was busy, to which Voigt
responded, “Yes, we have plenty of work, don’t worry, you
know, we’re busy.” George then sad, “Oh, so it’s only by design
that we’re slow?,” and Voigt replied, “Yeah, we’re just taking it
in the ass until all this goes away.” He further stated that once
the Company started to ramp up again, they would bring in all
new people.
Threats by supervisors of job loss due to employees’ union
activity support a finding that a subsequent relocation of opera-
tions or contracting out of operations, ostensibly for business
reasons, was unlawful. See Taylor Machine Products, 317
NLRB 1187, 1187, 1212–1214 (1995), enfd. in relevant part 136
F.3d 507, 515 (6th Cir. 1998); Jays Foods, Inc., 228 NLRB 423,
423, 429–430, 433 (1977), enfd. as modified 573 F.2d 438, 442–
443, 445–446 (7th Cir. 1978), cert. denied 439 U.S. 859 (1978).
See also Turnbull Cone Baking Co. v. NLRB, 778 F.2d 292, 297
(6th Cir. 1985) (enfg. 271 NLRB 1320 (1984) (where an em-
ployer’s representative has announced an intent to retaliate
against an employee for engaging in protected activity, the Board
has before it “especially persuasive evidence” that a subsequent
adverse action was unlawfully motivated), cert. denied, 476 U.S.
1159 (1986); L’Eggs Products, Inc. v. NLRB, 619 F2.d 1337,
31 In addition, Domaradski would be deployed to shipping and han-
dling based on company needs. Scheidel was also laid off that day.
32 Tr. 354.
WENDT CORP. 23
1343 (9th Cir. 1980), affg. in relevant part, 236 NLRB 354
(1978).
The fact that there were prior layoffs of shop employees and
that they might have been necessitated by legitimate business
considerations does not bear on the legitimacy of the April 2018
layoffs, which must be independently evaluated.
Howe testified that the Respondent had a slowdown in book-
ings in the fourth quarter 2017 and the one large booked job was
in Canada, where most of the work was going to be subcon-
tracted to local businesses. The Company realized around Labor
Day that there would be less billable work in the coming year
and told the Union during negotiations that because of this, there
might be a layoff.
However, the Respondent failed to produce any documenta-
tion solely in its possession that would have supported Howe’s
testimony and substantiated its claim of economic justification
for the layoffs. This undermines the Respondent’s economic de-
fense and warrants drawing an adverse inference that if such rec-
ords had been produced, they would not have been favorable to
the Respondent. Reno Hilton, 282 NLRB 819, 842 (1987); Wel-
come-American Fertilizer Co., 169 NLRB 862, 870 (1968), enf.
denied on other grounds 443 F.2d 19 (9th Cir. 1971); see also
Auto Workers v. NLRB, 459 F.2d 1329, 1336–1337 (D.C. Cir.
1972). As the Supreme Court observed in Interstate Circuit v.
U.S., supra at 225–226, with respect to witness testimony rather
than documentary evidence, “The production of weak evidence
when strong evidence is available can lead only to the conclusion
that the strong would have been adverse.”
I therefore conclude that the Respondent has failed to rebut
the General Counsel’s prima facie case that the layoffs were mo-
tivated by animus and that the layoffs violated Section 8(a)(3)
and (1).
As to the 8(a)(5) allegation, layoffs are a mandatory subject of
bargaining. Thesis Painting, Inc., 365 NLRB No. 142, slip op.
at 1 (2017); Eugene Iovine, Inc., 353 NLRB 400 (2008), reaf-
firmed 356 NLRB 1056 (2011), affd. 371 Fed. Appx. 167 (2nd
Cir. 2010), vacated on other grounds 562 U.S. 956 (2010); Tri-
Tech Services., Inc., 340 NLRB 894, 894 (2003). Even if the
Respondent had a past practice of instituting economic layoffs
due to lack of work, the advent of the Union removed its unilat-
eral discretion with respect to layoffs, and it still had an obliga-
tion to bargain with the Union over them. Eugene Iovine, above;
Adair Standish Corp., 292 NLRB 890, 890 at fn. 1 (1989), enfd.
in relevant part 912 F.3d 854 (6th Cir. 1990); see also Falcon
Wheel Div., L.L.C., 338 NLRB 576, 576–577 (2002).
Where the parties are engaged in negotiations for a collective-
bargaining agreement, an employer’s obligation to refrain from
unilateral changes extends beyond the mere duty to provide no-
tice and an opportunity to bargain about a subject matter. In-
stead, it encompasses a duty to refrain from implementation at
all, absent overall impasse on bargaining for the agreement as a
whole, with two limited exceptions—economic exigency or
where the union has attempted to delay bargaining. Bottom Line
Enterprises, 302 NLRB 373, 374 (1991), enfd. mem. sub nom.
15 F.3d 1087 (9th Cir. 1994), citing, inter alia, NLRB v. Katz,
33 See GC Exhs. 46–52 as examples. Employees are rated by category
as: meets, exceeds standard, or needs improvement.
369 U.S. 736, 743 (1962); see also, e.g., Alaris Health at Ro-
chelle Park, 366 NLRB No. 86, slip op. at 1 fn. 4 (2018). This
applies to bargaining over an initial contract. Lawrence Liver-
more National Security, LLC, 357 NLRB 203 (2011); Northwest
Graphics, Inc., 343 NLRB 84 (2004); Vincent Industrial Plas-
tics, Inc., 328 NLRB 300 (1999); RBE Electronics of S.D., Inc.,
320 NLRB 80 (1995).
This obligation extends to layoffs and recalls. Lawrence Liv-
ermore National Security, above; 357 RBE Electronics of S.D.,
above. The Respondent implemented the layoffs and recalls
without there having been an overall impasse in bargaining. Alt-
hough the Respondent contends in so many words that there
were economic exigencies justifying an exception to the normal
rule (R. Br. at 78, et. seq.), the Respondent offered no documen-
tation whatsoever and thus failed to substantiate its evidentiary
burden of establishing such. In this regard, the Respondent first
raised the subject of layoffs at negotiations in September 2017
and stated that the planned effectuation date was in February
2018, approximately 5 months in the future, indicating that no
genuine economic emergency arose shortly before the layoffs.
Therefore, the layoffs violated Section 8(a)(5) and (1) as well.
Reviews and Wage Increases—8(a)(3) and (5)
A. History
The employee manual (GC Exh. 23 at 18) states that “[u]nder
usual and appropriate circumstances, employees should receive
a performance review annually,” unless an employee’s job re-
sponsibilities change substantially.
Through the years, Scheidel conducted periodical reviews as
per the Company manual,33 with a time interval sometimes more
than 1 year. Prior to 2015, reviews were given in the January–
March period, with wage increases based thereon put into effect
shortly thereafter. Shop and office employees received both
evaluations and increases in the same timeframe.
The process changed in January 2015, following the big layoff
that month. Management held a meeting with the remaining em-
ployees in the breakroom and explained the Company’s financial
situation and that the Company did not know how long it would
take for the order backlog to completely fill back up. The Com-
pany would proceed with annual reviews in February/March but
could not give increases at that time; hopefully, they could be
given later in the year.
In 2015, the Company’s financial situation improved by virtue
of booking some orders and increasing the backlog, so in August
2015, it proceeded with the wage increases.
In approximately January or February 2016, at a company-
wide meeting in the breakroom, Bertozzi stated that it was pre-
dicted that 2016 would be a slow year and that henceforth re-
views were going to be moved to the end of September or early
October so that the Company would have a better idea of what
kind of year they had.
Reviews for the period from January 1–October 1, 2016 were
given to all employees in early October 2016, with raises effec-
tive the week ending October 8, 2016 (see GC Exh. 11,
24 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Schroder’s June 19, 2018 response to the Union’s request for in-
formation).
Thereafter, reviews for nonbargaining unit employees were
conducted in November and December 2017, but unit employees
did not receive them until mid-April 2018, after they returned
from layoff. Bertozzi’s explanation for this difference was: (1)
the shop was very busy and late on a number of products, and
the Company did not want anything to detract from that direct
labor; (2) the wage component to the unit employees’ reviews
had to be negotiated with the Union. Howe gave a similar ex-
planation, that at the end of 2017: 34
[W]e were extremely busy, and as we were getting—as—as
work was moving out of engineering and out of the office more
so into—and getting finished in the shop and supply chain, we
had opportunities to conduct those reviews with the profes-
sional staff. The—the shop was slammed and—at the time—
and so we decided to wait until there was a better opportunity
to conduct those with more time.
I note that in contrast to the direct and confident manner in which
Howe testified in general, this portion of his testimony was
vague and hesitant.
Performance reviews are used to assess skill and ability and
job performance, the bases for wage increases. Generally, man-
agers and Wendt (Sr. or Jr.) would arrive a wage increase guide-
line or base percentage rate, based on the Company’s perfor-
mance during the rating period. If a supervisor or manager has
wanted an individual to get more (or less), based on merit or job
changes, he could recommend to management a higher or lower
percentage increases. Scheidel submitted evaluations to Howe,
in conjunction with his recommendation that an employee re-
ceive a greater increase based on productivity longevity, pay
comparison with other employees, and attendance. Howe ac-
cepted about half of Scheidel’s recommendations, adjusting or
denying the remainder.
Joint Exhibits 2(a) and 2(b) are sample summaries of reviews
and wage increases received by unit employees and nonunit em-
ployees, respectively, with entries going as far back as the 2002–
2003 evaluation period.
B. Bargaining
The Union made an information request dated June 25, 2017,
requesting, inter alia, wages increases for the past 3 years for
each employee (GC Exh. 4). The Company’s response (GC Exh.
5), which Rosaci received on about July 17, showed that the last
increases were effective on October 3, 2016. At the November
3 bargaining session, Rosaci asked the Company to conduct the
annual reviews for 2017, as per the Union’s understanding of the
Company’s practice. He further requested that they be provided
to the Union and that the Union wished to bargain over the pro-
cess and the wage amounts before they were implemented. He
received no response at that meeting and followed up 3 days later
with a written request for such (GC Exh. 6). Schroder responded
on November 14 (GC Exh. 7), stating that employee evaluations
would occur “in due course as time and production schedules
34 Tr. 1258.
35 Tr. 42.
permit as has been the Company’s past practice. As you are
likely aware, the Company’s history has not been regimented
with regard to these items.”
At negotiations on May 8, 2018, the Company proposed a gen-
eral wage increase of 3.42 percent retroactive to April 8, 2018
(see GC Exh. 8), the date evaluations were completed. At the
following session, the Union verbally proposed a 4 percent in-
crease retroactive to October 2017.
The Company responded in writing at the May 24 bargaining
session (GC Exh. 9), reiterating its original proposal and stating
that if its proposal was not accepted on or before June 20, the
Company would rescind the retroactive portion of the proposal.
According to Rosaci , the Union accepted the Company’s pro-
posal, but he stated that the Union still wished to bargain for the
increased amount and retroactivity to October 2017, and
Schroder stated, “Fair enough. You can bargain for that.”35
Hudson and Greiner testified that retroactivity was left open for
further negotiations. Their version was consistent with the sub-
sequent communications of the Union’s attorney with Schroder,
described below.
I credit Hudson and Greiner and Rosaci (to the extent that he
testified retroactivity was left open) and find that the Union re-
quested further bargaining on retroactivity, over the testimony of
Howe, Dates, and Bertozzi that the parties agreed that such bar-
gaining was foreclosed. I base this on (1) the union attorney’s
communications with the Company after the meeting; (2) the
stiltedness and unbelievability of Bertozzi’s testimony that at the
May 24 session, he said, “So we’re done now? . . . . [T]he issue
is closed,” and Rosaci said yes;36 and (3) the lack of any mention
of Dates’ attendance at the meeting in the Company’s notes. In
this respect, Dates’ testimony on the subject was conclusionary
and lacking in detail, and Bertozzi could not state for certain if
Dates was at the May 24 meeting. Therefore, I cannot be satis-
fied that he was actually present at the meeting or was told what
was said after the fact.
Shop employees ultimately received raises effective the week
ending June 2, 2018, retroactive to April 8, 2018.
C. Request for Information
At the May 24 session, the Union asked for the dates that non-
unit employees/office personnel received wage increases be-
cause the Union understood unit employees usually received
them at the same time. This was one of the requests in the Un-
ion’s request for information of May 29 (GC Exh. 10). In her
response of June 19 (GC Exh. 11), Schroder replied, “The Union
does not represent the salaried workforce.”
On June 22, Michael Evans (Evans), the Union’s attorney, re-
iterated the Union’s request for such information (GC Exh. 12),
stating that the Union understood that bargaining unit employees
historically were reviewed and received wage increases before
non-bargaining unit employees and that unit employees should
receive wage increases retroactive to at least the date that nonunit
employees were given raises and reviews. He further stated that
the information was also needed for bargaining as per the Un-
ion’s stated desire to negotiate for greater retroactivity.
36 Tr. 1645.
WENDT CORP. 25
Schroder replied on July 6 (GC Exh. 13), stating that the Un-
ion’s understanding was incorrect and adding that the Union and
the Company had reached agreement on retroactivity and raises
in bargaining, when the Union accepted the Company’s wage
and retroactivity offer.
The last communication on the subject was Evans’ response
of July 11 (GC Exh. 14), reiterating the request for the infor-
mation and the reasons that the Union considered that requested
information relevant. He further stated that the parties had not
reached any final agreement regarding the wage increase; the
Union had explicitly reserved the right to bargain for future ret-
roactivity, and Schroder had agreed that the Union could con-
tinue bargaining on the issue (“Thus, the final retroactivity of the
wage increase is still a live issue in bargaining.”). The Respond-
ent never provided the Union with this information.
Analysis and Conclusions
8(a)(3) Allegation
An employer violates Section 8(a)(3) and (1) by suspending
annual evaluations and concomitant pay raises when motivated
by antiunion animus. United Rentals, Inc., 350 NLRB 951
(2007); Grossen Co., 254 NLRB 339 (1981). Regional Home
Care, Inc., 329 NLRB 85, (1999).
I previously concluded that the element of animus has been
satisfied as far as the General Counsel making out a prima facie
case of discrimination. I now turn to whether the Respondent
has rebutted it.
Whereas reviews for nonbargaining units were conducted in
November and December 2017, reviews for unit employees were
not conducted until mid-April 2018, after they returned from
layoff. Bertozzi proffered two reasons for this difference in tim-
ing, neither of which was believable. Firstly, he (and Howe) tes-
tified that the shop was very busy in late 2017, but the Respond-
ent produced no records demonstrating this. In any event, it is
hard to see how preparing evaluations would have been so time-
consuming for supervisors as to interfere with the Company’s
ability to conduct its business. Secondly, Bertozzi testified, the
wage component had to be negotiated with the Union. However,
Fess and Garcia testified that when they submitted their evalua-
tions to Voigt in April 2018, they had no discussions about
wages, so that the evaluations could have been prepared earlier
than the wage increase phase.
Again, as with the business justification for layoffs, the Re-
spondent failed to produce any documentation showing that the
volume of business in late 2017 was of such magnitude that pre-
paring shop employees’ evaluations would have been prejudicial
to its operation, undermining Bertozzi’s and Howe’s assertions
and warranting an adverse inference. See Reno Hilton, above;
Welcome-American Fertilizer Co., above; Auto Workers v.
NLRB, above.
Therefore, I conclude that the Respondent failed to rebut the
General Counsel’s prima facie case and that the delay in giving
unit employees evaluations and concomitant wage increases vi-
olated Section 8(a)(3) and (1).
8(a)(5) Allegation
With respect to bargaining, Section 8(d) of the Act specifies
wages as one of the mandatory subjects of bargaining.
Evaluations have the potential to affect the wage rate an em-
ployee might receive and therefore are also a mandatory subject
of bargaining, requiring negotiating any changes. Weyerhaeuser
NR Co., 366 NLRB No. 169 (2018), citing Saginaw Control &
Engineering, 339 NLRB 541 (2003).
Prior to the Union’s certification, the Respondent did not al-
ways follow the policy enunciated in the employee manual that
employees receive annual reviews absent unusual circum-
stances. However, in prior years, wage increases based thereon
were put into effect shortly after the employees were presented
with them. Nothing in the record demonstrates that shop em-
ployees and office employees were treated differently as far as
the timing of their evaluations and increases. In the most recent
year prior to the certification, reviews for the period from Janu-
ary 1–October 1, 2016, were given to all employees in early Oc-
tober 2016, with raises effective the week ending October 8,
2016. However, whereas reviews for nonbargaining units were
conducted in November and December 2017, reviews for unit
employees were not conducted until mid-April 2018, after they
returned from layoff.
It is well settled that an employer has the duty to proceed as it
would have done had a union not been on the scene. KDEN
Broadcasting Co., 225 NLRB 25, 26 (1976); see also Eastern
Maine Medical Center, 253 NLRB 224, 242 (1980), enfd. 658
F.2d 1 (1st Cir. 1981). Accordingly, an employer’s obligation to
maintain the status quo sometimes entails an obligation to make
changes, when those changes are an established part of the status
quo, such as when an employer has an established practice of
granting employees a 1-percent increase in wages on their anni-
versary date. Total Security Management, above, slip op. at 4
(2016); citing Southeast Michigan Gas Co., 198 NLRB 1221
(1972), affd. 485 F.2d 1239 (6th Cir. 1973).
Therefore, the Respondent was obliged to provide unit em-
ployees with evaluations during the same period that it did so for
the shop employees, in late 2017, and to grant them wage in-
creases within a short-time thereafter. Instead, it did not evaluate
them and give them such until April 2018. By this conduct, the
Respondent’s conduct violated Section 8(a)(5) and (1).
Regarding the bargaining over wage increases, Rosaci at the
bargaining session on November 3 asked the Company to con-
duct annual reviews for 2017 for unit employees, and he re-
quested bargaining over the process of evaluating unit employ-
ees and the wage amounts they would receive prior to implemen-
tation.
The record does not disclose that the Respondent made any
proposals prior to the May 8, 2018 negotiations session, when
the it proposed a general wage increase of 3.42 percent retroac-
tive to April 8, 2018, the date evaluations were completed. At
the following session, the Union verbally proposed a 4 percent
increase retroactive to October 2017. The Company responded
in writing at the May 24 bargaining session, reiterating its origi-
nal proposal and stating that if its proposal was not accepted on
or before June 20, the Company would rescind the retroactive
portion of the proposal. Rosaci accepted the Company’s pro-
posal but stated that the Union still wished to bargain further on
retroactivity. The Company has treated the subject of the wage
increase closed.
The Respondent argues (R. Br. at 85–86) that the Union
26 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
bargained for and accepted the Respondent’s wage proposal,
thereby waiving any rights to object to its implementation. As
to the retroactivity component, I have found that the Union ex-
pressly stated its desire to continue bargaining.
As far as the wage increase of 3.42 percent, the Respondent
(R. Br. 91, et. seq.) correctly points out that the Union agreed to
this on across-the-board basis and that individual employees
might have received more or less than this amount under estab-
lished past practice. However, the Respondent never modified
its original proposal and effectively secured the Union’s acqui-
escence by threatening to rescind the retroactivity provision. I
note that the Respondent’s initial proposal was on May 8 and that
only approximately 2 weeks later, the Respondent stated that it
was a final offer. This could hardly be considered to have af-
forded the Union timely notice and a meaningful opportunity to
bargain. See Dorsey Trailers, Inc., 327 NLRB 835, 858 (1999),
enf. granted and denied in part 233 F.3d 831 (4th Cir. 2000).
Moreover, the Respondent denied the Union’s request for infor-
mation about the wage increases that it had given to nonunit em-
ployees.
Waiver is not lightly inferred and must be “clear and unmis-
takable.” Weyerhaeuser NR Co., 366 NLRB No. 169, slip op. at
2 (2018), citing Metropolitan Edison Co. v. NLRB, 460 U.S.
693,709 (1983); Georgia Power Co., 325 NLRB 420, 420–421
(1998), enfd. 176 F.3d 494 (11th Cir. 1999), cert. denied 528
U.S. 1061 (1999). Thus, the part asserting waiver must establish
that the parties “unequivocally and specifically express[ed] their
mutual intention to permit unilateral employer action with re-
spect to a particular employment term, notwithstanding the stat-
utory duty to bargain that would otherwise apply.” Weyerhae-
user, ibid, citing Provena St. Joseph Medical Center, 350 NLRB
808, 811 (2007). Moreover, the party asserting waiver bears the
burden of proof. Ibid; TCI of New York, 301 NLRB 822,
824(1991). Based on the above, I conclude that the Respondent
has failed to meet this burden.
Accordingly, I conclude that the Respondent violated Section
8(a)(5) and (1) by failing and refusing to bargain in good faith
over the performance reviews and wage increases to unit em-
ployees.
Request for Information
An employer is obliged to supply information requested by a
collective-bargaining representative that is relevant and neces-
sary to the latter’s performance of its responsibilities to the em-
ployees it represents. NLRB v. Acme Industrial Co., 385 U.S.
432 (1967); NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956). To
trigger this obligation, the requested information need only be
potentially relevant to the issues for which it is sought. Pennsyl-
vania Power & Light Co., 301 NLRB 1104, 1104–1105 (1991);
Conrock Co., 263 NLRB 1293, 1294 (1982).
Requests for information concerning the terms and conditions
of bargaining unit employees are presumptively relevant. Postal
Service, 359 NLRB 56, 56 (2012); LBT, Inc., 339 NLRB 504,
505 (2003); Uniontown County Market, 326 NLRB 1069, 1071
(1998). On the other hand, requests for such information
37 I base this date on GC Exh. 27, dated September 1, 2017, and
Rosaci’s testimony.
regarding nonbargaining unit employees do not enjoy that pre-
sumption, and the union bears the burden of showing relevance.
Southern California Gas Co., 342 NLRB 613, 614 (2004); Sher-
aton Hartford Hotel, 289 NLRB 463, 463–464 (1988). How-
ever, that burden is not a heavy one, requiring a showing of prob-
ability that the desired information is relevant and would be of
use to the union in carrying out its statutory duties and responsi-
bilities. Acme Industrial, above at 437; Postal Service, 310
NLRB 391–392 (1993).
The information that the Union sought regarding the dates that
nonunit employees received wage increases had a direct bearing
on the retroactivity aspect of the wages increases for unit em-
ployee, which was discussed at negotiations and on which the
Union wished further bargaining, as reflected in Evans’ June 22,
2018 email to Schroder. Such information would have assisted
the Union in determining how to fashion its proposals on retro-
activity and also, perhaps, to its proposals regarding future in-
creases. Accordingly, the Union met its burden of showing the
requested information’s relevance to the Union’s representation
of unit employees, and the Respondent violated Section 8(a)(5)
and (1) by not furnishing that information.
Shop Supervisors
A. Framework
Production employees are supposed to “clock in” or scan their
badges on each job so that their time is charged thereto (a direct
labor charge, or production work). An indirect barcode is used
for maintenance work, painting, unloading trucks, cleaning, and
truck driving, which are not classified as production. Scheidel
testified that the goal was that production workers perform 93
percent direct, and the remainder indirect. Certain witnesses at
times appeared to blur this distinction, which is not entirely clear.
At all times, Hoerner, the warehouse/logistics supervisor has
supervised the shipping and receiving clerks. He reports to Sup-
ply Chain Manager Dates. Prior to June 2017, two shop fore-
men, Scheidel and Quarcini, supervised production employees.
They reported directly to Howe. That month, Quarcini left, leav-
ing one of the two shop foremen positions vacant. In August
2017, Voigt, the manufacturing/engineering manager, was pro-
moted to plant manager, with responsibilities for the shop as well
as for manufacturing/engineering (see GC Exh. 56, an email an-
nouncing his promotion to employees). Thereafter, Scheidel re-
ported to him. Scheidel supervised all 35–40 shop employees.
B. Creation
Tom Wendt, Sr., and Tom Wendt, Jr., and management were
involved in the decision to restructure the shop supervision in
September 2017, designed to organize supervisors along lines of
physical space, by bay, to maximize material flow.
General Counsel’s Exhibit 26 is the undated posting for
“Three Shop Supervisors” that was posted in late August, with
each to have responsibilities over different operations in the
plant.37 Their duties were to include such supervisory functions
as assignment of work and providing annual reviews of their
staff members.
WENDT CORP. 27
When Fess, Garcia, and Norway were promoted as of Septem-
ber 25, 2017, they were titled shop supervisors: Fess for building
2 and the yard; Garcia for building 4; and Norway for building
1. Scheidel was made shop supervisor for building 5 and
changed from salaried to hourly. After Scheidel left, his respon-
sibilities were assumed by the other shop supervisors.
The job description for shop supervisor is set out in Respond-
ent’s Exhibit 21 (duplicated as R. Exh. 13). The summary states
that the shop supervisor is a “working supervisor” position and
then goes on to describe various indicia of statutory supervisory
authority, which duties are reiterated in the essential functions
section. That section does not specifically describe non-super-
visory functions. However, it implies such by stating, “perform
your role as an individual contributor in such a manner so that it
sets the bar for others to follow,” “[t]he ability to work more than
40 hours per week as needed to assure completion of work, and
“[w]ork outdoors in all seasons.” The ADA Requirements sec-
tion states, inter alia, frequent use of hands to handle and control
tools; bend or twist of the body when operating equipment; and
operate a fork truck.
No production employees were hired to backfill the unit posi-
tions that the shop supervisors vacated; the expectation was that
they would do less production work.
C. Bargaining
At an early bargaining session, Schroder stated that the Com-
pany was considering promoting unit members into supervisory
positions but named no individuals.
After Rosaci received the posting for the shop supervisors’
positions from an employee at the end of August, he emailed
Bertozzi on September 1 (GC Exh. 27). Referencing the notice,
Rosaci asked if those positions would include performance of
production work and if any of them would assume the duties of
a leadman. Because the Union considered leadmen to be unit
employees, he requested bargaining over the new positions.
Schroder responded on September 6 (GC Exh. 28), stating that
there would be no unilateral change because all supervisors had
always been “working supervisors” and leadmen were not in the
bargaining unit. She contended that the Company was not obli-
gated to bargain over the decision or its effects but would be
willing to discuss tangential items that were bargainable at the
scheduled negotiations on September 15.
At negotiations on September 15, the Company made a pro-
posal on company work (GC Exh. 29), providing that the parties
recognize that no work was exclusively “bargaining unit” work
and that positions outside of the bargaining unit, including stat-
utory supervisors, performed work similar to or identical to the
duties performed by members of the bargaining unit. The Union
rejected this proposal. Rosaci asked for job descriptions of su-
pervisors, which Howe provided. Rosaci also asked how much
shop work the supervisors would be doing. Schroder replied that
she did not know but that the Company had the right to make
supervisors and that, historically, supervisors had done shop
work. Rosaci responded that his information was to the contrary.
38 Inasmuch as their promotions were effective on September 25, their
90-day probationary period would have ended on about December 25,
but this unexplained discrepancy is not material.
At September 25 negotiations, Schroder stated that the Com-
pany was going forward with the promotions. Either at that
meeting or a previous meeting, the Union made a proposal that
limited the work that a supervisor could do to emergency and
certain other special situations, which the parties discussed. In
this meeting, the Company notified Rosaci that, effective imme-
diately, Fess, Garcia, and Norway were promoted and deleted
from the bargaining unit (GC Exh. 30). The Company an-
nounced the promotions in a September 27 email to employees
and a posting outside the cafeteria (GC Exhs. 55, 45), stating that
all three would report directly to Voigt.
Rosaci made an information request on October 10, 2017 (GC
Exh. 32), requesting, inter alia, the names of past supervisors
who performed production work and when they were employed.
Schroder responded on October 24, with a listing of names and
dates (GC Exh. 33 at 3). Former supervisors were Dave Dietrich,
April 2016; Mike Fialokowski, January 1998–October 2005; Ja-
strzab, October 2010–May 2014; Pat Krzysiak (Krzysiak), Au-
gust 2011–March 2016; Jim Phelan, July 1995–November 2005;
and Quarcini, July 2016–June 2017. Current supervisors were
Hoerner, since February 2017; Scheidel, since September 2004;
and Srjan Sikirica (Sikirica), since March 2007.
On an unknown date Rosaci made an oral request for infor-
mation pertaining to the wage rates for the working supervisors.
Bertozzi responded on January 3, 2018 (GC Exh. 31), stating that
upon successful completion of their 90-day evaluation period,
they would be increased from their current hourly rates ($18,
$21.03, and $21.09 per hour) to $24.00 per hour.38 The Union
was never provided an opportunity to bargain over this change
to their wage rates.
D. Unit Work Performed by Other Supervisors
The Respondent contends that the performance of unit work
by the shop supervisors is consistent with past practice, a con-
clusion that the General Counsel disputes.
Former Plant Manager Scheidel testified on direct examina-
tion that he did not observe any of supervisors of the shop per-
form production work through the years, although on cross-ex-
amination he recalled that at the Walden Avenue facility, Super-
visor Sikirica did perform direct labor on the production floor.
He also testified on cross-examination that he has on occasion
seen at least some supervisors drive a forklift on occasion, load
and unload trucks, handle material, read a blueprint, and that Su-
pervisor Krzysiak had assisted workers with assembly work. He
did not know if such work was charged to direct labor. In this
respect, he explained that his understanding of “production”
work was that it was limited to direct labor charged to a cus-
tomer. Therefore, his testimony on direct examination and cross-
examination was not necessarily inconsistent (Jastrzab also tes-
tified that “chargeable labor” meant the same thing as production
work). Further, enhancing his credibility, Scheidel volunteered
that half of Quarcini’s time was supposed to be in the shop and
that Quarcini was “out in the shop a lot.”39
Scheidel also testified on cross-examination that he himself
39 Tr. 583–584.
28 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
operated a forklift and moved material in emergency situations
(when time was of the essence or when employees were busy or
unavailable) and that he understood this to be the case with other
supervisors who were so engaged.
Jastrzab was a plant manager from 2012–2014, first at Mili-
tary Road and then at the facility, supervising about nine shop
employees at each location. He testified that in addition to his
supervisory functions, he worked along the shop employees, pri-
marily doing assembly work. At Military, he performed more
supervisory work because the Company was transitioning the
operation to Walden Avenue. Approximately 60 percent of his
time at Walden was shop, 40 percent supervisory, varying by
date.
The testimony of Howe, Dates, and Hoerner was consistent as
far as Hoerner’s position of warehouse/logistics supervisor, for
which he was hired in February 2017. Dates testified that the
position was created with the intention of having the incumbent
assist the two material handlers (Greiner and McCarthy) with
their jobs because the warehouse operation had grown. Dates
drafted and approved a job description of this new position (R.
Exh. 12). It sets out a range of responsibilities that fall within
Section 2(11) of the Act, and Hoerner’s status as a statutory su-
pervisor is uncontested. Under essential functions, there is
greater description of his supervisory functions. There is also,
“Fork truck operations required,” which is reaffirmed in the
qualifications section. The ADA requirements section lists var-
ious physical requirements, including sitting at least 50 percent
of the time, and frequent body motions such as bending at the
waist and using hands and fingers to grasp and handle objects
and tools.
Dates testified that Hoerner was expected to do the same work
as his subordinates 10–20 percent of the time but that he is now
performing less of such work (about an hour or 10 percent of his
day) because his clerical responsibilities have substantially in-
creased because of a large increase in outgoing shipments. Ho-
erner testified that he has done all the functions that his employ-
ees do, including unloading trucks with forklifts in the parking
lot or dock when they are unavailable. He further testified that
he performs the same kind of work that they do approximately
15–20 percent of the time, on a fairly consistent basis.
E. Fess, Garcia, and Norway
Fess was lead material handler before he became a working
supervisor, loading and unloading trucks and receiving material
in shipping and handling. As material handling supervisor, he
oversees three areas of the building–material handling, paint
booth, and storage area, having a total of about seven employees.
Garcia was an assembler for about 6 or 7 months prior to his
promotion to supervisor over assembly. He first supervised three
to seven assemblers but shortly after the layoff in April 2018,
was given responsibility over fabrication in building 5 and an-
other 10 or so employees (whom Scheidel had previously super-
vised).
Before his promotion, Norway was a fitter/welder in the eFab
department, where he read directions off a computer rather than
using physical blueprints. He now supervises three employees
in eFab.
F. Shop Supervisors as Statutory Supervisors
As a threshold issue, the General Counsel disputes the Re-
spondent’s assertion that Fess, Garcia, and Norway are statutory
supervisors (GC Br. 19, et. seq., 61, et. seq.). The party asserting
supervisory authority bears the burden of establishing such. Bo-
zeman Deaconess Hospital, 322 NLRB 1107, 1107 fn. 4 (1997).
Section 2(11) of the Act defines a supervisor as:
[A]ny individual having the authority, in the interest of the em-
ployer, to hire, transfer, suspend, lay off, recall, promote, dis-
charge, assign, reward, or discipline other employees, or re-
sponsibly to direct them, or to adjust their grievances, or effec-
tively to recommend such action, if in connection with the fore-
going the exercise of such authority is not of a merely routine
or clerical nature, but requires the use of independent judgment.
All three shop supervisors attend regular supervisory meetings
with Voigt, at which Voigt reviews production goals, and they
decide on assignments to particular employees. The supervisors
post these assignments on a white board or convey them orally.
They have the authority to reassign employees. Garcia partners
with Fess in determining where employees should be assigned
between their departments. Employees who want paid time off
go to the shop supervisors for approval of such.
The shop supervisors are involved in the imposition of disci-
pline of employees. In this regard, Garcia has been involved in
four–five disciplines and recently recommended a verbal warn-
ing to an employee for being out of his work area for over 30
minutes, which recommendation Voigt and HR accepted. He
also recommended such a discipline for Rulov for making a ges-
ture that was taken the wrong way by a coworker, which recom-
mendation was also accepted. Fess testified that the decision to
discipline Mark Castilloux (see R. Exh. 23, a written warning
that Fess signed) was a joint one among the shop supervisors.
Norway testified without controversion that he was involved in
a recent coaching issued to Thompson and told Thompson that
he made the decision to issue it.
The shop supervisors have written performance reviews.
Thus, Garcia wrote performance reviews for three assemblers
and presented them to Voigt. In those reviews, he recommended
whether the employee should receive other job duties they had
requested or be put on a performance improvement plan. Nor-
way submitted performance reviews of employees to Voigt, who
made no changes to Norway’s assessment.
Garcia has authority to order tools up to $250 on his own au-
thority if he and the employee feel they are necessary; if the tools
are over that amount, Garcia consults with Voight. As opposed
to when he was a lead, Fess now has access to the computer to
get blueprints.
Prior to their promotions, Fess, Garcia, and Norway wore the
dark blue company shirts worn by production employees. They
now wear tan shirts provided by the Company because Voigt
stated that he wanted them to be more recognizable as supervi-
sors to employees and customers. Initially, Garcia did not have
an office and would go to any workstation in building 4 (assem-
bly) and log in. Now, he shares an office with Voight; his desk
is open to Fess and Norway.
Based on the above, I conclude that Fess, Garcia, and Norway
are statutory supervisors within the meaning of Section 2(11) of
WENDT CORP. 29
the Act, most notably in exercising independent judgement in
assigning and directing unit employees, in initiating disciplinary
actions, and in writing employee evaluations that form the basis
for wage increases.
G. Unit Work Performed by Fess, Garcia, and Norway
Numerous witnesses, both for the General Counsel and for the
Respondent, testified about the duties that the three shop super-
visors (supervisors) perform. Although the accounts of wit-
nesses for the General Counsel and those of witnesses for the
Respondent varied as far as apportionment, almost all witnesses
uniformly testified that the supervisors perform both supervisory
functions and unit work. Determining with precision the break-
down of each activity is not possible. In this regard, Respond-
ent’s Exhibit 14, a summary of their direct and indirect labor
charges through August 2017, does not necessarily reflect all
their unit work; all “direct” entries were for production (unit)
work, but an unknown percentage of the “indirect” entries may
also have been for unit (but nonproduction) work.
Fess
Fess testified in detail and without hesitation, and he made no
apparent efforts to skew his descriptions of his duties. As far as
performing unit work, Fess has helped in every department that
he supervises except that he does not help or unload the burn
table. He still does some of the same work that he did as lead-
man, including using a forklift to load and unload. In this regard,
when asked what types of production work he performs, he an-
swered in detail and without hesitation: at the start, probably 30
percent of his work was shop work; now, it is approximately 50
percent. His direct hours reflected in Respondent’s Exhibit 14
are not necessarily inconsistent with his testimony.
Garcia
As far as performing unit work, when Garcia started as super-
visor, his work was approximately 50 percent supervisory and
50 percent labor. As time went on, he performed more supervi-
sory responsibilities, so that the ratio changed to 70 percent su-
pervisory. Now, about 95 percent is supervisory because of his
being given a greater area of responsibility. The percentages
vary depending on the workload for the week. His direct hours
in Respondent’s Exhibit 14 are not necessarily inconsistent with
his testimony. His assembly work now is primarily light duty
applications, quick jobs taking maybe 5 minutes and maybe not
requiring tools. He has had occasion to work with the 17–18 or
so employees whom he supervises, depending on the volume of
work.
From October 10–December 9, 2017, Muench took notes of
the production work that he observed the shop supervisors, pri-
marily Garcia, performing (GC Exh. 53). He conceded that not
all the times that he recorded were exact. Garcia reviewed
Muench’s notes and testified that some were accurate, but others
were not. He explained that on some days, he has put in 8 hours
of direct labor depending on the workload.
Norway
In terms of performing unit work, Norway testified that he
spends approximately 30 percent of his time doing production
work, fitting product together, but that he no longer does any
welding. General Counsel’s Exhibit 71 on its face contradicts
Norway’s testimony that he did no welding. However, Norway
explained that on the day in question, he was welding a frame-
work for a dry erase production board on which supervisors let
workers know what product they next need to go on—a task re-
lated to his supervisory functions.
Norway also testified that when he first became a supervisor,
his work was 50 percent production work, 50 percent supervi-
sory and that 80 percent of his time is now spent in supervision.
Respondent’s Exhibit 14 supports his testimony that his amount
of production work has decreased but not the percentages that he
gave. It shows that in October 2017, 79.3 percent of his time was
spent on direct labor, and that in August 2018, the figure was
46.47 percent, or almost half. In this regard, Howe testified that
Norway has a smaller group, so he does more direct or produc-
tion work than Fess or Garcia.
Analysis and Conclusions
The General Counsel argues that (1) the promotions of these
three shop employees to shop supervisors in September 2017; (2)
their performance of unit work, without affording the Union an
opportunity to bargain; and (3) their pay raises in January 2018,
violated Section 8(a)(5) and (1) of the Act.
Their Promotions to Shop Supervisors
An employer has the right to select individuals for supervisory
positions and is therefore not obliged to bargain with a union
over promoting unit employees to supervisors. Hampton House,
317 NLRB 1005, 1005 (1995); St. Louis Telephone Employees
Credit Union, 273 NLRB 625, 628 (1984). Therefore, I find no
merit to the allegation that the Respondent violated the Act by
promoting Fess, Garcia, and Norway to “shop supervisors.”
Their Continued Performance of Unit Work
Assignment of work is a mandatory subject of bargaining.
WCCO-TV, 363 NLRB No. 101, slip op. at 2 (2015); Regal Cin-
emas, Inc., 334 NLRB 304, 304 (2001), enfd. 317 F.3d 300 (D.C.
Cir. 2003). Therefore, absent a waiver by a union, an employer
must notify and offer to bargain about removal of bargaining unit
work before it may assign such work to newly created supervi-
sory positions, whether such supervisors are newly hired or pro-
moted from within the unit. University of Pittsburgh Medical
Center, 325 NLRB 443, 443 (1998), enfd. 182 F.3d 904 (3d Cir.
1999), citing Hampton House, 317 NLRB 1005 (1995); see also
Stevens International, 337 NLRB 143, 143 (2001); Regal Cine-
mas, Inc., above at 304 (“[W]e emphasize . . . that the reclassifi-
cation of bargaining unit work to managers or supervisors is a
mandatory subject of bargaining where it has an impact on unit
work.”). The Respondent has not contended any waiver on the
Union’s part; rather, the Respondent contends that supervisors
have always performed unit work and that the current supervi-
sors’ performance thereof is consistent with past practice.
The Respondent’s argument ignores a fundamental difference
between Fess, Garcia, and Norway and previous supervi-
sors/managers who performed what is now bargaining unit
work—in the past, no union represented employees, and no bar-
gaining unit existed from which work could have been removed.
Furthermore, to the extent that Hoerner may continue to perform
30 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
unit work that he performed before the Union was certified, such
work was effectively never in the unit.
Unanimous testimonial and documentary evidence establishes
that Fess, Garcia, and Norway have collectively performed and
continue to perform more than a de minimis amount of bargain-
ing unit work and thus their removal from the bargaining unit has
had a measurable impact on unit work. The exact amount of such
work that they perform vis-à-vis the amount of time they spend
engaged in supervisory function is not the governing factor.
Thus, in Regal Cinemas, ibid, the Board found a violation based
on existing or newly hired managers’ performance of bargaining
unit work and specifically found it unnecessary to address the
respondent’s contention that they were also statutory supervisors
and performing supervisory duties. See also Hampton House,
above.
Accordingly, the Respondent violated Section 8(a)(5) and (1)
of the Act by having Fess, Garcia, and Norway, as shop supervi-
sors removed from the unit perform, continue to perform bar-
gaining unit work, without having afforded the Union the oppor-
tunity to bargain over the removal of that work from unit em-
ployees.
Their Wage Increases
The General Counsel contends that the shop supervisors are
still unit employees and that the Respondent therefore violated
Section 8(a)(5) and (1) by granting them wage increases in Jan-
uary 2018, without affording the Union notice and an oppor-
tunity to bargain. Inasmuch as I have concluded that they were
statutory supervisors, the Respondent was not obliged to bargain
their wages with the Union, and I therefore dismiss this allega-
tion.
Light Duty Allegation—8(a)(5)
A. Garcia
In early December 2017, Supervisor Garcia was injured at
work and was out for about 2 months. His physician provided a
letter of January 18, 2018, stating that Garcia was under his care
for his left foot, and he released Garcia to work light duty with
restrictions, including desk work and ambulation in a cam boot
(see GC Exh. 66). When Garcia returned on about January 29,
2018, he was placed on light duty.
The testimony of various witnesses was almost completely
consistent on what Garcia did during his light duty period. Gar-
cia returned on crutches and with an open-toe boot or shoe and
did not do any direct labor. He performed some of the office
functions that he normally did as a supervisor, handed out paper-
work and wrote assignments on the white board on which job
orders were posted, and received job training in supervisory
functions at a desk in the management team or front office.
After that light duty period, there was a period during which
Garcia transitioned to full regular duty, and he resumed full, un-
restricted duty in about late May (see GC Exh. 57).
General Counsel’s Exhibit 58 reflects that employee Kevin
Farley (Farley) was injured in approximately March 2018 and
placed in “light duty activities.”
40 Tr. 1661.
B. Bargaining Over Light Duty
Rosaci learned that Garcia was on light duty. Rosaci under-
stood that the Company did not allow employees to work light
duty, and he made a request for information concerning light
duty assignments in the last 3 years (GC Exh. 36, dated January
18, 2018). Schroder replied on January 23 (GC Exh. 37), stating
that there were no responsive documents and that the “collective
memories” of the client could not recall any light duty assign-
ments within the requested time frame.
Bertozzi admitted that at some point in negotiations, Rosaci
asked about light duty, and Bertozzi replied, “[W]e don’t have
light duty.”40 Bertozzi testified that he was mistaken, “But I
can’t remember the context and, frankly, it doesn’t come up very
frequently. I don’t know what I was thinking . . . .”41 He averred
that he could not remember how he discovered that he had been
wrong. I find peculiar his testimony that he mistakenly made
such a statement off the cuff without any foundation, as well as
his convenient lack of recall of when he learned of his error.
In any event, the Respondent never afforded the Union an op-
portunity to bargain over the conditions of Garcia’s return to
work or his being placed on light duty.
C. Other Employees
Despite Bertozzi’s statement, the Respondent submitted rec-
ords showing that HR has documented employees for whom
light duty work has been directed (R. Exhs. 28–33), as follows.
Greiner strained his back on the job in September 2015 and
received a medical note putting him on medical restriction for a
week or two as to lifting (15 pounds) (see R. Exh. 29). The lift-
ing on his regular job was 50 pounds. Greiner’s testimony im-
plicitly confirmed that he was placed on light duty. Thus, he
brought the note to Dates but did not request light duty because
he knew no such positions were available. Nonetheless, he was
assigned to shipping/receiving for that period and did not lift
over 15 pounds.
Fess strained his groan and back area on the job on November
2015 (see R. Exh. 30). His physician placed him on light duty
(not to lift over 5 pounds) for a week. Fess’ testimony confirmed
that he was placed on light duty; as per his supervisor’s direction,
he was not put on the forklift during that period.
Farley was placed on light duty in September 2016, and two
other shop employees were placed on light duty in June 2014 and
December 2016, respectively.
Domaradski and Thompson testified about instances when
they were not given light duty. Domaradski suffered whiplash
from a car accident in 2010, as a result of which his doctor put
him on a lifting restriction. However, then Manager Mike
Muench (Muench’s father) told him that there was no light duty
at the Company. Domaradski believes that could have done pa-
perwork in the office.
Thompson was injured in 2009 and out of work for 10 months.
He was released to work with restrictions, but HR told him that
he could not come back to work until he was 100 percent able to
do his job–pick up 50 pounds, kneel, bend, and weld. There were
no other available jobs that he could have done with those
41 Tr. 1670.
WENDT CORP. 31
physical restrictions; however, he believes that he could have
driven a forklift.
Analysis and Conclusions
Light-duty assignments are a mandatory subject of bargain-
ing. Jones Dairy Farm, 295 NLRB 113, 115 (1989); see also
Industria Lechera De Puerto Rico, Inc., 344 NLRB 1075 (2005).
The General Counsel contends that the Respondent unilaterally
changed its policy concerning light duty work assignments when
it placed Supervisor Garcia on light duty in late January 2018.
Company records produced at trial show that HR documented
medical requests for employees to be placed on light duty re-
strictions in 2014–2016, and Fess and Greiner confirmed that
they were placed on light duty in September and November
2015, respectively.
The General Counsel contends (GC Br. at 36 fn. 53) that the
fact that HR directed that employees be put on light duty did not
establish that they in fact were. However, there is a normal pre-
sumption that supervisors would carry out HR’s directives, in the
absence of any reason to believe otherwise, and no evidence was
offered to the contrary.
Domaradski and Thompson testified about instances when
they were refused light duty, in 2010, and 2009, respectively, but
the General Counsel provided no evidence to show any denials
of light duty in the years since then.
In sum, the General Counsel has not shown that there was in
fact a unilateral change in light duty policy when Garcia (or Far-
ley) were placed on light duty. That being the case, the Respond-
ent had no bargaining obligation. In any event, Garcia was in a
different situation when he was placed on light duty in that he
was no longer a rank-and-file employee but in a supervisory role,
and his light duties all involved supervisory functions or further
training in them. Therefore, I find no merit to this allegation.
Mandatory Overtime—8(a)(5)
At negotiations on September 15, 2017, the Union made pro-
posals for overtime pay (GC Exh. 24), including the provision
that no discipline be imposed on any employee for refusing to
work overtime. At the September 20 bargaining session, the
Company countered on that provision with, “Overtime needed
by the Company shall be mandatory, with volunteers (qualified
by classification) taken first, and mandated if insufficient to fill
need. . . .” At the next session, on about September 29, Rosaci
asked if the Company had mandatory overtime, to which
Schroder said no but that the Company wanted such a provision
in a collective-bargaining agreement. Domaradski recalled her
talking about mandatory overtime at one of those sessions in the
context of the Company being very busy.
At all times material, Greiner and McCarthy were the ware-
house shipping and receiving clerks supervised by Warehouse
Supervisor Hoerner (Greiner resigned on September 11, 2018).
Greiner worked for the Company for about 6 years; McCarthy
has been employed for about 11 years.
Company policy is that overtime is strictly voluntary. Super-
visors ask employees if they want to work overtime, and record
on an overtime request form whether they accept or do not ac-
cept. Some employees generally do not choose to work over-
time.
Consistent with this, there is no dispute that prior to approxi-
mately late November 2017, any overtime that Greiner and
McCarthy worked was solely on a voluntary basis. Their regular
hours were 7 a.m. to 3:30 p.m. FedEx trucks could come after
3:30 p.m., and management expected that they would be serviced
(see R. Exh. 22, a notice posted in the shipping and receiving
office). Greiner, McCarthy, and Hoerner would decide among
themselves who would stay late and unload them. If necessary,
Hoerner “borrowed” Material Handler Dave Wilhelm or another
shop employee to do this. If the workload necessitated overtime,
Greiner and McCarthy had the option of coming in early or leav-
ing late, thereby working overtime on a voluntary basis. Greiner
turned down overtime offers from Hoerner and was never disci-
plined as a result. No employee in shipping and receiving has
ever been disciplined for turning down an overtime offer.
The only occasion prior to late 2017 when McCarthy was told
that he was required to work overtime was at the Military Road
facility about 7 years ago. At that time, Supervisor Robert
Trzecki (Trzecki) told McCarthy and the other shipping and re-
ceiving clerk that starting the following Saturday, they would
have to work overtime or be fired. McCarthy complained to
Bertozzi, and Trzecki rescinded his directive.
Greiner testified that in November 2017, Manager Dates and
Supervisor Hoerner told him and McCarthy in the shipping and
receiving office that they would be on indefinite mandatory over-
time and that the Company did not know when it would end.
They said that Greiner and McCarthy could continue to come in
on their regular starting time of 7 a.m. but needed to work until
4:30 p.m. instead of 3:30 p.m. In approximately the third week
in December, Dates and Hoerner met with them in the same of-
fice. Dates stated that they were caught up and the season was
ending, so their mandatory overtime was ending.
McCarthy’s account differed somewhat in details but not in
gist. Thus, he testified that in approximately November or De-
cember 2017, in the shipping and receiving office, Hoerner in-
formed them that Dates had told him that they be would be work-
ing overtime immediately, starting the next day, until the back-
log of work was completed. They had discretion when they
would perform the overtime, and they worked approximately 30
extra hours a week for about 3 weeks. At the end of that period,
Hoerner stated that they no longer needed to work mandatory
overtime.
Neither Dates nor Horner specifically addressed the accounts
of Greiner or McCarthy concerning the imposition of mandatory
overtime in November–December 2017, and I find that they
were both required to work overtime daily during that period.
Rosaci was never informed that shipping and receiving or any
other employees were going to be required to work mandatory
overtime; he learned of this after the fact from Greiner.
Analysis and Conclusions
Institution of mandatory overtime is a mandatory subject of
bargaining. Michigan Sprinkler Co., 308 NLRB 1329 (1992);
see also Highland Superstores, 301 NLRB 199 (1991). As I
stated earlier, the Respondent had an obligation to not implement
changes absent an overall impasse on bargaining. See the cases
I cited regarding the layoffs.
The Respondent’s second answer (GC Exh. 1(a)(a)) admits
32 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the imposition of mandatory overtime in the shipping and receiv-
ing department but contends that it was consistent with past prac-
tice. The evidence does not support this conclusion. Company
policy is that overtime is on a voluntary basis, and this was the
practice in shipping and receiving prior to about late November
2017. At negotiations on about September 29, 2017, Schroder
stated that the Company wanted a mandatory overtime provision
in a collective-bargaining agreement, but no such provision was
ever negotiated.
In about late November 2017, Manager Dates and/or Supervi-
sor Hoerner told Greiner and McCarthy that, starting immedi-
ately, they both would have to work overtime because of a back-
log until they were caught up. They in fact did so for several
weeks. Prior to this, the Respondent never gave the Union notice
or an opportunity to bargain.
Based on the above, I conclude that the Respondent violated
Section 8(a)(5) and (1) by imposing mandatory overtime on
Greiner and McCarthy without first affording the Union notice-
and an opportunity to bargain.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. By the following conduct, the Respondent has engaged in
unfair labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act and violated Section 8(a)(1) of
the Act.
(a) Interrogated an employee about his union sympathies, in
September 2017.
(b) Gave employees the impression of surveillance of their
union activities and sympathies, in September 2017 and in Janu-
ary 2018.
(c) Informed or implied to employees that employees who
supported the Union would be laid off, in January 2018.
(d) Threatened or implicitly threatened employees with re-
prisals if they supported the Union or showed support for the
Union, in January and April 2018.
(e) Denied an employee’s request for union representation at
an interview that the employee reasonably believed could result
in discipline, and conducted the interview, in October 2017.
4. By the following conduct, the Respondent has engaged in
unfair labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act and violated Section 8(a)(3) and
(1) of the Act.
(a) Suspended Dennis Bush in December 2017.
(b) Assigned William Hudson to the saw in April–June 2018.
(c) Refused to give Hudson overtime during that period.
(d) Failed to provide annual performance reviews and accom-
panying wage increases to shop employees consistent with past
practice, from about October 2017–April 2018.
(e) Laid off shop employees in February 2018.
5. By the following conduct, the Respondent has engaged in
unfair labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act and violated Section 8(a)(5) and
(1) of the Act.
(a) Exercised discretion in imposing discipline without
affording the Union notice and an opportunity to bargain, in Oc-
tober and December 2017.
(b) Failed to afford the Union an opportunity to bargain over
providing annual performance reviews from about October
2017–April 2018;
(c) Failed to afford the Union an opportunity to bargain over
wages increases, since May 2018.
(d) Failed and refused to provide the Union with information
that it requested that was relevant to annual performance re-
views, since May 2018.
(e) Failed and refused to afford the Union notice and an op-
portunity to bargain over the layoffs of February 2018.
(f) Removed bargaining work from the unit and transferred it
to supervisors without affording the Union prior notice and an
opportunity to bargain, in September 2017.
(g) Required employees to work overtime without affording
the Union notice and an opportunity to bargain, in about late No-
vember 2017.
REMEDY
Because I have found that the Respondent has engaged in cer-
tain unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to ef-
fectuate the policies of the Act.
The Respondent having denied shop employees timely perfor-
mance evaluations and concomitant wage increases in violation
of Section 8(a)(3) and (5); laid off 10 shop employees in viola-
tion of Section 8(a)(3) and (5); suspended Dennis Bush in viola-
tion of Section 8(a)(3) and (5); changed the assignment of Wil-
liam Hudson and denied him overtime in violation of Section
8(a)(3); and suspended John Fricano in violation of Section
8(a)(5), must make them whole for any loss of earnings and other
benefits suffered as a result of these actions.
Specifically, the Respondent shall make those employees
whole for any losses, earnings, and other benefits that they suf-
fered as a result of those actions. 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 Horizons,
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 laid off employees for
search-for-work and interim employment expenses regardless of
whether those expenses exceed her interim earnings. Search-for-
work and interim employment expenses shall be calculated sep-
arately from taxable net backpay, with interest at the rate pre-
scribed in New Horizons, supra., compounded daily as pre-
scribed in Kentucky River Medical Center, supra. In accordance
with Don Chavas, LLC d/b/a Tortillas Don Chavas, 361 NLRB
101 (2014), the Respondent shall compensate them for the ad-
verse tax consequences, if any, of receiving a lump sum backpay
award, and, in accordance with AdvoServ of New Jersey, 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 3 a
report allocating backpay to the appropriate calendar year for
each employee. The Regional Director will then assume respon-
sibility for transmission of the report to the Social Security
WENDT CORP. 33
Administration at the appropriate time and in the appropriate
manner.
The Respondent shall expunge from its records any and all
references to the suspensions of Dennis Bush and John Fricano
and remove the language in Dmytro Rulov’s 2018 evaluation
that he should focus on work.
The Respondent shall bargain in good faith, on request by the
Union, on performance evaluations and wage increases, layoffs
and recalls, overtime, and removal of unit work.
The Respondent shall afford employees union representation,
on their request, before conducting interviews that the employ-
ees reasonably believe could result in discipline.
The Respondent shall provide the Union with information that
it requests that is necessary and relevant to its functions as col-
lective-bargaining representative.
Inasmuch as the unilateral change in overtime was discontin-
ued, and the other changes do not lend themselves to rescission,
I will not order such as an affirmative remedy.
The General Counsel requests that I order an extension of the
1-year certification year because the Respondent violated its stat-
utory bargaining obligations (GC Br. 84, et. seq.).
Section 9(c)(3) of the Act bars a petition filed within 12
months from the date of the last election, to ensure the parties a
reasonable time in which to bargain without outside interference
or pressure, such a rival petition; absent unusual circumstances,
an employer is required to honor a certification for a period of 1
year. Mar-Jac Poultry Co., 136 NLRB 786 (1962), citing
Brooks v. NLRB, 348 U.S. 96, 101–103 (1954). In Mar-Jac, the
Board held that the certification year should be extended for a
period of at least 1 year of actual bargaining where an employer
failed or refused to bargain in good faith with the union during
that 1-year period. The Board has further held that the certifica-
tion year should be extended in cases in which the employer has
engaged in pervasive and extensive illegal practices that com-
menced at the outset of bargaining. Honda, 321 NLRB 482, 483
(1996), citing Thill, Inc., 298 NRLB 669 (1990), enfd. in relevant
part 980 F.2d 1137 (7th Cir. 1992).
In determining whether the record supports the need for a
Mar-Jac remedy and the appropriate length of an extension, the
Board examines “the nature of the violations; the number, extent,
and dates of the collective-bargaining sessions; the impact of the
unfair labor practices on the bargaining process; and the conduct
of the union during negotiations.” Mercy, Inc., 346 NLRB 1004,
1005 (2006), citing Northwest Graphics, Inc., 342 NLRB 1288,
1289 (2004), and Metta Electric, 338 NLRB 1059, 1065 (2003),
enfd. in relevant part 360 F.3d 904, 912–913 (8th Cir. 2004).
In St. George Warehouse, Inc., 341 NLRB 904, 909 (2004),
the Board reversed the judge and found that a 1-year extension
of the certification year was not warranted where the employer
had made unilateral changes and failed to furnish information but
had not engaged in surface bargaining. The Board concluded
that these violations had not tainted the parties’ negotiations.
Further, in Cortland Transit, Inc., 324 NLRB 372, 372 (1997)
the Board denied a Mar-Jac remedy where the employer had not
only made unilateral changes and failed to provide information
42 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
but had also engaged in violations of 8(a)(3) by withholding and
refusing to grant regularly scheduled wage increases and by is-
suing a written warning to an employee. The Board concluded
that there was no general allegation that the Respondent had
failed or refused to recognize the Union or to meet and bargain
with the Union in good faith following its certification, and no
indication that the unfair labor practices had affected the parties’
negotiations. Finally, in American Rubber and Plastics Corp.,
200 NLRB 867, 876–877 (1972), a Marc-Jac extension was
found unwarranted despite (a) numerous violations of Section
8(a)(1), including, inter alia, interrogation, threats, promises of
benefits, and giving the impression of surveillance; (b) 8(a)(3)
discharges, transfers, and withholding of a Christmas bonus; and
(c) 8(a)(5) withholding of that bonus.
In sum, the number and range of unfair labor practices that a
respondent has committed are not dispositive; rather, there must
be a showing that those unfair labor practices undermined the
bargaining process to the extent that meaningful bargaining was
precluded.
There is no allegation here that the Respondent failed or re-
fused to recognize the Union or to meet with it after its certifica-
tion, or engaged in surface bargaining. Indeed, the parties first
met for negotiations the month following certification in June
2017, and have met approximately 36 times. No impasse has
been declared. The Respondent, although failing in its obligation
to bargain over a number of unilateral changes, did discuss vari-
ous subjects in depth and did provide a considerable amount of
information that the Union requested.
In these circumstances, I deny the General Counsel’s request
for an extension of the 1-year certification year.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended42
The Respondent, Wendt Corporation, Cheektowaga, New
York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discriminating against employees for their support of
Shopmen’s Local Union No. 576 (the Union) by: (1) laying them
off, (2) delaying their performance reviews and wage increases,
(3) suspending them, (4) assigning them to undesirable work, (5)
denying them overtime, or (6) or taking any other adverse action
against them.
(b) Interrogating employees about their union sympathies.
(c) Giving employees the impression of surveillance of their
union activities and sympathies.
(d) Informing or implying to employees that employees who
support the Union will be laid off.
(e) Threatening or implicitly threatening employees with re-
prisals if they support or show support for the Union.
(f) Denying employees’ requests for union representation at
interviews that they reasonably believe can result in discipline,
and then conducting such interviews.
(g) Failing and refusing to bargain collectively with the Union
by laying off employees, removing unit work and assigning it to
supervisors, delaying performance reviews and wage increases,
imposing disciplinary discipline, mandating overtime, or
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all purposes.
34 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
implementing other terms and conditions of employment with-
out affording the Union notice and an opportunity to bargain.
(h) Failing and refusing to bargain collectively with the Union
by laying off employees, removing unit work and assigning it to
supervisors, delaying performance reviews, imposing discipli-
nary discipline, mandating overtime, or implementing other
terms and conditions of employment when the parties are en-
gaged in negotiations for a collective-bargaining agreement and
have not reached an overall good faith impasse.
(i) Failing and refusing to provide the Union with information
that it requests that is relevant and necessary to its performance
of its duties as collective-bargaining representative.
2. Take the following affirmative action necessary to effectu-
ate the policies of the Act.
(a) Make employees who were not timely provided their an-
nual performance evaluations and wage increases, laid off em-
ployees, and Dennis Bush, and William Hudson whole for any
loss of earnings and other benefits suffered as a result of the dis-
crimination against them in the manner set forth in the remedy
section of the decision.
(b) Make John Fricano whole for any loss of earning and other
benefits suffered as a result of his unlawful suspension in the
manner set forth in the remedy section of this decision.
(c) Within 14 days from the date of the Board’s Order, re-
move from its files any reference to the unlawful suspensions of
Dennis Bush and John Fricano, and within 3 days thereafter no-
tify them in writing that this has been done and that the suspen-
sions will not be used against them in any way.
(d) Within 14 days from the date of the Board’s Order, re-
move from Dmytro Rulov’s 2018 evaluation the language that
he should focus on work, and within 3 days thereafter notify him
in writing that this has been done.
(e) Bargain in good faith with the Union as the exclusive rep-
resentative of all full-time and regular part-time janitors, weld-
ers, machine operators, maintenance mechanics, fitters, assem-
blers, painters, machinists, leadmen and shipping and receiving
clerks, concerning terms and conditions of employment and, if
an understanding is reached, embody the understanding in a
signed agreement.
(f) Notify and on request, bargain with the Union before im-
plementing any changes in wages, hours, or other terms and con-
ditions of employment.
(g) Bargain with the Union on the retroactivity of pay in-
creases conferred in 2018.
(h) Provide the Union with the information that it requested
since on about May 24, 2018, regarding the dates of performance
reviews and wage increases to nonunit employees.
(i) 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 records,
timecards, personnel records and reports, and all other records,
including an electronic copy of such records if stored in
43 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the National
Labor Relations Board” shall read “Posted Pursuant to a Judgment of the
electronic form, necessary to analyze the amount of backpay due
under the terms of this Order.
(j) Within 14 days after service by the Region, post at its fa-
cility in Cheektowaga, New York, copies of the attached notice
marked “Appendix.”43 Copies of the notice, on forms provided
by the Regional Director for Region 3, after being signed by the
Respondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in conspic-
uous places including all places where notices to employees are
customarily posted. In addition to physical posting of paper no-
tices, notices shall be distributed electronically, such as by email,
posting on an intranet or an internet set, and/or other electronic
means, if the Respondent customarily communicates with its em-
ployees by such means. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during the pen-
dency of these proceedings, the Respondent has gone out of busi-
ness or closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a copy of
the notice to all current employees and former employees em-
ployed by the Respondent at any time since September 1, 2017.
(k) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint be dismissed inso-
far as it alleges violations of the Act not specifically found.
Dated, Washington, D.C. February 15, 2019
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
Shopmen’s Local Union No. 576 (the Union) is the exclusive
representative of a unit consisting of our full-time and regular
part-time janitors, welders, machine operators, maintenance me-
chanics, fitters, assemblers, painters, machinists, leadmen, and
shipping and receiving clerks.
WE WILL NOT discriminate against you for your support of the
Union by (1) laying you off, (2) delaying your performance
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
WENDT CORP. 35
reviews and wage increases, (3) suspending you, (4) assigning
you to undesirable work, (5) denying you overtime, or (5) taking
any other adverse action against you.
WE WILL NOT interrogate you about your union sympathies,
give you the impression of our surveillance of your union activ-
ities and sympathies, inform or imply to you that employees who
support the Union will be laid off, or threaten you with reprisals
if you support or show support for the Union.
WE WILL NOT deny your requests for union representation at
interviews that you reasonably believe can result in discipline,
and then conduct such interviews.
WE WILL NOT lay you off, remove unit work and assign it to
supervisors, conduct performance reviews, impose disciplinary
discipline, mandate overtime, or implement other terms and con-
ditions of employment without affording the Union notice and
an opportunity to bargain.
WE WILL NOT lay you off, remove unit work and assign it to
supervisors, conduct performance reviews, impose disciplinary
discipline, mandate overtime, or implement other terms and con-
ditions of employment when we are engaged in negotiations for
a collective-bargaining agreement and have not reached an over-
all good faith impasse.
WE WILL NOT fail and refuse to bargain with the Union over
the retroactivity of wage increases.
WE WILL NOT fail and refuse to provide the Union with infor-
mation that it requests that is relevant and necessary to its per-
formance of its duties as your collective-bargaining representa-
tive.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights listed above.
WE WILL make laid off employees; employees who did not
timely receive their performance reviews and pay increases;
Dennis Bush, who was suspended; and William Hudson, who
was assigned undesirable work and denied overtime, whole for
any loss of earnings and other benefits suffered as a result of our
discrimination against them in the manner set forth in the remedy
section of the decision.
WE WILL make John Fricano whole for any loss of earnings
and other benefits suffered as a result of his unlawful suspension
in the manner set forth in the remedy section of the decision.
WE WILL within 14 days from the date of the Board’s Order,
remove from our files any references to the unlawful suspensions
of Dennis Bush and John Fricano, and within 3 days thereafter
notify them in writing that this has been done and that the sus-
pensions will not be used against them in any way.
WE WILL remove from Dmytro Rulov’s 2018 evaluation the
language that he should focus on work, and within 3 days there-
after notify him in writing that this has been done.
WE WILL bargain in good faith with the Union as the exclusive
representative of the unit described above, concerning terms and
conditions of employment and, if an understanding is reached,
embody the understanding in a signed agreement.
WE WILL notify and, on request, bargain with the Union before
implementing any changes in wages, hours, or other terms and
conditions of employment.
WE WILL bargain with the Union on the retroactivity of pay
increases conferred in 2018.
WE WILL provide the Union with the information that it re-
quested since on about May 24, 2018, regarding the performance
reviews and wage increases of nonunit employees.
WENDT CORPORATION
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/03-CA-212225 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.