Engineered Plastic Components, Inc.

National Labor Relations Board - Administrative Judge Opinions

Aug 10, 2004

18-CA-017003 (N.L.R.B. Aug. 10, 2004)

JD–71–04
Grinnell, IA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES

ENGINEERED PLASTIC COMPONENTS, INC.

and Cases 18–CA–17003
18–CA–17008
INTERNATIONAL UNION, UNITED AUTOMOBILE, 18–CA–17013
AEROSPACE & AGRICULTURAL WORKERS OF 18–CA–17027
AMERICA – UAW 18–CA–17033
18–CA–17055
18–CA–17060
18–CA–17139
18–CA–17140
18–CA–17160

ENGINEERED PLASTIC COMPONENTS, INC.

and 18–CA–17164

INTERNATIONAL UNION, UNITED AUTOMOBILE,
AEROSPACE & AGRICULTURAL IMPLEMENT WORKERS
OF AMERICA – UAW

Florence I. Brammer, Esq., Counsel
for the General Counsel.

Reza Kargarzadeh, President, of Grinnell, Iowa,
(John D. Meyer, Esq., and Jay D. Isenberg, Esq.,
of Blankenship & Associates LLC, Greenwood,
IN, on the brief), for Respondent.

Dennis C. Walker, International Representative,
of Des Moines, Iowa, for the Charging Party.

DECISION

Findings of Fact and Conclusions of Law

Benjamin Schlesinger, Administrative Law Judge. With the attempt of its employees to
organize for the International Union, United Automobile, Aerospace & Agricultural Implement
Workers of America – UAW (Union), Respondent Engineered Plastic Components, Inc.
commenced, the complaint alleges, a campaign to rid itself of the Union’s leaders. It succeeded
in doing so, using unlawful, pretextual, and some blatantly false reasons to sustain its many
discharges. Then it contracted for employees from an employment agency, in part because it
needed workers to replace those it illegally discharged. Finally, it invoked an attendance and
tardiness rule, long disregarded, to discharge numerous other employees. I conclude that

JD–71–04

5

10

15

20

25

30

35

40

45

50
2

Respondent violated Section 8(a)(3), (5), and (1) of the Act in all the major respects as alleged
in the three complaints.1

At all material times, Respondent, an Iowa corporation, has been engaged in custom
plastic injection molding for appliance, automotive, and agricultural companies at its facility
located in Grinnell, Iowa; and during the year ending February 20, 2004, a representative
period, Respondent purchased and received at its Grinnell facility products, goods, and services
valued in excess of $50,000 directly from points outside Iowa. I conclude, as Respondent
admits, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and
(7) of the Act. I also conclude, as Respondent admits, that the Union has been a labor
organization within the meaning of Section 2(5) of the Act.

On September 11, 2003,2 the Union filed its petition for an election of employees, and
Respondent stipulated to an election in the following unit:

All full-time and regular part-time maintenance employees, press operators,
quality auditors, process technicians, mold technicians, mold setters, material
handlers, auxiliary employees, janitors, and shipping and receiving employees
employed by Respondent at its 1408 Zimmerman Drive South, Grinnell, Iowa
facility: but excluding all office clerical employees, sales employees,
subcontractors, independent contractors, casual employees, seasonal
employees, temporary employees, professional employees, managerial
employees, confidential employees, guards and supervisors as defined in the
Act, and all other persons employed by Respondent.

The election was held on October 24, 2003, before which Respondent terminated six supporters
of the Union. The Union won the election and was certified as the unit’s representative on
October 31.

The Termination of Two of the Principal Union Organizers

Reza Kargarzadeh, Respondent’s president, terminated Danny Warndorf on September
10. Previously, Warndorf had never been warned, verbally counseled, or reprimanded. His work
had never been criticized, but instead had been complimented by his lead operator, Jessica
Enlow, an admitted supervisor. He had never missed a day of work and had never been tardy.
Kargarzadeh, although admitting that he knew that there was union activity on September 9,
denied that he was aware of any specific employees who were involved. What were his reasons
for the discharge? He had gone into the facility and Enlow mentioned that Warndorf was making
“several people [including herself] feel uncomfortable.” Warndorf had “approached her with
questions and requests and she has told him that she is not interested, that Danny has gone
back to her several more times and so she felt very uncomfortable with that and that’s – you
1 The charges in these Cases were filed by the Union on the following dates: 18–CA–17003,
September 11, 2003; 18–CA–17008, September 15, 2003; 18–CA–17013, September 23, 2003; 18–CA–
17027, October 2, 2003; 18–CA–17033, October 3, 2003; 18–CA–17055, October 23, 2003; 18–CA–
17060, October 28, 2003; 18–CA–17139, January 7, 2004, and amended on February 9, 2004; 18–CA–
17140, January 7, 2004, and amended on February 9, 2004; 18–CA–17160, January 20, 2004, and
amended on February 9, 2004; and 18–CA–17164, January 27, 2004. Complaints issued on December
16, 2003, and February 9 and 20, 2004. This case was tried in Grinnell, Iowa, on February 18–19 and
March 22–24, 2004. The General Counsel’s unopposed motion to withdraw paragraphs 5(a), (j), and (r) of
the complaint in Case 18–CA–17003 is granted.
2 All dates are in 2003, unless otherwise indicated.

JD–71–04

5

10

15

20

25

30

35

40

45

50
3

know, our company policy that’s very clear.” She “felt very uncomfortable because of the
repeated request on the production floor [to sign union cards] . . . he has approached her on the
production floor repeatedly asking her against her will to do something. . . . [P]er our company
policy we met with Danny and he was terminated because that is a form of harassment.”

Kargarzadeh’s own explanation acknowledges that, at least when Enlow complained to
him, he had to know that Warndorf was a Union supporter. After all, Warndorf was allegedly
harassing her to sign a union authorization card, so he must have been a Union supporter. In
fact, Enlow denied Kargarzadeh’s testimony completely. Rather than complaining about him,
she had just recommended him for a promotion on September 8, and the promotion was denied
on September 9, the day before Kargarzadeh fired Warndorf. As to Warndorf’s attitude, she
categorically denied that she registered a complaint with management about Warndorf’s
behavior, and specifically denied that she was made to feel uncomfortable because of
repeatedly being asked by Warndorf to join the Union. Rather, it is evident that Kargarzadeh’s
testimony was patently false, not only about her complaints but also about his knowledge.
Indeed, on September 7 or 8, Kargarzadeh approached Enlow with the names of two
employees, Warndorf and John Vileta, wanting to know “if they were part of the [U]nion,” to
which she replied, “You need to go ask them themselves.” According to Enlow, Kargarzadeh
was not “happy” with her response. “He didn’t yell or anything. You could just tell by his facial
expression.”

In fact, Enlow, although her testimony was not favorable to Respondent, tried to shield
herself from an even more devastating admission. Kargarzadeh asked Molly White, a lead
operator, but not a supervisor, just before Warndorf was terminated, whether she had heard of
any talk about the Union. When she replied that she had, he asked for the names of the people
who were talking about it, to which she said that she was not comfortable telling him that. He
asked for the reasons that the employees were promoting a union, and she gave him some. He
then tried to pin down who the leaders were: in which section (not A,3 she replied), and whether
male or female (male, she replied). Those answers were accurate for Warndorf. He then asked
her to tell that person that he would like to talk to him. She said that she would do that; but then
he said “No, never mind” and asked that she not repeat this conversation with anyone. Just
before this interrogation, Kargarzadeh had talked to Enlow, who admitted to White later that
morning that she had had the same conversation with Kargarzadeh that White had and had told
him that Warndorf had started the Union drive. I find White’s testimony credible and that Enlow
was trying to shield her complicity in Warndorf’s discharge.

I further find that Kargarzadeh’s reason for terminating Warndorf was false and that his
true reason for discharging Warndorf was that he opposed to the Union organizing campaign.
Warndorf’s credible testimony about his discharge demonstrates this unlawful motive.
Kargarzadeh told him: “We’ve had employees approach us about the activity you’re involved in.
They are very uncomfortable with the activity you’re involved in and we – they approached us,
we did not approach them about the activity you’re involved in.” He ended by saying that he did
not need that kind of trouble at Respondent and for this reason he was terminating Warndorf.
The “activity” that Warndorf was engaged in was soliciting support for the Union, and that was
the reason that he was terminated. Warndorf’s denial that he ever persisted in approaching or
talking to anyone after anyone had expressed a desire for him to stop and that no one ever
expressed a desire for him not to talk to them about anything was entirely credible. I conclude
that Respondent violated Section 8(a)(3) and (1) of the Act. I also conclude that Kargarzadeh’s
statement articulating that Warndorf’s union and protected activity was the reason for his
3 Respondent’s manufacturing facility is divided into three sections: A, B, and C.

JD–71–04

5

10

15

20

25

30

35

40

45

50
4

termination is, in itself, a violation of Section 8(a)(1), because of its likely chilling effect on
Warndorf’s exercise of his Section 7 rights, Owens Corning Fiberglas Co., 236 NLRB 479, 480–
481 (1978), as well as a demonstration of Kargarzadeh’s union animus. Mediplex of Danbury,
314 NLRB 470, 472 fn. 8 (1994).

I also find that, because of his patent fabrication of his conversation with Enlow, as well
as Union animus and otherwise incredible testimony in an attempt to support Respondent’s
defense, Kargarzadeh is unworthy of belief. In making this and other credibility findings, I have
fully reviewed the entire record and carefully observed the demeanor of all the witnesses. I have
also taken into consideration the apparent interests of the witnesses; the inherent probabilities
in light of other events; corroboration or the lack of it; and the consistencies or inconsistencies
within the testimony of each witness and between the testimony of each and that of other
witnesses with similar apparent interests. Testimony inconsistent with or in contradiction to that
upon which my factual findings are based has been carefully considered but discredited. See,
generally, NLRB v. Walton Mfg. Co., 369 U.S. 404, 408 (1962).

Where necessary, however, I have set forth the precise reasons for my credibility
resolutions, bearing in mind the oft-quoted and valuable advice: “It is no reason for refusing to
accept everything that a witness says, because you do not believe all of it; nothing is more
common in all kinds of judicial decisions than to believe some and not all.” NLRB v. Universal
Camera Corp., 179 F.2d 749, 754 (2d Cir. 1950). That has been applied in this Decision, but not
to Kargarzadeh, for obvious reasons. I thus have not credited him at all, except when he
testified against the interests of Respondent or when his testimony was corroborated by
unimpeachable sources or when an employee testifying against Respondent related alleged
facts that were inherently improbable. There are some misstatements of fact that weigh more
heavily in my consideration, being purposeful rather than merely reflecting a misunderstanding
of events. In such instances, I have found the very opposite of what Kargarzadeh testified to,
NLRB v. Walton Mfg. Co., 369 U.S. at 408, disbelieving him utterly. I had no better impression
of the credibility of most of Respondent’s witnesses, as will be discussed below. In particular, I
note that Kargarzadeh represented Respondent at the hearing and called as his witnesses
principally his employees, who were beholden to him for their jobs. My sense is that they
answered his questions, often leading, in the manner that he expected his employees to
answer, and not because they were being truthful.

On the other hand, contrary to the arguments raised in Respondent’s brief, I found the
witnesses called by the Counsel for the General Counsel to be honest, sincere, and credible.
Admittedly, there were some dates that were not recalled with precision, and some other very
minor inconsistencies, but not purposeful, and not enough to discredit them completely. In
addition, Respondent makes several contentions that certain of her witnesses were not called to
corroborate other testimony. I found none of those arguments persuasive, because the proof in
the record was sufficient and did not require any corroboration from the General Counsel. To
the contrary, Respondent’s defense was weak, because many of its supervisors never testified,
and those who did were not particularly compelling.

Kargarzadeh’s conversation with White demonstrates that he was aiming his sights on
Vileta, as well as Warndorf, two of the three leaders of the Union campaign. (The third, Justin
Conn, was caught smoking on the job and was fired on September 22.)4 And, in fact, once
Continued
4 The Regional Office, apparently believing his investigatory affidavit that he was not smoking,
alleged in the original complaint that he was unlawfully discharged. At the hearing, Conn admitted that he
was smoking; and the General Counsel moved to remove his name as an alleged discriminatee. I granted

JD–71–04

5

10

15

20

25

30

35

40

45

50
5
_________________________
Warndorf was fired, Vileta was the next to go. Vileta, an employee with an “outstanding”
evaluation, was terminated on Friday, September 12, for not calling in prior to his shift on
September 11. His termination notice recited that he had called in at about 1 p.m., well after his
shift had started. However, Vileta had a doctor’s slip, required by Respondent to excuse
absences due to illness. On Sunday, September 7, Vileta started to feel some illness coming
on; but on Monday, September 8, he got up at his usual time and left his home for work, but felt
“really bad.” He turned around to return home. Because he lived a long distance away and used
a calling card at home, he went to his father’s house and called Respondent at 5:15 a.m., which
was as soon as he knew that he was not feeling well enough to report to work, to let
Respondent know he would not be coming to work. He spoke to White, told her that he was sick
and would not be coming to work that day, and asked her to tell Vileta’s supervisor, Jim
Emerson, the shipping supervisor, because the Maytag products had to go out; and he was the
only one handling Maytag and Mitsubishi products. White told Emerson.

The next morning, Vileta again attempted to go to work, but threw up all over himself in
the car and turned around and returned home, but not before going to his father’s house, where
he again called Respondent. He spoke with Nigel McGinnis, the process technician on the third
shift, and told him that he was still sick and would not be coming in that day. McGinnis relayed
the message to White, who told Emerson. At 9:24 a.m., Vileta called Fosnaught and told him
that he was very sick and would be going to see a doctor. Fosnaught asked if he had called in,
and Vileta told him that he had talked to White and McGinnis. Fosnaught said that he would
check on it because he had heard nothing. Then he told Vileta that, when he got better, he had
to make sure that he brought in his doctor’s excuse. Vileta saw his doctor, who did a throat
culture and diagnosed Vileta with strep throat and the flu, said that strep throat was a virus and
that he really did not want Vileta going through a plant and making everybody sick, and gave
him a prescription for antibiotics. Vileta returned home and spent the rest of the day in bed.

The following day, Wednesday, Vileta remained home and did not call in. On Thursday,
he returned to see his doctor, who said that he was better and asked whether he wanted to
remain off work until Monday. Vileta replied that he needed to return to work, so the doctor
released him to return on Friday and gave him a note. Around 12:30 p.m., Vileta called
Fosnaught and told him that he had just seen the doctor again and was released to come back
to work the next day. Fosnaught replied, “Okay”; and Vileta said that he had not been to the
facility for a couple days and asked what he was supposed to do. Fosnaught responded: “That’s
not my department. Go ahead and just do what you normally do.” When he arrived the following
day, Kargarzadeh greeted him by asking who said that he could be there and escorted him back
to see Fosnaught. Kargarzadeh asked him when he heard from Vileta about his absenteeism, to
which Fosnaught said: “One o’clock Thursday afternoon is when I finally heard from him.”
Kargarzadeh said that was a no-call, no-show, that would not be tolerated in his plant, and that
Vileta was terminated.

These facts come directly from Vileta’s credited testimony, which was corroborated by
White, who relayed Vileta’s message on Monday to Emerson and who received from McGinnis
Vileta’s message on Tuesday and relayed that to Emerson. Vileta’s testimony was also
corroborated by his father’s telephone bills, showing that Vileta made the calls to Respondent,
just as he testified and contrary to Kargarzadeh’s position that Vileta “did not call or show on the
day that he got terminated.” Even Fosnaught refused to corroborate that testimony (“I never said
that he was a no call no show”), conceding that he had received word that Vileta had called in
sick earlier that week and had spoken to him, telling him to bring in a doctor’s note when he
the motion.

JD–71–04

5

10

15

20

25

30

35

40

45

50
6
returned. Clearly, there was an understanding that Vileta was very ill and that he would return to
work when he recovered, as long as he brought a doctor’s note.

Furthermore, I found Vileta to be credible. He had never had an unexcused absence
from work and had received excuses to be absent for short periods to assist in a lawsuit and to
get married. Other than that, and once, when he appeared to have been terminated unfairly by
Abbas Razizadeh, Respondent’s production manager, and was quickly reinstated by
Kargarzadeh and Fosnaught, he missed no work and worked overtime when requested. He was
otherwise an exemplary employee, receiving from his immediate supervisor, Lim Prim, only a
month before, an evaluation superior to any that he had given to any employee, Prim remarking
that he was really proud that Vileta was working for him. As a result, I find that it is most
probable that Vileta was telling the truth.

Vileta’s termination notice, dated September 12, relies solely on his failure to call in
before his shift started. I find that Vileta had given notice long before his shift that he was too
sick to return to work. There was thus no factual basis for the discharge. Furthermore, I reject
Kargarzadeh’s attempt to expand the reason for the termination by alleging other incidents that
occurred during Vileta’s employment. The termination notice states nothing about them, and I
find Kargarzadeh unworthy of belief. Rather, the timing of the discharge, particularly with
Kargarzadeh’s suspicion that Vileta was a leader of the Union organizing campaign, indicates
that the true reason for the discharge was Vileta’s support of the Union.

Finally, Kargarzadeh’s treatment of Vileta was inconsistent with Respondent’s treatment
of employees who did not appear for work. In July 2003, Richard Phillips was a no-call, no-show
for 1–2 weeks, was fired, but reinstated upon his promise that he would not engage in that
conduct again. Other employees did not show up for work both before and after the union
organizing drive and were not fired, such as Dustin Baker, Russell Callison, Benjamin Doyle
(three times within a month and one-half), Sugey Gallarzo, Bret Dattis, Jill Goodrich, Shawn
Kicklighter, Dennis Kirby, Bill Platt, Suzanne Posekany (five times), Karen Singleton, Kim Smith,
Travis Smith, Becky Swan (two times), Kerry Sytsma (three times, including one no-show),
Tonya Teeter, Carlos Jefferson, and Darren Yulek. Disciplinary warnings were also given to
Tom Stevens, who missed a day and acknowledged that he had done that in the past and if he
did it anymore he would be reprimanded or terminated, and Chris Mosa, who had numerous
warnings for habitual no-call, no-show. Kargarzadeh attempted to explain away these disparities
by noting that “it depends how many write-up they have” and “on what – how many – what kind
of doctor excuse they bring in and all that.” And, having a doctor’s excuse might excuse an
employee’s calling in late, but that depended on “how many times this has been repeated in the
past twelve months of their, you know, work history.” Thus, if an employee had never missed a
day, but called in late and brought a doctor’s note, Kargarzadeh testified that that would not
warrant a termination.

Here, Vileta suffered from strep throat and the flu. This was his first illness, and he had
never missed any days before. He called in and brought a doctor’s note. Even under
Kargarzadeh’s explanation, which, we will see, below, was unworthy of belief, Vileta should
have been excused. The Board applies the test set out in Wright Line, 251 NLRB 1083 (1980),
enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982); approved in NLRB v.
Transportation Management Corp., 462 U.S. 393 (1983). The General Counsel has established
that Vileta’s union activity, of which Kargarzadeh knew and opposed, was a “motivating factor”
in Respondent’s decision to terminate him. Senior Citizens’ Coordinating Council, 330 NLRB
1100, 1105 (2000); Regal Recycling, Inc., 329 NLRB 355 (1999). It then became incumbent on
Respondent to prove that it would have discharged Vileta, even in the absence of his union
activities. Wright Line; Naomi Knitting Plant, 328 NLRB 1279, 1281 (1999); Manno Electric, 321

JD–71–04

5

10

15

20

25

30

35

40

45

50
7

NLRB 278, 280 fn. 12 (1996). This, Respondent did not prove. I conclude that Respondent
violated Section 8(a)(3) and (1) of the Act.

Violations of Section 8(a)(1)

I divert momentarily from the consideration of the discharges of Union adherents to what
happened following Warndorf’s discharge, which included Respondent’s attempts to find out
who was backing the Union’s campaign and various threatening statements. When Warndorf
was discharged, he was asked to leave the building. He walked out of Fosnaught’s office,
turned in his cutters, punched out, and walked out to the parking lot, where he talked to some of
the third-shift employees, who had asked what had happened. As he was explaining that he had
been fired. Fosnaught walked out to the parking lot and asked him to leave the premises. He
left, but not before talking to another employee who was in his car.

The complaint alleges that Respondent’s action violated Section 8(a)(1) of the Act,
because, as the General Counsel’s brief argues, it “has no published rule prohibiting off-duty
employees or former employees from being in the parking lot, and has offered evidence of no
unpublished rule in its defense.” On the other hand, the General Counsel did not show that
Warndorf was on public property and entitled to remain there. As a former employee, albeit
unlawfully discharged, he had the same rights as a stranger. There is no contention here that
Respondent could not ask a stranger to leave its premises, merely because there is no rule in
an employee handbook. I find that the General Counsel had the burden of establishing
Warndorf’s rights to be where he was. Furthermore, there is no evidence here that Fosnaught
knew what Warndorf was talking about with the other employees. As a result, I dismiss this
allegation.5

But I find a multitude of other Section 8(a)(1) violations. Kargarzadeh’s questioning of
White, discussed above, was an unlawful interrogation, coercive because, among other factors,
Kargarzadeh, the owner of Respondent and a forceful personality, was doing it; and it occurred
immediately preceding his discharges of two of the Union’s principal organizers. Medcare
Associates, Inc., 330 NLRB 935, 939 (2000); Rossmore House, 269 NLRB 1176 (1984), enfd.
sub nom. Hotel & Restaurant Employees Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985). That
interrogation was followed by numerous other unlawful interrogations and threats, all at a time
when Respondent was continuing its otherwise unlawful activity.

A few days after September 10, when press operator Alisa Fults signed a union
authorization card, Kargarzadeh asked her if she had signed a union card. She lied, responding
that she had not. He asked her if she knew the names of anybody else who had signed cards
because, he explained, it was bad for the company. She said that she did not, another untruthful
statement. About a week later, about September 18, Kargarzadeh asked her how she felt about
the Union. Fults replied that she thought that it would strengthen the company. He said that it
would not “if there were no company.” Fults asked whether that meant that, if the Union came
in, he would close the business. Kargarzadeh said: “I’m not supposed to talk about that but I will
not work with the Union” and angrily walked away.

Prim asked employee Greg Sumner in September what his thoughts were about the
Union. Sumner replied that the employees had some safety problems that management did not
want to prioritize and various employees were passed over for promotion. Prim countered with
his concern that Respondent would price itself out of the market, should it increase wages, and
5 Respondent did not brief this issue.

JD–71–04

5

10

15

20

25

30

35

40

45

50
8
lose the business of Maytag, one of Respondent’s principal customers. On September 25, Prim
asked third shift press operator Tem Yom why he wanted a union at Respondent. Yom replied
that he believed in a union and it would make a difference with Respondent. Prim added that, if
the employees elected the Union, Maytag and Lennox would pull out as customers. Yom did not
think so. Also in September, Prim asked employee Cynthia Olson what she thought about the
Union. She answered that she thought the Union was a good thing because something needed
to be done. Prim said that that was what John Oleson, Respondent’s newly hired vice president
of operations, had been hired for, but Olson thought differently: that Oleson had been hired to
bust the union. Prim denied that that was so.

In mid-September, Kargarzadeh asked employee (and Fults’s father-in-law) Toby
Edwards how he felt about the Union. Edwards replied that he did not have any opinion. The
day before the election, Kargarzadeh asked process technician Jeff Hautekeete what he
thought about the vote for the Union and what he thought about unions. Hautekeete said that he
had worked in union shops before and some of them were good and some were bad.
Kargarzadeh, who had earlier praised Hautekeete’s quick progress, quicker than he had
expected, promised him a raise from $9.50 an hour to $11.00 and additional raises as long as
his job performance remained the same. Kargarzadeh then asked whether he had heard the
rumor that the Union was promising everybody $2.00 an hour if it won the election. Hautekeete
said that he had not heard it, and Kargarzadeh said that nobody could promise the employees a
raise, not even a 2-cent raise, and he was the only one who could approve a raise. If he wanted
to give somebody a raise he would; if he did not, then he would not. Nobody could tell him
whom he was going to give a raise to or that he had to.

I conclude that all of these interrogations, none of which were denied by Respondent’s
supervisors, violated Section 8(a)(1) of the Act. In addition, Prim’s threats to Sumner and Yom
that Respondent would lose business from its customers if employees selected union
representation violated Section 8(a)(1). These predictions of the adverse consequences of
unionization, the loss of customers, outside Respondent’s control, lacked any factual objective
basis. Wake Electric Membership Corp., 338 NLRB No. 32, slip op. at 2 (2002); Tawas
Industries, 336 NLRB 318, 321 (2001). I reject Respondent’s contention that Sumner’s
testimony ought to be rejected because it resulted from a leading question, to which, I note,
there was no objection. The contention might have had a little more weight had Prim denied the
allegation. Prim did not. Kargarzadeh’s promise to Hautekeete of a $1.50 per hour raise on the
day before the election violated Section 8(a)(1), because it was unscheduled and previously
unannounced and an obvious attempt to purchase his vote. Furthermore, Kargarzadeh
unlawfully threatened that selection of the Union would be futile for employees because he gave
the impression that only he would grant wage increases, and the Union’s effort to bargain would
be meaningless. Kargarzadeh’s second interrogation of Fults implicitly threatened that he would
close Respondent or, alternatively, would not negotiate with the Union should the employees
select it as their collective-bargaining agent.

Respondent violated Section 8(a)(1) in other respects. On or about September 22,
Oleson called the police when he saw, he testified, people “blocking traffic.” Other than that,
Oleson could not identify who the “people” were or what they were doing. On the other hand,
Conn testified that about 7 a.m., on a day after September 22, the day he was terminated, two
uniformed police officers pulled up to where he, Warndorf, and Vileta were handbilling and said
that they had a complaint from Respondent that they had been blocking traffic. The officers said
that they did not see the handbillers blocking traffic and thought they exercising their legal
rights. The employees were standing on a ten foot city easement along the ditch next to the
beginning of Respondent’s driveway. Oleson’s testimony lacked any specificity about where the
people were standing and who was being blocked. The truth of what he was claiming was not

JD–71–04

5

10

15

20

25

30

35

40

45

50
9
corroborated by a police officer or even a police report. I do not believe it. Although I recognize
that Conn may have committed perjury in the investigatory affidavit that he gave to the Region,
at least he told the truth at the hearing because “This is court.” I believe his testimony. I find that
Oleson had no basis to call the police, other than to harass the employees and interfere with
their right to handbill lawfully. I conclude that calling the police was intended to interfere with
employees’ Section 7 rights and violated Section 8(a)(1) of the Act. The Greenbrier, 340 NLRB
No. 92, slip op. at 4 (2003), enf. denied F.3d , 2004 WL 1657343 (4th Cir. 2004).

The Union held regular weekly meetings on Tuesdays at the Eagles Club in Grinnell, at
different times for each shift. Once, on September 25, as the Union officers, Ted Johnson, Mike
Krumholz, and Dennis Walker and Union adherents—Warndorf, Vileta, Travis Pagel, and
Conn—were gathering outside, Kargarzadeh drove by in a vehicle occupied by project engineer
Katie Lewis, with whom he has a “personal relationship,” and slowed down. Both looked out at
the employees. The complaint alleges that this constituted surveillance. I agree. Despite the fact
that September 25 was a Thursday and Kargarzadeh testified (as an adverse witness) that he
was coming from a doctor’s appointment, there is nothing but his unsupported, uncorroborated
testimony—not a hospital record, not a doctor’s bill, not even the testimony of Lewis. In these
circumstances, and having already discussed my problems with his credibility, I do not believe
him and find that he was at the Eagles Club, not by chance, but to watch over his employees’
union activities. I conclude that Respondent violated Section 8(a)(1) of the Act.

Respondent Discharges Four More Union Supporters

I return to the discharges of Union supporters. Prim knew that Yom was a Union
supporter. He asked him on September 25 why he wanted a union at Respondent, and Kim told
him. Prim never testified about that interrogation or about how he had learned of Yom’s support.
It is likely that he knew on September 23, when Respondent conducted an antiunion meeting,
which employees did not have to attend, and Yom did not. In fact, after that meeting,
Kargarzadeh checked the sign-in sheet at the meeting and then went to the timecards of those
employees who had not attended the meeting. He found that Yom, who had not attended, had
nonetheless punched out late. (There is no indication in the record that Respondent paid for
employees to attend the meeting.)

On September 26, two weeks after Vileta was terminated and the day after Prim
interrogated Yom, Kargarzadeh fired Yom, allegedly for theft or cheating on his time card on
September 23. Most of the facts are not in dispute; the critical issue is whether Kargarzadeh
truly believed that Yom was, in effect, stealing from his company or whether Kargarzadeh used
Yom’s late punching out, a 28-minute mistake costing Respondent at most $6.94 of overtime
pay, as a pretext for Yom’s Union support. I find that the discharge was based on pretext and
conclude that Respondent violated Section 8(a)(3) and (1) of the Act.

Kargarzadeh manufactured the “theft,” because Respondent’s handbook provides that
overtime will be paid only if approved by a supervisor. The provision reads:

An employee will be paid one and one-half times their regular hourly rate for
hours worked in excess of forty (40) hours in a one week pay period AND if the
overtime hours are approved by the supervisor (i.e. the supervisor must show
approval by indicating the reason for the overtime and writing his/her initials on
the timecard for the appropriate day).

Yom’s 28 minutes had never been approved as overtime by a supervisor. Under
Respondent’s handbook, it should not have been paid; and Yom’s testimony makes clear that

JD–71–04

5

10

15

20

25

30

35

40

45

50
10

he did not punch out late with the intention of being paid. Rather, his explanation for the
timecard incident, which occurred on September 23, was that he normally clocked out at 7 a.m.,
the end of his shift. But he forgot, and left to meet with the Union representatives out on the
road, outside the facility, where he talked to Walker and Johnson. Then he came back into the
building and clocked out at 7:28 a.m. He knew that he had clocked out late: he had done so
before but, with one minor exception, only when he had worked overtime. When asked what, if
anything, he had done to correct it, he answered: “I some time just have the supervisor signed it
– signed it or just leave it – leave it that way.” He testified that he looked for White that day to
sign his card, but she had left and he could not find her. So he put his card in the time slot. He
never called this erroneous timecard to the attention of any supervisor during the next two days.

Kargarzadeh testified that his termination of Yom resulted from a combination of two
wrongs. First, Yom took his time card out of the premises, but that was not cited by
Kargarzadeh as a factor during Yom’s termination meeting on September 26. In fact, one other
employee took her time card home two weeks after Yom’s termination, but was not terminated
for doing so; so Kargarzadeh’s attempt to uphold that discharge on this ground, wholly or
partially, is flawed. Second, Kargarzadeh testified that, during Yom’s termination meeting, Yom
admitted that he had cheated on his time card. But process technician Paul Kelm, called by
Respondent to corroborate its version of Yom’s termination meeting, could not testify that Yom
admitted to “cheating.” Rather, his testimony corroborates Yom’s testimony that he merely
forgot to punch out, not that he was consciously “cheating.” Prim, on the other hand, essentially
supported Kargarzadeh’s version, but his participation in many of the unfair labor practices
makes me wary of his impartiality. Rather, Prim testified to facts that his employer wanted.6
Finally, even if Yom stated at the meeting that, if a supervisor had found an employee cheating,
the employee should be fired, that was not an admission of cheating, but merely an answer to a
speculative question.

Kargarzadeh’s actions also demonstrate an antiunion motive. He was aware that Yom
was no friend of Respondent’s attempt to win its employees’ support. Kargarzadeh had run an
antiunion meeting on September 23, and the first question he had for Yom at the termination
meeting on September 26 was why Yom was not at that meeting, an independent unlawful
interrogation under Section 8(a)(1), to confirm his understanding of Yom’s sympathies for the
Union. Kargarzadeh offered no explanation of any reason that he, as Respondent’s president,
checked Yom’s timecard. He even denied knowing where Yom was during the meeting,
although Yom credibly testified that Kargarzadeh accused Yom of having left the plant to listen
to music in his car, before returning to the plant to clock out, whereas actually Yom was talking
with Union representatives. Kargarzadeh must have heard of that conversation, then checked
Yom’s timecard, and then used Yom’s failure to punch out timely as a pretext to fire him. I reject
Respondent’s attempt to show that its termination of Yom conformed to its prior practice. The
only prior incident is distinguishable, involving the fraud of other employees punching in and out
for other, absent employees at another facility.

6 Prim testified, for example, that, during the termination meeting, Kargarzadeh asked Yom if cheated
on his time card again, and Yom said that he had. When asked when Kargarzadeh first asked Yom, Prim
answered “[p]robably from the beginning when he came into the room.” Prim was then asked to repeat his
recollection of the meeting, and Prim did so, and he was again asked whether Yom said twice that he had
cheated. Prim responded: “I don’t know how many times he said it.” In addition, in answer to
Kargarzadeh’s leading question, Prim testified that Yom said that he was sorry, would not repeat his
action, and would pay back the money. I find that testimony improbable, because Yom had, at that time,
never received payment for the “overtime,” so there was no “overtime” to pay back.

JD–71–04

5

10

15

20

25

30

35

40

45

50
11

Furthermore, what makes Kargarzadeh’s defense so improbable, in addition to my
generally not believing him, is that Yom had been a trusted employee since June 28, 1999,
which made him one of the more senior employees of Respondent. Yom had received no
discipline of any kind during his four and one-quarter years of employment. His latest
performance appraisal was “outstanding,” the highest he could have received, and that included
the highest rating for “observation of rules and regulation[s].” My impression of him, together
with his employment record, is that he was anything but a thief; and I cannot believe that
Kargarzadeh truly thought that he was. In fact, Kargarzadeh conceded that many times
employees on the clock have left the plant without permission, forgetting to punch out, but their
supervisors will excuse their actions on the ground that they forgot. Here, after hearing Yom’s
explanation, Kargarzadeh refused to do exactly that, considering Yom’s actions not
forgetfulness, but criminal conduct. That was disparate,7 further support for my finding under
Wright Line that Kargarzadeh would not have terminated Yom in the absence of his union
activity. I conclude that Respondent violated Section 8(a)(3) and (1).8

Respondent expanded on its reasons (as it did for many of the discriminatees in this
proceeding) for terminating Travis Pagel on October 1, despite that fact that his termination slip
noted only “attitude” and Kargarzadeh mentioned only “insubordination” when he terminated
Pagel. According to Kargarzadeh, the only witness who testified about Pagel, and Kargarzadeh
testified only as a witness called by the Counsel for the General Counsel under Section 611(c),
Pagel failed to follow company instructions specifically on the pad printing machine. He
“attacked” the machine by kicking it. He could not get along with people: more specifically, he
threw parts at Lewis. Finally, when the lead operator or auxiliary tried to give him a break, he
refused to permit her. All these claims of improper work conduct were unsupported by the
testimony of any credible witness. Respondent’s action was supported solely by the
uncorroborated and generally discredited testimony of Kargarzadeh. I do not believe him and
find that Pagel credibly testified that most of the allegations against him were not true. In the
alternative, those incidents that had a grain of truth about them were simply used by
Kargarzadeh as pretexts for Pagel’s discharge.

Regarding Pagel’s refusal to permit another employee to give him a break, Pagel
reported on October 1 at his normal work hour at 7 a.m. and worked until his first break shortly
after 9 a.m., when he was relieved by auxiliary Jeannie Van Helton. He returned from break and
worked until lunch hour, 12:05 p.m., when she relieved him again. He returned from lunch at
12:20 p.m. (the employees get 15 minutes for lunch), found himself a little behind in his work,
and was attempting to catch up, when she returned at about 12:55 p.m. or so to relieve him for
his last break. Pagel told her that he was busy, he did not need a break, and he had just
returned from lunch: and he told her to find someone else and give that employee a break.
(According to Pagel, it was not typical to take his afternoon break 35 minutes after he had
returned from lunch.) Van Helton said: “I’ll go and tell Donna Lane [his lead operator] your
attitude sucks” and walked away. About a half hour later, Lane came to relieve him for his last
break. He returned from break, thanked her, and started working again, until about 2:50 p.m.,
when Lane returned to tell him that Fosnaught wanted to see him. He left his workplace and
7 Hautekeete clocked out late one night, and never had his timecard initialed. He was not warned, nor
was he paid.
8 Respondent, in order to support its claim of criminal conduct, actually later issued a check to Yom
which included an additional one-half hour of overtime, although never approved by a supervisor and
known to not have been worked. Respondent offered no explanation for that erroneous check.
Furthermore, as an aside, Respondent’s check bounced for insufficient funds, costing Yom an $8.00 bank
fee, more than the $6.94 amount that he allegedly cheated.

JD–71–04

5

10

15

20

25

30

35

40

45

50
12
then met not only with Fosnaught, but also with Kargarzadeh, Razizadeh, and Lane, and was
discharged.

In August, two months or so before the discharge, Dugan (this is the only name that
Pagel recalled; Kargarzadeh mentioned in his testimony “Dugan Michalet or Brendan Michalet”;
Fosnaught testified that the latter name was correct) had been training Pagel for about two
weeks on a pad printing machine, which picked up an image off a silk screen image and then
laid the image on the product. Pagel had been running the machine for a couple days but was
having trouble: the ink seemed to be bubbling, resulting in a fuzzy image. Dugan told him that
he had too much thinner in the ink. Pagel thought that there was too much humidity in the air.
Dugan got a bottle of thinner, squirted some in the ink, mixed it up, grabbed a part, ran it, said
that it worked “just fine,” and stacked it on the table. Pagel complained that it was funny that he
was being yelled at for putting too much thinner in the ink, and the first thing that Dugan did was
put thinner in the ink. Dugan selected a good piece off his table, squirted thinner on it, and noted
that the thinner “bubbles up the material.” For whatever reason, Dugan fired Pagel that day, but
the termination was reversed by Razizadeh and never implemented. Pagel was not written up
for this incident.

A second incident involving Dugan, also in August but later than the first, again involved
the operation of the pad printer. Pagel was working with a few people who are needed to keep
up with the machine at full speed and had to activate the machine by stepping on a covered foot
pedal. As Pagel described the pedal, “it was kinda loose, rumbley – it’d make a lot of click
noise.” Dugan told Razizadeh that Pagel was kicking and abusing the machine. Pagel denied
that he was doing anything different from what he had always done and denied that he abused
the machine in any way. There was no written warning, but Razizadeh talked to Pagel about it.

The incident with Lewis, also in August, involved Pagel’s attempt to make cup holders
for a car. The pieces were being produced with streak marks, and Lewis found them
unacceptable. Pagel continued to produce them, sorting out the good ones from the bad, but
even what he thought were good, she found were bad. Pagel then shoved or pushed the pieces
off the table into a bad parts box (large boxes, called “Gaylords,” are also used for finished
materials and parts) that was in front of him, where he placed bad parts, or even threw them into
the Gaylords, a couple of pieces missing and bouncing towards Lewis.

Throwing bad parts into Gaylords was not uncommon, certainly not for Pagel, who did so
all the time. Pagel never received a written warning for that conduct, or for the specific incident
allegedly involving Lewis, who, to reiterate, did not testify; nor was he ever talked to by
management at that time. In fact, he received an above standard evaluation and a
recommendation for a 50-cent raise on September 19, 12 days before he was discharged.
Respondent gave him the highest possible ratings in 14 of the 19 assessed components,
including every single item under the critical categories of “Quantity,” “Quality” and “Work
Habits.” With the exception of Pagel’s refusal to be relieved on October 1, there was nothing
remotely approaching insubordination; and there was nothing that Pagel did within two months
or so of his discharge that might give an inkling of any kind of justification for Respondent’s
action. Rather, Kargarzadeh saw Pagel at the Union meeting at the Eagles Club a week before
the discharge, and saw a “Vote Yes” sticker displayed on Pagel’s press during the past 3-4
days; and whatever happened on October 1 infuriated Kargarzadeh so much that he vented his
anger at the Union campaign by firing Pagel for his “attitude.” I find that Respondent has
concocted unpersuasive and false reasons for its termination of Pagel and that, under Wright
Line, it would not have terminated him but for his union activities. I conclude that Respondent
violated Section 8(a)(3) and (1) of the Act.

JD–71–04

5

10

15

20

25

30

35

40

45

50
13

Gregory Cooper, a press operator since January, was terminated on October 22. Before
that, on September 26, he was assigned press A149 and was putting gaskets into the dryer
doors. After a couple hours of running that press, James, the press technician, informed him
that he was shutting down the press to do a mold change. Cooper finished up the parts that he
had, filled out all his paperwork, and cleaned the area, everything that he was supposed to do
when the presses were shut down. He waited around for about an hour and was bored, when
he heard a call over the intercom system that A16 and A17 needed a forklift operator to remove
Gaylords from the area because they could not get empties in to fill with the finished product.
So, being licensed by Respondent to drive a forklift, he went to get a fork truck, did a safety
inspection on it, and began removing parts from A16 and A17 to the warehouse. The person in
charge of the warehouse told Cooper where he wanted the Gaylords stacked and Cooper
followed his direction, putting them in the aisle, and went back and forth hauling from the
presses and depositing the Gaylords in the warehouse. There was an accident: an employee
had slipped on some oil and had fallen and twisted her knee. Because Cooper had trauma
medicine training, he parked his fork truck and went to the employee to make sure that she was
all right. Razizadeh was there and said that there was no need for Cooper, who should keep
doing what he was doing. So, Cooper got back on the fork truck and continued hauling.

He had the last load and was driving to the warehouse, when he met Razizadeh and
Fosnaught, who asked him whether he had done a safety inspection on the forklift, to which
Cooper replied that he had. Then Razizadeh asked what he was doing, and Cooper explained
that he had been hauling parts back to the warehouse. Razizadeh told him that he wanted him
back on the presses. Cooper explained that his press had been down for an hour and a half and
that he had done everything that he was supposed to do. Razizadeh said that he did not care;
he wanted Cooper back on the presses. Cooper followed his instructions, returned to the
presses, and stood there at his non-operating press for 20 minutes, until his shift ended. On
October 1 he was written up. Razizadeh also threatened him that if he did not stop whistling
[Beethoven], he would be written up for that, too. However, no warning issued.

Two days before the election, Cooper was discharged. He arrived that day at 6:45 a.m.,
somewhat later than he normally did (he arrived at about 6:30 a.m. three to four days each
week, a fact not denied by his supervisor, Razizadeh), and went immediately to A4. He noticed
that the same mold was in use as the day before and that the operators were behind on parts
for trimming and sanding. He told auxiliary Trisha Bailey, who was the assistant to Teresa Flack,
his lead operator, that, if she was willing to bring him a box of parts from A4 down to A14, he
would trim and inspect as many parts as he could during the day. Bailey did not have a chance
to answer, because at the same time Kargarzadeh approached and asked Cooper why he was
in the line early and why Respondent was having so much trouble with him. Cooper answered
that he was trying to do Respondent a favor, and Kargarzadeh asked him to go to the break
room until the start of his shift. When Cooper did not leave immediately and instead asked why,
adding that he was doing Respondent a favor by helping out on his own time, Kargarzadeh told
him not to argue and to ”get the fuck out of the plant.”

According to Kargarzadeh, he terminated Cooper because of chronic problems, one of
which was leaving his press and driving a forklift without authorization. The press operator’s job
is not to drive a forklift. Furthermore, he interrupted what his coworkers were doing. Finally, he
was insubordinate by being “in the middle of the plant where the traffic for the forklifts are about
9 The “A” designation indicates a press or machine in the A Section of Respondent’s facility. There is
a reference, below, to a machine in the “C” section, which is a number preceded by the letter “C.”

JD–71–04

5

10

15

20

25

30

35

40

45

50
14

35 minutes before his shift.” He was asked to sit in the break room until his shift started. He
started arguing, and that was insubordination, for which he was terminated.

Razizadeh did not testify about his reasons for giving Cooper a warning for driving the
forklift, a task that Cooper often performed and a task that Cooper performed that day, at least
for a while, with the apparent approval of Respondent’s representatives, including Fosnaught,
and supervisors, including Razizadeh;10 nor did Razizadeh testify about his threat to Cooper for
whistling, not did Respondent call any witnesses to testify that Cooper’s whistling was in any
way offensive or disruptive. I conclude that both the warning and the threat violated Section
8(a)(1) of the Act and that the October 1 warning violated Section 8(a)(3), especially in light of
Cooper’s testimony that he overheard Kargarzadeh on September 23 telling Fosnaught, in
effect, to “take care” of Cooper, evidence of animus rebutted by neither.11

Regarding Kargarzadeh’s final reason, Respondent did not dispute that Cooper normally
arrived early. According to Cooper, he would “start walking around the plant and see what was
going on with the different presses and see if there was trouble or what I needed to do”; and
Dugan, Razizadeh, Flack, and White knew that this was his practice. Respondent called none of
these management representatives as witnesses. In light of that practice, Cooper’s reaction to
Kargarzadeh’s request—asking him why—was a normal reaction and not argumentative.
Rather, Kargarzadeh seized on it to justify the discharge of one who reported early and was
helping Respondent produce its product, engaging in the very conduct that Kargarzadeh was
attempting to foster, rather than lateness and absenteeism, which Respondent claims was a
constant and troublesome habit of its employees.12 Respondent had never warned or otherwise
disciplined or counseled Cooper about coming to work earlier than the 10 minutes early it
allowed for employees to punch in for work. In fact, because there is no shift overlap, operators
routinely talked to each other regarding production issues before the shift change.

Insubordination was a mere pretext. There was no credible evidence that Cooper was
blocking the aisles or interfering with the operation of the forklifts. Kargarzadeh was actually
objecting to the fact that Cooper was talking with Bailey, a conversation that Kargarzadeh must
have assumed was about the Union and the election, just two days away. That was what
caused Kargarzadeh to fire Cooper so hastily, on the spot. That was the reason that, in
Kargarzadeh’s words, “the company [was] having so much trouble with” Cooper, who was a
supporter of the Union well-known to Kargarzadeh, having “all kind[s] of stuff” on his vehicle
about the Union, including “vote yes.” I conclude that, under Wright Line, Respondent did not
meet its burden of showing that it would have discharged Cooper even in the absence of his
union activities and that its October 22 discharge of him violated Section 8(a)(3) and (1) of the
Act.

Alisa Fults, another well-known Union adherent, was terminated the next day, October
23, the day before the election. She reported to work wearing a handmade T-shirt with the
writing, “You screwed me once, shame on you. You screwed me twice, shame on me. Don’t get
screwed again, vote yes UAW. It’s our only answer.” Proceeding past some Union
10 Respondent evaluated Cooper’s work performance on August 11 and gave him its highest rating
for “observance of work hours” and “application to duties.”
11 The reference to Cooper might well, in the circumstances, have been a reference to another
employee, Dustin Cooper. Dustin’s employment is documented in the record. Fosnaught testified that
Respondent also employed Jacquelene Cooper, but I could find no record of her employment.
12 Kargarzadeh testified that he placed great value on timeliness and expected his employees to be
at their workstations, ready to work, and not just en route to their workstations, when their shifts began.

JD–71–04

5

10

15

20

25

30

35

40

45

50
15
representatives and some terminated employees who were handbilling, and after being
interviewed by a reporter about her T-shirt, she went to her lead operator, Kevin Zimple, to be
assigned to a press. For the past two months she had been running Maytag baffles (a piece in a
washer that spins the clothes) which was either A9 or A10, except that the previous two days
she had been assigned to A7, where Respondent had put a mold that it had not run for a while
and Fults was the only one on the second shift who knew how to operate it properly, so she was
assigned to A7 and Goodrich, who normally ran A7, to the press that Fults normally ran, A9 or
A10. Zimple looked at her shirt, said, “Well, I don’t know about that,” and shook his head, as
Fults again asked him what press she needed to go to. Zimple said that he did not need her and
told her to report to Rachel Guthridge, who looked at her shirt and said that she did not need
her, either.

Fults returned to Zimple, who this time was going to put her on an assembly job, but
changed his mind and asked her to go to Angie Laird, another lead operator, who assigned her
to C9, which made lint filters, a job that she had not performed before and a press she did not
know how to operate. So, she stood around waiting for help, and auxiliary Danielle Bennett
showed her how to operate it, but then the machine broke down. She then swept up and
assembled for 15–20 minutes, when Mike Coomes, Respondent’s second shift supervisor, and
Fosnaught approached her about her T-shirt, said that the word “screw” was offensive to them,
and wanted her to scratch out that word. Thinking that her T-shirt might offend management,
she had brought with her a replacement sweatshirt: all it said was, “Vote yes UAW.” She put it
on. However, as she was doing her clean-up work, she saw one of Respondent’s blank shipping
labels, which she thought was intended as trash; and, thinking that all that Respondent was
concerned about was the word “screw,” she wrote on the label “He did me wrong, he’ll do you
too. Vote yes UAW” and had it attached it to the back of her sweatshirt.

In the meantime, Bennett had advised her, while she was sweeping, that Zimple was
coming to take her to her normal press. Instead, he took her to A16, which produced dryer
doors with gaskets. A16 was a press that she had run only once before, and a press that she
had told Zimple only the day before—she was complaining that she had not been selected as
an auxiliary, which required the employee to be able to run all presses—was the only press in
the A section that she could not run. That press proved to be her undoing. She complained that
she could not run it, and he replied, somewhat angrily, that she wanted something new and he
was going to put her on something new. He then told Adam Nowotny, who was running A16, to
operate Fults’s normal press, A9, which he had run only three or four times, and assigned her to
A16, which she had complained that she could not run. Nowotny asked why he was being
switched with Fults, but received no reply.

Her complaint was justified. As much as she tried to run it, she could not produce good
parts. She had never been trained to run it; and, previously, she had run it once for about a
minute or two on a weekend shift, and management took her off because she could not produce
a good part. She could not clamp down the pieces quickly enough in the cooling fixture so that
they would not warp when they cooled, and she could not insert the rubber gasket accurately or
quickly enough to prepare herself for the next two pieces as they were molded and came off the
conveyor belt. There was compelling testimony that A16 was the most difficult press in the A
section to run, but it was not impossible. She was simply incapable of running it. In so finding, I
reject what seems to Respondent’s contention that Fosnaught deliberately avoided attempting
to clamp the pieces. She was trying her best, which was not good enough.

On the other hand, there was evidence that Respondent deliberately speeded up the
running of the machine, so as to make the operation of it, normally one that she could not do,
even more difficult. (Nowotny described that the speed was “incredibly fast for someone that

JD–71–04

5

10

15

20

25

30

35

40

45

50
16

has no experience on the press.”) After perhaps 10–15 bad parts, she asked Zimple for help
from others to train her on the machine: “You need to either switch me presses with somebody
or turn this thing down because I’m getting bad parts. It’s costing the company money. They’re
expensive parts and they’re all bad.” He ignored her. She tried again, repeatedly failed and on
numerous occasions pleaded again for training, for the press to be slowed down, or to be
switched to another press. Auxiliary Tim Tourres and material handler Troy Baldaris came over
to help her a few times during the night; but as soon as Zimple saw them, he sent them away,
telling them to get back to their assigned work or to stay away from Fults’s press. Edwards also
helped for a while, especially when Fults cut her hand while trimming the flash off the exterior of
the dryer door. Zimple watched, and she thought that he was going to tell Edwards to get away.
Instead, Zimple told Fults to get her things and follow him to the front office, where she was
terminated for “Excessive bad parts and not trying to correct problem after being warned several
times.”

This is a patently transparent unlawful discharge. It was devised by Respondent to
create a reason to discharge her, an avid Union supporter, wearing a pro-Union sweatshirt, the
day before the election; and Respondent did all that it could to ensure the success of its plan.
Zimple knew that she could not operate the press. Nonetheless, he assigned her to the press,
provided her with no meaningful training (I credit Fults in this respect; Zimple did not testify), and
increased the machine’s speed to make it even harder for Fults. He relieved Nowotny, the
person who had been assigned to that press for two months and assigned him to the very press
that Fults had been adequately and successfully operating for the past two months.
Respondent’s defense notably omitted any explanation for the switching of the assignments of
Fults and Nowotny. If A16 was such a high priority press, as Coomes contended in his
testimony, there was no reason at all that Respondent should have assigned to it an
inexperienced operator such as Fults, leaving the fully experienced Nowotny at Fults’s machine.
After Fults’s termination, Nowotny immediately returned to A16 and remained there every day,
until the Union began a strike on January 25, 2004. Coomes’s testimony was false. He was not
even in the A16 area when Fults was transferred there,13 and his testimony was directly
contradicted by Nowotny, who had no reason to lie. Finally, after Fults took Respondent’s
original termination notice from the plant on October 23, Respondent prepared a new notice
which amplified the basis of her discharge to include both “verbal” and “written” warnings,
matters that had occurred earlier. The new notice was written to bolster Respondent’s case and
did not reflect what actually happened on October 23. I conclude that Respondent’s termination
of Fults violated Section 8(a)(3) and (1) of the Act.

The complaint alleges two additional violations concerning Fults’s attire and prounion
messages that day. Respondent’s handbook provides only that production employees must
dress appropriate to safety considerations, that full-length shirts that cover the entire stomach
area are appropriate, and that casual wear, such as shorts and jeans, are permitted on Fridays,
except on days when customers are expected to visit. There is no limitation on what printing or
messages may be contained on the clothing. Thus, Zimple wore a shirt from Hooter’s, and an
employee wore a T-shirt that said “Ass Kicking for Fishing.” Another wore a T-shirt with words
too vulgar to include in this Decision. Respondent offered no rebuttal either to these facts or to
show that its supervisors never saw these shirts and never permitted the employees to wear
them.

13 Coomes was sometimes evasive on cross-examination and added facts of which he had no
personal knowledge.

JD–71–04

5

10

15

20

25

30

35

40

45

50
17
The word “screw” on Fults’s T-shirt, although it can be interpreted in its most vulgar
sense, is also common slang, meaning, “to take advantage of” or “cheat.” American Heritage
Dictionary 1566 (4th ed. 2000). Section 7 protects employees’ rights to wear prounion, or anti-
employer, statements designed to seek the support of other employees during an organizing
campaign. While the right is balanced against Respondent’s right to conduct its business and
maintain workplace safety and discipline, Respondent must show substantial evidence of
special circumstances, such as interference with production or safety, before it may restrict
Fults’s right to express her sentiments. Pathmark Stores, Inc., 342 NLRB No. 31 (2004);
Government Employees, 278 NLRB 378, 385 (1986), cited with approval in Escanaba Paper
Co., 314 NLRB 732, 733 fn. 4 (1994), enfd. 73 F.3d 74 (6th Cir. 1996). Respondent showed no
special circumstances. (Razizadeh did not even testify.) When firing Cooper, Kargarzadeh told
him to “get the fuck out of the plant.” During the day that Fults was discharged, Kargarzadeh
called her a “dumb bitch” and harangued her with comments like: “It’s fucking people like you
who make fucking companies go fucking bankrupt.” When firing Albert Bregar Jr., discussed
below, Fosnaught told him to “get the fuck out of the plant.” I find that, in the circumstances of
shoptalk such as these examples, Respondent was not offended by Fults’s choice of words. I
conclude that Respondent did not find the word offensive and that Respondent violated Section
8(a)(1) of the Act by making her revise her message.

The same day, about an hour after Fults started to operate A16, Zimple and Razizadeh
walked over to her, the latter asking why she used the company tag that was on her back. She
explained that it was intended to be garbage and, if he wanted, he could take it off her back or
she would pay him the penny that it cost Respondent. He refused to touch her, so she pulled off
her sweatshirt to remove the label and gave it to Razizadeh, who immediately tore it up. Becky
Swan had used the same labels a few days before for “Vote No” stickers, which she wore at
work. Although Respondent’s brief contends that there is no evidence that any supervisor saw
Swan’s pro-Respondent labels, Respondent offered no rebuttal to show that its supervisors
never saw her labels and never permitted her to wear them. Respondent’s interference with
Fults’s wearing of a pro-Union message, especially when permitting another employee to wear
an antiunion message, violated Section 8(a)(1).

The complaint also alleges that, a month before, on September 23, Respondent verbally
warned Fults for packing bad parts in the lower layers of a box, in violation of Section 8(a)(3)
and (1) of the Act. The General Counsel’s theory rests not on the fact that Fults had packed bad
parts, although he attempts to excuse her production on the ground that the press was
producing extra flash or excess material on the Maytag baffles, but on the fact that Respondent
went out of its way to examine her box. Thus, Fults testified that on September 23 she
overheard Zimple tell quality control auditor Becky Swan to “check every piece” in Fults’s box;
and Swan did so, uncovering the badly produced pieces. Before then, Fults testified, the quality
control auditor would direct the press operator to check her own box. Swan testified that Fults,
whose testimony was corroborated by two of the General Counsel’s witnesses, was not
accurate, that Swan had checked complete boxes in the past. I believe that she is probably
accurate, finding it difficult to believe that someone who is entrusted with the function of
ensuring a good product would never check through whole boxes of product, even when some
products at the top of the box were defective.

Here, I believe Fults’s testimony and the testimony of the two other witnesses that Swan
had never inspected all of their finished products. More importantly, Fults’s testimony about
Zimple’s direction to Swan was never rebutted—Zimple did not testify—and, in this
circumstance, I find probable that he, who had just recently interrogated Fults about her union
activities, as did Kargarzadeh, was attempting to find something in her work product that he
could use as a pretext to discipline her. Under Wright Line, it was incumbent on Respondent to

JD–71–04

5

10

15

20

25

30

35

40

45

50
18

prove that it would have disciplined Fults for her bad parts, even in the absence of her union
activities. Because Respondent would have never known of any bad parts had it not been for
the inspection that Zimple unlawfully ordered, Respondent did not meet its burden. Anheuser-
Busch, Inc., 342 NLRB No. 49 (2004), is distinguishable. The sole relief for this violation is the
expunction of the warning, not the specific remedial restriction on reinstatement and payment of
backpay contained in Section 10(c) of the Act. I conclude that Respondent violated Section
8(a)(3) and (1).

Post-Election Unfair Labor Practices

Contracting of Employees from Manpower

As noted above, the election took place on October 24; and the Union won the election
and was certified a week later. Respondent’s actions against the Union and its supporters did
not abate, but instead took a different tack and indeed resulted in even more harsh treatment of
Union supporters and the employees generally. The first occurred when, on October 24, in
answer to an inquiry from Fosnaught, Manpower, Inc. wrote him a proposal to supply
employees, specifically press operators. Eighteen Manpower-supplied machine operators
started working for Respondent on October 27, three days after the election and four days
before the Union was certified, and 13 were still working as regular full-time employees of
Respondent at the time of the hearing. That was the first time in Fosnaught’s experience (he
was hired on May 19) that Respondent used temporary employees. At no time did Respondent
notify the Union about its intention to use contracted employees to perform bargaining-unit work,
nor was the Union given any opportunity to bargain about that. The Union never waived any
bargaining obligation over that, nor did it indicate in any way that the proposal to utilize
employees of Manpower would be acceptable to it.

The General Counsel contends that Respondent’s use of these contracted employees
violated Sections 8(a)(3) and (5) of the Act. I agree. First, I note that Respondent’s answer
stated that “[t]his practice [of subcontracting has] been used by respondent several times in the
past.” That assertion, certified by Oleson as correct, was false. This was the first time that
Respondent had used such staffing. In addition, Respondent started utilizing subcontracted
workers immediately after the Union had won the election,14 thus threatening the employees
that they, too, could easily be replaced. I agree with the contention of the General Counsel that
the timing of Respondent’s unprecedented use of contracted workers and the pretextual and
false assertion that it had done so in the past point toward union animus as a motivation for
starting this new practice. They were hired to avoid the Union as a bargaining agent and to
diminish the effect of the Union by reducing the number of employees it represented, particularly
after Respondent had terminated five Union supporters whom these contracted workers
replaced. I conclude that Respondent violated Section 8(a)(3) and (1) of the Act. Continental
Winding Co., 305 NLRB 122, 125 (1991).

In addition, Respondent was obligated to refrain from making unilateral changes in
working conditions commencing on October 24, when the Union won the election. Tri-Tech
Services, Inc., 340 NLRB No. 97, slip op. at 2 (2003). Respondent made such a unilateral
change when it contracted with Manpower for 18 press operators, and violated Section 8(a)(5)
and (1) by failing to give the Union notice and an opportunity to bargain before implementing the
use of contracted employees to perform bargaining-unit work. Clark United Corp., 319 NLRB
14 The fact that the unilateral change occurred prior to the certification is of no consequence. Overnite
Transportation Co., 335 NLRB 372 (2001).

JD–71–04

5

10

15

20

25

30

35

40

45

50
19
328, 328–329 (1995), enfd. mem. 95 F.3d 1147 (5th Cir. 1996). In addition, its relationship with
Manpower is a subcontracting relationship, a mandatory subject of bargaining over which
Respondent has a duty to bargain. Fibreboard Paper Products Corp., 379 U.S. 203 (1964); St.
George Warehouse, Inc., 341 NLRB No. 120 (2004). On this second ground, Respondent also
violated Section 8(a)(5) and (1) of the Act. I reject Respondent’s contention that Fibreboard
does not apply because Respondent was not permanently contracting out bargaining-unit work,
but was hiring only to fill a temporary need. The fact that almost five months later, at the time of
second hearing, Respondent still employed 13 of these “temporary” employees belies
Respondent’s argument.

I also reject Respondent’s reliance on Bottom Line Enterprises, 302 NLRB 373 (1991),
enfd. mem. sub nom. Master Window Cleaning, Inc. v. NLRB, 15 F.3d 1087 (9th Cir. 1994), and
RBE Electronics of S.D., 320 NLRB 80 (1995). Bottom Line holds, at 374, that:

[W]hen, as here, 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 notice and an opportunity to bargain about a
particular subject matter; rather it encompasses a duty to refrain from
implementation at all, absent overall impasse on bargaining for the agreement as
a whole. [Footnote omitted.]

In Bottom Line, the Board noted two exceptions to this general rule: when a Union
engages in tactics designed to delay bargaining and “when economic exigencies compel prompt
action.” Id. at 374. Respondent must prove exigency by demonstrating the existence of
circumstances that required the hiring of contracted employees, as opposed to employees on its
own payroll, at the time that it retained them or an economic business emergency that required
prompt action. RBE Electronics, 320 NLRB at 81. The gist of Oleson’s testimony was that
Lennox had just advised Respondent that it was no longer going to have Respondent make its
products. Lennox owned the molds that Respondent used. When the molds were removed from
Respondent, there would be down time to transfer them to some other producer. Thus, Lennox
asked Respondent to build a bank of inventory, so that it would have enough material when the
molds were unavailable.

Oleson’s testimony is unpersuasive. On October 30, three days after Respondent began
using Manpower-supplied workers, Oleson telephoned Walker, advising that, in the words of a
letter he sent later that day, because “we are losing one of our major customers and we have to
reduce our staff accordingly,” he foresaw a possible layoff of 50–70 employees. He wanted the
Union’s input about how to accomplish the layoff and, in the letter, apologized for the “short
notice, but we were just recently notified by our customer.” In the letter, he advised that the
layoff would begin on November 3 and last through March 2004 and would affect approximately
65 positions. He committed Respondent to use attrition (no replacement of voluntary quits and
terminations) as a first method of reducing its staff and the cancellation (termination) of all
temporary employees as the second.

There has been no showing that economic exigencies compelled Respondent’s prompt
action. The contracting for the Manpower employees was antithetical to the notice of layoff.
Either Respondent needed employees or it did not. Furthermore, there is nothing here that
shows that employees were not available, just Oleson’s word, which is not very good. There
was no attempt to hire employees, other than its letter to Manpower. Third, as will be seen
below, Respondent changed its attendance policies, resulting in its termination of as many
employees as it obtained from Manpower. Fourth, there is nothing here that proves that
Respondent’s decision to contract with Manpower was made prior to the results of the election,

JD–71–04

5

10

15

20

25

30

35

40

45

50
20

removing its decision from the obligation to bargain under Sivalls, Inc., 307 NLRB 986 (1992),
as Respondent contends. Although Lynne Conley, Manpower’s branch manager, testified that
Fosnaught ordered 18 operators in mid-October, the date of Manpower’s letter offering its
services to Fosnaught was the day of the election. It recited: “If this offer is acceptable please let
us know and we will begin looking for candidates for you.” The press operators started on the
following Monday. In the face of the date of Conley’s letter offering Manpower’s services, I find
her recollection in error and that Respondent accepted her offer after receiving her letter, at a
time that could have been after the results of the election were known.

Respondent’s need for additional workers, even if accurate, does not serve as an
excuse for Respondent’s substantial increase in the use of employees outside the unit to
perform unit work as a substitute for unit employees. This represented a significant change from
the way Respondent operated before the Union was certified; and, in light of the fact that, but for
the use of temporary employees, Respondent would have had to hire additional unit employees,
the Union had a right to be consulted on these staffing matters. I conclude that Respondent
violated Section 8(a)(5) and (1) of the Act.

Respondent Changed Its Attendance and Tardiness Policies

Another change Respondent adopted shortly after the Union was certified was the
enforcement of its attendance and tardiness policies, which resulted in a mass of warnings and
terminations. The General Counsel contends that these violated both Sections 8(a)(5) and (3).
Respondent admitted in its answer that it began updating its attendance and tardiness records
on or about November 1, a date more accurate than Fosnaught’s attempts to date that action
earlier, first, shortly after he began his employment on May 19, and, second, in July, on orders
from Oleson (which could not be true, because Oleson’s employment began on September 15),
and, third, three weeks before the election,15 all in order to supply the defense that Respondent
enforced its attendance and lateness policies before the employees selected the Union as their
representative and thus could not have been required by law to bargain. Respondent’s answer
is closer to the truth. Had Respondent prepared its updates earlier than November, it would
have had attendance records for all the Union supporters it terminated prior to the election. It
had none.16 Accordingly, it must have updated the records later, including all employees then
employed and not preparing forms for persons who were no longer on the payroll. I find that
Fosnaught is generally unworthy of belief and find that all the records, almost all of which are
wholly in Fosnaught’s handwriting, were prepared by him after Fults was discharged; and she
was discharged the day before the election.17

Respondent’s handbook contained the following “7-point SYSTEM”:

**ALL EMPLOYEES START AT ZERO POINTS**

15 Fosnaught testified that he began to update the record in the “beginning of October when the vice
president [Oleson] was hired on he had come to my office and said ‘Hey, we need to start looking at
attendance because that is very important to the company as far as, you know, lost moneys and things.’”
16 There was one possible exception. There was a form prepared for Pagel, but it was barely filled
out. It did not even contain his original date of hire, nor were any points, either positive or negative, filled
in. It is likely that someone began to prepare the form and then realized that Pagel had already been
terminated, thus making the completion of the form unnecessary.
17 I discredit Fosnaught’s testimony that the attendance summary for Janet Anderson had been
started prior to his employment. The handwriting could well have been that of his assistant, Fawn Brawdy.

JD–71–04

5

10

15

20

25

30

35

40

45

50
21
1. Add I point for 30 consecutive calendar days not missed
2. Subtract I point for each unexcused day absent
3. Subtract ½ point for ½ day missed or goes home sick
4. Subtract ½ point for failure to clock in/out – late/early
5. Subtract 2 points for failure to report absence within 4 hrs
elapsed of scheduled start time
6. At -3 points A verbal warning is issued
7. At -5 points A written warning is issued
8. At 7-points Employee may be / is suspended without
pay pending discharge

NOTES:
1. ALL POINTS ARE ACCUMULATIVE OVER A 12 MONTH
PERIOD

2. POINTS ARE TABULATED WEEKLY AND ARE
AVAILABLE TO ANY EMPLOYEE UPON THEIR REQUEST
TO THEIR SUPERVISOR OR MOLDING MANAGER.

3. IF AN EMPLOYEE IS AT -7-pointS OR BELOW AND IS
STILL EMPLOYED WITH EPC BY THE END OF HIS/HER
PROBATIONARY PERIOD, THEN HIS/HER
PROBATIONARY PERIOD WILL START OVER.

The handbook also provided that certain attendance deviations had to be documented
with a green slip, which

will be completed by the employee and reviewed by the shift supervisor when
any of the following instances occur:

• The employee is absent;
• The employee punches in too early (10 minutes or more prior to the shift);
• The employee punches in late (5 minutes or more after the shift starts);
• The employee punches out too early (10 minutes or more prior to the end
of the shift); or
• The employee punches out late (10 minutes or more after the end of the
shift).

In each of these instances a reason must be noted on the green slip. The
employee’s supervisor will indicate if the instance is “Excused” or “Unexcused”
(following company policy). The employee will sign the green slip indicating
he/she is aware the instance is being documented.

The handbook also contained the following attendance/tardiness policy:

Your reliability is an important part of your total work performance. When you
accepted a position with EPC, you made a commitment to the company to be at
worn on time when you are scheduled. We cannot retain people who are unable
or unwilling to function as a regular fulltime employee on an ongoing basis.
Excessive absences and lateness will not be tolerated and may lead to
disciplinary action tip to and including dismissal. Employees' attendance records
will be kept as part of the Employee Personnel file.

JD–71–04

5

10

15

20

25

30

35

40

45

50
22
• A seven (7) point system [above] will be used for all hourly personnel.
• Excused absences are as follows: Jury duty with written verification,
subpoenaed court appearances with written verification, approved leave
of absence, and sick time with doctor’s written excuse.
• You are expected to notify the company (the office or your supervisor) 4
hours or more in advance if you are going to be absent during your shift
and you must give a reason for your absence.
• An employee who fails to call is for three successive days to report
his/her absence will be considered to have voluntarily terminated
employment with the company.
• If an absence is planned or known in advance, please refer to . . . Time
Off Policy.
• Allow 4 “excused” personal days per calendar year. These are days an
employee may use for unplanned absences for instances such as an
illness that doesn’t require a doctor’s care, caring for a sick child,
personal business, etc. At the end of each calendar year, an employee
receives 1 point for each unused personal day.

In each of these instances a reason must be noted on the green slip. The
employee’s supervisor will indicate if the instance is “Excused” or “Unexcused”
(following company policy). The employee will sign the green slip indicating
he/she is aware the instance is being documented.

Respondent’s handbook also provided for the following time off policy:

REQUEST FOR TIME OFF:

An employee needs to notify his/her supervisor two (2) weeks (or more) in
advance of the day(s) that he/she requests off. To do this, the employee needs to
complete an “Employee Time Off Request Form” . . . and get his/her supervisor’s
approval. Once approval is given, the form will be forwarded to the Human
Resources Representative.

SICK DAY POLICY:

EPC’s company policy allows for an employee to have five (5) excused sick days
per anniversary year without pay.

“Excused” means that a written doctor’s excuse must be presented upon return
to work and/or the day(s) approved as ‘excused’ by company management.

LEAVE OF ABSENCE POLICY:

A leave of absence may be granted for good and proper cause. A leave of
absence without pay may be granted to maintain continuity of service in
instances where unusual or unavoidable circumstances require an employee’s
absence. Leaves are granted on the assumption that the employee will be able to
return to regular employment at the expiration of the leave or earlier, if the
condition necessitating the leave no longer exists. EPC will adhere to existing
legislation at the time of the request.

JD–71–04

5

10

15

20

25

30

35

40

45

50
23
DEFINITION:

Leave of absence is defined as time off from work with
permission, but without pay, with the right to reinstatement and,
upon return, without loss of rights earned in service prior to the
leave.

REQUESTS AND APPROVALS:

• Requests for leaves should be made in writing using the
Employee Time Off Request Form . . . . The employee should
indicate the reason a leave of absence is desired and the
approximate length of time the employee expects the leave to last.
A copy of all documentation concerning the reason for the leave is
also required to be submitted with the form (i.e. doctor’s
recommendation, notice to appear for civil or military duty, etc.).
The employee should present the form to his/her supervisor for
approval.

• A leave of absence up to one week may be granted by the
supervisor with the concurrence of the appropriate EPC
management official. Leaves longer than one week will require
approval of the President. Leaves and approved extensions
(except medical and military leaves) may not exceed three (3)
months in duration.

• Reviews for requests for a leave of absence will take into
consideration the following: length of leave, its purpose,
employee’s attendance record, length of service, and the needs of
the company at the time the leave is required.

TYPES OF LEAVES:

1. Medical leave (includes Family leave).

An employee absent more than ten (10) working days due to
sickness or accident are [sic] placed on Medical Leave of Absence
status, provided a doctor’s statement describing the conditions
and the need for the leave of absence is submitted. The length of
leave is to be based on individual circumstances.

2. Family leave.

Leave for tile birth or arrival of children into the family, or other
approved family hardship, will be for the amount needed for the
individual up to a maximum of six (6) weeks.

3. Personal Leave.

Personal leave includes emergency, hardship, or military.
Generally, requests for leave of absence for recreational and/or
self-gain purposes will be denied.

JD–71–04

5

10

15

20

25

30

35

40

45

50
24

4. Illness in immediate family.

5. Jury duty.

The General Counsel subpoenaed from Respondent all of its attendance-related
discipline issued in 2003–2004. Those records show that, prior to the election, although
Respondent may have well had a culture of pervasive poor attendance and tardiness, as the
General Counsel concedes, it only sporadically and haphazardly disciplined employees with
verbal warnings, written warnings, and terminations for being late, leaving work early, taking
excessive breaks, using too much sick leave, being absent without calling in (no-call, no-show),
calling in late to report an absence (i.e., less than four hours before the start of shift), and all
other forms of absence, whether excused or unexcused. Respondent did not produce in its own
defense any records prior to 2003 to show that its manner of discipline was any different from
what it did in early 2003, and I infer that its discipline was equally sporadic throughout its history.

Based on the records it produced, I find that Respondent disciplined no one in January
and February and the following number of employees in the following months: March, 1; April, 4;
May, 1; June, 3; July, 5; and August, 4. Before September 7 or 8, the first indication in the
record that Respondent had knowledge that union organizing was going on, Respondent issued
1 warning for an abuse of a break period. Four more disciplines issued before Respondent
discharged Vileta. After his discharge, Respondent issued 3 more that month; but in October,
the number increased to 17 and in November, when Respondent for the very first time applied
its 7-point system, Respondent issued 35 warnings, and an additional 18 in December and 17 in
January 2004, many based on Fosnaught’s newly constructed (and somewhat faulty) analyses
of each employee’s attendance and lateness records.

There is no indication in the record that Respondent had ever before, in 2003 or in any
earlier year, enforced the 7-point system or even kept any records. Points were never tabulated
weekly and a summary was never made available to employees, as the handbook dictated. The
7-point system was thoroughly ignored. For example, on April 2, long before the Union
campaign began, a warning was issued to Kris Simoncie that she had missed 8 days of
unexcused absences since January 12, which should have added up to –8 points. But she was
not warned on account of the negative points, nor had she ever been warned before when she
reached –3 points, after three days’ absence, or –5 points, after 5 days’ absence, as the system
dictated.

Furthermore, Fosnaught testified that, despite points being “accumulative over a 12-
month period,” any reference to the 12-month period was meaningless, because points
continued to accumulate from year to year and accrued negative points were never erased. So,
the negative points should have increased, unless one happily had no latenesses or absences,
in which event one was able to obtain a credit of a point each month, or did not utilize the
personal days, in which event one was able to get a credit of a point every three months.18
However, Fosnaught’s interpretation could not have been accurate, because, contrary to his
testimony, there was no accumulation at all. Each of his employee summaries starts the year
18 Fosnaught testified that Respondent implemented changes to its handbook language on personal
days in November or December, so that an employee is entitled to a personal day for each quarter
worked and a point would be credited for each unused personal day. This was computed yearly,
presumably in December, despite Fosnaught’s earlier testimony that the 12 months’ computation would
be computed from the employee’s anniversary date. How Respondent interpreted its handbook before, or
whether it even credited its employees for unused personal days is not reflected in this record.

JD–71–04

5

10

15

20

25

30

35

40

45

50
25

2003 with a “zero” entry, as if the employee had never worked for Respondent before. But Paul
Kelm worked as early as November 15, 1999; Carol DeVilder, June 12, 1996; Dennis Kirby,
April 22, 2001; and Ronald Duncan, September 28, 1998; yet each strangely began the year
2003 with no credited balance and no debits. I find obvious that the 7-point system was never
used.

The complaint alleges that its tightening up and enforcement of its attendance policies
after the Union’s certification violated both Section 8(a)(3) and (5). Respondent first utilized its
7-point system on November 7. Various supervisors on that date and the following dates
distributed warning notices based specifically on the 7-point system to the following employees:
November 7, Chris Corcoran, Tara Thompson, Jonathan Johnson, Harold Brueklander, Joshua
Clark, Deb Huntington, Dawn Hughes, Deb Gulling, Karen Singleton, Richard Phillips, Dustin
Byers, Shawn Stevens, and Joanna Sartor; November 10, Scott Clark, Olson, Joshua Stogdill,
and Dennis Kirby; November 11, Janet Leuze; November 13, Michael Brown; November 21,
Jeff Van Tomme and Corcoran (again); November 22, Brett Gatiss; November 24, Olson (again)
and Crystal Cady (not only a warning but also a second document terminating her); November
25, Goodrich and Stogdill (again); November 26, Greg Kicklighter and Jason Vernier; December
8, Darrin Yilek; December 15, Vernier (again) and Rhett Purser; December 16, Thol Toeun,
Brenda Atkinson, and Susan Hopper; December 31, Adam Nowotny, Phil Mercer, Hopper
(again), Tanya Burtlow, Atkinson (again), and Penny Stevens; January 6, 2004, Mercer (again),
Penny Stevens (again), Russell Callison, Michelle Benson, and Rebecca Bradley; and January
7, Dustin Baker, William Gragg, and Benjamin Doyle.

In addition, Fosnaught started to time the breaks taken by employees, resulting in
warnings on November 3 to Corcoran (the day he first wore a Union T-shirt) and Lisa Bossard
and Shawn Stevens on November 5. This began what was a concerted effort by supervisors to
time employees’ breaks, resulting in a warnings on December 2, to Antoinette Wallace; on
December 2 and 5, to Purser; on December 11 to Antonio Viramontes; and on January 14,
2004, to Jason Jolley.

Richard Phillips was terminated on November 24 “for being late excessively,” the
termination notice stating, “your attendance has been tracked up to 11/6/03,” thus
demonstrating Respondent’s new use of its 7-point system.19 Cady was terminated on
November 24 for having –12 points, essentially without warning, because the other warning
earlier that day was for –6 points through November 5, a point figure that was then brought up
to date in the later termination. Dan Davis was terminated on December 5, without prior
warning, for being “beyond the allowed points set up in our handbook.” The termination of
Brown on November 21 was based in part on Respondent’s unlawful utilization of its warning
under the 7-point system of November 13. Similarly, Respondent relied on its unlawful warning
of November 24 when it terminated Olson on December 1.20 Other employees who fall into the
same category, terminated as a result of earlier warnings under the 7-point system, are Johnson
19 Respondent contends that Fosnaught noticed that Phillips had not lived up to his agreement not to
be a no-call, no-show. There is no such testimony.
20 Respondent correctly contends that it had warned her on October 6 that she had used all her sick
days and that further missed days or tardinesses were punishable up to and including termination. Olson
missed two shifts the Sunday and Monday following Thanksgiving to care for her daughter, who suffered
first, second, and third degree burns in a household fire, for which Olson was terminated. However,
Respondent did not present witnesses credibly testifying that she was fired because she had not
complied with the earlier warning. Instead, Respondent terminated her based solely on its newly enforced
attendance policy, to wit, a warning on November 24.

JD–71–04

5

10

15

20

25

30

35

40

45

50
26

(November 10),21 Byers (terminated on December 4), Stogdill (December 11), Vernier
(December 18), Atkinson (January 5, 2004), Van Tomme (January 6), Scott Clark (January 7),
Doyle (January 8), and Bradley (January 8)

Rather than the continued enforcement of its handbook rules, Respondent’s utilization of
its 7-point system after the Union was certified was completely new, the same as if there were
nothing written in its handbook. Thus, its adoption of this system, being a substantial change in
the employees’ terms and conditions of employment, required notice to the Union and an
opportunity for the Union to bargain about the new rules. Roll & Hold Warehouse & Distribution
Corp., 325 NLRB 41, 42 (1997), enfd. 162 F.3d 513 (7th Cir. 1998). When the Union heard
about Respondent’s conduct, it wrote Respondent on November 10 complaining about its
implementation of a retroactive absentee policy and requesting bargaining. At the following
day’s negotiations, Respondent stated that it was reviewing its absentee record [which included
latenesses] back to the beginning of the year “and catch everybody up and start disciplining.”
Walker said that Respondent could not do that—“You just can’t go back and whack ‘em.”—
noting that there was a progressive discipline procedure.

Walker’s plea was unavailing. Respondent not only implemented its 7-point system but
also began to warn its employees for each and every absence and each and every lateness,
even the slightest of one minute,22 with a vigor and intensity never seen before, picking up
violations that had been regularly and routinely ignored or tolerated, with sporadic and minor
exceptions, throughout the previous 10 months and, for all that this record suggests, had never
been enforced. I conclude that Respondent’s overall enforcement of its 7-point system and of
the amount of time that its employees could take their breaks was a changed term and condition
of employment, as to which Respondent was bound to give notice to the Union and bargain with
it before effectuating. By not giving the Union an opportunity to bargain, Respondent violated
Section 8(a)(5) and (1) of the Act.

I also conclude that its greater scrutiny and stricter enforcement arose from its Union
animus and its desire to retaliate against all its employees, in violation of Section 8(a)(3) and (1)
of the Act. Schrock Cabinet Co., 339 NLRB No. 29, slip at 2-3 (2003). This is evidenced by the
timing of the warnings, beginning on November 7, one week after the Union was certified. (At
the very earliest, assuming the truth of Fosnaught’s assertion that he did not begin working on
the employees’ attendance charts until directed to do so by Oleson, Fosnaught began after the
commencement of the employees’ union activities, because Oleson was not first employed until
September 15 and the Union filed its petition for an election on September 11.) The timing of
Respondent’s new scrutiny is sufficient to support a finding of a Section 8(a)(3) violation. Toll
Mfg. Co., 341 NLRB No. 115, slip op. at 2 (2004); La Gloria Oil and Gas Co., 337 NLRB 1120,
1123 (2002), enfd. mem. 71 Fed. Appx. 441 (5th Cir. 2003).

That finding is also supported by Respondent’s utterly vindictive actions, so disparate
from its conduct before the Union was elected as the employees’ bargaining representative. The
21 Johnson was rehired after the Union struck on January 25, 2004. He was warned for absenteeism
and lateness on February 27 and March 8, 2004, respectively, but the record does not reveal that he was
terminated again.
22 Under Respondent’s own handbook, a tardiness of less than five minutes is not even classified as
an attendance deviation requiring documentation by a green slip. I credit the testimony of many of the
employees who blamed their latenesses of a minute or two on the facts that the time cards were
haphazardly shelved, sometimes five deep, and that there was a crowd of employees clocking in and out
at the same time. Fosnaught guessed that in perhaps September or October, Respondent added a time
clock and a new rack for time cards.

JD–71–04

5

10

15

20

25

30

35

40

45

50
27
new warning notices spelled out for the employees their standing on the 7-point scale and
warned, with two exceptions, that any more attendance issues might result in the termination of
the employee. One warned Vernier, even though he had only –5½ points. Two warned
employees Goodrich and Stogdill that they had no more chances: they would be terminated if
they were one minute late. As found above, Cady was first warned on November 24 that as of
November 5 she had –6 points. Apparently, Fosnaught continued his review of her records and,
updating her records, found later that day that she had –12 points, for which she was
immediately fired, despite the fact that she had not been guilty of any additional conduct for
which she had been warned earlier that day. The warning in the first notice was thus
meaningless. Similarly, Richard Phillips heeded the written warning that was originally given to
him on November 7. He also heeded the oral warning from Prim, who told him that, if he was
late to work again, he would be terminated. Phillips was terminated on November 24 for “being
late excessively,” despite the fact that he was not late again, nor was he absent from work, after
the initial warning. Respondent had merely reviewed his records from October 22 and found that
he had been late (3–9 minutes) five additional times.

Tony Stevens, an open Union supporter, was terminated on or about January 7, 2004,
for using “too many sick days” as a result of neck surgery, despite his submitting a written
doctor’s excuse that, under Respondent’s attendance policy, should have excused him, with no
points assessed. (Instead, Respondent assessed him at least six negative points.) It is true that
Respondent’s handbook states that an employee is entitled to a maximum of five days of sick
leave per year. However, as noted above, Respondent also provides for medical leave when
employees working at least 1250 hours the preceding 12 months have missed 10 or more days
due to sickness, as long as a doctor’s statement is submitted. Stevens did not have enough
past employment to take advantage of a medical leave, but neither did Sumner, whom
Fosnaught offered to cover under the medical leave provisions. There is no record of
Respondent ever having terminated an employee for exceeding its sick-day rule prior to the
Union’s certification. In fact, the record uniformly demonstrates that Respondent did not enforce
its handbook. For example, Kathy Williams was sick at least 23 days and was not terminated.
Russell Callison, Dustin Cooper, and Ron Duncan were not terminated, despite at least 8 days’
absence. Karen Singleton was sick at least 6 days early in her employment, yet was not
disciplined. Sumner, however, was unlawfully terminated on November 20 for absences relating
to his ongoing illness.

These incidents of disparity are the norm, not the exception. Fosnaught’s computation of
Williams’s absentee record resulted in an astounding –31 points by October 27 (it was –32 the
next day), for which she was given a written warning with the threat that further absences could
result in her being terminated. Johnson was similarly warned on November 7 for having –18
points. On the very same day, Respondent issued similar warnings to, among others, Tara
Thompson, who had only –6 points, and Deb Huntington and Dawn Hughes, both of whom had
–6½ points.

Prior to the Union organizing drive, as stated above, Respondent sporadically warned
and otherwise disciplined employees for, among other things, tardiness, absence, and taking
too long breaks and leaving work early. But, as also noted above, Respondent never issued so
many warnings and terminated so many of its employees, within such a short period, as it did
immediately after the Union won the election. The General Counsel has made a sufficient prima
facie case under Wright Line of a violation of Section 8(a)(3), by his demonstration of the timing
of Respondent’s actions, as well as by showing how disparate its discipline was. Respondent
argues that, in light of the fact that the Union had just won the election and gained a one-year
protection from any challenge to its majority status, it made no sense that Respondent would
attempt to discourage union activity. To the contrary, Kargarzadeh meant to show the

JD–71–04

5

10

15

20

25

30

35

40

45

50
28
employees exactly who was the boss. He would no longer permit Respondent’s rules to be
violated. All employees had to comply, even though some neutral or antiunion employees were
also disciplined in the process. Davis Supermarkets, Inc. v. NLRB, 2 F.3d 1162, 1168–1169
(D.C. Cir 1993), cert. denied 511 U.S. 1003 (1994). In this circumstance, it was not necessary
that the General Counsel show that Respondent was aware of the pro-union sentiments of each
disciplined employee in order to establish a Section 8(a)(3) violation, as long as he showed that
the increased discipline was part of a mass discipline, as here, “for the purpose of discouraging
union activity.” Birch Run Welding & Fabricating, Inc. v. NLRB, 761 F.2d 1175, 1180 (6th Cir.
1985); Merchants Truck Line, Inc. v. NLRB, 577 F.2d 1011, 1016 (5th Cir. 1978); M.S.P.
Industries v. NLRB, 568 F.2d 166, 176 (10th Cir. 1977).

Because the General Counsel made such a showing of unlawful motive, it then
behooved Respondent to show, by a preponderance of the evidence, that it would have taken
the same action as it did, even in the absence of the employees’ Union activities. Oleson
testified that two to three weeks after he was first employed, which would place the event at the
end of September or the beginning of October, he noticed that Respondent had a serious
problem with having enough employees running the presses. He questioned Fosnaught about
whether there were not enough employees to work or whether employees were simply not
showing up for work. Fosnaught and all the supervisors told Oleson that not enough people
were showing up, so Oleson asked Fosnaught why and he answered that he had not updated
the attendance records, that there were employees who continually did not show up, and that
nothing was done about them. As a result, Oleson asked Fosnaught to update all the
attendance records.

However, my review of this time period indicates no abnormal absenteeism that might
have prompted Oleson’s concern. Indeed, the generality of his testimony, unsupported by
specifics as to which machines has been left unattended, as well as the lack of corroboration
from any of the supervisors, and finally the discrepancy between his testimony and the actual
dates of the preparation of the attendance sheets, leads me to the conclusion that his testimony
is not credible. I refuse to believe or credit it. It is well settled that, when the asserted reason for
an action fails to withstand scrutiny, the Board may infer that there is another reason—an
unlawful one which the employer seeks to conceal—for the discipline. Shattuck Denn Mining
Corp., 362 F.2d 466, 470 (9th Cir. 1966); Painting Co., 330 NLRB 1000, 1001 fn. 8 (2000), enfd.
298 F.3d 492 (6th Cir. 2002). I so infer. In any event, Respondent has not met its burden of
showing under Wright Line that it would have enforced its absenteeism and lateness policies,
including its 7-point system applying to the entire unit, in the absence of the election results.
Accordingly, I conclude that Respondent violated Section 8(a)(3) and (1) of the Act.

I specifically include in this conclusion of law the discharges of Corcoran and
Hautekeete. On November 3, Fosnaught watched employee Corcoran, a known Union
supporter who wore a pro-Union T-shirt to work, as he took and while he was taking his break
and then issued a written warning to him for returning from break three minutes late. Then
Respondent gave him his 7-point system warning on November 7, followed by a warning on
November 16 for clocking in two or three minutes late, despite Prim’s consent to Corcoran’s
taking a 15-minute lunch instead of a 30-minute lunch to make up for the tardiness and despite
the fact that Corcoran actually took 15 minutes less for lunch. A week later, he was disciplined
for a broken dye meter, for which he was not trained and, in any event, Fosnaught conceded
was not Corcoran’s fault. Finally, he was discharged on December 1 for failing to find a die for a
press, which he could not find although he looked for it, and failing to tell Razizadeh that he
could not find it. That was the only reason of the entire bunch that might have had any validity,
had Respondent produced any credible proof. But Fosnaught commented, in support of the
discharge, that Corcoran had had numerous write-ups and had just been written up the prior

JD–71–04

5

10

15

20

25

30

35

40

45

50
29
week because of the broken dye meter, that this was his second write-up for job performance
and he was going to be terminated. From the word “numerous,” I find that Fosnaught included
the discipline which resulted from its newly enforced attendance policy and that he would not
have terminated Corcoran but for that unlawful discipline.

Another open Union supporter, Hautekeete, was a process technician on the third shift,
a high paying position involving increased responsibilities and skills. He overslept twice in four
days, December 6 and 10 and was a no-call, no-show, but received no warning or even criticism
from his supervisor, Jeff Slagle, who did not testify. He did, however, receive a written warning
on December 9 for leaving a soda bottle with water in it on his press, even though that was
permissible according to Respondent’s handbook (“Drinks such as water and soft drinks in
securely covered containers are allowed.”)

His downfall occurred the next Saturday, December 13. During that week, Slagle had
asked him to work that Saturday, and Hautekeete declined to do so, as he had also declined
Kargarzadeh’s request the prior Saturday, because that would have been the seventh day in a
row of work (false, because of his no-show that week and, inaccurate, because Slagle offered
him Friday off instead) and he had a previous commitment. Nonetheless, Slagle put his name
on Saturday’s schedule, and Hautekeete again advised Respondent, through Coomes and a
first shift process technician, that he would not work. And he did not. On Sunday, he was going
to work; but his ride to work did not show up. Hautekeete did not own a car, and so he walked to
a pay phone, told supervisor Nigel McGinnis what had happened, and said that he would walk
the mile and one-half to work and was on his way. McGinnis said that he would pick him up at
the gas station from which he was calling. McGinnis arrived, but instead of taking Hautekeete to
work, he took him to Hautekeete’s apartment, telling him that Razizadeh said that Hautekeete
was not needed that night, but should report to Fosnaught’s office the next morning.

As Hautekeete was waiting to see Fosnaught the next day, Slagle told him that he
thought Razizadeh was firing Hautekeete for “something to do with your attendance.” When
Fosnaught appeared, he said “If you woulda came in last night . . . we had a warning for you
about your attendance.” Hautekeete explained how he had been told not to come in. Fosnaught
said that he knew nothing about that. They waited for Razizadeh to arrive, and Hautekeete
explained that he had been working six days a week for months (I note, however, only five days,
because of his two unexcused absences), one time even seven. Razizadeh joined the meeting
and questioned Hautekeete about his absence on Saturday night. After Hautekeete explained
the situation, that he did not want to work a seventh day in a row, Razizadeh stated that he did
not want Hautekeete to work there anymore and left.

Hautekeete’s testimony reveals that he was terminated because of Respondent’s
dissatisfaction that he refused to work on Saturday night, as he was assigned to do. Testified
Hautekeete, “I was pretty much told that I was being terminated because I didn’t come in that
Saturday night.” That smacks more of deliberate insubordination, rather than a mere failure to
show up when assigned. On the other hand, after Razizadeh left the meeting, Fosnaught, by
Hautekeete’s request, clarified that the attendance issues for which Hautekeete was being
terminated encompassed the two weeks immediately prior to the termination, to wit, his two no-
shows and then his conduct on Saturday night, calling in at 10:45 p.m., which was “too late to
call in.” In fact, Hautekeete had made clear that he was not willing to work that night the day
before and so told Coomes and the technician, neither of whom rebutted that testimony.

JD–71–04

5

10

15

20

25

30

35

40

45

50
30

Accordingly, I conclude that Respondent was merely enforcing its new attendance policy. By
doing so, it violated Section 8(a)(3).23

Transfers of Employees

As of early December 2003, Kargarzadeh also owned and operated a plastics company,
Pella Plastics, in Pella, Iowa, which was nonunion and which Kargarzadeh had an agreement to
sell to another company, Clarion Technologies. Nonetheless, at that time, Respondent
transferred to Pella Plastics Melinda Davis, Bennett, Randall Emery, Richard Miller, Kristal
Miller, and Kathy Miller, without any notice to the Union, giving it an opportunity to bargain.
Oleson’s defense to the Section 8(a)(5) allegation is that the employees asked for the transfer,
which was correct regarding Emery and the Millers, but not Davis and Bennett. More
importantly, the Union never indicated to Respondent that it was acceptable that bargaining-unit
employees be transferred out of the unit to a different company, nor did the Union waive its right
to bargain on behalf of these employees. The General Counsel cites no legal authority for his
position, and I have found no decisions directly on point. Respondent looks at the issue as one
of relocation of bargaining-unit work, to be decided with the guidance of Dubuque Packing Co.,
303 NLRB 386, 391 (1991), enfd. in relevant part sub nom. Food & Commercial Workers Local
150-A v. NLRB, 1 F.3d 24 (D.C. Cir. 1993); but, here, unit work was not transferred. Unit
employees were transferred, to another unit; so Dubuque Packing is inapposite.

The issue here is whether, with the transfer of these employees, the Union has some
interest, that is, whether there is something that the Union can bargain about or, put another
way, whether the transfer is amenable to bargaining. Fibreboard Paper Products Corp. v. NLRB,
379 U.S. 203, 210–211 (1964). I conclude that it is. For example, the Union, in representing all
the bargaining-unit employees, might have believed that different employees should have been
given the chance to move to Pella Plastics. Perhaps some lived closer to Pella than the Millers
and had wanted to move, expressing their desires at an earlier date. Or perhaps the choice of a
move should have been made on the basis of seniority, particularly regarding Davis and
Bennett, as to whom there is no credible evidence that either wanted to move but were forced to
move. In fact, as to them, the transfer was more in the form of a layoff, which, as held below,
cannot be effected by Respondent’s unilateral action. Westinghouse Electric Corp., 206 NLRB
812, 822 (1973), enf. denied on other grounds 506 F.2d 668 (4th Cir. 1974). I conclude that
Respondent, by not giving the Union notice and an opportunity to bargain, violated Section
8(a)(5) and (1).

I also conclude that Respondent transferred Davis, a Union stewardess, and Bennett in
violation of Section 8(a)(3) and (1) of the Act. How Bennett arrived at Pella Plastics, from
Respondent’s viewpoint, is unconvincing. Coomes testified that he had heard from Oleson (who
did not testify about this) that she wished to be transferred. He added that Bennett had told him
that she wanted to go back to Pella Plastics, where she had previously been employed, and that
would mean a shorter drive and reduced gas costs. That is totally improbable. Bennett had
recently moved to Newton, Iowa, which was a 20–30 minute drive to Respondent’s facility,
23 In so doing, I find that Fosnaught’s records of Hautekeete’s attendance probably were inaccurate,
charging him for missing two holidays for which work was not scheduled (Memorial Day and Labor Day);
two dates for which Respondent had no indication of their excused or unexcused status (April 17 and 21);
and a Saturday for which Hautekeete was not scheduled (August 30). I also specifically do not credit
Fosnaught’s testimony that he showed Hautekeete his record of absences. Hautekeete denied that, and
most employees denied, contrary to Fosnaught’s testimony of his general practice, that they were ever
shown those records to check them for their accuracy.

JD–71–04

5

10

15

20

25

30

35

40

45

50
31

whereas Pella Plastics was about 45 minutes to an hour away. She testified that she was “a
little mad,” when told about her transfer; and I have no reason to doubt her. Furthermore, in
addition to crediting her, it follows that Coomes lied.

The reason that Coomes lied was that he was intricately bound up in the story of her
transfer and Davis’s. On about December 2 or 3, Coomes complained to Marvin Burkett, a
Union committeeperson, that Davis was talking to Emery about signing a union card at his press
and that Respondent did not condone that during working hours. (Davis’s lead operator, Rachel
Guthridge, also observed the same incident.) Burkett said that he had already talked to her
about that, telling her that she was not supposed to do it during working hours. Within a day or
two, on Thursday, December 4, Coomes, mimicking conduct he used in his unlawful attempt to
get rid of Fults, assigned Davis to a console press, which she had not worked on for about two
months and which, when she did work on it, she was able to do so for only an hour before being
removed because she could not keep up with it. Davis complained to Fosnaught, without
success,24 and continued to work on the same press on Friday, through tears, because she
could not keep up with the machine.25

On Monday, December 8, Razizadeh told her that she was being transferred to Pella
Plastics. She said that she could not be transferred because she did not drive to work, that
Bennett was her driver, and that she was happy in Grinnell. Nonetheless, ten minutes later,
Kargarzadeh repeated that she was being transferred. Davis repeated that she did not want to
be transferred because Bennett was her driver and she was happy where she was. He asked
who was Bennett, and she pointed at her. He said that she would be transferred, too. At no time
did Razizadeh or Kargarzadeh counter Davis’s objections with a comment that they had thought
that she had requested to be transferred. In fact, the circumstances surrounding her alleged
request were never set forth directly by Oleson or any witness to the request. I find that there
was no such request.

Without there being a request for a transfer, the record is barren of any reason for the
transfer. Once again, Shattuck Denn Mining Corp., 362 F.2d at 470, authorizes an inference
that the reason for the transfer was an unlawful one which Respondent attempted to conceal, an
inference particularly appropriate in light of the statement made on December 10 by Karen,
Clarion’s human resources representative, who asked Davis if she was “going to try and
organize a union in there also,” a clear indication that Respondent had told Clarion that Davis
had been a Union stewardess or that she was attempting to get a Union authorization card from
Emery. Furthermore, both Davis and Bennett were good press operators (Coomes testified that
they were worthy of rehire); and, from mid-November 2003 to March 2004, Respondent had
been running its Grinnell plant six days a week, and sometimes seven, just to meet daily
shipments and customer demands and had been hiring press operators off the street.

Finally, despite Fosnaught’s untruthful testimony that these two employees were merely
transferred, Bennett’s personnel file indicates that she was terminated. In fact, they were sent to
Pella Plastics with the knowledge that it was going to be sold to Clarion, as it was on December
10 (Kargarzadeh knew of the pending sale at least a month before), thus putting these two
24 Davis testified that she was so upset that she “spouted off” that she would like to be transferred,
but there is no evidence that anyone heard her.
25 Fosnaught did not deny this testimony. Instead, he alleged that he traveled to Pella Plastics on
December 10, and Davis “came running up” to and “grabbed ahold” of him, pronouncing that she
transferred to Pella Plastics and that, if she did not like it, she was going to run to the Union and get her
job back in Grinnell. I find his testimony improbable and discredit it.

JD–71–04

5

10

15

20

25

30

35

40

45

50
32

employees out of Respondent’s control, a de facto termination. Furthermore, at the time of the
sale, Respondent transferred Dan Jones and maybe three or four other machine operators from
Clarion to it. Davis’s termination clearly resulted from her union activities. Bennett, only a Union
card signer, became ensnared in Davis’s unlawful termination. I conclude that both were
transferred and lost their jobs with Respondent in violation of Section 8(a)(3) and (1) of the
Act.26

Layoffs of Employees

The complaint alleges that Respondent unlawfully laid off other employees. Respondent
notified Robert Waddell on November 28 that his position was “eliminated.” His termination
notice, signed by him, indicated that Respondent offered him an operator’s position. The record
is silent about his response to that offer. Respondent laid off Vernon Vanderleest on December
5 due to, according to its answer, “loss of business.” Respondent laid off Burkett, a strong Union
supporter, the Union’s observer at the election; and a member of the Union’s negotiating
committee, on December 7, for loss of business. Although the General Counsel complained that
he should not have been laid off, because two other employees, Kenny Garnett and Jeremy
Dohse, had less experience as a mold setter and others had less seniority than he, only the
latter was correct. In fact, all the mold setters had more experience than Burkett as a mold
setter, albeit crediting their experience at other companies; and Respondent persuasively
showed that they performed their jobs more capably than Burkett.

Respondent laid off Bryan Keegan in late December because he was a carpenter hired
to work with contractors to add restrooms, a new office, and a break room, and his work was
completed. John Thompson worked in maintenance and was laid off on January 2, 2004,
according to Fosnaught, because Respondent was downsizing and he was no longer needed
(Fosnaught said that Thompson might be called back if things picked up) or terminated for
insubordination, according to Respondent’s answer. This occurred shortly after he had
questioned why he had not received holiday pay for Christmas and why he had not yet received
his promised 90-day evaluation and raise.27

Layoffs are mandatory subjects of bargaining. Tri-Tech Services, Inc., 340 NLRB No. 97,
slip op. at 2 (2003); Falcon Wheel Division LLC, 338 NLRB No. 70, slip op. at 1 (2002). Except
for Keegan, Respondent had a duty to notify and bargain with the Union as to whether there
should be a layoff, who should be selected, and what the effects of the layoff should be. Ladies’
Garment Workers Local 512 v. NLRB, 795 F.2d 705, 710–711 (9th Cir. 1986); Tim Foley
Plumbing Service, 332 NLRB 1432 fn. 1 (2000), citing Garrett Flexible Products, 276 NLRB 704,
26 On December 11, Clarion assigned Davis to work at its cement plant, heavy labor that Davis felt
she could not handle. She quit, and Bennett had to take her home, accruing a point under Clarion’s
attendance policy. The next day, before reporting to Clarion, Bennett telephoned Fosnaught but was
unable to reach him. She was told, however, by the person answering the phone that Fosnaught was
busy and that it was Kargarzadeh’s position that “anybody from Pella is not allowed on the property or he
will call the cops.” Bennett stayed at Clarion for a few more days. On Tuesday, December 16, she
complained to Karen that she was assessed a whole point, rather than one-half, when she took Davis
home on December 11. In turn, Karen said that Bennett had an “attitude” since Davis quit, to which
Bennett responded that she thought that Clarion’s assignment of Davis to the cement plant was “crap.”
Karen stated that either Bennett’s attitude had to change or she could clock out and never come back.
Bennett refused to promise that her attitude would change, and she was terminated.
27 Contrary to Respondent’s brief, Thompson was not hired as a temporary employee. He was told
that his employment “might be short term might not be short term.” After he passed his probationary
period of 90 days, he could be hired full time.

JD–71–04

5

10

15

20

25

30

35

40

45

50
33

706 fn. 4 (1985). As to them, Respondent did not fulfill its duty. All these layoffs were without
notice to the Union and without giving the Union an opportunity to bargain.

The only evidence of some kind of notice and bargaining was that, a month before, on
October 30, the day after the Union was certified, Oleson telephoned Walker, advising that,
because of the loss of work for Lennox, he foresaw a possible layoff of 50–70 employees. He
wanted the Union’s input about how to accomplish the layoff. Walker said that temporary
employees would go first, then probationary employees, and then employees would be selected
by seniority, junior people being laid off first. Walker then mentioned recall rights, that
customarily the Union had provisions for recall during the next three to five years. On the same
day, Oleson sent Walker a letter detailing his method of implementing the layoff. Walker called
him two days later to complain about specifics contained in the letter; but Oleson interrupted
that he thought, because of attrition, there would be no need for a layoff after all.

Because the possibility of a layoff became moot, there was no further discussion of this
matter. Thus, there was no agreement about the procedure for a layoff,28 nor did the Union
waive bargaining, as Respondent contends. Contrary to Kargarzadeh’s assertion in answer to
my questions, there is no evidence that the Union had been given notice of the layoffs or
eliminations of the positions of these five employees and that the Union had indicated that it
“had no problem” with each of them. Regarding Keegan, however, there is no proof that he was
not hired as a temporary employee; and his job functions were completed. Respondent had no
duty under the Act to bargain with the Union about his term of employment. Temporary
employees were specifically excluded from the unit. I dismiss the Section 8(a)(5) allegation
regarding him. As to the four other laid off employees, who were either told that if business
remained good Respondent would bring them into the department, and thus were not temporary
employees, or were laid off for reasons unrelated to their alleged status of being temporary
employees, such as “loss of business,” I conclude that Respondent violated Section 8(a)(5) and
(1) of the Act.

The Section 8(a)(3) violations are grounded on the fact that, in part, at the time of the
layoffs, Respondent was running advertisements through the Iowa state website for the Iowa
Work Force Development office for press operators (the original order was placed on November
24), had contracted with Manpower for the 18 press operators and, between October 31, 2003
and March 22, 2004, hired 50–60 people off the street, with about 25 of these new hires still on
the payroll as of March 22. From at least November 2003 through March 2004, Respondent was
operating six days a week, sometimes seven, just to meet its daily production demands.
Regarding Burkett, he complained to the Union, which complained to Oleson, resulting in
Respondent’s offer and Burkett’s acceptance of a position as a third-shift press operator at
substantially less than he was previously earning, which he accepted and performed until the
strike began on January 25, 2004. After Burkett returned to work as a press operator, he saw for
the first time Rachel Guthridge (who was not classified as a mold setter) doing mold setting.

As to all these laid off employees, the Counsel for the General Counsel cogently
contends that, even if Respondent accurately asserted that its layoffs (or terminations) of
Waddell, Vanderleest, Keegan, Burkett, and Thompson were motivated by legitimate business
concerns, the fact that these employees were not offered the unskilled positions being
28 The General Counsel correctly contends that, even if the Union were found to have agreed to
Respondent’s proposed terms for staff reduction, Respondent did not even follow its own proposed terms
because it never terminated its Manpower employees, whom Respondent claims were temporary, and
disregarded the skills and seniority of its employees.

JD–71–04

5

10

15

20

25

30

35

40

45

50
34
simultaneously meted out daily to people off-the-street and inexperienced temporary employees
provides a basis for a finding that the terminations were motivated by animus toward the
bargaining unit’s union activities. I agree, except for Waddell, who was offered such
employment. Certainly, the General Counsel has presented a prima facie case of discrimination
against the other four employees for electing the Union as their bargaining representative,
particularly with the testimony that Guthridge was performing Burkett’s work and Respondent
hired a new maintenance employee, Don Phillips, after it had laid off Vanderleest, Keegan, and
Thompson, without having given the laid-off maintenance employees an opportunity to return.
Nothing that Respondent introduced explained that it would have laid off or terminated these
four employees, but for the activities of all the employees in electing the Union. In fact, in later
February or early March, Respondent laid off another maintenance employee and gave him a
job as a press operator. Respondent has not met its burden of proof or persuasion under Wright
Line. I conclude that Respondent violated Section 8(a)(3) and (1) of the Act as to all of the laid
off employees.

The Union’s Request for a Tour and Demand for Information

The complaint in Case 18–CA–17139 alleges that Respondent also violated Section
8(a)(5) by failing to permit the Union to tour its facility and failing to supply to the Union
requested information. Prior to December 2, at negotiations, the Union asked for a plant tour. It
reiterated its request in letters, dated December 19 and January 23, 2004. Walker explained:

[W]e’ve had some safety concerns. We’d like to see the general layout and also
when we are negotiating we like to have a feel for what we’re negotiating so we’d
like to be in the plant so we can kind of see how it works. It makes it difficult to
negotiate an agreement without, you know, realizing exactly how they do things.
Our primary concern is our responsibility to the membership and safety to start
with.

In fact, on November 14, the Union complained to OSHA of various safety problems, including a
gas line break, exposed high voltage wire, and fire hazards, resulting in a visit to the facility in
December by Union Vice-President Johnson and an agent of OSHA. Kargarzadeh refused them
admittance. The Union’s request for a tour was repeated at each and every bargaining session.
Respondent’s consistent response was: “Not at this time. We know you are entitled to it.”

In Holyoke Water Power Co., 273 NLRB 1369, 1370 (1985), enfd. 778 F.2d 49 (1st Cir.
1985), cert. denied 477 U.S. 905 (1986), the Board reaffirmed that “health and safety conditions
are a term and condition of employment about which an employer is required to bargain on
request” and that “Clearly, health and safety data is relevant to [a union’s] representation
obligation,” citing Minnesota Mining Co., 261 NLRB 27 (1982). But the Board also ruled that “an
employer’s right to control its property is a factor that must be weighed in analyzing whether an
outside union representative should be afforded access to an employer’s property,” citing NLRB
v. Babcock & Wilcox Co., 351 U.S. 105 (1956). 273 NLRB at 1370.

The Board held that the union had to make more than a mere showing that the
information sought was relevant to its proper performance of its representational duties. That
alone does not obligate an employer “to open its doors.” Id. Instead, each of the two conflicting
rights—the right of the employees to be responsibly represented and the right of the employer to
control its property and ensure that its operations will not be interfered with—must be
accommodated. The Board then established the following balancing test for determining
whether an employer’s denial of a union’s access to its premises violated Section 8(a)(5) of the
Act:

JD–71–04

5

10

15

20

25

30

35

40

45

50
35
Where it is found that responsible representation of employees can be achieved
only by the union’s having access to the employer’s premises, the employer’s
property rights must yield to the extent necessary to achieve this end. However,
the access ordered must be limited to reasonable periods so that the union can
fulfill its representation duties without unwarranted interruption of the employer’s
operations. On the other hand, where it is found that a union can effectively
represent employees through some alternative means other than by entering on
the employer’s premises, the employer’s property rights will predominate, and the
union may properly be denied access. [Id.]

Here, there has been a showing that the safety and health concerns can be addressed
only by an examination of the plant. Hercules, Inc., 281 NLRB 961, 961 (1986), enfd. 833 F.2d
426 (2d Cir. 1987). Furthermore, there was a need for the inspection based on the Union’s
recent assumption of the representation of the employees. See generally C.C.E., Inc., 318
NLRB 977, 978 (1995). I note that at no time has Respondent contended that the Union is not
entitled to the inspection it requested. To the contrary, Respondent conceded that the Union
was entitled to it. I conclude that Respondent violated Section 8(a)(5) and (1) of the Act in this
respect.

On December 2, the Union requested “any and all evidence the Company used in
terminating” employees who were terminated since the election, with particular emphasis on
those who were terminated for violating of Respondent’s newly enforced absenteeism policy. In
its letter of December 19, the Union also charged that Respondent “may be unfairly
administrating their attendance policy.” The Union demanded “a copy of every employee’s
record showing how and when they are charged points, and how and when points are taken
off.” Respondent supplied some records on January 5, 2004, but the Union complained on
January 9, with a follow-up letter on January 23, that the records did not include the green slips,
which were supposed to be signed by supervisors, either excusing or not excusing tardinesses.
The General Counsel subpoenaed them, and several batches were produced at the hearing and
referred to in the Official Transcript, although the slips were not offered in evidence. Thus, it is
clear that Respondent withheld from the Union material, which was relevant, and material to the
discipline that Respondent was meting out. I conclude that Respondent violated Section 8(a)(5)
and (1) of the Act.

Discharge of Union Shop Steward Bregar

Bregar, a Union shop steward, was discharged on January 25, 2004, for “sabotage”
(“conduct which seriously jeopardizes the welfare of the company or another person,” according
to Respondent’s handbook) for telling employees “not to work overtime.” Fosnaught represented
that Respondent had statements from a person, but refused to show them. As a result of
Bregar’s discharge, the third shift employees struck Respondent, a strike that was still going on
at the time of the hearing.

The General Counsel’s case is premised on the fact that Bregar never told employees
not to work overtime; rather, he told them not to volunteer for overtime. Overtime was voluntary.
When overtime was available, an employee had the right to volunteer. Volunteers would work
overtime, unless Respondent could get no volunteers. In that event, Respondent then
designated employees to work overtime. The employees so designated had to work the
overtime that they were assigned. Bregar did not tell those assigned employees not to work
overtime, nor did he tell employees that they were not to work mandatory overtime.

JD–71–04

5

10

15

20

25

30

35

40

45

50
36

Specifically, Bregar testified that he told Angela Laird the week before he was
terminated, in reply to her question about how the contract was going and about the possibility
of a strike, that, if the employees were going to go on strike, they would not want to volunteer for
any overtime. If the employees volunteered for overtime, that would help prolong the strike
(because Respondent would build up its stock of inventory). The written statement that Laird,
who appeared very antagonistic to the Union, gave to Fosnaught, although not precisely in
accord with Bregar’s recollections, is clear on one item: Bregar said only “Do not volunteer for
any overtime at EPC.” Her testimony similarly confirmed that Bregar did not threaten her, nor
did he suggest that she not work mandatory overtime.

The distinction between mandatory and voluntary overtime is particularly meaningful.29
Board law holds that employees who engage in partial strikes lose their Section 7 protection. A
partial strike is a concerted attempt by employees, while remaining at work, to bring economic
pressure on their employer by, among other actions, refusing to work mandatory overtime. E.g.,
C.G. Conn, Ltd. v. NLRB, 108 F.2d 390 (7th Cir. 1939); Valley City Furniture Co., 110 NLRB
1589 (1954), enfd. 230 F.2d 947 (5th Cir. 1956). To the contrary, refusal to work voluntary
overtime is not an unprotected partial strike. St. Barnabas Hospital, 334 NLRB 1000 (2001),
enfd. mem. 46 Fed. Appx. 32 (2d Cir. 2002); Jasta Mfg. Co., 246 NLRB 48, 49 (1979), enfd.
mem. 634 F.2d 623 (4th Cir. 1980); Dow Chemical Co., 152 NLRB 1150, 1151-1152 (1965).
See also Riverside Cement Co., 296 NLRB 840, 841 (1989). Thus, while an employee may not
ask other employees to refuse to work mandatory overtime, the request to decline voluntary
overtime is protected and concerted activity. Respondent’s termination of Bregar for this request
violated Section 8(a)(1) of the Act. In light of this conclusion of law and the fact that the remedy
would be the same, I find it unnecessary to consider whether Respondent also violated Section
8(a)(3), as the complaint alleges.

Remedy

Having found that Respondent has engaged in certain unfair labor practices, I find that it
must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act. Respondent having discriminatorily discharged or otherwise
terminated or laid off or transferred employees Danny Warndorf, John Vileta, Gregory Cooper,
Tem Yom, Alisa Fults, Travis Pagel, Albert Bregar Jr., Marvin Burkett, Brenda Atkinson,
Rebecca Bradley, Michael Brown, Dustin Byers, Crystal Cady, Scott Clark, Chris Corcoran, Dan
Davis, Benjamin Doyle, Jonathan Johnson, Cynthia Olson, Richard Phillips, Tony Stevens,
Joshua Stogdill, Jeff Hautekeete, Greg Sumner, Jeff Van Tomme, Jason Vernier, Danielle
Bennett, Melinda Davis, Randall Emery, Richard Miller, Kristal Miller, Kathy Miller, John
Thompson,30 Bryan Keegan, Vernon Vanderleest, and Robert Waddell, it must offer them
reinstatement and make them whole for any loss of earnings and other benefits, computed on a
quarterly basis from date of discharge to the date of Respondent’s proper offer of reinstatement,
less any net interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus
interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987).
29 Respondent’s brief attempts to obliterate this distinction by arguing that, if employees refuse to
work voluntary overtime, Respondent could have simply required mandatory overtime. So, if Bregar’s
intention was to prevent Respondent from building an inventory, his request had to mean that he was
asking employees not to work any overtime, voluntary or mandatory. That was not the fact. That is not the
law.
30 Respondent’s brief contends that it would not have rehired Thompson, because he threatened at
his termination that he hoped that he did not catch Fosnaught and Dale Puls, Respondent’s maintenance
manager, out of the plant. Thompson denied that he made this threat, and I credit that denial, based on
my general distrust of Respondent’s witnesses.

JD–71–04

5

10

15

20

25

30

35

40

45

50
37
In addition, I shall order Respondent to make the same remedy to all employees who are
not among those named above but who were terminated since November 1, 2003 because of
attendance or tardiness-related conduct applied as a result of Respondent’s newly enforced 7-
point system; because of a transfer from its Grinnell facility after December 1, 2003; because of
a layoff on or after November 1, 2003; or because of a separation due to the elimination of a
position on or after November 1, 2003. I shall order that Respondent remove from any and all
files references to the unlawful discharges, transfers, layoffs, or eliminations of positions of the
above named and as-yet-unidentified employees and that Respondent notify them, in writing,
that this has been done and that their discharges will not be used against them in any way.

I shall order that Respondent remove from its files any references to discipline issued to
the following employees for attendance and tardiness-related conduct since November 1, 2003:
Brenda Atkinson, Justin Baker, Michelle Benson, Lisa Bossard, Rebecca Bradley, Michael
Brown, Harold Brueklander, Tanya Burtlow, Dustin Byers, Crystal Cady, Russell Callison,
Joshua Clark, Scott Clark, Chris Corcoran, Benjamin Doyle, Brett Gatis, Jill Goodrich, William
Gragg, Deb Gulling, Sue Hopper, Dawn Hughes, Deb Huntington, Jonathan Johnson, Jason
Jolley, Greg Kicklighter, Dennis Kirby, Janet Leuze, Phil Mercer, Adam Nowotny, Cynthia Olson,
Richard Phillips, Rhett Purser, Joanna Sartor, Shawn Stevens, Karen Singleton, Penny
Stevens, Joshua Stogdill, Tara Thompson, Tol Toeun, Jeff Van Tomme, Jason Vernier, Anotnio
Viramontes, Antoinette Wallace, and Darrin Yilek. I shall order that Respondent remove from
the files of all employees who are not among those named above but who were disciplined
since November 1, 2003, because of attendance or tardiness-related conduct, or who received
more harsh discipline for other conduct because of the cumulative effect of attendance or
tardiness-related conduct any references to discipline. I shall order that Respondent notify all
employees, both named and as-yet-unidentified, for whom attendance and tardiness-related
discipline is being removed that this has been done and that evidence of the discipline will not
be used against them. I shall order that Respondent remove from all files for Alisa Fults any and
all references to her warning of September 23, 2003, and remove from all files for Gregory
Cooper any and all references to his warning of October 1, 2003 and notify them in writing that
this has been done and that evidence of these warnings will not be used against them in any
way.

I shall order that Respondent notify and, on request, bargain in good faith with the Union
as its employees’ exclusive collective-bargaining representative before implementing any
changes in wages, hours, or other terms and conditions of employment of its unit employees. I
shall order that Respondent cease using temporary employees for the performance of
bargaining-unit work and make its bargaining-unit employees whole for any loss of wages or
benefits they may have incurred as a result of its employment of temporary employees to
perform bargaining-unit work since October 27, 2003, as computed above. I shall order that
Respondent provide to the Union the information that it has requested in writing that is
necessary and relevant to its performance of its duties and by scheduling a tour of the plant, as
requested. I shall order that Respondent rescind any and all unilateral changes that it has
implemented in attendance and tardiness policies since October 24, 2003, and notify its
employees in writing that this has been done. Finally, because Respondent’s failure and refusal
to bargain in good faith precluded the Union from engaging in the collective-bargaining process
during the Union’s initial certification year, I find that a one-year extension of the certification
year, running from the date Respondent begins to bargain in good faith, is necessary to
effectuate the purposes of the Act and to allow the Union a reasonable period of time for good-
faith bargaining, free from the influences of the unfair labor practices committed by Respondent.
See, e.g., Wanex Electrical Services, 338 NLRB No. 16, slip op. at 3 (2003); Mar-Jac Poultry
Co., 136 NLRB 785 (1962).

JD–71–04

5

10

15

20

25

30

35

40

45

50
38

Because of Respondent’s egregious, widespread misconduct, demonstrating a general
disregard for the employees’ fundamental rights, I find it necessary to issue a broad Order
requiring Respondent to cease and desist from infringing in any other manner on rights
guaranteed employees by Section 7 of the Act. Hickmott Foods, 242 NLRB 1357 (1979). In so
recommending, I note that there is evidence of additional independent violations of Section
8(a)(1), including Kargarzadeh’s threat to White shortly before the election that, if the Union got
in, he would close Respondent’s doors, that he would lose a lot of business, and that he was not
going to see that happen. Zimple repeatedly interrogated Fults between mid-September and
that day that she was terminated, adding that unionization would have adverse effects on
employee-manager relationships. Fosnaught also interrogated Edwards, adding the same
predictions of adverse effects. Sumner was also interrogated.

On these findings of fact and conclusions of law and on the entire record, including the
briefs submitted by the General Counsel and Respondent,31 and my observation of the
witnesses as they testified, I issue the following recommended32

ORDER

Respondent Engineered Plastic Components, Inc., Grinnell, Iowa, its officers, agents,
successors, and assigns, shall

1. Cease and desist from

(a) Questioning its employees about their union activities and sympathies, or about the
union activities and sympathies of its other employees.

(b) Asking its employees if they or its other employees have signed union authorization
cards.

(c) Telling its employees that they are causing trouble by engaging in union activities or
suggesting that union activity is incompatible with continued employment at its facility.

(d) Calling the police and having the police come to its facility for the purpose of
prohibiting its employees from distributing union handbills on public property.

(e) Engaging in surveillance of union organizing meetings and its employees who attend
these meetings.

31 Respondent moved during and at the end of the hearing to dismiss the complaints on the ground
that the Region inappropriately provided to the Union a document produced by Respondent during the
course of the investigation, and then the Union used that document to prepare an amended unfair labor
practice charge. I denied the motion, in a portion of the hearing that was not transcribed, but requested
the parties to brief this issue. Respondent did not. I maintain my earlier ruling that the contention should
have been raised as an affirmative defense in the answer, but was not. In addition, there is no cogent
reason that any impropriety at the Regional level should relieve Respondent of its obligation to comply
with the Act.
32 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed waived for all purposes.

JD–71–04

5

10

15

20

25

30

35

40

45

50
39
(f) Threatening its employees with plant closure or telling them that its customers will
cease doing business with it if its employees select a union as their exclusive collective-
bargaining representative.

(g) Questioning its employees about why they have not attended its optional campaign
meetings against the International Union, United Automobile, Aerospace and Agricultural
Implement Workers of America, AFL-CIO (UAW) (Union).

(h) Requiring its employees to remove prounion labels or prounion language from their
clothing.

(i) Disciplining or terminating its employees because of their union activities and support
for the Union.

(j) Giving its employees more difficult work assignments and refusing to provide
meaningful training and assistance to them, but instead, making the assignments more difficult,
in retaliation for their engaging in union activities and their support for the Union.

(k) Threatening its employees with unspecified reprisals if they engage in union
activities.

(l) Threatening its employees that they will receive warnings in retaliation for their
engaging in union activities.

(m) Telling its employees that their support for the Union would be futile or suggesting
that it would not bargain in good faith with the Union about its employees’ wages, hours, and
other terms and conditions of employment.

(n) Promising its employees wage increases to try to discourage them from supporting
the Union.

(o) Using workers contracted from another company to perform bargaining-unit work in
retaliation against its employees’ selection of the Union as their exclusive collective-bargaining
representative.

(p) Enforcing its attendance and tardiness policies more strictly to retaliate against its
employees because they selected the Union to be their exclusive collective-bargaining
representative.

(q) Laying off or transferring its employees because of their union activities and support
for the Union.

(r) Refusing to bargain in good faith with the Union as the exclusive collective-bargaining
representative of its employees by refusing to give to the Union information and a plant tour, as
the Union has requested and which is necessary and relevant to the Union’s performance of its
collective-bargaining functions.

(s) Refusing to bargain in good faith with the Union as the exclusive collective-bargaining
representative of its employees by making unilateral changes in its employees’ working
conditions, including its attendance and tardiness policies, without first providing to the Union
notice and an opportunity to bargain.

JD–71–04

5

10

15

20

25

30

35

40

45

50
40
(t) Refusing to bargain in good faith with the Union as the exclusive collective-bargaining
representative of its employees by unilaterally transferring or laying off its employees, without
first providing to the Union notice and an opportunity to bargain.

(u) Refusing to bargain in good faith with the Union as the exclusive collective-
bargaining representative of its employees by unilaterally making the decision to use contracted
employees to perform bargaining-unit work, without first providing to the Union notice and an
opportunity to bargain.

(v) In any other manner interfering with, restraining, or coercing its employees in the
exercise of the rights guaranteed them by Section 7 of the Act.

2. Take the following affirmative action necessary to effectuate the policies of the Act.

(a) Within 14 days from the date of the Board’s Order, offer the following employees full
reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any other rights or privileges previously enjoyed:

Danny Warndorf
John Vileta
Gregory Cooper
Tem Yom
Alisa Fults
Travis Pagel
Albert Bregar Jr.
Marvin Burkett
Brenda Atkinson
Rebecca Bradley
Michael Brown
Dustin Byers
Crystal Cady
Scott Clark
Chris Corcoran
Dan Davis
Benjamin Doyle
Jonathan Johnson

Cynthia Olson
Richard Phillips
Tony Stevens
Joshua Stogdill
Jeff Hautekeete
Greg Sumner
Jeff Van Tomme
Jason Vernier
Danielle Bennett
Melinda Davis
Randall Emery
Richard Miller
Kristal Miller
Kathy Miller
John Thompson
Bryan Keegan
Vernon Vanderleest
Robert Waddell

(b) Within 14 days from the date of the Board’s Order, remove from its files any
reference to the unlawful discharges, transfers, layoffs, or eliminations of the jobs of the above
named, and within 3 days thereafter notify the employees in writing that this has been done and
that the discharges, transfers, layoffs, or eliminations of positions will not be used against them
in any way.

(c) Offer to all its employees who are not among those named above but who were
terminated since November 1, 2003, because of attendance or tardiness-related conduct;
because of the cumulative effect of attendance or tardiness-related conduct; because of a
transfer from its Grinnell facility after December 1, 2003; because of a layoff on or after
November 1, 2003; or because of an elimination of a position on or after November 1, 2003,
immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to
substantially equivalent employment, without prejudice to their rights and privileges enjoyed.

JD–71–04

5

10

15

20

25

30

35

40

45

50
41
(d) Remove from its files any reference to the unlawful discharges, transfers, layoffs, or
eliminations of the jobs of its as-yet-unidentified employees, and notify the employees in writing
that this has been done and that the discharges, transfers, layoffs, or eliminations of positions
will not be used against them in any way.

(e) Make its above-named and as-yet-unidentified employees whole for any loss of
earnings and other benefits suffered as a result of their discharges, transfers, layoffs, or
eliminations of their jobs, in the manner set forth in the remedy section of the Decision:

(f) Within 14 days from the date of the Board’s Order, rescind and remove from its files
any references to discipline issued to the following employees for attendance and tardiness-
related conduct since November 1, 2003, and within 3 days thereafter notify the employees in
writing that this has been done and that evidence of the discipline will not be used against them
in any way:

Brenda Atkinson
Dustin Baker
Michelle Benson
Lisa Bossard
Rebecca Bradley
Michael Brown
Harold Brueklander
Tanya Burtlow
Dustin Byers
Crystal Cady
Russell Callison
Joshua Clark
Scott Clark
Chris Corcoran
Benjamin Doyle
Brett Gatiss
Jill Goodrich
William Gragg
Deb Gulling
Sue Hopper
Dawn Hughes
Deb Huntington

Jonathan Johnson
Jason Jolley
Greg Kicklighter
Dennis Kirby
Janet Leuze
Phil Mercer
Adam Nowotny
Cynthia Olson
Richard Phillips
Rhett Purser
Joanna Sartor
Shawn Stevens
Karen Singleton
Penny Stevens
Joshua Stogdill
Tara Thompson
Thol Toeun
Jeff Van Tomme
Jason Vernier
Antonio Viramontes
Antoinette Wallace
Darrin Yilek

(g) Rescind and remove from the files of all its employees who are not among those
named above but who were disciplined since November 1, 2003, because of attendance or
tardiness-related conduct or who received more harsh discipline for other conduct because of
the cumulative effect of attendance or tardiness-related conduct any reference to such conduct.

(h) Notify all its as-yet-unidentified employees for whom attendance and tardiness-
related discipline is being removed that this has been done and that evidence of the discipline
will not be used against them.

(i) Within 14 days from the date of the Board’s Order, remove from its files any reference
to the unlawful warnings of Alicia Fults on September 23, 2003, and of Gregory Cooper on
October 1, 2003, and within 3 days thereafter notify them in writing that this has been done and
that the warnings will not be used against them in any way.

JD–71–04

5

10

15

20

25

30

35

40

45

50
42

(j) Cease using contracted employees for the performance of bargaining-unit work and
make its bargaining-unit employees whole for any loss of wages or benefits they may have
incurred as a result of its employment of contracted employees to perform bargaining-unit work
since October 27, 2003.

(k) On request, bargain with the Union as the exclusive representative of its employees
in the following appropriate unit concerning terms and conditions of employment and, if an
understanding is reached, embody the understanding in a signed agreement:

All full-time and regular part-time maintenance employees, press operators,
quality auditors, process technicians, mold technicians, mold setters, material
handlers, auxiliary employees, janitors, and shipping and receiving employees
employed by Respondent at its 1408 Zimmerman Drive South, Grinnell, Iowa
facility: but excluding all office clerical employees, sales employees,
subcontractors, independent contractors, casual employees, seasonal
employees, temporary employees, professional employees, managerial
employees, confidential employees, guards and supervisors as defined in the
Act, and all other persons employed by Respondent.

The Union’s certification year shall be extended for one year from the date on which
Respondent commences to bargain in good faith.

(l) Before implementing any changes in wages, hours, or other terms and conditions of
employment of its employees, notify and, on request, bargain collectively and in good faith with
the Union as the exclusive representative of its employees in the above appropriate unit.

(m) Bargain in good faith with the Union as its employees’ exclusive collective-
bargaining representative by providing to the Union the information that it has requested in its
letters of January 9 and 23, 2004, that is necessary and relevant to its performance of its duties
and by scheduling a tour of the plant, as requested.

(n) Rescind any and all unilateral changes that it has implemented in its attendance and
tardiness policies since October 24, 2003.

(o) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the
Board or its agents, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay due under the terms of this
Order.

(p) Within 14 days after service by the Region, post at its facility in Grinnell, Iowa, copies
of the attached Notice marked “Appendix.”33 Copies of the Notice, on forms provided by the
Regional Director for Region 18, after being signed by Respondent’s authorized representative,
shall be posted by Respondent and maintained for 60 consecutive days in conspicuous places
including all places where Notices to employees are customarily posted. Reasonable steps shall
33 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice
reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
Board.”

JD–71–04

5

10

15

20

25

30

35

40

45

50
43
be taken by Respondent to ensure that the Notices are not altered, defaced, or covered by any
other material. In the event that, during the pendency of these proceedings, Respondent has
gone out of business or closed the facility involved in these proceedings, Respondent shall
duplicate and mail, at its own expense, a copy of the Notice to all current employees and former
employees employed by Respondent at any time since September 9, 2003.

(q) 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
Respondent has taken to comply.

IT IS FURTHER ORDERED that the complaints in Cases 18–CA–17003 and 18–CA–
17139 are dismissed insofar as they allege violations of the Act not specifically found.

Dated, Washington, D.C. August 10, 2004

____________________
Benjamin Schlesinger
Administrative Law Judge

APPENDIX

NOTICE TO EMPLOYEES

Posted by Order of the
National Labor Relations Board
An Agency of the United States Government

The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this Notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities

WE WILL NOT question our employees about their union activities and sympathies, or about the
union activities and sympathies of our other employees.

WE WILL NOT ask our employees if they or our other employees have signed union
authorization cards.

WE WILL NOT tell our employees that they are causing trouble by engaging in union activities
or suggesting that union activity is incompatible with continued employment at our facility.

WE WILL NOT call the police and have the police come to our facility for the purpose of
prohibiting our employees from distributing union handbills on public property.

WE WILL NOT engage in surveillance of union organizing meetings and our employees who
attend these meetings.

WE WILL NOT threaten our employees with plant closure or tell them that our customers will
cease doing business with us if our employees select a union as their exclusive collective-
bargaining representative.

WE WILL NOT question our employees about why they have not attended our optional
campaign meetings against the International Union, United Automobile, Aerospace and
Agricultural Implement Workers of America, AFL-CIO (UAW) (Union).

WE WILL NOT require our employees to remove prounion labels or prounion language from
their clothing.

WE WILL NOT discipline or terminate our employees because of their union activities and
support for the Union.

WE WILL NOT give our employees more difficult work assignments and refuse to provide
meaningful training and assistance to them, but instead, make the assignments more difficult, in
retaliation for their engaging in union activities and their support for the Union.

WE WILL NOT threaten our employees with unspecified reprisals if they engage in union
activities.

WE WILL NOT threaten our employees that they will receive warnings in retaliation for their
engaging in union activities.

WE WILL NOT tell our employees that their support for the Union would be futile or suggest that
we would not bargain in good faith with the Union about our employees’ wages, hours, and
other terms and conditions of employment.

WE WILL NOT promise our employees wage increases to try to discourage them from
supporting the Union.

WE WILL NOT use workers contracted from another company to perform bargaining-unit work
in retaliation against our employees’ selection of the Union as their exclusive collective-
bargaining representative.

WE WILL NOT enforce our attendance and tardiness policies more strictly to retaliate against
our employees because they selected the Union to be their exclusive collective-bargaining
representative.

WE WILL NOT lay off or transfer our employees because of their union activities and support for
the Union.

WE WILL NOT refuse to bargain in good faith with the Union as the exclusive collective-
bargaining representative of our employees by refusing to give to the Union information and a
plant tour, as the Union has requested and which is necessary and relevant to the Union’s
performance of its collective-bargaining functions.

WE WILL NOT refuse to bargain in good faith with the Union as the exclusive collective-
bargaining representative of our employees by making unilateral changes in our employees’
working conditions, including our attendance and tardiness policies, without first providing to the
Union notice and an opportunity to bargain.

WE WILL NOT refuse to bargain in good faith with the Union as the exclusive collective-
bargaining representative of our employees by unilaterally transferring or laying off our
employees, without first providing to the Union notice and an opportunity to bargain.

WE WILL NOT refuse to bargain in good faith with the Union as the exclusive collective-
bargaining representative of our employees by unilaterally making the decision to use
contracted employees to perform bargaining-unit work, without first providing to the Union notice
and an opportunity to bargain.

WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the
exercise of the rights guaranteed them by Section 7 of the Act.

WE WILL within 14 days from the date of the Board’s Order, offer the following employees full
reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed:

Danny Warndorf
John Vileta
Gregory Cooper
Tem Yom
Alisa Fults
Travis Pagel
Albert Bregar Jr.
Marvin Burkett
Brenda Atkinson
Rebecca Bradley
Michael Brown
Dustin Byers
Crystal Cady
Scott Clark
Chris Corcoran
Dan Davis
Benjamin Doyle
Jonathan Johnson

Cynthia Olson
Richard Phillips
Tony Stevens
Joshua Stogdill
Jeff Hautekeete
Greg Sumner
Jeff Van Tomme
Jason Vernier
Danielle Bennett
Melinda Davis
Randall Emery
Richard Miller
Kristal Miller
Kathy Miller
John Thompson
Bryan Keegan
Vernon Vanderleest
Robert Waddell

WE WILL within 14 days from the date of the Board’s Order, remove from our files any
reference to the unlawful discharges, transfers, layoffs, or eliminations of the jobs of the above
named, and within 3 days thereafter notify the employees in writing that this has been done and
that the discharges, transfers, layoffs, or eliminations of positions will not be used against them
in any way.

WE WILL offer to all our employees who are not among those named above but who were
terminated since November 1, 2003, because of attendance or tardiness-related conduct;
because of the cumulative effect of attendance or tardiness-related conduct; because of a
transfer from our Grinnell facility after December 1, 2003; because of a layoff on or after
November 1, 2003; or because of an elimination of a position on or after November 1, 2003,
immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to
substantially equivalent employment, without prejudice to their rights and privileges enjoyed.

WE WILL remove from our files any reference to the unlawful discharges, transfers, layoffs, or
eliminations of the jobs of our as-yet-unidentified employees, and notify the employees in writing
that this has been done and that the discharges, transfers, layoffs, or eliminations of positions
will not be used against them in any way.

WE WILL make its above-named and as-yet-unidentified employees whole for any loss of
earnings and other benefits suffered as a result of their discharges, transfers, layoffs, or
eliminations of their jobs, with interest:

WE WILL within 14 days from the date of the Board’s Order, rescind and remove from our files
any references to discipline issued to the following employees for attendance and tardiness-
related conduct since November 1, 2003, and within 3 days thereafter notify the employees in
writing that this has been done and that evidence of the discipline will not be used against them
in any way:

Brenda Atkinson
Dustin Baker
Michelle Benson
Lisa Bossard
Rebecca Bradley
Michael Brown
Harold Brueklander
Tanya Burtlow
Dustin Byers
Crystal Cady
Russell Callison
Joshua Clark
Scott Clark
Chris Corcoran
Benjamin Doyle
Brett Gatiss
Jill Goodrich
William Gragg
Deb Gulling
Sue Hopper
Dawn Hughes
Deb Huntington
Jonathan Johnson
Jason Jolley
Greg Kicklighter
Dennis Kirby
Janet Leuze
Phil Mercer
Adam Nowotny
Cynthia Olson
Richard Phillips
Rhett Purser
Joanna Sartor
Shawn Stevens
Karen Singleton
Penny Stevens
Joshua Stogdill
Tara Thompson
Thol Toeun
Jeff Van Tomme
Jason Vernier
Antonio Viramontes
Antoinette Wallace
Darrin Yilek

WE WILL rescind and remove from the files of all our employees who are not among those
named above but who were disciplined since November 1, 2003, because of attendance or
tardiness-related conduct or who received more harsh discipline for other conduct because of
the cumulative effect of attendance or tardiness-related conduct any reference to such conduct.

WE WILL notify all our as-yet-unidentified employees for whom attendance and tardiness-
related discipline is being removed that this has been done and that evidence of the discipline
will not be used against them.

WE WILL within 14 days from the date of the Board’s Order, remove from our files any
reference to the unlawful warnings of Alicia Fults on September 23, 2003, and of Gregory
Cooper on October 1, 2003, and within 3 days thereafter notify them in writing that this has been
done and that the warnings will not be used against them in any way.

WE WILL cease using contracted employees for the performance of bargaining-unit work and
make its bargaining-unit employees whole for any loss of wages or benefits they may have
incurred as a result of its employment of contracted employees to perform bargaining-unit work
since October 27, 2003, with interest.

WE WILL on request, bargain with the Union as the exclusive representative of our employees
in the following appropriate unit concerning terms and conditions of employment and, if an
understanding is reached, embody the understanding in a signed agreement:

All full-time and regular part-time maintenance employees, press operators,
quality auditors, process technicians, mold technicians, mold setters, material
handlers, auxiliary employees, janitors, and shipping and receiving employees
employed by Engineered Plastic Components, Inc. at its 1408 Zimmerman Drive
South, Grinnell, Iowa facility: but excluding all office clerical employees, sales
employees, subcontractors, independent contractors, casual employees,
seasonal employees, temporary employees, professional employees, managerial
employees, confidential employees, guards and supervisors as defined in the
Act, and all other persons employed by Engineered Plastic Components, Inc.

The Union’s certification year shall be extended for one year from the date on which we
commence to bargain in good faith.

WE WILL before implementing any changes in wages, hours, or other terms and conditions of
employment of our employees, notify and, on request, bargain collectively and in good faith with
the Union as the exclusive representative of our employees in the above appropriate unit.

WE WILL bargain in good faith with the Union as our employees’ exclusive collective-bargaining
representative by providing to the Union the information that it has requested in its letters of
January 9 and 23, 2004, that is necessary and relevant to its performance of its duties and by
scheduling a tour of the plant, as requested.

WE WILL rescind any and all unilateral changes that we have implemented in our attendance
and tardiness policies since October 24, 2003.

ENGINEERED PLASTIC COMPONENTS, INC.
(Employer)

Dated By
(Representative) (Title)

The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
330 South Second Avenue, Towle Building, Suite 790, Minneapolis, MN 55401-2221
(612) 348-1757, Hours: 8 a.m. to 4:30 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (612) 348-1770.