General Die Casters.Inc.

National Labor Relations Board - Administrative Judge Opinions

May 2, 2011

08-CA-037932 (N.L.R.B. May. 2, 2011)

JD–26–11
Peninsula, OH
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
GENERAL DIE CASTERS, INC.
and Cases 8–CA–37932
8–CA–38277
8–CA–38278
8–CA–38306
TEAMSTERS LOCAL 24 a/w INTERNATIONAL 8–CA–38358
BROTHERHOOD OF TEAMSTERS 8–CA–38390
8–CA–38464
8–CA–38523
8–CA–38546
8–CA–38549
8–CA–38568
8–CA–38600
8–CA–38623
8–CA–38707
8–CA–38916
8–CA–39165
Susan Fernandez and Gina Fraternali, Esqs.,
for the General Counsel
Ronald Mason and Aaron Tulencik, Esqs., (Mason Law Firm Co. L.P.A.)
of Columbus, Ohio for the Respondent
DECISION
STATEMENT OF THE CASE
MARK CARISSIMI, Administrative Law Judge. This consolidated case was tried in
Cleveland, Ohio, on October 18–19, November 8–10, November 15, 17–19, and December 15–
16 2010.1 On October 1, 2010, a third order consolidating cases, second amended consolidated
complaint and notice of hearing issued against General Die Casters, Inc., (the Respondent),
based on charges and amended charges filed by Teamsters Local 24 a/w International
Brotherhood of Teamsters, (the Union), or at times as Teamsters, Local 24.2

1 On March 16, 2011, pursuant to the Respondent’s unopposed motion, the record in this
proceeding was reopened for the limited purpose of admitting an audio recording of a meeting
held on September 17, 2010, as R. Exh. 20. A transcript of this recording had previously been
admitted into evidence as R. Exh. 19.
2 The charge in Case 8–CA–37932 was filed on September 4, 2008, the first amended
charge was filed on October 14, 2008, and the second amended charge was filed on December
31, 2008. The charge in Case 8–CA–38277 was filed on April 21, 2009, and an amended
Continued
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As finally amended at the hearing, the second amended complaint (the complaint)
alleges that the Respondent violated Section 8(a)(3) and (1) of the Act in the following respects
on or about the following dates: on March 21, 2008 assigned more onerous job duties to
employee Jerome Ivery; on September 4, 2009, terminated employee Kevin Maze; on October
9, 2009, suspended employee Willie Smith and then terminated him on October 17, 2009; on
November 10, 2009, withheld wages from employee Emil Stewart for time spent, at the
Respondent’s directive, attending a meeting as a union representative; and since January 1,
2010, has employed employees at its Peninsula facility provided by employment agencies while,
at the same time, refusing to consider hiring the following bargaining unit employees who were
laid off in 2009 for those positions: Christopher Long; Maurice Caldwell; Evan Parker; Clarence
Marshall; Paul Kucinic; George Guthrie; Rahsad Evans; Houston Bass; Melvin Yates; J. W.
Watkins; Mike Moody; Arthur Brown; Nora Hammons; Craig Greczek; Terrance Hemphill;
Raymond Ferry; Brandon Asberry; Walter Wood; Jerry Durenda and Nathan Holland.
The complaint also alleges that the Respondent violated Section 8(a)(5) and (1) of the
Act by engaging in unilateral changes in the following respects on or about the following dates:
on January 1, 2009, changed the employee evaluation procedure, altering when employees are
eligible to receive wage increases; since January 1, 2009, instituted a wage freeze, denying
employees customary wage increases; since February 1, 2009, changed its policy with regard
to employees using vacation days to excuse short notice call offs from work; since February 1,
2009, disciplined employees, including Emil Stewart, as a result of the change in policy
regarding vacation days; on March 5, 2009, and again on April 11, 2010, shut down its facilities
for 1 day; on March 9, 2009, laid off employees from its Twinsburg, Ohio facility including, but
not limited to the following named employees: Terrance Hemphill; Raymond Ferry; Brandon
Asberry; Walter Wood; Jerry Durenda, and Nathan Holland; on March 16, 2009, changed the
work hours of the day-shift janitor; on September 17, 2009 denied employee Harry Lane the
opportunity to be temporarily recalled as a result of the change in hours of the day-shift janitor;
_________________________
charge was filed on June 15, 2009. The charge in Case 8–CA–38278 was filed on April 21,
2009. The charge in Case 8–CA–38306 was filed on April 28, 2009, and an amended charge
was filed on June 1, 2009. The charge in Case 8–CA–38358 was filed on June 1, 2009, and an
amended charge was filed on June 12, 2009. The charge in Case 8–CA–38390 was filed on
June 15, 2009. The charge in Case 8–CA–38464 was filed on July 27, 2009, a first amended
charge was filed on August 13, 2009, a second amended charge was filed on September 3,
2009, and a third amended charge was filed on September 29, 2009. The charge in Case 8–
CA–38523 was filed on August 25, 2009, and an amended charge was filed on September 29,
2009. The charge in Case 8–CA–38546 was filed on September 8, 2009, and an amended
charge was filed on September 29, 2009. The charge in Case 8–CA–38549 was filed on
September 9, 2009, and an amended charge was filed on September 29, 2009. The charge in
Case 8–CA–38568 was filed on September 18, 2009, and amended charge was filed on
October 28, 2009. The charge in Case 8–CA–38600 was filed on October 2, 2009, and an
amended charge was filed on January 19, 2010. The charge in Case 8–CA–38623 was filed on
October 16, 2009, a first amended charge was filed on January 22, 2010, and a second
amended charge was filed by the Union on January 25, 2010. The charge in Case 8–CA–38707
was filed on December 14, 2009, a first amended charge was filed on December 23, 2009, and
a second amended charge was filed on January 22, 2010. The charge in Case 8–CA–38916
was filed on April 29, 2010, a first amended charge was filed on May 4, 2010, a second
amended charge was filed on June 21, 2010, a third amended charge was filed on July 23,
2010 and a fourth amended charge was filed on July 28, 2010. The charge in case 8–CA–
39165 was filed on September 24, 2000, and an amended charge was filed on September 30,
2010.
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on April 3, 2009, expanded its work rule on defacement timely destruction of company property;
on April 6, 2009, promulgated a new work rule which required all machine operators to rotate
working among the various machines; on June 15, 2009 recalled three bargaining unit
employees to its Peninsula, Ohio facility; on June 25, 2009 required three bargaining unit
employees recalled to the Peninsula facility to reimburse it for certain health care insurance
costs; on July 27, 2009, assigned two employees to work at the Peninsula facility during the
annual plant shutdown; from August 17, 2009 to September 29, 2009, changed the work hours
of Jeff Miktuk, a quality assurance employee who works at the Peninsula facility; on September
8, 2009 implemented its proposal on recall rights and procedure; on September 15, 2009,
resumed third-shift operations at its Peninsula facility and recalled approximately 10 employees;
and since about September 15, 2009, secured the services of employees from employment
agencies to work in bargaining unit positions at its Peninsula facility at a time when bargaining
unit employees remained laid off from employment.
The complaint further alleges that since April 22, 2009, the Respondent violated Section
8 (a)(5) and (1) of the Act by refusing to provide to the Union the following information: for those
employees laid off from employment, copies of their personnel records relating to discipline,
attendance, training, skill levels and work histories; the work history for employees who are
displaced or bulk due to the layoff; and the names and titles of any managerial supervisory,
clerical or others who are affected by layoff from employment that occurred in 2009. The
complaint also alleges that from May 6, 2009 through June 9, 2009 the Respondent delayed in
providing the Union with relevant information requested by it.
Finally, the complaint alleges that the Respondent violated Section 8(a)(1) of the Act in
the following respects on or about the following dates: on September 7, 2009 by Chuck Long, at
its Peninsula facility, bypassed the Union and dealt directly with employees concerning a
change to their work hours; since April 26, 2010, by John Norton, at its Peninsula facility,
solicited employees to sign a decertification petition and threatened them with plant closure
and/or sale of the plant; in April and May, 2010, through Dan Owens, at its Peninsula facility,
solicited employees to sign a decertification petition and coercively informed employees that it
would be more willing to negotiate with employees over wage increases if they did not have
union representation; in April and May, 2010, by Chuck Long, at its Peninsula facility,
threatened employees with unspecified reprisals, plant closure and/or the sale of the plant if the
Union continued to represent the employees; on April 15, 2010 and May 21, 2010 by James
Mathias, at its Peninsula facility, solicited employees to support the decertification effort and
informed employees that the Respondent supported and encouraged that effort; on September
20, 2010 by Ronald Mason, at the Akron Municipal Airport, coercively sought to induce an
employee to assist in a campaign to decertify the Union; on September 22, 2010 by Ronald
Mason, prematurely ended collective-bargaining session so that Respondent could engage in
conduct that interfered with employees’ Section 7 rights; on September 17, 2010, by Douglas
Hicks, Chuck Long and Brian Lennon, at the Peninsula facility, coercively requested that an
employee meet with the Respondent’s attorney concerning his testimony at the hearing; on
September 20, 2010 by Chuck Long, at the Peninsula facility, impliedly threatened employees
with retaliation in the event that they did not meet with the Respondent’s attorney; on
September 20, 2010 by Ronald Mason, at the Akron Municipal airport, coercively interrogated
an employee about his current views of these unfair labor practice charge filed with the Board
compared to his views at the time he filed charge; on September 20, 2010 by Ronald Mason, at
the Akron Municipal airport, coercively sought to create a sense of futility about the Union and
about the employee’s testimony before the Board, by falsely stating that the Union’s president
had told Mason that the Union intended to disclaim its interests in the unit once the hearing was
over; on September 20, 2010, by Ronald Mason, by cell phone, coercively requested an
employee provide the Respondent with a copy of an affidavit that the employee had provided to
the Board; on September 21, 2010, by Douglas Hicks, at the Peninsula facility, coercively asked
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an employee to provide the Respondent with a copy of the affidavit that the employee had
provided to the Board; on September 22, 2010 by Ronald Mason, at the Akron Municipal
Airport, coercively offered to arrange for an employee to have legal counsel with respect to the
hearing while stating that the employee need not speak with counsel for the General Counsel
and implying that the employee might not be called as a witness by counsel for the General
Counsel if he did retain independent counsel.3
The Respondent’s answer denied the material allegations of the complaint and raised
certain affirmative defenses which will be discussed below. On the entire record4, including my

3 On October 22, 2010, the Regional Director for Region 8, on behalf of the National Labor
Relations Board, filed a petition for injunction under Section 10 (j) of the Act in the United States
District Court, Northern District of Ohio, Eastern Division in Case 1:10–CV–02421 with regard to
the allegations in paragraph 15 of the complaint. (GC Exh. 87) Specifically, the Regional
Director sought10 (j) relief regarding the following complaint allegations: Since about April 26,
2010, Respondent, by John Norton, at its Peninsula facility, solicited employees to sign a
decertification petition and threatened them with plant closure and/or sale of the plant. In April
and May 2010, the exact dates being unknown, Respondent, through Dan Owens, at its
Peninsula facility, solicited employees to sign a decertification petition and coercively informed
employees that the Respondent would be more willing to negotiate with employees over wage
increases if they did not have union representation. In about April and May 2010, the exact
dates being unknown, Respondent, through Chuck Long, at its Peninsula facility, threatened
employees with unspecified reprisals, plant closure and/or the sale of the plant if the Union
continued to represent employees. On or about April 15, 2010 and May 21, 2010, Respondent,
through correspondence from James Mathias to its employees, at its Peninsula facility solicited
employees to support the decertification effort and informed employees that it supported and
encouraged the decertification effort. On or about September 20, 2010, Respondent by its
Attorney Ronald Mason, at the Akron Municipal Airport, coercively sought to induce an
employee to assist in a campaign to decertify the Union. On or about September 22, 2010,
Respondent, by its Attorney Ronald Mason, prematurely ended a collective-bargaining session
so that Respondent could engage in conduct that interfered with employees’ Section 7 rights.
On January 11, 2011, Judge Solomon Oliver, Jr. granted the Board's petition for 10(j) relief in its
entirety.
4 On January 7, 2011, the Acting General Counsel filed a motion to reopen the record in the
instant consolidated case and consolidate it with the consolidated complaint that had issued in
Cases 8–CA–39211, 8–CA–39228, 8–CA–39252, 8–CA–39256, 8–CA–39266 and 8–CA–
39272 on January 6, 2011. In an order dated January 13, 2011, I denied the motion. On
January 14, 2011, I denied the Acting General Counsel's motion for reconsideration. On March
16, 2011, I denied the Respondent’s motion to consolidate the cases on the record. In
summary, in denying these motions, I considered the Board’s policy that the question of
consolidation or severance of proceedings is within an administrative law judge's discretion and
the factors to be considered are the risk that matters litigated in the first proceeding will have to
be relitigated in the second and the likelihood of delay if consolidation or severance is granted.
Service Employees Local 87 (Cressleigh Management), 324 NLRB 774, 775–776 (1997). As set
forth above, on January 11, 2011, Judge Oliver granted the 10(j) petition for an injunction that
had been filed by the Regional Director with respect to certain allegations of the complaint in the
instant consolidated case. In denying the motions to consolidate the instant case with the later
issued complaint, I have been guided by the provisions of Section 102.94(a) of the Board's
Rules and Regulations which mandate that I give priority to deciding the instant case over all
other cases, since a 10(j) injunction has been issued. In my view, to consolidate the instant case
with the later issued complaint would inevitably delay the issuance of the instant case and thus
Continued
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observation of the demeanor of the witnesses5, and after considering the briefs timely filed by
the parties on February 10, 2011, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, at its facilities located in Twinsburg and Peninsula, Ohio
is engaged in the manufacture of aluminum die castings where it annually sells in ships
products valued in excess of $50,000 directly to points located outside the State of Ohio. The
Respondent admits, and I find, that it is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act and that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Background and Overview
The Respondent is engaged in the manufacture of aluminum die castings for a variety of
customers at both its Twinsburg and Peninsula, Ohio locations. The two facilities are located
approximately 12 miles apart. Approximately 90 employees are employed at the larger
Peninsula facility while approximately 35 are employed in Twinsburg. The Respondent’s owner
and CEO is James Mathias; Thomas Lennon was the Respondent’s president until August
2010, when he retired; Brian Lennon is the plant manager at the Peninsula facility; Keith Kish is
the plant manager at the Twinsburg facility and Charles Long is the Peninsula die cast
superintendent. During the material time, the following individuals have served as the
Respondent’s human resources administrator: SeAnna Huberty (until approximately October 31,
2008); Judy Varner (from approximately November 1, 2008, to approximately June 2009; and
Douglas Hicks (from approximately June 2009 to the present).
In December 2007 several of the Respondent’s employees, including Mark Albright and
_________________________
not comport with the requirements of Section 102.94(a). I conducted the trial in 8–CA–39211 et
al. on March 14, 15 and 16, 2011, and the case is presently pending before me. The trial in that
case was conducted in a manner so as to avoid the relitigation of matters litigated in the instant
proceeding.
5 In making my findings regarding the credibility of witnesses, I have considered their
demeanor, the content of the testimony and the inherent probabilities based on the record as a
whole. In certain instances, I credited some, but not all, of what a witness said. I note, in this
regard, that "nothing is more common in all kinds of judicial decisions than to believe some and
not all" of the witness’ testimony. Jerry Ryce Builders, 352 NLRB 1262, fn. 2 (2008), citing
NLRB v. Universal Camera Corp., 179 F. 749, 754 (2d Cir. 1950), revd. on other grounds 340
U.S. 474 (1951) See also J. Shaw Associates, LLC, 349 NLRB 939, 939-940 (2007). A
substantial majority of the Acting General Counsel’s witnesses were current employees of the
Respondent at the time that they testified. The Board has long held the testimony of current
employees which is adverse to the interests of their employer is not likely to be false. The Board
has noted that when employees testify against the interest of their employer, they subject
themselves to the possibilities of recrimination and the perils would be even greater if such
testimony was false. Bloomington-Normal Seating Co., 339 NLRB 191, 83 (2003). See also
Flexisteel Industries, 316 NLRB 745(1995); Federal Stainless Sink Division, 197 NLRB 489, 491
(1972).I have considered these principles when considering the credibility of such witnesses.
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Emil Stewart, met with Travis Bornstein, the president of the International Brotherhood of
Teamsters, Local 24 to discuss organizing the Respondent’s two facilities. In the beginning of
2008 the Union began to conduct meetings for employees and gave employees authorization
cards to pass out to other employees. Employee Kevin Maze solicited approximately 20
employees to sign authorization cards or on behalf of the Union. Union supporters also passed
out leaflets to other employees at the plant and began to wear union hats and pins. Some
employees, including Kevin Maze, began to place union stickers, about the size of a half dollar,
at various places in the plant, including on employee lockers.
The Respondent learned of the organizing campaign shortly after it started. According to
the credible testimony of current employee Jerome Ivery, in January 2008, James Mathias, the
Respondent’s president and CEO, had a meeting with first and second shift employees at the
Peninsula plant. Thomas Lennon, SeAnna Huberty and other members of management were
present. According to Ivery, at this meeting Thomas Lennon said the employees did not need a
union and asked how could the employees “do this to them.” Lennon also stated that he was
trying to help employees and remarked this is how they were “repaying him.” Matthias also
stated that the employees did not need a union. He indicated that with a union his hands would
be tied as far as helping employees and that if things came up “there would be nothing he would
be able to do” (Tr. 192)
Harry Lane, who had been laid off by the Respondent in March 2009, testified that he
also attended the meeting held by Matthias and Tom Lennon shortly after they had learned of
the Union’s campaign. This meeting was held immediately before the second shift started. All of
the second shift employees were present and some from the first. Lane testified that Lennon
stated “how can we do this to him” as his door had always been open. Matthias stated that if he
could help it, there would never be a union in the shop. (Tr. 404). 6
According to the credible testimony of Ivery, after the meeting at Peninsula, Thomas
Lennon and Mathias spoke privately to Ivery. They told him that because he worked for the
Respondent a long time, he should have used his influence to try and persuade employees not
to get a union. They indicated once again that the Respondent did not need a union. Ivery was
asked if he was for the Union and he replied that he was not.
Ivery testified he attended a second meeting held by the Respondent’s management
with employees that was also attended by a management consultant. After this meeting, Brian
Lennon, Thomas Lennon, and Mathias spoke again to Ivery. Tom Lennon told Ivery that since
Ivery had been working for the Respondent for 30 years, he should use his influence to try and
persuade employees to vote against the Union. Brian Lennon indicated that if the Union came

6 I find that Ivery and Lane testified credibly with respect to this meeting as their testimony
was detailed, consistent and mutually corroborative. It is also inherently plausible as there is
objective evidence in the record establishing that Mathias clearly indicated his desire that the
employees not have a union. (See GC Exhs. 14 and 15, discussed in detail later.) I credit their
testimony to the extent it conflicts with that of Mathias. I note, moreover, that Mathias confirmed
much of the testimony of Ivery and Lane regarding this meeting. Mathias acknowledged that he
held meetings with employees at both the Twinsburg and Peninsula facilities in late January
2008 after learning of the Union's organizing campaign. With respect to the meeting at
Peninsula, Mathias testified he told employees that with a "petition circulating" the Union would
be the representative of the employees and that he could not deal with them directly anymore.
He also told employees at this meeting that "you already tied my hands because I really can't
say anything." (Tr. 2092) Mathias also indicated that, he told employees that he did not believe
a union was required.
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in, their hands would be tied. He added that “they wouldn’t be able to help people” and that “it
would be a lot worse if the Union came in” (Tr. 199) Ivory did not respond to their requests.7
Ivery testified that a couple of weeks later he admitted to Long that he was a supporter
of the Union. The day afterwards Ivery also spoke to Brian Lennon. When Lennon asked Ivery
how things were going out on the shop floor regarding a shift rotation, Ivery responded that
there were still “labor problems”. When Lennon stated that he sounded like he was for the
Union, Ivery responded that he did support the Union.
After obtaining a sufficient showing of interest, the Union filed a petition filed in Case 8–
RC–16940. The parties entered into a Stipulated Election Agreement and an election was held
on March 14, 2008. The tally of ballots showed that 62 ballots were cast for and 48 against the
Union, with 11 challenged ballots, an insufficient number to affect the results. Thereafter, the
Employer filed objections to the election. On August 28, 2008, the Board overruled the
objections (GC Exh.75) and certified the Union as the bargaining representative in the following
appropriate unit:
All full-time and regular part-time production and maintenance employees, including all
cast set-up employees, cast operators, re-melt employees, trim set-up and stock
employees, trim and utility process technicians, tool room employees, quality assurance
employees, truck drivers, janitorial employees, machine operators, sander/blasters,
shippers, safety coordinators, and all shift leads employed by the Employer at its
facilities located at 2150 Highland Rd., Twinsburg, Ohio and 6212 Akron Peninsula
Road, Peninsula, Ohio but excluding all office clerical employees, professional
employees, and all guards and supervisors as defined in the Act.
On May 18, 2008, the Union took a photograph of Bornstein and some of the
Respondent’s employees who supported the Union, including Albright, Stewart, Ivery, Willie
Smith, and Maze (GC Exh. 18). The photograph and an article regarding the organizing
campaign appeared in the July/August 2008 issue of the International Teamsters magazine.
Maze placed copies of the magazine in the break rooms of the Respondent’s Peninsula facility
after it was published.
On October 9, 2008, Bornstein sent a letter (GC Exh. 80) to Ronald Mason, the
Respondent’s attorney and chief negotiator. This letter states, in relevant part:
Under current Board law you know that your client (General Die Casters) may not make
unilateral changes after the date of the election without affording Local # 24 the

7 Mathias denied ever speaking with Ivery individually. I credit the testimony of Ivery
regarding these matters. His testimony was more detailed than that of Mathias. In addition, his
recall of the private meetings that he had with Mathias and other members of management was
clear and distinct. As a current employee of the Respondent, I doubt he would testify as to
having such a meeting with the Respondent's CEO if it were not true. I also note that Thomas
Lennon did not testify at the trial and that while Brian Lennon testified, he did not testify
regarding this meeting. There are no complaint allegations regarding the two meetings held by
management or the conversations with Ivery that occurred afterword. At the hearing, counsel for
the Acting General Counsel specifically indicated she was not seeking to amend the complaint
to allege additional unfair labor practices based upon these conversations, but rather was
eliciting such evidence as background to establish animus in support of the 8(a)(3) allegations
of the complaint, particularly the allegation that in March 2008 Ivery was assigned more onerous
working conditions. I admitted, and have considered, this evidence on that basis. Accordingly, I
have not made any findings that such conduct constituted unfair labor practices.
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opportunity to bargain. Any such unilateral changes would become unfair labor
practices.
Therefore, I’m putting you on notice, I insist that from henceforth that your client
(General Die Casters) make no unilateral changes with respect to terms and conditions
of employment of any employee or any without affording an opportunity to Local # 24 to
bargain over the decision and effects of such change. The following is a list of those
changes which we insist not be made without bargaining over the decision and the
effects. The list is not inclusive but is simply illustrative of all those changes.
No discipline should be imposed without affording employees the Weingarten rights we
hereby demand. No employee should be warned, counseled, disciplined or terminated
without bargaining. No employee shall have his/her hours changed without bargaining.
No one should be hired without bargaining over the person who should fill the position.
No employee should be laid-off without bargaining.
No changes in the method and manner by which work is being performed may be made
without bargaining.
No introduction of any new work techniques without bargaining.
No subcontracting, closures, relocation or any changes in the workplace should be made
without bargaining.
The parties held their first bargaining meeting on October 13, 2008. Bornstein has been the
principal spokesman for the Union throughout the negotiations. In October 2008, the Union’s
bargaining committee was composed of employees Albright, Stewart, Maze, Dennis Ormsby,
and Arthur Brown. The composition of the Union’s committee has changed over the course of
negotiations. Rick Kepler, a representative of Teamsters Joint Council 41, began to attend some
of the negotiation sessions on April 7, 2009.
Mason has been the Respondent’s chief negotiator throughout the course of
negotiations and has normally been accompanied by an associate in his law firm. Various
members of management have attended the bargaining sessions throughout the negotiations.
By the conclusion of the hearing in December 2010, the parties had held approximately
65 bargaining meetings but had been unable to reach an agreement. The last bargaining
session noted in this record was held in October 2010. At the commencement of negotiations
the parties agreed to first bargain over noneconomic issues for turning to economics. By the
time of their last bargaining session in October 2010, the parties had not yet begun to bargain
regarding economic issues.
A substantial portion of the complaint in this case involves the Acting General Counsel’s
contention that the Respondent began to engage in a series of unilateral changes in violation of
Section 8(a)(5) and (1) of the Act in January 2009 and continuing through September 2009. The
complaint alleges that the discharge of employee Kevin Maze in September 2009 violated
Section 8(5)and (1) of the Act as it was effectuated pursuant to a unilaterally established rule.
The complaint further alleges that the discharge of Maze also violated Section 8(a)(3).
On October 9, 2009, the Respondent suspended union supporter Willie Smith and
discharged him on October 17, 2009. On November 10, 2009, the Respondent withheld wages
from union supporter Emil Stewart for time spent attending an OSHA meeting, at the
Respondent’s directive. The complaint claims these actions are violative of Section 8(a)(3) and
(1) of the Act. The complaint also alleges that since January 1, 2010, the Respondent has
refused to consider hiring certain laid-off employees at the Peninsula facility while at the same
time employing temporary employees in violation of Section 8(a)(3) and (1) of the Act.
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On December 7, 2009, a decertification petition was filed in Case 8–RD–2178 which is
blocked by the present unfair labor practice proceeding.
On April 29, 2009, the Union requested certain information regarding laid-off employees
and on May 26, 2009, requested information regarding employees who had received vacation
pay. The complaint contends that the Respondent has refused to provide this information in
violation of Section 8(a)(5) and (1) of the Act. The complaint further alleges that the Respondent
delayed the provision of relevant information from May 6, 2009 to June 9, 2009 in violation of
Section 8(a)(5) and (1) of the Act.
The complaint alleges that during April and May 2010, shift leader John Norton and
safety coordinator Daniel Owens circulated decertification petitions and engaged in other
conduct violative of Section 8(a)(1). The Respondent denies the supervisory status of both
Norton and Owens. This necessitates a determination of whether they are supervisors within the
meaning of Section 2(11) or agents within the meaning of Section 2(13) of the Act before the
merits of those allegations are addressed.
During the same period, the complaint alleges that Respondent’s CEO Mathias solicited
employees to support a decertification effort and informed the employees that the Respondent
supported it in violation of Section 8(a)(1) of the Act. Finally, the complaint alleges that from
September 17, 2010 through September 22, 2010, the Respondent’s attorney, Mason, and
supervisors Douglas Hicks, Chuck Long, and Brian Lennon engaged in a series of encounters
with employee Jerome Ivery that violated Section 8(a)(1) of the Act. All of these allegations will
be discussed in detail.8
A. The Alleged Unilateral Changes in Violation of Section 8(a)(5) and (1) of the Act and the
Related Section 8(a)(5)((3) and (1) Allegations Regarding the Discharge of Kevin Maze.
The Evaluation Procedure and Wage Freeze
Paragraph 12(a) of the complaint alleges that on or about January 1, 2009, the
Respondent unilaterally changed the evaluation procedure, altering when employees are
eligible to receive wage increases.

8 The Respondent also filed a number of unfair labor practice charges against the Union
since it has been certified. On August 31, 2009 the Respondent filed a charge in Case 8–CB–
11183 against Teamsters, Local 24 alleging that it had violated Section 8(b)(1)(B) and 8(b)(3) of
the Act (Jt. Exh. 7). On the same date the Respondent filed identical charges against Teamsters
Joint Council 41 (Jt. Exh. 4). On January 29, 2010, the Regional Director dismissed the
8(b)(1)(B) allegations and a number of the 8(b)(3) allegations in both charges. The Regional
Director also indicated however, that absent settlement, he would issue a complaint against
both Teamsters Local 24 and Teamsters Joint Council 41 alleging that both entities violated
Section 8(b)(3) of the Act by failing to meet at reasonable times and places and by conditioning
bargaining on the presence of a federal mediator. (Jt. Exhs. 6 and 9)
On February 1, 2010, both Teamsters Local 24 and Joint Council 41 entered into informal
settlement agreements with respect to the issues on which the Regional Director had indicated
that a complaint was warranted (Jt. Exhs. 10, 11, 12, and 13). On September 3, 2010 the Acting
General Counsel denied the Respondent's appeal from the Regional Director’s approval of the
unilateral settlements and partial refusal to issue complaint in cases 8–CB–11183 and 8–CB–
11184 (Jt. Exh. 14). On December 16, 2010, Regional Director issued a letter in both cases
indicating that he was refusing to issue a complaint based on the above noted settlements
entered into by both Teamsters Local 24 and Teamsters Joint Council 41. (Jt. Exh. 15)
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According to the Respondent, whether an employee receives a merit increase and when
is subject to its discretion.
Counsel for the Acting General Counsel called several witnesses in support of this
allegation. Arthur Brown testified that he was employed at the Respondent’s Twinsburg plant
from October 1999 to May 1, 2009, when he was laid off. Brown testified that he normally
received an annual performance evaluation in February. At times, he would not receive a wage
increase based upon an evaluation, but on other occasions he was given a wage increase of up
to 4 percent. On February 18, 2009, he met with his supervisor, Keith Kish, who informed him
that the Respondent had shifted evaluations back to the month of an employee’s original hire
date. In Brown’s case, his evaluation would then be deferred until October 2009. Since he was
laid off in May 2009, he did not receive an evaluation in 2009.
Current employee Dennis Ormsby testified that he received an evaluation in February
2009 from Chuck Long and Judy Varner, the then human resources director. Ormsby indicated
this was a 6-month evaluation because he had transferred from the machining department at
the Twinsburg plant to the die casting department at Peninsula 6 months prior to this meeting.
The record demonstrates that the company has a consistent practice of evaluating employees 6
months after they changed classifications. At the time of his evaluation in February 2009,
Ormsby was informed that he was getting a 25-cent-per-hour wage increase. When he informed
Long and Varner that he was disappointed because he only received a quarter and had not a
raise in 6 years, he was told that he would be getting another evaluation in a couple of months
because the evaluations were going to be changed back to the month of his hire date. Ormsby
testified that his hire date was March 31. Long and Varner also told Ormsby that the
Respondent was going to change the evaluation procedure. They explained that after an
employee was evaluated, the evaluation would be given to Jim Mathias, who would have 30
days to decide whether or not an employee received a raise. Ormsby indicated that in the past,
any raise that resulted from an evaluation would be given immediate effect. Ormsby further
testified that he did not receive another evaluation in 2009.
Current employee Leonard Redd testified that in early February 2009 he received an
annual evaluation from his immediate supervisor, Michael Jordan, and Chuck Long. Redd was
told at his evaluation that he would be informed in about 8 weeks as to whether he would
receive a raise based on his evaluation. Redd was informed that the policy had changed from a
prior policy of informing employees at the time of an evaluation what raise, if any, they would
receive.
Employee Mark Albright testified that he had worked for the Respondent since
November 1994. At the time of his testimony in November 2010, Albright was employed as a
process control employee on the first shift at Peninsula. Albright was one of the employees who
first contacted the Union and served as one of the union observers at the election. He has been
on the union negotiating committee since its inception. Albright testified that in November 2009,
Chuck Long evaluated him and informed him that whether he would receive a raise was under
review. Approximately t2 months later, Albright received a 10-cent-an-hour wage increase. Prior
to this evaluation, Albright had always been informed of any wage increase he would receive at
the time of the evaluation.
Employee Robert Jay Quarterman testified that he received an evaluation from Long in
November 2009. At this meeting Long told him he would have to wait up to 2 months to learn if
he was going to receive a wage increase. Quarterman testified in the past, employees were told
at the time of their evaluation if they were going to receive a wage increase.
The record establishes that while at times, employees would not receive a wage
increase after an evaluation, when the wage increases were given, they would range up to 4
percent. If a wage increase was given, it was made effective as of the date of the evaluation.
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Both Bornstein and Albright testified, without contradiction, that the Union was not informed of
any changes in the evaluation process during negotiations.
Paragraph 12(B) of the complaint alleges that since about January 1, 2009 the
Respondent instituted a wage freeze, denying employees a customary wage increase.
Respondent contends that it was privileged to act unilaterally with respect to instituting a
wage freeze because such action was consistent with its past practice of freezing wages under
adverse economic conditions prior to the Union’s certification.
In February 2009, the Respondent’s CEO, James Mathias, decided that normal wage
increases would not be given during 2009 because of the poor economic conditions that
existed. Mathias testified that in February 2009 customers began to delay and cancel orders.
Under these conditions, Mathias decided that it would not be prudent to grant customary wage
increases (Tr. 2078–2079).
Mathias testified that there was a past practice of not granting wage increases when the
Respondent determined that economic circumstances did not warrant granting them. He pointed
to a period in 1995 when, because of economic conditions, no raises were given for a 6 to 7-
month period. In 2000, because of a drop in orders, no raises were given for approximately 3 to
4 months. In July 2007, because of a catastrophic flood at the Respondent’s Peninsula facility,
wage increases were not granted for approximately 7 months.
Mathias acknowledged that the Respondent did not give prior notice and an opportunity
to bargain with the Union of its decision not to give wage increases before the Respondent
implemented the decision in February 2009. Matthias indicated that no prior notice was given
because the Respondent was merely applying its past practice of suspending wage increases
under adverse economic conditions (Tr. 2082)
According to the Respondent’s minutes of the bargaining session held on June 16, 2009,
(R. Exh. 187, p. 421) the Union was not informed of this decision until that date.9 At this
meeting, Rick Kepler, a representative of Teamsters Joint Council 41, who appeared on behalf
of the Union at some of the bargaining sessions, asked Mason, the Respondent’s chief
negotiator, whether raises were being given that year. When Mason responded “no”, Kepler
asked why that was so. Mason indicated that the Respondent had decided not to give wage
increases because of economic conditions and, in the past, had not given raises under certain
circumstances. Mason further indicated that the inability to pay was not an issue and he
acknowledged that this issue was subject to bargaining. Albright testified that at this meeting,
Mason indicated that there would be no raises given in 2009 because of the economic situation.
(Tr. 1015–1016).
The record contains documentary evidence reflecting that a substantial number of
employees had received raises based on their performance review for the years 2005, 2006,
and 2007 (GC Exh. 67).
At the bargaining meeting held on January 14, 2010, the Respondent informed the
Union that the Respondent had resumed giving employees annual wage increases in December
2009. The Union was informed the raises would vary anywhere from ½ percent to 3 percent.
(Tr.1131–1133)
I find that prior to the Union’s certification in August 2008, the Respondent had an
established practice of evaluating the performance of all its unit employees on an annual basis.

9 The Respondent took detailed notes of each bargaining session. I find these notes to be
an accurate reflection of what occurred at the meetings and have relied on them throughout this
decision to find what transpired at bargaining sessions.
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The appraisals were typically performed on the employee’s anniversary date or 6 months after
an employee changed job classifications. Any raises that were given as a result of the appraisal
was based on merit and was determined that the discretion of the Respondent. The amount of
the raise, if any, an employee was given ranged up to 4 percent. In 2006 and 2007 almost all of
the employees received a wage increase based on their performance review (GC Exh. 67).
In NLRB v. Katz, 369 U.S. 736 (1962) the employer, during negotiations for an initial
contract unilaterally put into effect a new sick leave plan and granted across the board wage
increases and discretionary merit increases to a number of employees. The Court found the
employer’s unilateral action with respect to such mandatory subjects of bargaining to constitute
a violation of Section 8(a)(5) and (1) of the Act. In so finding the Court held:
Unilateral action by an employer without prior discussion with the union does amount to
a refusal to negotiate about the affected conditions of employment under negotiation,
and must of necessity obstruct bargaining, contrary to the congressional policy. It will
often disclose an unwillingness to agree with the union. It will rarely be justified by
any reason of substance. Id at 747.
Applying the principles of Katz, the Board has long held, with court approval, that after a
union is selected as the bargaining representative, an employer may not unilaterally discontinue
a practice of granting periodic wage increases to its employees. Jensen Enterprises, Inc. 339
NLRB 877 (2003); Daily News of Los Angeles, 315 NLRB 1236 (1994) enfd. 73 F.3d 406 (D.C.
Cir. 1996); Allied Products Corp., 218 NLRB 1246 (1975) enfd. 548 F.2d 644 (6 Cir. (1977)).
The fact that the Respondent utilized discretion with respect to the amounts and, to some
degree, the timing of appraisals that resulted in wage increases does not privilege the
Respondent’s unilateral action. The record establishes that the Respondent’s merit review
program was an established practice and thus a condition of employment that required
bargaining before it could be changed. Daily News of Los Angeles and Allied Products Corp.,
supra. Accordingly, I find that the Respondent’s unilateral cessation of merit wage increases
from February to December 2009 violated Section 8(a)(5) and (1) of the Act as alleged in
paragraph 12(B) of the complaint .
I also find that the Respondent unilateral change in delaying the granting of wage
increases from the date of the merit review to a time approximately 2 months afterwards also
violated Section 8(a)(5) and (1) of the Act. In Oneita Knitting Mills, 205 NLRB 500, fn. 1 (1973)
the Board noted that an employer with a past practice of merit increases violated Section 8(a)(5)
by unilaterally discontinuing such a program. The Board explained that once an exclusive
bargaining agent is selected, an employer may no longer exercise unilateral discretion with
respect to such increases. The Board further noted:
What is required is a maintenance of pre-existing practices, i. e., the general outline of
the program, however the implementation of the program (to the extent that discretion
has existed in determining the amounts or timing of the increases), becomes a matter as
to which the bargaining agent is entitled to be consulted.
It is clear therefore that Board law requires the Respondent to bargain with the Union the
timing of any wage increase following a merit review. By failing to do so, the Respondent has
violated the Act as alleged in paragraph 12(A) of the complaint.
Short Notice Call-offs and Related Discipline
Paragraph 12(C) of the complaint alleges that since about February 1, 2009,
Respondent changed its policy with regard to employees using vacation days to excuse short-
notice call offs from work. Paragraph 12(D) alleges that since about February 1, 2009,
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employees, including Emil Stewart, were discipline for absenteeism as a result of the unilaterally
change work rule in paragraph 12(C).
Albright, Stewart and Maze all testified with respect to this allegation. A composite of
their testimony indicates that for some period of time through the end of 2008, the Respondent
had a policy regarding employees calling off work with less than 1 week’s notice. Their
testimony indicates that if an employee called in to notify the Respondent, in advance of a
scheduled workday, of the need to have the day off, when the employee returned to work he
would fill out a request for a vacation day which would be given to supervision for approval. The
employee would then receive vacation pay for the day off. Such days off, however, would not
count toward the Respondent’s attendance bonus program.
Albright also testified that, for a substantial period of time, the Respondent had an
attendance bonus program that provided that if an employee had no absences for a quarter; the
employee would receive an additional vacation day and a cash bonus. Albright testified that in
late 2008 he attended a meeting held for all first shift employees at the Peninsula plant,
conducted by Seanna Huberty, the Respondent’s then human resources administrator. Brian
Lennon was also present this meeting. Huberty announced a minor adjustment in the
attendance bonus. She indicated that if an employee did not miss any work days during a
quarter, the employee would no longer receive an additional vacation day but would continue to
receive a cash bonus. She indicated that employees could call off at short notice up to twice a
month and it would not be considered an unexcused absence.
According to Albright, employees told him in early January 2009 that Judy Varner, the
human resources administrator who succeeded Huberty, had issued written warnings to
employees for attendance that included short-term notice call off dates that were formerly not
considered an unexcused absence. On cross-examination, Albright testified that he called
Bornstein at some time prior to January 12, 2009, and told him about the allegedly changed
policy (Tr. 1112–1113).
Maze testified that on May 18, 2009, he received a verbal written warning for attendance
(GC Exh. 39). The warning indicates that Maze was absent on February 15, March 31, April 1,
and May 18, 2009. Maze testified that two of these dates were short notice call offs.
On June 8, 2009 Stewart received a verbal written warning for attendance (GC Exh. 32)
which noted absences on March 6, April 20, and June 8, 2009. When Brian Lennon gave the
warning to Stewart, Stewart explained he used vacation days for the absences. Lennon
responded that it did not matter. Stewart also indicated that sometime during the period from
January 2009 to April 2009, three other employees were given written warnings for attendance
when they had used vacation days for short notice call offs (See R. Exh. 188).
Brian Lennon also testified regarding the Respondent’s short notice call off procedure.
He indicated that all vacation days must be scheduled a week in advance, Lennon indicated that
with respect to short notice call offs, an employee could submit a vacation request form when
the employee returned to work and would receive vacation pay for that day. He further
indicated, however, that the day still considered an unexcused absence if the request was
submitted less than a week before the day off. Lennon testified this policy was in existence
before the union campaign and had not been changed.
Lennon further testified regarding the meeting that Huberty held in the latter part of 2008.
According to Lennon, Huberty explained that the attendance bonus program was being changed
so that if an employee had perfect attendance for a quarter, the employee would receive a
bonus of an additional day’s pay, but would no longer receive one additional day off. Specifically
with respect to the notice call offs, Huberty stated that such days would count against an
employee’s attendance record, as well as counting against having perfect attendance for
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purposes of the bonus. Lennon testified that this policy is clearly stated in the Respondent’s
handbook.
The Respondent’s current employee handbook was apparently promulgated on August
22, 2005 (GC Exh. 2, p.2). The relevant portions of the vacation provision states:
Only one person per department and shift may be off at a time. Vacations will be granted
on a first- come, first-serve basis, determined by the date of submission for approval. If
an employee has requested a vacation day after another employee in his or her
department has been approved for vacation, his or her vacation request may be denied.
Employees may take a maximum of 2 days per month, one day at a time.
All one-day vacations should be approved by the supervisor at least one week in
advance. Employees who request vacation days with pay for days called off or missed
due to illness are not eligible for the attendance reward for that quarter.
The attendance policy in the handbook has an effective date of October 2007 (GC Exh.
2, p. 12). It provides in relevant part:
Occasionally, it is necessary to be absent from work due to illness or circumstances
beyond your control. When you have an unscheduled absence from work, you must
notify your supervisor. You are responsible for calling your supervisor within one hour or
the Human Resources Administrator personally. It is also your responsibility to keep
your supervisor and Human Resources administrator informed every day as to when
you expect to return to work.
For absences due to sudden illness or circumstances beyond your control, employees
may be required to use any available vacation time.
In her brief, counsel for the Acting General Counsel moved to withdraw paragraphs
12(C) and (D) of the complaint on the basis that evidence produced at the trial established that
they are barred by Section 10(b) of the Act. The Respondent also contends that these
allegations are barred by Section 10(b) of the Act. As noted above, Albright’s cross-examination
testimony, which I credit, establishes that he informed the Union’s president, Bornstein, prior to
January 12, 2009, about the alleged change in policy. Counsel for the Acting General Counsel
notes that on July 27, 2009, the Union filed the charge in Case 8–CA–38464, which alleges that
the Respondent unilaterally changed its short-term vacation policy. Thus, the charge was not
filed within 6 months of the time that the Union obtained knowledge of the alleged change.
Under these circumstances, I approve the Acting General Counsel’s motion to withdraw
paragraphs 12 (C) and (D) of the complaint.
The One Day Shutdowns and the March 9, 2009, layoffs at the Twinsburg Facility
Paragraph 12(E) of the complaint alleges that on or about March 5, 2009 and again on
April 10,2009, Respondent shut down its facilities for 1 day without giving notice to the Union or
an opportunity to bargain. Paragraph 12(F) of the complaint alleges that on or about March 9,
2009, the Respondent laid off employees from its Twinsburg facility including but not limited to
the following named employees; Terrance Hemphill, Raymond Ferry, Brandon Asberry, Walter
Wood, Jerry Durenda, and Nathan Holland.
The Respondent contends that both the March 9, 2009 layoff at the Twinsburg facility
and the one-day shutdowns did not violate the Act because they were consistent with its past
practice prior to the union certification. It also contends that the 1-day shutdowns were
consistent with a provision in the Respondent’s handbook which states “In situations where the
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Company must shut down for lack of work, at the discretion of the plant manager, employees
may be permitted to split vacation time to cover days not paid” (GC Exh. 2).
On the morning of March 5, 2009, Mason faxed the following letter (GC Exh. 85) to John
Sivinski, an attorney who, at that time, represented the Union:
Due to a sudden downturn in work at General Die, my client is forced to have a reduction
in force.
Attached is a copy of that document we have prepared that we propose to be the
general outline of the layoff procedures we are going to follow.
We are estimating that the layoffs will be somewhere in the range of 20% of the work
force but those numbers are not yet fully finalized. We do not know how long the layoff
will be in duration. Hopefully short but nobody knows,
General Die is simply running out of work so we would like to discuss this with your client
first thing today.
Attached to the letter was a document the relevant portions of which indicated:
Layoff and Recall procedures: ( Last Layoff in 1995)
Past Practices
Layoffs will be handled in production in the following manner:
1. Production seniority.
2. Production capability to bump to another production job.
3. Seniority receives first choice on shifts.
4. Peninsula production departments include, Leads, Set up,
Cast operators, Trim, Utility, Sanding/Blasting, Stock, Remelt,
Process Techs.
5. Twinsburg production departments include, Leads, CNC
operators, Machining/Sanding.
When General Die Casters only had one facility, the machining department never cross
trained in the casting Department, nor the casting department cross trained in the
machining (CNC) department.
An employee with seniority could transfer (bump) to a different position within their
department, if they had the capability and experience with General By Casters and the
personnel files document that experience. Layoffs due to economic issues, recall date is
unknown.
According to the Respondent’s bargaining notes for Thursday, March 5, 2009, (R. Exh.
174) the parties began the meeting at 3:30 pm. Mason was the chief negotiator for the
Respondent and Varner was also present. Bornstein was the Union’s chief spokesman.
Mason began the meeting by saying that he was sorry that the Union’s attorney did not
get the letter to Bornstein that Mason had faxed earlier in the day. Bornstein was then given a
copy of the above noted letter and attachment. Mason indicated that the attachment reflected
the Respondent’s proposal. Mason stated that it was the same procedure the Respondent had
used in its last layoff in 1995. Mason also gave the Union a document that reflected the names
of employees by department at the Twinsburg plant that was titled “Before layoff.” (GC Exh. 54).
Mason further indicated that the Respondent had reports from customers of a 20 percent drop-
off in orders. Finally, Mason indicated that he did not know how long the layoffs would last.
Bornstein indicated that the Respondent had the Union’s proposal on layoff and transfer as
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contained in its proposed article 19.10 Mason replied that the Union had just been given what
the Respondent proposed to do and added that this is what the Respondent had done in the
past and “this is what we are going to do”.
When Bornstein asked how soon the layoff would occur, Mason replied that the layoff
would occur at the Twinsburg facility on Monday, March 9. Varner said that the Respondent
may notify employees of their layoff on Friday, March 6. Mason indicated that possibly five to
seven employees would be laid off. He further stated that the Respondent would use seniority
by department. Employees with seniority could choose to bump into another shift in order to
avoid layoff. Bornstein stated that the Union’s position was that the layoff should be conducted
by seniority on a plantwide basis and that an employee should be able to bump into another
department if the employee had the essential skills of that job. Mason responded that “we need
to pull the trigger at Twinsburg” tomorrow.
Bornstein asked if the Respondent considered “Twinsburg and Peninsula to be different
plants or are they considered one”. Mason responded that Twinsburg and Peninsula are
different. Bornstein indicated he did not agree with that as employees transferred back and forth
between the two plants and it was his position that companywide seniority should be used for
the layoff. Mason replied that the Respondent understood the Union’s position but that the
Respondent had used departmental seniority in the past and that is what it was proposing to do
now. He further indicated that the parties could discuss the layoffs at Peninsula at the
bargaining session to be held the next day but that the Respondent needed to inform the
employees at Twinsburg of the layoff the next day (March 6). Mason stated that the Respondent
would give the employees at Twinsburg the option to change shifts or be laid off. When
Bornstein asked when the Respondent knew of the necessity of a layoff at Twinsburg, Mason
replied “a week or so” before the meeting.
After some further discussion, the Union proposed that layoffs be conducted by seniority
in a combination of departments of employees who could perform the same work. The Union’s
proposal included a 5-year recall right provision. Mason discussed this proposal telephonically
with the Respondent’s high-level management but then informed the Union that the proposal
was rejected. Mason indicated that the Respondent would use the procedure that it had given to
the Union that day. He stated that it was in the handbook and that it had been used in the past.
The parties met again on March 6. The Respondent’s bargaining notes (R. Exh. 175)
establish that the bulk of that meeting was devoted to the upcoming layoff at the Peninsula
facility. With respect to Twinsburg, Mason gave the Union a list of the employees who would be
laid off and their seniority dates (GC Exh. 55). The employees named on this document were T.
Hemphill; R. Ferry; B. Asberry; J. Durenda; and W. Wood.11 Mason indicated that the
employees getting laid off had been hired in 2008. When Bornstein asked if any of the laid-off
employees had enough seniority to bump into Peninsula, Mason replied “no”.
After reviewing the specifics of the layoffs at Twinsburg, Bornstein indicated the Union
did not agree with the Respondent’s proposal. Mason replied that the Respondent understood
that the Union did not agree. Mason indicated that the parties could not reach agreement so that

10 The Union's first proposal to the Respondent was made on October 28, 2008. (R. Exh.
385). Article 19 provides, in relevant part, that "Layoff will be by affected job classification within
a department with the most junior employee(s) (using plant-wide seniority) being laid off first.
Persons being laid off will be given the opportunity to use plant-wide seniority to bump avoid the
layoff provided that the employee is able to perform the job with training."
11 The same employees were issued letters by the Respondent informing them of their
layoff. (GC Exh. 68–73)
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they were at an impasse. Bornstein replied that there had been limited discussion of the
Twinsburg layoffs the day before and “10 minutes today”. Mason replied that the Union had
made a proposal and the Respondent had rejected it. The meeting ended without an agreement
between the parties regarding the method to be used for layoffs at the Twinsburg facility.
The Respondent, shut down its facility in Twinsburg for 1 day on March 5, 2009. Brown
testified that plant manager Keith Kish notified employees on March 4, 2009, that the entire
Twinsburg facility would be shut down on March 5 for economic reasons. Employees were
informed that they could take a vacation day or take a day off without pay (Tr. 345). The
Respondent did not notify the Union of the 1-day shutdown at the Twinsburg facility at the
bargaining session held on March 5.
The Respondent shut down both the Twinsburg and Peninsula plants on April 10, 2009.
On April 7, 2009, the parties held a bargaining session. Bornstein was not present and
Teamsters Joint Council 41 representative Rick Kepler was the Union’s chief spokesman. At
this meeting Mason informed Kepler that there would be a 1-day shutdown at both Peninsula
and Twinsburg on April 10 (R. Exh. 177). Mason indicated that the Respondent had previously
estimated a 20 percent drop in business and had tried to adjust the work force accordingly but
that orders continued to drop. Kepler stated that he wanted verification that customer orders
were declining and that he would send a request in writing. On April 14, 2009, Kepler sent the
Respondent a letter requesting cancellation orders which precipitated the shut down of the
plants on April 10. The letter also advised the Respondent that the Union would be filing an
unfair labor practice charge regarding its refusal to bargain over the shutdown on April 10. (GC
Exh. 116).
Mathias testified that the Respondent did not bargain with the Union over these 1-day
shutdowns because the Respondent was acting consistent with its past practice (Tr. 2086).
Mathias testified that the shutdowns were due to a loss of approximately 40 percent of
the Respondent’s orders. Mathias stated that, consistent with the Respondent’s shutdowns in
the past, it notified the employees in advance and offered them the option of a paid vacation day
or an unpaid day off (Tr. 23-24).
Mathias indicated that in the past the Respondent had shut down facilities at the end of
the year and on at least two Good Fridays when business was slow. Employees had always
been given the option of taking a paid vacation day or an unpaid day off. In this connection
Mathias testified that for a number of years the Respondent posted a holiday schedule near the
end of each year. These schedules set forth the holidays for the upcoming year and further
indicated that shutdowns will be determined at a later date. The Respondent produced the
holiday schedule postings for the period from 2008 to 2011 which corroborates this testimony
(R. Exh. 80)
Generally, an employer is precluded from changing wages, hours, or terms and
conditions of employment-mandatory subjects of bargaining without giving the employees’
bargaining representative notice and a meaningful opportunity to bargain about the proposed
change. NLRB v. Katz, 369 U.S. 736 at 743. In Alpha Associates, 344 NLRB 782 at 785 (2005)
the Board noted:
It is axiomatic that an employer’s decision to lay off employees is a mandatory subject of
bargaining; thus in the absence of an agreed-upon contractual provision on the
subject, an employer is obligated to bargain with an incumbent union with respect to
both the decision to conduct a layoff and the effects of any such layoff. See Farina
Corp., 310 NLRB 318, 320 (1993). That an employer’s determination to lay
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off employees is motivated by economic considerations does not relieve an employer of
its bargaining obligation.
While the 1-day shutdowns that occurred at the Respondent’s facilities may be viewed
as something less than a layoff, since employees were given the option of taking one of their
paid vacation days instead of not being paid for the day, I find that shutdowns were nonetheless
a mandatory subject of bargaining. The Board has held that changes in conditions of
employment that are “material, substantial and significant” are mandatory subjects of
bargaining. Millard Processing Services, 310 NLRB 421, 425 (1993); Southern California Edison
Co., 284 NLRB 1205 (1987). I find that the closure of the plants which resulted in either a loss of
a paid vacation day or an unpaid day off had a “material, substantial and significant” effect on
conditions of employment and is thus a mandatory subject of bargaining.
As noted above, the Respondent’s primary defense to both the complaint allegations
regarding the March 9, 2009 layoffs at Twinsburg and the 1-day shutdowns is that its conduct
was privileged because the Respondent had a practice of brief plant shutdowns and that the
layoff at Twinsburg was conducted consistent with the procedure it utilized in a prior layoff in
1995. (Respondent’s brief, pgs. 92–93 and 105)
The Board, with court approval, has clearly rejected such an argument. In Adair Standish
Corp. 292 NLRB 890 (1989) enfd. in relevant part, 912 F.2d 854 (6th Cir. 1990) the Board
observed:
The Respondent argues that because of its past practice of instituting economic layoffs
due to lack of work, it had no obligation to bargain with the Union over such layoffs.
However, because of the intervention of the bargaining representative, the Respondent
could no longer continue unilaterally to exercise its discretion with respect to layoffs.
See, e. g., Ladies Garment Workers Local 512 v. NLRB, 795. 2d 705 (9th Cir. 1986).
Instead, the Respondent was obligated to bargain with the Union over the layoffs, which
are mandatory subjects of bargaining. Lapeer Foundry & Machine, 289 NLRB 952
(1988). Accordingly, we agree with the judge that the Respondent violated Sec. 8(a)(5)
and (1) of the Act by failing to bargain with the Union over the layoffs. Id. at fn.1
The Board reached the same conclusion regarding layoffs in a preceding case involving
the same employer, Adair Standish Corp. 290 NLRB 317, 337 (1988) enfd. in relevant part 912
F.2d 854 (6th Cir. 1990) and in Bob Townsend/Colerain Ford, 351 NLRB 1079, 1083 (2007). In
Mackie Automotive Systems, 336 NLRB 347, 349 (2001) the Board noted that it was well settled
that an employer’s past practices prior to the certification of a union did not relieve an employer
of the obligation to bargain about the subsequent implementation of those practices that entail a
change in mandatory subjects of bargaining. The Board held that adherence to past practice
does not privilege unilateral conduct
In the instant case, prior to the March 9, 2009 layoffs at Twinsburg, the Respondent had
only one previous layoff in 1995. The Respondent nonetheless contends that because it
followed the procedures utilized in that one 1995 layoff, it was privileged to act unilaterally with
regard to the March 2009 layoff. As explained above, the primary impediment to that argument
is that the Board has clearly rejected the notion that an employer can act unilaterally with
respect to an economically motivated layoff after the selection of a bargaining representative,
even if the employer acts consistent with that practice. Moreover, one prior layoff does not
establish a consistent past practice. I note in this connection that the Board has also held that
as many as three prior layoffs for varying reasons did not establish a consistent practice that
privileged an employer to act unilaterally with respect to layoffs. See Tri-Tech Services, Inc. 340
NLRB 894, 895 (2003) and Taino Paper Corp. 290 NLRB 975 978 (1988).
In the instant case, the Union specifically advised the Respondent in writing at the
beginning of bargaining in October 2008, that the Union expected to be given notice and an
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opportunity to bargain regarding the layoff of employees. However, with respect to the layoff at
Twinsburg that was effectuated on or about Monday, March 9, 2009, the Union was not notified
until Thursday, March 5, 2009, the day before the Respondent began to notify the affected
employees. When Mason gave the Respondent’s proposal to Bornstein on the afternoon of
March 5, Bornstein objected to the Respondent’s proposed method of laying employees off by
departmental seniority and reminded Mason of the Union’s outstanding proposal which
proposed that layoffs be made through the use of plantwide seniority. The Respondent’s own
bargaining notes establish that Mason replied that the Union had received what the Respondent
proposed to do; that is what it had done in the past and “this is what we are going to do”. Mason
also indicated that the Respondent needed to begin notifying the affected employees at
Twinsburg the following day and that the Respondent had known of the need to effectuate
layoffs at Twinsburg for approximately 1 week.
Bornstein reiterated that plantwide seniority should be used for layoffs. Mason
responded that he understood the Union’s position but suggested the parties discuss the
impending layoffs at Peninsula since the Respondent needed to inform the affected employees
at Twinsburg of the impending layoffs the next day. Bornstein made one last attempt to reach an
agreement by proposing that a combination of departments of employees who performed similar
work should be considered for purposes of layoff by seniority. This proposal was rejected. At the
end of the March 5 meeting, Mason informed the Union that the Respondent would use the
procedure he had given the Union that day.
On March 6, 2009, Mason gave Bornstein the list of employees who were to be laid off
at Twinsburg. Once again Bornstein objected to the Respondent’s proposal. Mason replied that
he understood and since the parties could not reach an agreement they were at an impasse on
this issue.
The Respondent began to inform employees at Twinsburg of their layoffs on March 6.
Even though the Respondent had decided to lay off employees at Twinsburg a week earlier, it
did not inform the Union until the day before the layoff was announced to employees. Mason
made it abundantly clear at the March 5 meeting that the Respondent’s proposal would be
implemented the following day. On March 6 the Respondent presented the Union with a list of
the employees that were to be laid off and on that day began to notify the employees of their
layoff.
I find that, under the circumstances, the Respondent presented its proposal for the
layoffs at Twinsburg without giving the Union meaningful notice and an opportunity to bargain
over the matter. It is clear that the Respondent was committed to implementing the layoff in the
manner it had decided regardless of the Union’s response to its proposal. On March 5, 2009,
the Respondent made it clear from the outset that it was merely informing the Union of the
course of action it would effectuate the next day. As such, it presented the Union with a fait
accompli, as it did not comply with its obligation to give meaningful notice and opportunity to
bargain in good faith regarding this issue. Brannan Sand and Gravel Co., 314 NLRB 282 (1994);
Ciba-Ceigy Pharmaceutical Division, 264 NLRB 1013, 1017 (1982) enfd. 722 F. 2nd 1120 (3d
Cir. 1983).
The record contains generalized claims by the Respondent that a lack of orders caused
the necessity of the layoffs at Twinsburg and 1-day shutdowns. In this connection, the
Respondent’s bargaining notes reflect on March 5, 2009, Mason informed the Union that there
was a 20 percent drop in orders. On April 7, 2009, before the 1-day shutdowns on April 10,
Mason indicated that orders had continued to decline since March 2009. At the hearing, Mathias
made reference to a 40 percent drop in orders. No documentary evidence regarding the decline
in orders was introduced into evidence at the hearing.
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In Seaport Printing & AD Specialties, Inc. 351 NLRB 1269 (2007) the Board indicated
that an exception to the obligation to bargain over the layoff of employees for economic reasons
required that the employer demonstrate that “economic exigencies” compelled prompt action.
The Board noted that it has “consistently maintained a narrow view of the economic exigency
exception” to “extraordinary events which are an unforeseen occurrence having a major
economic effect requiring the employer to take immediate action.” RBE Electronics of S. D., 320
NLRB 80, 81 (1995) (citations omitted). The Board further noted that “ [A]bsent a dire financial
emergency, . . . economic events such as loss of significant accounts or contracts, operation at
a competitive disadvantage, or supply shortages do not justify unilateral action.” Id. (footnotes
omitted).
Applying that stringent standard to the instant case, the generalized claims by the
Respondent regarding a lack of orders certainly do not meet the Board's requirements. Rather,
the circumstances surrounding the Respondent’s decision to lay off employees and shutdown
its facilities for 1 day was motivated by a desire to reduce labor costs in response to a decrease
in orders and is thus similar to the type of economically based decision to lay off as part of the
normal business cycle and subject to the duty to bargain. See Pan American Grain Co., Inc. 351
NLRB 1412, 1414 (2007).
On the basis of the foregoing, I find that the Respondent violated Section 8(a)(5) and (1)
of the Act with regard to the layoff of employees at Twinsburg on or about March 9, 2009, and
the 1-day shutdowns that occurred at the Twinsburg facility on March 5 and April 10, 2009 and
the Peninsula facility on April 10, 2009.
Changes in Work Hours and Schedules
Paragraph 12(G) of the complaint alleges that on or about March 16, 2009, the
Respondent changed the work hours of the day shift janitor at the Respondent’s Peninsula and
Twinsburg facilities.
The record establishes that prior to the layoffs that occurred in March 2009, Joseph
Casteel was the Respondent’s first shift janitor. His work schedule was from 7 a.m to 3 p.m. On
March 13, 2009, the second shift janitor at the Peninsula plant, Harry Lane, was laid off. After
Lane’s layoff, the Respondent changed Casteel’s work hours to 8 a.m. to 4 p.m.
According to the testimony of Brian Lennon, Respondent took this action because in
order to have coverage between the first and second shift, as it needed an employee to clean
the locker rooms after the first shift employees had left. Lennon acknowledged that the
Respondent did not give notice and opportunity to bargain with the Union over Casteel’s change
of hours. He testified that the Respondent followed the provision of its handbook that permitted
it to change employee schedules. He also testified that this action was consistent with what the
Respondent had done prior to the advent of the Union with respect to changing employee
schedules as needed. There is no contrary record evidence on this matter.
Paragraph 12(M) of the complaint alleges that on or about July 27, 2009, the
Respondent assigned two employees to work at the Peninsula facility during the annual plant
shutdown.
Brian Lennon testified that the Respondent historically has engaged in annual
shutdowns to perform maintenance work at the end of July or the beginning of August. He
indicated that the Respondent does not typically engage in production work during the
maintenance shutdown, but if customer orders needed to be filled, it would arrange to have
production work done to meet the orders.
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A week prior to the scheduled late July 2009 shutdown, a customer called with an order.
The Respondent assigned two employees, Paul Shaver and Dan Krukemeyer, to perform
production work. The Respondent selected these employees because they were the most
senior employees on their shift and each had the skill and ability to perform the work.
Lennon Indicated that the Respondent did not bargain with the Union over the
assignments since it was merely the normal scheduling of production work. He testified that the
Respondent had utilized the same procedure to schedule production work during maintenance
shutdowns in the past. (Tr. 1788–1789). There is no record evidence to the contrary.
Paragraph 12(N) of the complaint alleges that from about August 17, 2009 through
September 29, 2009, the Respondent changed the work hours of Jeff Miktuk, a quality
assurance employee who works at the Peninsula facility.
Lennon testified that Miktuk is the Respondent’s quality assurance technician on the
second shift at its Peninsula plant. Miktuk’s normal hours were from 3 p.m to 11 p.m. His hours
were changed to 11 a.m. to 7 p.m. for approximately 1 month in August and September 2009.
He explained that the reason for the change in hours was that the Respondent had obtained a
new customer which had very stringent quality requirements. The Respondent assigned Miktuk
to work a portion of the first shift so that he would be able to work with engineers and quality
managers to learn the requirements of the new customer, which had quality standards of a
higher level than those that the Respondent was accustomed to.
Lennon indicated that the Respondent did not bargain with the Union prior to making this
assignment because it was following its employee handbook which permitted it to change
employee schedules. He also indicated that in the past the Respondent had made schedule
changes of this order. There is no record evidence to the contrary.
The record establishes that routine changes were made to the schedule of employees
with frequency prior to the selection of the Union as the bargaining representative. This is hardly
surprising given the nature of the Respondent’s manufacturing operations. A change in
assignment must be “material, substantial and significant” to be considered a mandatory subject
of bargaining. Alamo Cement Co., 277 NLRB 1031 (1985). The Board has also held that
schedule changes made in a normal, routine fashion in the operation of an employer’s business
that is consistent with its prior practice are not violations of the Act. KDEN Broadcasting Co.,
225 NLRB 25 (1976); Kal-Die Casting Corp. 221 NLRB 1068, fn. 1 (1975). I find the instant case
to be clearly distinguishable from the Board’s decision in Georgia-Pacific Corp., 275 NLRB 67
(1985). In that case the Board found that the employer’s unilateral change to a four-shift
schedule from a three-shift schedule constituted a fundamental change in the workweek for all
employees. The Board found that the employer’s unilateral institution of such a schedule
violated Section 8(a)(5) and (1) of the Act. Here, the routine changes that the Respondent
instituted did not constitute a fundamental change in employees ‘working conditions. On the
basis of the foregoing, I find that the Respondent’s conduct in making changes to the schedules
of Casteel and Miktuk and assigning two employees to perform production work rather than
maintenance work during the 2009 annual shutdown do not constitute violations of Section
8(a)(5) and (1) of the Act. Accordingly, I shall dismiss paragraphs 12(G), (M) and (N) of the
complaint.
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The April 3, 2009, Work Rule Regarding the Defacement/Destruction of Company Property and
the Discharge of Kevin Maze
Paragraph 12(I) of the complaint alleges that on or about April 3, 2009, the Respondent
unilaterally expanded its work rule on the defacement/destruction of company property. In a
related allegation, paragraph 8(C) of the complaint alleges that the Respondent terminated
employee Kevin Maze pursuant to this rule on September 4, 2009. Finally, paragraphs 8(A) and
(B) allege that the Respondent also terminated Maze because of his union activities in violation
of Section 8(a)(3) and (1) of the Act. Because of the related nature of these allegations I will
consider them together.
In defense to these allegations, the Respondent argues that Maze was lawfully
disciplined pursuant to its progressive disciplinary policy for affixing union stickers to its property
in violation of the Respondent’s conduct and discipline policy set forth in its employee
handbook. The Respondent also argues that the Union was put on notice in November 2008 of
the allegedly unilaterally changed work rule regarding defacement/destruction of company
property and that therefore the complaint allegations regarding the rule and its application to the
discharge of Maze are barred by Section 10(b) of the Act.12
The record establishes that prior to the election in March 2008; there was a long-
standing history of employees posting stickers of various kinds throughout the Respondent’s
facilities including employee locker rooms, toolboxes, towmotors and machines. The stickers
included phrases from the Bible, jokes and sports emblems such as the Cleveland Browns and
NASCAR. When the Union campaign started in the beginning of 2008, some employees,
including Kevin Maze, placed Union stickers on employee lockers, toolboxes and machines. At
times such stickers were also posted on the walls and ceilings in such areas as the quality
assurance and tool rooms.
After the Union won the election in March 2008, some employees continued to place
stickers including union stickers, on employee’s lockers, toolboxes, and machines in the plant.
In November 2008, the Respondent removed all the stickers, including union, sports, and
religious phrases, from employee lockers and other areas of the plant. According to the
testimony of Brian Lennon, the Respondent removed the stickers because there was not
supposed to be any stickers placed on “Company Property” (Tr. 1799). Lennon testified that
around the time that the stickers were removed, employees were notified that placing stickers
“on company property was considered destruction or damage to company property” at
employee meetings on each shift (Tr. 1799–1800). The Respondent called current employee
witnesses, Dickerhoof, Pietrocini, Collins, Bradley, Miktuk, and supervisor Ohler who testified
that they recalled stickers being removed from employee locker rooms in other areas of the
plant in November 2008. These individuals also recalled being told by either Brian Lennon or
their supervisor that employees could be disciplined for placing stickers on company property in
the future. Based upon this evidence, I find that the Respondents removed all the stickers from
its facilities in November 2008 and orally informed at least some unit employees that stickers
should not be placed on its property in the future and that employees may be disciplined for
doing so.

12 On September 8, 2009, the Union filed a charge in Case 8–CA–385460 alleging that the
Respondent discharged Maze in violation of Section 8(a)(5)(3) and (1) of the Act (GC Exh. 1ee).
On September 9, 2009, the Union filed a charge in Case 8–CA–38549 alleging that the new
work rule violated Section 8(a)(5) and (1) of the Act. (GC Exh. 1gg)
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On April 3, 2009, a memo to all employees from Brian Lennon and Varner entitled
“Defacement of Company Property” Message: Work Place Conduct and Discipline Policy
(emphasis in the original) was posted at both the Peninsula and Twinsburg facilities. In relevant
part, the memo (GC Exh. 16) states:
General Die Casters has listed below some examples of offenses that are outside the
scope and course of your employment and may be considered to be serious enough to
result in disciplinary action, up to and including termination. Specific situations covered here
may lead to disciplinary action, up to and including termination when, in the company’s
judgment, they are harmful to the rights of other employees, safety, or the efficient operation
of the Company. Leniency in any instance will not be a waiver to impose discipline at any
other time.
Destruction or damage of property belonging to the Company, (emphasis in the
original) or its employees, customers, or visitors; also, careless waste of materials.
Stealing, misappropriating, or intentionally damaging property belonging to the
Company, (emphasis in the original) or any of its employees, customers or visitors
Please note that placing any personal items (example stickers, outside advertisements) of
any kind, on any General Die Casters property will be viewed as defacement/destruction of
company property and disciplinary action be taken up to and including termination. Any
questions please see Human Resources.
Lennon testified that the reason for posting this memo was that a substantial number of
stickers were being posted throughout the plant on company equipment and he wanted to make
it very clear that whoever was doing this needed to stop (Tr. 1794). Lennon stated that
employees had reported to him that Kevin Maze was the individual posting union stickers
throughout the plant. Lennon further testified that putting these stickers throughout the plant was
against the current company policy that was in the handbook and he wanted to emphasize that
continuation of this action could result in disciplinary action. Lennon admitted that the
Respondent did not give notice and an opportunity to bargain with the Union before the April 3,
2009 memo was posted. Lennon indicated that the reason for the Respondent unilateral action
was because the policy was an existing one as the language came “right out of our current
Employee Handbook.” (Tr. 1796).
The employee handbook (GC Exh. 2) has been effective since October 2007 and does
not contain the fourth paragraph of the April 3, 2009, memo noted above that explains that
stickers and outside advertisements of any kind will be considered as defacement or destruction
of company property subject to disciplinary action up to and including termination. Bornstein
credibly testified that since the Union was selected as the bargaining representative in March
2008, until after the April 3, 2009, memo had been posted at the plant, the Respondent never
gave the Union notice and an opportunity to bargain about its expanded work rule regarding
defacement of company property.
Kevin Maze, the subject of the reports given to Brian Lennon regarding the placement of
union stickers in the plant, worked for the Respondent from1984 to1994 when he was
discharged for his attendance record. He was rehired in 2002 and worked for the Respondent
until he was again discharged on September 4, 2009. At the time of his 2009 discharge he was
working on the second shift at the Peninsula plant. While Maze had previously been working on
the third shift, he was transferred to the second shift at the time of the spring 2009 layoffs. Maze
was employed as a “metal man”. In this position, he would carry molten aluminum in a large
metal basket on a towmotor from furnace to furnace in order to keep them filled.
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Maze was an ardent supporter of the Union since the campaign began in December
2007. In this connection, he solicited approximately 20 employees to sign authorization cards on
behalf of the Union. Before the election in March 2008, he wore a hat to work with
approximately 30 small union pins in it. After the election he continued to hand out leaflets to
employees announcing union meetings. He was one of the employees whose picture appeared
in the Teamsters magazine and placed copies of that issue in the employee break rooms at the
Peninsula plant. In October 2008 he became a member of the union negotiating committee and
regularly attended meetings through the date of his discharge and afterwards.
Maze confirmed that prior to the Union campaign a number of stickers referring to
NASCAR and other matters were placed on toolboxes, machines and on employee lockers at
the Peninsula facility. Maze indicated that from the beginning of the union campaign until the
time he was discharged, he placed union stickers at various places in the facility including the
locker room. I credit Maze’s denial that he placed hundreds of these stickers throughout the
plant. I also credit his testimony that he observed other employees place union stickers in the
plant. Maze testified that he obtained union stickers that were approximately the size of a 50
cent piece at union meetings. He recalled that one of the stickers reflected the statement
“Respect is a Teamsters contract” but that others had different statements.
Maze testified that on September 4, 2009, he was taken by his supervisor to Brian
Lennon’s office to meet with Brian Lennon and Hicks. Lennon told Mays that he was being
discharged for placing a sticker on the coffee machine and on other equipment. Lennon did not
elaborate on what the other equipment was. Mays indicated he did not respond to Lennon’s
notification that he was discharged.
Maze testified that at some point prior to September 4, 2009, he had placed a union
sticker on the front of the coffee vending machine. He stated that there was a video surveillance
camera placed right in front of the machine where he placed the sticker.
When called as an adverse witness by counsel for the Acting General Counsel, Brian
Lennon testified that Mays was terminated on September 4, 2009 for defacement and
destruction of company property because he placed prounion stickers on company property,
including the coffee machine. Lennon indicated that Maze was the only employee who had been
terminated by the Respondent for this reason. (Tr. 76–77).
Hicks testified regarding the discharge of Maze when called as a witness by the
Respondent. According to Hicks, the decision to discharge Maze was made collectively by
himself, Mathias, Brian Lennon, and Mason after a review of Maze’s disciplinary record. Hicks
testified that Maze was terminated pursuant to the Respondent’s progressive discipline policy
because he received another written discipline after being placed on suspension. He also
testified, however, that Maze would have been discharged for placing the union stickers on
company property even if it had been his first disciplinary offense. Hicks indicated this was so
because the Response policy regarding defacement of company property “calls for termination.”
(Tr. 2158–2159).13
On September 4, 2009, Maze was given a document regarding his termination signed by
Brian Lennon and Hicks which reflected the following, in relevant part (GC Exh. 83):

13 Although called as a witness by the Respondent, Mathias did not testify regarding the
reasons for Maze’s termination.
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Violations:
On 8/27/09 Kevin Maze placed Teamster’s stickers on the coffee machine and several
other pieces of company property.
Prior Violations
7/16/09 Not wearing safety glasses in the zinc foundry
6/3/09 Unsafe work practices
8/19/09 not wearing head and face protection.14
On 7/16/2009 Kevin was placed on a Final Written Warning with 3 days of suspension. It
stated that any further violations would result in Termination.
The Acting General Counsel does not allege that the warnings given to Maze on July 16,
2009; June 3, 2009, and August 19, 2008 were discriminatory.
I first address the issue of whether the issuance of the Respondent’s April 3, 2009,
memo regarding defacement/destruction of company property is an unlawful unilateral change.
It is well settled that an employer has an obligation to give notice and an opportunity to bargain
with a union regarding work rules, especially those that involve the imposition of discipline.
United Cerebral Palsy of New York City, 347 NLRB 603, 607 (2006) The Toledo Blade Co., Inc.
343 NLRB 385 (2004); Behnke, Inc., 313 NLRB 1132, 1139 (1994) Robbins Door & Sash Co.,
Inc., 260 NLRB 659 (1982). As I have indicated above, the April 3, 2009, memo is a clear
change from the rule contained in the Respondent’s employee handbook. Unlike the rule
contained in the handbook, the April 3, 2009, memo unequivocally informed employees that
placing any personal stickers or outside advertisements of any kind on the Respondent’s
property would be viewed as defacement or destruction of the Respondent’s property and result
in disciplinary action up to and including termination.
The Respondent contends that the April 3, 2009, memo was not a new rule but was
“merely delineating examples of what had always been considered a violation of long-standing
policy” (Respondent’s brief, p.88). This is clearly not the case as the testimony of all the
witnesses who testified regarding this issue testified that until at least November 2008, stickers
of various types were regularly posted on lockers and in other areas in the Respondent’s
facilities. As noted above, I find that in November 2008, the Respondent removed all of the
stickers from employee lockers and other places in the plant. At the same time Lennon and
other supervisors advised at least some of the employees that stickers should not be placed on
the Respondent’s property and that discipline could be imposed if it were. It is clear, however,
that in November 2008, the Respondent did not give notice to the Union of the removal of the
stickers or that there was any prohibition of their placement in the future. The Respondent took
this action despite the fact that the Union had been selected as the bargaining representative in
March 2008 and certified by the NLRB in August of 2008.
Admitting it took such action unilaterally, the Respondent contends that the Union had
notice of this action and thus asserts a 10(b) defense with respect to the complaint allegations
regarding the issuance of the April 3, 2009 policy. As noted previously, the Union filed a charge
in Case 8–CA–38549 on September 9, 2009. Section 10(b) of the act provides that “no
complaint shall be issued based upon any unfair labor practice occurring more than 6 months
prior to the filing of the charge with the Board.” However, the 10(b) period does not begin to run
until the charging party has received clear and unequivocal notice of the violation and the
burden of showing such notice is on the party raising Section 10(b) as an affirmative defense.
Broadway Volkswagen, 342 NLRB1244, 1246 (2004)

14 The actual date of this warning was August 19, 2008 (R. Exh. 146).
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Applying these principles to this case, I find that the Respondent has not established a
valid 10(b) defense. In the first instance there is no evidence that the employees who were told
that, placement of stickers could result in some form of discipline, ever reported that to the
Union. The only evidence supporting the Respondent’s defense is the testimony of supervisor
Ohler that he had spoken to Kevin Maze in the fall of 2008 after he had heard rumors that Maze
had continued to place union stickers in the plant. According to Ohler, he told Maze “he
shouldn’t be doing that and that he could be in trouble if he’s caught doing it.” Ohler also
testified that in the “Spring of 2009” he had heard rumors that Maze was continuing to put up
union stickers and told him that he could be disciplined or fired for doing so. (Tr. 1821) Maze
generally denied that he had been aware in 2008 that stickers were not to be placed on
company property (Tr. 642). To the extent the testimony of Ohler and Maze conflicts, I credit
Ohler on this point as his testimony appears more plausible under all the circumstances.
However, I find that Ohler’s amorphous 2008 statement to Maze that he could be in trouble if he
continued to post stickers, even if I were to attribute knowledge of it to the Union, does not
establish the clear and unequivocal notice that is required to bar the Union’s action in filing a
charge over the April 3, 2009, memo. With respect to the statements Ohler made to Maze in the
“Spring of 2009” there is no evidence to establish that the statement was made prior to March 9,
2009, which is the applicable 10(b) period. Ohler’s vague testimony on this point does not
establish clear and unequivocal notice to the Union prior to the 10(b) period. The fact that
whatever the Respondent told employees in November 2008 was not as clear as the definitive
statement that discipline, up to and including discharge, could be imposed for the placing of
stickers on company property contained in the April 3, 2009 memo, is supported by Lennon’s
testimony that he issued the memo to emphasize that continued placement of stickers could
result in disciplinary action. I find that Brian Lennon viewed his earlier statements on this issue
to be vague and insufficiently promulgated to employees. I conclude that the issuance of the
detailed April 3, 2009, expansion of the work rule regarding the defacement/destruction of
company property to include the placement of sickers on company property and clearly
specifying the penalty for its violation is a newly instituted rule and not a continuation of anything
that preceded it. Accordingly, the Respondent has not established that the complaint allegations
regarding the issuance of the April 3, 2009, memo and its application to the discharge of Maze
is barred by Section 10(b).
Finally, I do not agree with the Respondent’s assertion that the Board’s decision in The
Timken Co., 331 NLRB 744 (2000) supports its unilateral right to establish a new rule prohibiting
the placement of union stickers with attendant disciplinary rules at its facility. In Timken, the
Board found that the General Counsel had not established that the employer violated Section 8
(a)(1) of the Act by disparately removing union materials from “cubbyholes” that the employer
considered its property. Id at 755. The facility at issue was a nonunion plant and therefore no
issues regarding the obligation to bargain over mandatory subjects of bargaining were
considered by the Board. Accordingly, I find Timken to be inapposite to the instant case. On the
basis of all of the foregoing, I find that by implementing the April 3, 2009, memo regarding
defacement/destruction of company property without prior notice to the Union, the Respondent
violated Section 8(a)(5) and (1) of the Act.
It is clear that the unilaterally implemented April 3, 2009, memo was a factor, indeed the
critical factor, in the discharge of Maze. As noted above, while Maze had valid warnings issued
to him on July 16, 2009, June 3, 2009, and August 19, 2008, the document indicating the
reasons for his termination reflects that the last violation of the Respondents progressive
disciplinary policy was placing union stickers on a coffee machine and other pieces of
equipment on August 27, 2009. Brian Lennon testified that Kevin Maze was discharged
because he placed union stickers on company property. In addition, Hicks testified that he
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would have been discharged for placing union stickers on company property even if it had been
his first offense.
Under clearly established Board law, if an employer’s unilaterally imposed rule was a
factor in discipline or discharge, the discipline or discharge violates Section 8(a)(5) and (1) of
the Act. Behnke, Inc., supra, at 1139; Equitable Gas Co., 303 NLRB 925, 931 (1991) at fn. 29.
Since the Respondent’s unilaterally implemented rule regarding the destruction/defacement of
company property was the primary factor in Maze’s discharge, his discharge violated Section
8(a)(5) and (1) of the Act.
With regard to the allegation that the Respondent’s discharge of Maze also violated
Section 8(a)(3) and (1) of the Act, I note that the acting General Counsel established a prima
facie case under the Board’s decision in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 US 989 (1982) approved in NLRB v. Transportation
Management Corp., 462 U.S. 393 (1983). In Wright Line, the Board established a framework for
deciding cases turning on employer motivation. To prove an employer’s action is discriminatorily
motivated and violative of the Act, the General Counsel must first establish, by a preponderance
of the evidence, an employee’s protected conduct was a motivating factor in the employer’s
decision, the elements commonly required to support such a showing are union activity by the
employee, employer knowledge of the activity, and at times, antiunion animus on the part of the
employer. If the General Counsel is able to establish a prima facie case of discriminatory
motivation, the burden of persuasion shifts “to the employer to demonstrate the same action
would have taken place even in the absence of the protected conduct.” Wright Line supra at
1089. See also Ferguson Enterprises, Inc., 355 NLRB No.189 (2010).
The evidence establishes that Maze was a known union supporter and that the
Respondent possessed animus toward the Union. Thus the Respondent must establish that it
would have discharged Maze in the absence of any union activity on his behalf. The
Respondent does not meet that burden in this case. Lennon testified that the reason that he
issued his April 3, 2009, memo regarding the prohibition of stickers was because of reports that
were made to him that Maze was placing union stickers in the plant. Thus, the rule itself was
issued to emphasize that continuation of such conduct could result in disciplinary action. Prior to
the discharge of Maze there is no evidence that any employee had ever been discharged by the
Respondent for defacement of its property. Under the circumstances, the Respondent has not
established that it would have discharged Maze in the absence of his union activities and
therefore his discharged also violates Section 8(a)(3) and (1) of the Act.
The Work Rule Regarding the Rotation of Machine Operators
Paragraph 12(J) of the complaint alleges that on April 6, 2009, the Respondent
promulgated a new work rule which required all machine operators to rotate working among the
various machines.
On April 6, 2009, Brian Lennon had the following memo (GC Exh. 17) posted at the
Peninsula facility:
We are going to begin rotating operators on physically demanding jobs in an effort to
reduce operator fatigue and prevent injury. This will be done by scheduling different
operators on these jobs at least 2 to 3 times per week. All operators will be expected to
participate in the rotation. If you feel that you can not meet the requirements of these
jobs please notify your supervisor.
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The credible testimony of Ivery and current employee Leonard Redd established that,
prior to this memo being posted; employees normally operated the same machine for months.
Only occasionally would employees be rotated to another machine. There is no evidence,
however, that assignments to a different machine had an economic impact on an employee.
Brian Lennon admitted that he had the memo posted without first giving the Union notice
and an opportunity to bargain over this issue. Lennon testified that after the layoff that occurred
in March 2009, the Respondent’s work force was smaller and was composed of the more
senior, and hence typically older, employees. Some employees had approached supervisors
and expressed concerns over performing heavier work than they had previously been
performing. The Respondent’s intention in posting this memo was to notify employees that it
would rotate employees from the larger machines to smaller ones on a regular basis in an effort
to avoid injuries. Lennon testified that, while in the past the Respondent “unofficially” tried to
rotate employees, the memo was posted in order to give official notice to employees about the
Respondents position on this issue. Tr. 1792–1793
In its brief, the Respondent admitted that the April 6, 2009, memo regardsed rotating
assignments and that it did not bargain with the Union over this new work rule.
The Board has held that a change in assignments is a mandatory subject of bargaining if
the new duties are a “material, substantial and significant” change in the employees’ terms and
conditions of employment. The Bohemian Club, 351 NLRB 1065, 1066 (2007). The Board has
also held that a change in the method of assignments for drivers from the seniority to a
rotational basis without consulting the union violated the Act. Capitol Trucking, Inc., 246 NLRB
135, fn.1 (1979). Finally the Board has held that assigning drivers to different trucks that were
materially and substantially different than the trucks they had previously been assigned was a
mandatory subject of bargaining. Armour Oil Co., 253 NLRB 1104, 1123–1125 (1981).
Applying these principles to the instant case, I find that rotating die cast operators to
different machines is a mandatory subject of bargaining. The record establishes that much of
the work in the Respondents foundry is of the physically demanding nature. It is also clear,
however, that operation of some of the larger die cast machines is more physically demanding
than other smaller machines. Under these circumstances, the assignment to a particular
machine is a condition of employment and a change in assignment has a “material substantial
and significant” impact on working conditions, even though the assignment does not have an
economic impact.
As noted above, the Respondent admits that it implemented the rotation system
unilaterally. However salutary this change in the manner of assignments is to employees, it is a
matter that the Respondent was obligated to give notice of and an opportunity to bargain to the
Union. By acting unilaterally with respect to this matter, the Respondent violated Section 8(a)(5)
and (1) of the Act.
The Recall of Three Employees in June 2009 and Their Reimbursement to the Respondent of
Health Insurance Costs
Paragraph 12(K) of the complaint alleges that on or about June 15, 2009, the
Respondent recalled three bargaining unit employees to its Peninsula facility. Paragraph 12(M)
of the complaint alleges that the Respondent required the three bargaining unit employees
recalled to the Peninsula facility to reimburse it certain health insurance costs.
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Current employee Sam Tomsello testified that at the time of the hearing he was a die
cast operator at the Peninsula facility and was working on the third shift. He held the same
position on April 29, 2009, when he was informed that he was laid off effective on May 4, 2009.
In a letter from Judy Varner, the Respondent’s human resource manager, (GC Exh. 30)
informed him of his layoff, he was also notified of the following:
In accordance with the Layoff procedure, you have the right of recall in order of seniority
to any active position in the department for which you qualify that is within the same
classification as your position at the time of layoff. As an employee, your right to recall
extended for (two) months from the effective date of layoff (please refer to handbook).
… Your insurance coverage will end on May 31, 2009 you will be eligible to continue
your health and dental coverage through General Die Caster’s Cobra program.
The Respondent’s minutes of the bargaining session held on June 10, 2009 (R. Exh.
184) reflect that Mason informed the union committee that the Respondent would be recalling
the three most senior diecast operators: Sallaz, Tomsello, and Black. When Bornstein asked if
the Respondent had already recalled them, Mason replied that he was in the process of doing
so. Bornstein indicated that he would like to negotiate the procedure and asked whether the
employees had been contacted by phone or by letter. Mason indicated that they had been
called. When Bornstein asked if a call was followed by a letter, Mason replied “no”. Bornstein
indicated that those are the type of things that the parties needed to negotiate. He gave as
examples of matters to be negotiated, the mechanisms by which employees were to be
contacted and the amount of time they had to respond to the Respondent’s offer. Mason
indicated that if the Union wanted to put forth a written proposal regarding those issues, the
Respondent would consider it. Bornstein indicated that in the Union’s last proposal regarding
recall rights those issues were addressed.
Current employee Samuel Tomsello testified that on June 12, 2009, he received a call
from Judy Varner, who informed him that he could return to work on June 15, 2009, to the
second shift at the Peninsula facility (Tr. 68). Employees Jason Black and Jason Sallaz were
also recalled to the second shift at the same time he was.
On June 25, 2009, Tomsello was called to Hick’s office. When Tomsello arrived, Hicks
informed him that he needed to give the Respondent a check for his health insurance or sign a
form authorizing the Respondent to deduct the appropriate amounts from his paycheck.
According to Tomsello, Hicks told him that someone had forgotten to remove him and the other
employees who had been laid off from the Respondents medical insurance plan. Tomsello was
also told that he had to reimburse the Respondent for the insurance premiums that had been
paid. He was given the following letter (GC Exh. 8 (b)) which states, in relevant part:
This letter is to inform you that General Die Casters, Inc. needs payment of (One
Hundred Fifty-Seven Dollars and Fifty Eight Cents) $157.58, to insure there’ll be no
laps (sic) in your health and dental insurance coverage.
On your 6/26/09 check we deducted for $45 for health and $17.58 for dental. The
monthly amount due for June Medical is $180 and $40.16 for June Dental. The balance
due for June is $135 .00 for Medical and $22.58 for Dental insurance.
Going back to when you were laid off we kept your coverage in place (per company
policy) until the end of the month of May. You were brought back in the middle of June
(June 15), therefore your employee contribution of the monthly premium for June is due
to General DieCasters, and to ensure there’ll be no laps (sic) in coverage, here are (two)
2 payment options listed below:
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1.You can submit a personal check, or money order to General Die Casters, Inc. (Please
submit check, money order within 7 days of receipt of this notice)
2.You can authorize General Die Casters, Inc. to payroll deduct this amount from your
paycheck by increasing your deductions with the month of July.
If you would prefer that General Die Casters, Inc. payroll deduct the total amount
$157.58 from your July pay-checks, please sign below.
I authorize General Die Casters, Inc. to payroll deduct the above stated amount from my
paychecks in July. The weekly amount for the month of July will be $72 for medical
insurance and $14.55 for dental insurance.
Tomsello executed the document authorizing payroll deductions. The record also reflects
that both Black (GC Exh. 8c) and Sallaz (GC Exh. 8a) executed authorizations to deduct health
insurance premiums that differed from Tomsello’s only in the amounts deducted.
Brian Lennon admitted the Respondent recalled Tomsello, Black, and Sallaz in June
2009 without giving notice to and an opportunity to bargain with the Union over their recall.
Lennon testified that the Respondent basically used the same procedure as it did for the layoff
in that it recalled employees by seniority within their department. He noted that Respondent’s
recall procedure was consistent with the procedure it utilized when recalling employees from
layoff in 1995.
With respect to the claim that the Respondent unilaterally dealt with the three employees
regarding health insurance premiums for June 2009, Hicks testified that the Respondent offered
the employees the opportunity to pay their portion of the June premiums so that they could have
coverage for that month. Hicks further testified “We pay our insurance on a pre-funded basis. If
they would not have done it they would have had a gap in coverage, and they would have had
to wait until July 1 to get back on.” (Tr. 2178.) According to Hicks, the three employees decided
to pay the premiums for June and avoid a gap in insurance coverage. Hicks testified that as the
Respondent’s benefits coordinator, he regularly speaks with employees with regard to
participation in the Respondent’s health insurance plan and the types of coverage.
The Respondent gave no prior notice to the Union before it began the process of
recalling in June 2009 the three employees who had been laid off in early May 2009. The
Respondent contends it was privileged to act unilaterally regarding this recall because it recalled
the three die cast operators by departmental seniority in accordance with the procedure it
utilized in recalling employees in 1995.
In Allen W. Bird II, Caravelle Boat Co., 227 NLRB 1355, 1357 (1977) the Board noted
that “It is axiomatic that unilaterally changing the method of recalling employees is violative of
the Act.” (Citation omitted). It is clear, therefore, that the recall of employees is a mandatory
subject of bargaining. In the instant case, unlike the employer in Allen W. Bird, the Respondent
used the same recall procedure that it had previously utilized in 1995. As I have noted above,
however, the Board in Adair Standish, supra, rejected the argument that an employer is
privileged to unilaterally lay off employees once a union has been selected as the collective-
bargaining agent, even if the layoff is consistent with prior practice. In the instant case, it would
be an anomaly to permit the Respondent to unilaterally recall employees when it must bargain
about their layoff. Accordingly, I find that by failing to give the Union notice and an opportunity to
bargain regarding the recall of the three die cast operators the Respondent violated Section 8
(a)(5) and (1) of the Act.
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I next turn to the related allegation that the Respondent violated Section 8(a)(5) and (1)
of the Act by unilaterally requiring the three employees to reimburse it for their health insurance
premiums for the month of June 2009. In the first instance I credit the testimony of Tomasello
over that of Hicks regarding this issue, to the extent there is a difference. I found Tomasello’s
testimony to be more plausible since the document he signed clearly reflected that it was to
reimburse the Respondent for an expenditure that had already been made. I was also favorably
impressed by his demeanor. Accordingly, I find that Hicks informed the three employees on or
about June 25, 2009, that they were obligated to pay their share of the entire June 2009
premium and had to reimburse the Respondent as it had paid the premium for the entire month.
The employees were given the option of paying the Respondent by check or money order in
order to reimburse it for the premium or to have the appropriate amounts deducted from their
July paychecks.
It is well settled that health insurance benefits for unit employees is a mandatory subject
of bargaining Allied Chemical and Alkali Workers of America v. Pittsburgh Plate Glass Co., 404
U.S. 157 (1971) Larry Geweke Ford, 344 NLRB 628 (205). The Board has also found that
directly dealing with employees regarding health insurance premiums, and the choice of paying
an increased premium or dropping coverage, violates Section 8(a)(5) and (1) of the Act.
European Parts Exchange, Inc., 270 NLRB 1244 (1984).
In the instant case, the Respondent’s implementation of the procedure to have the
employee’s reimburse it for their portion of the entire June 2009 health insurance premium is
part of its unilaterally implemented recall procedure for these employees. Under the
circumstances, I find that the Respondent was obligated to bargain with the Union regarding the
manner in which the health insurance coverage for the recalled employees was to be
implemented. By failing to bargain over this matter, the Respondent violated Section 8(a)(5) and
(1) of the Act.
The Implementation of the Respondent’s September 8, 2009, Proposal on Recall Rights
Paragraph 12(O) of the complaint alleges that since on or about September 8, 2009, the
Respondent unilaterally implemented its proposal on recall rights at a time when the Union and
the Respondent had not reached a lawful impasse.
In its initial proposal dated in October 2008, the Union proposed that laid off employees
have recall rights for 5 years. Consistent with its existing policy, the Respondent's initial
proposal was that employees have recall rights for 60 days. At the bargaining session held on
May 26, 2009 the Union changed its position on the length of recall rights after layoff from 5
years to 3. The Respondent adhered to its position that employees had recall rights for 60 days
after a layoff. (R. Exh.181; GC Exh. 102.)
At the meeting held on June 5, 2009, the Union again reduced the time it was seeking
for employees to have recall rights after layoff from 3 years to 2. When Bornstein asked if
Mason was going to move from 60 days, Mason said that because it was near the end of the
bargaining session he doubted that he would get back to the Union with a counteroffer that day
(R. Exh. 183).
As noted above, at the bargaining session on June 10, 2009, Mason announced that the
Respondent was in the process of recalling three employees. At the meeting held on June 11,
2009, Bornstein asked Mason if he had a response to the Union’s proposal of June 5 reducing
the recall right period to 2 years. Mason replied “not yet.” Mason did, however, give the Union a
new written proposal on recall from layoff. (R. Exh. 185) This proposal (GC Exh. 104) included
the following language regarding recall:
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For employees to be recalled from layoff, they will be recalled by seniority by
departmental layoff, and they will be placed into any opening for which they are qualified
by seniority. There will be no bumping of people who have held their position in the
layoff. Employees will be given a reasonable time to report back to work, no later than 7
days from the notice of recall.
The Union canceled a meeting scheduled for June 12. The parties met on June 16, June
18, July 13, July 20, and July 22 but did not discuss the issue of recall from layoff. At the
meeting held on July 23, 2009, the Union made a new proposal regarding recall rights, limiting
them to one year (GC Exh. 110). The Union also included the following language in its proposed
article 19:
Recall shall be by seniority to any available work which the employee is able to perform.
Once notice of recall is given, the employee must report for work within seven (7)
working days after the day of notification except where the employee is unable to return
to work because of sickness or injury.
The Respondent made the following counter proposal “Agree to the Union language on
“Recall” in Article19 except add the words “by departmental layoff” after the word “seniority” in
the first sentence. Change “able” to “qualified.” (GC Exh. 111). When Bornstein asked what the
Respondent’s position was regarding the length of recall rights, Mason replied “60 days. We
haven’t changed it.” (R. Exh. 192)
At the meeting held on August 5, Mason indicated that the Union had been given the
Respondent’s proposal on recall and reiterated the Respondent’s position on the length of recall
rights was 60 days. When Mason asked if the Union had a proposal on recall, Bornstein replied
that the Union did not have anything prepared. Mason then declared an impasse on the issue of
recall and indicated that the proposal of July 23 was the one that the Respondent would use. (R.
Exh.193.) The next bargaining meeting was scheduled for August 18.
The Union canceled the August 18 meeting. On the same date, Kepler, on behalf of the
Union sent a letter to Tom Lennon and Mathias “temporarily suspending negotiations” because
of what he perceived to be the Respondent’s unlawful conduct during bargaining (R. Exh. 40).
On August 19, 2009, Mason sent a letter by fax to Bornstein replying to Kepler’s letter of
August 18. Mason’s letter (R. Exh. 44) stated, in part, the following:
In negotiations we were to have yesterday, we had hoped to try and reach an agreement
with you on the time for recall from layoff before loss of seniority. As of right now,
everyone who is on layoff status under the Company’s policy lost their recall rights
because they have been laid off more than 60 days. Your last proposal was a one-year
recall rights. We had hoped you to yesterday reach some sort of middle ground because
we are expecting to need workers in September. We hope to recall some of the laid-
off workers under our new recall procedure. Without your presence to negotiate this
time period, you have abandoned those people on layoff that could otherwise be
recalled.
Therefore, we are once again declaring an emergency and requesting that you advise us
in writing that you will in fact attend negotiations currently scheduled on August 25 and
27, 2009 in order to work out the time period for those people on layoff before their
seniority rights are cut off. To that end, we propose to extend the recall rights of all
employees on layoff from the current 60 days to 5 months from date of layoff under our
new recall procedure.
In a letter dated August 20, 2009 from Kepler to Tom Lennon and Mathias (R. Exh. 45),
Kepler indicated, in relevant part:
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The workers at General Die Casters, Inc. represented by Teamsters Local 24 will
discuss the issue of returning to the bargaining table at the regularly scheduled
meeting, which will take place at this Sunday, August 23. Until a decision is reached by
the Teamsters working at GDC, the negotiations will remain suspended due to the
legalities of your hired union-buster. Should the workers at GDC desire to return to the
bargaining table, it will be with a recommendation from Teamster officials that such a
return be accompanied by a Federal mediator, who can then personally witness the
illegal behavior of your hired union-buster.
The Teamsters will notify you on Monday, August 24, of the decision undertaken by the
workers at GDC.
On August 21, 2009, Kepler sent another letter (R. Exh. 47) to Tom Lennon and Mathias
indicating that if the employees voted to lift a temporary suspension of negotiations at the
meeting scheduled for August 23 the Federal mediator was available on September 2 and
September 8. Kepler further indicated “There will be no further negotiations without the
presence of the Federal mediator …”
On August 23, 2009, Kepler sent another letter (GC Exh. 136) to Tom Lennon and
Mathias stating in relevant part:
The General Die Casters workers, who attended the Sunday Teamsters meeting in the
largest show of support yet to date, have voted to allow their negotiating committee to
return to negotiations for the purpose of negotiating the recall of workers, who were laid
off at GDC.
You have been notified of the September 2 and 8 dates of availability of the Federal
mediator. Please notify the Teamsters if those dates are acceptable, and if not the
Federal mediator will have to give us other days.
The Respondent agreed to the rescheduled dates proffered by the Union. At the
bargaining session held September 2, 2009, the parties did not meet face to face. Mason
represented the Respondent while both Bornstein and Kepler were present for the Union. The
Federal mediator who was present acted as an intermediary between the parties. At this
meeting, the Union submitted a proposal to the Respondent regarding recall rights. In article 18
of its proposed contract entitled “Seniority”, the Union adhered to its position that recall rights
after a layoff would be for 1 year. The Union also made a proposal on recall in article 19 of its
proposed contract which stated:
Recall shall be by seniority to any available work which the employee is qualified (bold
in the original) to perform. Once notice of recall is given, the employee must report
for work within seven (7) working days after written notification is received, (bold in
the original) except where the employee is unable to return to work because of sickness
or injury.
The Respondent’s counter proposal (GC Exh. 113) limited recall rights to 6 months and
reiterated its position that recall rights should be by departmental seniority.
On September 4, 2009, Mason sent a letter (GC Exh. 136) by facsimile to Bornstein
stating, in part, the following:
I am writing this letter to you to explain the necessity of reaching an agreement at our
next meeting with respect to the recall of employees who are laid off.
Because you unlawfully canceled negotiations on August 25 and August 27, 2009, you
have pushed back further than we had hoped the time period in order to reach an
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agreement for the return of workers to be recalled from layoff. This delay in negotiations
caused by the Union is now reaching the breaking point and I want to explain why.
The simple fact is that the Peninsula facility has fallen behind in production as we
receive new orders. We have worked overtime on weekends in order to try to keep up
with the increase in orders, but we cannot. The plain and simple fact is we need to either
hire new workers or recall some workers who were laid off.
At this point in time it would appear we are only two issues apart for an agreement to
bring people back to work. One issue is under the recall procedure where we modified
our unilaterally implemented procedure in response to your new proposal on September
2, 2009. That issue now before us is do we follow the layoff procedure and recall by
department seniority or, as the Union proposed, by plant wide seniority. The second 1
issue is the length of time a person can be on layoff before he loses his seniority rights.
The current handbook is 60 days. (Emphasis in the original) Under the current
handbook, everyone laid off to date have lost their rights to be recalled. In response to
your proposal for one year, we initially raised the time period in my letter to you on
August 19, 2009, to 5 months. Your proposal on September 2, 2009, did not move on
that issue. I again countered on September 2, 2009, with a 6 month proposal which is 3
times the current time period set forth in the handbook. I am hopeful that you will realize
the importance of an agreement on this issue and would like an agreement to our
proposal on September 8, 2009.
At the September 8 meeting Mason was a Respondent’s chief negotiator. Bornstein was
not present and Kepler was the Union’s chief negotiator. A Federal mediator was also present at
this meeting. At the meeting, Kepler presented a new proposal to the Respondent regarding
recall from layoff. (GC Exh. 125.) In relevant part, this proposal provided:
On an interim basis, and until such time as a final agreement is reached, the Teamsters
will agree to the recall of laid off employees on the following basis:
A. The Employer will recall laid-off employees by department seniority.
B. The Employer will recall laid-off employee so that no laid-off employee will lose their
acquired seniority that they had prior to the layoff.
Kepler explained to Mason that the Union’s proposal for an interim agreement on recall
rights was designed to get the employees laid off earlier in the year, back to work without loss of
seniority. He indicated that 1-year recall rights with the Union’s position on the final contract and
that the International Union would not approve anything less than that. Mason indicated that the
Respondent had made a proposal for recall rights lasting for 6 months on an interim basis until
there is a final contract. He indicated that the Union could propose any changes but that the
Respondent was seeking a definite time for recall rights. Kepler indicated that the Union would
agree to recall rights that extended until January 1, 2010 on an interim basis (Tr. 1479; R. Exh.
195). When Mason asked what would happen on January 1, 2010, Kepler responded that the
parties could talk about another interim agreement. Mason replied that the Union’s proposal was
unacceptable as the Respondent wanted a date certain for an interim period and did not want to
have to negotiate another interim procedure. Mason indicated he was making a last and final
offer extending recall rights for up to 7 months. Mason asked that the Union representatives let
him know their decision on that issue.
Approximately 20 minutes later the mediator brought a handwritten note (GC Exh. 114)
that Kepler had drafted to Mason. This note provided in relevant part:
The Interim agreement will be discussed at the next session, which will allow the
Teamsters president to be in attendance.
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The Union will entertain the 7 month proposal last offered by the employer, but with
some modifications. We are prepared to discuss this issue until an interim agreement is
reached.
When Mason told the mediator that he wished to meet personally with the Union in order
to determine the next bargaining dates, the mediator reported that the Union committee had left.
On September 10, Mason faxed a letter to Bornstein (GC Exh. 82) setting forth his views
of the bargaining that occurred regarding recall of employees from layoff from August 5, 2009 to
the present. Importantly, his letter noted “On August 5, 2009, after attempts to negotiate a recall
procedure failed to Company unilaterally implemented a recall procedure.” His letter concluded
by indicating:
As a result of this inability on our part to reach an agreement, I am declaring another
impasse and we will unilaterally implement our last and final verbal offer on both the
recall language we changed on September 2, 2009, as well as seniority rights for recall. I
have attached for you a copy of the changes we gave your committee verbally and I
have also highlighted that part of the document that we have implemented.
Attached to Mason’s letter was a document reflecting, in part, the following:
An employee shall cease to have seniority rights and be on any seniority list if:
D. He does not return to work or notify the Company within seven (7) days after he is
called to work or after written notification is mailed.
E. He has been continuously laid off for work for a seven
(7) month period.
Recall:
Agree to the union proposed language dated September 2, 2009, language on “Recall”
in Article 19 except add the words “by departmental layoff” after the word seniority in the
first sentence. Add the words “verbal notification or within seven (7) working days after
written notification is mailed” after the word after in the Union’s proposal. Also add the
following sentence, “If the Company notifies the employee verbally, it will also send a
written letter to the last known address the employer has on file.”
On or about September 10, 2009, the Respondent recalled approximately 10 employees
using the procedure that it had unilaterally implemented on September 10, 2009.
As a general rule, when parties are engaged in negotiations for a collective-bargaining
agreement, an employer has an obligation to refrain from implementing a change on a particular
issue, absent an overall impasse on an agreement as a whole, however there are two
exceptions to the general rule: when union engages in tactics designed to delay bargaining and
“when economic exigencies compel prompt action.” Bottom Line Enterprises, 302 NLRB 373,
374 (1991) and RBE Electronics of S. D., 326 NLRB 80, 81 (1995).
In the instant case, the Respondent does not claim that there was an overall impasse on
bargaining but rather contends that it reached a lawful impasse on September 10, 2009
regarding the issue of the procedures to be used in recalling employees. The Respondent
asserts that a lawful impasse was reached on this issue because time was of the essence
regarding this issue and the Union “was stalling trying to avoid an agreement”. (Respondent’s
brief, p. 106). In effect, the Respondent contends that its conduct falls within the exceptions to
the general rule noted above.
In contending that the Respondent implemented its recall procedure on September 10,
2011, without reaching a valid impasse, the Acting General Counsel argues that a lawful
impasse could not be reached on this issue in the presence of unremedied unfair labor
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practices. Titan Tire Corp. 333 NLRB 1156 (2001). The Acting General Counsel asserts, inter
alia, that the unilateral wage freeze and change in employee evaluations, the failure to bargain
over the March 2009 layoffs at the Twinsburg facility and the 1-day shutdowns at Peninsula and
Twinsburg, and the unilateral recall of the three diecast employees on June 10, 2009, impacted
the bargaining process to the degree that a lawful impasse was not established on September
10, 2009. (Acting General Counsel’s brief, p. 71)
In EAD Motors Eastern Air Devices, 346 NLRB 1060, 1063 (2006) the Board discussed
the factors in determining whether a valid impasse has occurred as follows:
In Taft Broadcasting Co., 163 NLRB 475, 478 (1967), enfd. sub.nom. Television Artists,
AFTRA v. NLRB, 395 F. 2d 622 (D.C. Cir. 1968), the Board to find an impasse is a
situation where “good-faith negotiations have exhausted the prospects of concluding an
agreement.” See also Newcor Bay City Div., 345 NLRB 1229, 1238 (2005). This
principle was restated by the Board in Hi-Way Billboards, Inc. 206 NLRB 22, 23 (1973),
enf. denied on other grounds 500 F. 2d 181 (5th Cir. 1974), as follows:
A genuine impasse in negotiations is synonymous with the deadlock: the parties have
discussed the subject or subject in good faith, and, despite their best efforts to achieve
agreement with respect to such, neither party is willing to move from its respective
position. [Fn. omitted].
The burden of demonstrating the existence of impasse rests on the party claiming
impasse. Serramonte Oldsmobile, Inc., 318 NLRB 80, 97 (1995), enfd. in pert. part, 86
F. 3d 227 (D.C. Cir. 1996). The question whether a valid impasse exists is a “matter of
judgment” and among the relevant factors are “[t]he bargaining history, the good faith of
the parties in negotiations, the length of negotiations, the importance of the issue or
issues as to which there is disagreement, [and] the contemporaneous understanding of
the parties as to the stated negotiations.” Taft Broadcasting Co., supra, at 478
The Board has also recognized that the commission of serious, unremedied unfair labor
practices may preclude a finding of a valid impasse. Titan Tire Company, supra; Royal Motor
Sales, 329 NLRB 760, 762 (1999); Great Southern Fire Protection 325 NLRB 9 (1997); and
Noel Corp., 315 NLRB 905, 911 (1994), enf. denied on other grounds 82 F.3d 1113 (D.C. Cir.
1996).
Applying these principles to the instant case, I find that the Respondent implemented its
September 10, 2009, proposal regarding the recall of employees without reaching a valid
impasse and consequently violated Section 8(a)(5) and (1) of the Act.
As discussed in detail above, by the time the Respondent unilaterally implemented its
recall procedure on September 10, 2009, the Respondent had committed a series of unfair labor
practices involving its obligation to bargain in good faith in violation of Section 8(a)(5) and (1) of
the Act. In this connection, the Respondent had unlawfully imposed a wage freeze in February
2009 and delayed the granting of wage increases following an evaluation; it unilaterally laid off
employees at the Twinsburg facility in March 2009 and unilaterally shut down both Twinsburg
implements of facilities for 1 day in March and April 2009; it unilaterally imposed the work rules
involving effacement and destruction of company property and the assignment of diecast
operators in April 2009; and unilaterally recalled three employees in 2009. It is within this
context that I must consider the Respondents argument that it reached a valid impasse
regarding the recall of employees in September 2009.
With respect to the substance of bargaining on this issue, at the meeting held on May
26, 2009, the Union, which sought the recall of employees by seniority on a plant wide basis,
modified its position on the length of recall rights after layoff, by reducing it from 5 years to 3.
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The Respondent adhered to its position that recall rights should be for 60 days. At the June 5
meeting, the Union again reduced its proposal for recall rights from 3 years to 2. Although
Bornstein invited Mason to do so, Mason did not make a counteroffer at that meeting.
At the meeting held on June 10, even though the parties had been discussing the issue
of recall, Mason announced that the Respondent was already in the process of unilaterally
recalling 3 employees. On June 11, when Bornstein asked Mason if he had a response to the
Union’s June 5 proposal regarding reducing recall rights to 2 years, Mason indicated that he did
not yet have a response to that aspect of the recall issue. Mason did make a new written
proposal on recall procedure which provided, consistent with its prior position, that employees
would be recalled by departmental seniority.
Although the parties met on June 16, June 18, July 13, July 20, and July 22, there was
no discussion of the issue of recall from layoff at these meetings. On July 23, the Union made a
new proposal regarding recall rights, limiting them to 1 year but indicating that employees
should be recalled by seniority when there is available work which the employee is able to
perform. Mason’s counterproposal adhered to the Respondent’s position that recall should be
on the basis of departmental seniority and maintained the position that recall rights should be
limited to 60 days.
At the meeting held on August 5, Mason stated that the Union had been given the
Respondent’s proposal on recall and asked if the Union had a proposal to present. Bornstein
replied that the Union did not have anything prepared at that time. Mason then precipitously
declared an impasse on the issue of recall and indicated that the Respondent would implement
its proposal of July 23.
After Mason’s declaration of impasse regarding the issue of recall rights, the Union
canceled the scheduled August 18 meeting. On August 18, Kepler wrote a letter to the
Respondent indicating that the Union was suspending negotiations for what it viewed as the
Respondent’s unlawful conduct during bargaining. On August 19, Mason faxed a letter to
Bornstein indicating, for the first time, that the Respondent was expecting to recall employees in
September. Mason also proposed extending the recall rights of the laid-off employees from 60
days to 5 months.
On August 23, Kepler advised the Respondent that the Union would return to
negotiations but not until September 2 and September 8 when the federal mediator the Union
had asked to participate in the meetings was available.
At the meeting held on September 2, the Union adhered to its position that recall rights
should be for 1 year and further proposed that recall should be by seniority to work for which an
employee is qualified to perform. The Respondent maintained its position that recall should be
by departmental seniority for available work and increased the time period for recall rights to 6
months.
On September 4, Mason wrote to Bornstein and indicated the necessity of reaching an
agreement at the meeting scheduled for September 8. Mason’s letter stated that production had
fallen behind at Peninsula facility and that the Respondent needed to either recall laid-off
employees or hire new employees. Mason’s letter correctly identified the disputed issues as
whether the recall procedure would be by plantwide or departmental seniority and the length of
time before recall rights expired. Mason acknowledged his earlier declaration of impasse by
indicating “we modified our unilaterally implemented procedure in response to your new
proposal on September 2.”
At the September 8 meeting, Kepler was the Union’s chief negotiator as Bornstein was
unable to attend. The Union proposed that on an interim basis the Respondent could recall
employees by departmental seniority. This was obviously a major concession on the Union’s
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part. The proposal also indicated that the Respondent would recall laid-off employees so that no
laid-off employees would lose the seniority they had prior to the layoff. Kepler Indicated that the
interim proposal was designed to get the employees who were laid off earlier in 2009 back to
work without the loss of seniority. He also indicated, however, that the Union’s position on the
final contract would be for 1 year recall rights and that the International Union would not approve
anything less than that. When Mason indicated that the Respondent was seeking a definite time
period for recall rights in an interim agreement, Kepler indicated that the Union would agree to
recall rights that extended until January 1, 2010, on an interim basis. In effect this would extend
recall rights for 9 months as the initial layoffs had occurred in late March 2009. When Mason
asked what would happen at that point, Kepler replied they could discuss another interim
agreement. Mason indicated this was unacceptable as the Respondent did not want to have to
negotiate another interim procedure. Mason indicated that he was making a last and final offer
to extend recall rights to 7 months. He also asked Kepler to apprise him of the Union’s
response. The union representatives left the meeting without meeting personally with Mason,
but the mediator delivered a note from Kepler indicating that the Union would entertain the
Respondent’s 7 month proposal “with some modification” at the next session, when Bornstein
would be in attendance.
On September 10, 2009, Mason advised Bornstein by letter that he was “declaring
another impasse and we will implement our last and final verbal offer on both the recall
language we changed on September 2, as well as seniority rights for recall.” Mason attached a
document reflecting that recall from layoff would be by departmental seniority and that recall
rights would expire after a 7-month period. On or about September 15, 2009, the Respondent
implemented its proposal by recalling approximately 15 employees to its third shift at Peninsula
facility using these criteria.
As noted above, the Respondent has the burden of establishing that a valid impasse
existed regarding the issue of recall rights for laid-off employees. On the basis of this record, I
find that the Respondent has not sustained that burden. In making this finding, I considered the
background of unremedied unfair labor practices in which the Respondent’s declaration of
impasse must be viewed. In Titan Tire Corp., supra, at 1158 the Board noted that:
[A]n employer that has committed unfair labor practices cannot “parlay an impasse
resulting from its own misconduct into a license to make unilateral changes.” Wayne’s
Dairy, 223 NLRB 260, 265 (1976). However, not all unremedied unfair labor practices
committed during negotiations will give rise to the conclusion that impasse was declared
improperly, thus precluding unilateral changes. Alwin Mfg. Co., 326 NLRB 646, 688
(1998), enfd. 192 F.3d 133 (D.C. Cir. 1999).
In Titan Tire the Board found that only “serious unremedied unfair labor practices” that
affect the bargaining will preclude a finding of a lawful impasse. Id. The Board further noted that
in Alwin, 192 F.3d at 139, the court identified:
[A]t least 2 ways in which an unremedied ULP can contribute to the parties’ inability to
reach an agreement. First, a ULP can increase friction at the bargaining table. Second,
by changing the status quo, a unilateral change may move the baseline for negotiations
and alter the parties expectations about what they can achieve, making it harder for the
parties to come to an agreement.
In Titan Tire the Board applied the standard the court utilized in Alwin and found that the
conduct of the employer moved the baseline from which the parties were bargaining and thus
contributed to the parties’ inability to reach an agreement. Accordingly, the Board found that the
employer violated Section 8(a)(5) and (1) of the Act.
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In applying the Alwin principles adopted by the Board in Titan Tire, I find that the
Respondent’s conduct from February 2009 to September 2009, which involved a series of
unilateral changes that were violative of Section 8(a)(5) and (1) of the Act, substantially
increased friction at the bargaining table. In addition to the series of unfair labor practices
committed by the Respondent, another critical event that caused the Union to cancel the August
18 bargaining session and temporarily suspend negotiations was the Respondent’s August 5
premature declaration of impasse on the issue of recalling employees from layoff. By that date,
the parties had discussed the issue of recall at meetings held on May 26, June 5, June 10, June
11, and July 23. Of course during this period, the Respondent announced on June 10, that it
was unilaterally recalling 3 employees. On June 5 when the Union reduced its position on recall
rights from 3 years to 2 and invited Mason to make a counteroffer, Mason did not do so. On
June 11, when Bornstein asked Mason again to respond to the Union’s reduction of the length
of recall rights, Mason indicated he did not have a response to that proposal. On July 23 the
Union maintained its position on plantwide seniority but again reduced its recall right period to 1
year. Mason finally responded to the Union’s position on recall rights by indicating that
departmental seniority should be used and that recall rights should remain at 60 days. On
August 5 Mason asked if the Union had a proposal on recall, Bornstein indicated he did not
have anything prepared at that time. Mason then declared an impasse and indicated the
Respondent would implement its July 23 proposal.
During the period from May 26 to July 23 the Union had substantially moved from its
position on the length of recall rights from 5 years to 1. Although asked to do so on several
occasions, Mason did not make a proposal on length of recall from May 26 to July 23. On
August 5, the first occasion that the Union had indicated that it was not prepared to respond to
Mason’s reaffirmation of the Respondent’s position on recall, Mason seized on that to declare
an impasse. In my view, the bargaining from May 23 to August 5 indicates the Union’s flexibility
on a significant issue and suggests that further bargaining might have produced additional
concessions. Rather than explore this possibility, however, the Respondent rushed to declare
an impasse and indicated it would implement its July 23 proposal. It is certainly not the case that
on August 5, the Respondent established that a valid impasse existed on the issue of recall,
applying the standard that “good-faith negotiations have exhausted the prospects of concluding
an agreement.” EAD Motors, supra, at 1003. On the basis of the foregoing, I find that the first
part of the standard applied by the Board in Titan Tire was met in that the Respondent’s
unlawful conduct clearly increased friction at the bargaining table.
In making this finding I have considered the conduct of Kepler in using profane and
demeaning language toward Mason during this period of negotiations. I have also considered
the Union’s conduct in suspending negotiations and refusing to meet without the presence of a
federal mediator. I do not, in any way, condone these actions, none of which assisted in
furthering the bargaining process. On the other hand, I do not find that Union’s conduct, which
was responsive to the Respondent’s unfair labor practices, sufficient to privilege the
Respondent to unilaterally implement its proposal on recall rights.
Applying the second prong of the Alwin test, I find that the Respondent’s prior unfair
labor practices, particularly the unilateral recall of employees, moved the baseline on the issue
of recall rights and made it more difficult for the parties to reach an agreement. In this regard the
Respondent announced its unilateral action regarding the recall of employees on June 10, in the
midst of bargaining a procedure for recall rights. This demonstration of the Respondent’s
propensity to take unilateral action on the very issue that the parties were bargaining about,
made it harder for the parties to come to an agreement on this issue. This situation was greatly
exacerbated by the Respondent's premature declaration of impasse on recall rights that was
made on August 5.
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Under the circumstances of this case, I cannot agree with the Respondent’s argument
that it was privileged to unilaterally implement its September 8, 2009 final offer regarding the
recall of employees on September 10, 2009, because time was of the essence and the Union
was attempting to avoid reaching an agreement. In RBE Electronics, supra, the Board indicated
that when an employer is confronted with an economic exigency compelling prompt action, it
can satisfy its bargaining by providing adequate notice and an opportunity to bargain over the
issue. While the bargaining must be in good faith, it need not be protracted. Under these
conditions the employer can act unilaterally regarding the subject if the parties reach a valid
impasse. Id. at 82.
In the instant case, the Respondent first identified a need to recall employees in Mason’s
August 19 letter to Bornstein wherein he indicated that the Respondent expected to need
additional employees “in September”. I find that the Respondent did have a need to recall
employees in September and was therefore justified in seeking expedited bargaining over this
issue. The problem for the Respondent, however is that it cannot establish that a valid impasse
existed prior to its implementation of its final offer on September 10. As I have noted above, the
Union’s suspension of bargaining from August 5, 2009 through September 2, 2009 was
because of the Respondent’s series of unfair labor practices and Mason’s August 5 premature
declaration of impasse and threat to implement a unilateral procedure to recall employees.
While the Union’s conduct in refusing to meet during the remainder of August, obviously made
reaching an agreement somewhat more difficult, as I have noted earlier, this action was
precipitated by the Respondent’s unlawful conduct.
When bargaining did resume on September 2, the Union maintained its position on a 1-
year period for recall rights and further proposed that recall should be by seniority for work
which the employee is qualified to perform. While maintaining its position that laid-off employees
should be recalled based on their department seniority, the Respondent increased the time
period for recall to 6 months. On September 4, when Mason wrote to Bornstein stressing the
importance of reaching an agreement on September 8, he specifically indicated that the
Respondent modified its unilaterally implemented procedure on recall in response to the Union
September 2 proposal. At the September 8 meeting, the Union made a significant concession
and indicated a willingness to further consider the Respondent’s offer of recall rights for 7
months at the next meeting. Rather than further exploring the Union’s position, on September
10 Mason again declared an impasse regarding this issue. Although I recognize that
Respondent had a legitimate reason to try and reach an agreement quickly after notifying the
Union on August 19 of its need to recall employees, declaring impasse after only 2 meetings,
particularly after there had been significant movement by the Union at the September 8
meeting, does not support the finding of a valid impasse. The evidence establishes that the
Union was willing to negotiate a further compromise on the issue of length of recall. Mason’s
frustration with the Union’s pace in agreeing to what the Respondent was seeking is not the
equivalent of a valid impasse, nor does it indicate that a negotiated agreement was not possible.
In making this determination, I give significant weight to the fact that on August 5, Mason
precipitously declared an impasse on the same issue without any valid basis for doing so.
I also find that the Union did not engage in tactics designed to delay bargaining which
would privilege the Respondent’s unilateral implementation of its proposal on recall rights. As I
have discussed earlier, the Union’s conduct in suspending negotiations while it did not advance
the bargaining process, cannot be viewed in a vacuum, as that conduct was in response to the
Respondent’s unlawful conduct in negotiations. This is not a situation akin to those in which a
union may attempt to delay bargaining when an employer is seeking concessions from existing
terms and conditions of employment. In the instant situation, the Union’s interest was to obtain
the longest period of time for recall rights that was possible. The only way to attain this with
certainty was through continued bargaining that would result in a negotiated agreement. The
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Union indicated a willingness to do so on September 8, but the Respondent, for the second
time, prematurely declared an impasse. Accordingly, on the basis of the foregoing, I find that the
Respondent violated Section 8 (a)(5) and (1) of the Act by implementing its proposal on
recalling employees on September 10, 2009, without reaching a valid impasse.
Soliciting Employees Regarding Shift Preference Before the Recall of Employees
Paragraph 14 the complaint alleges that the Respondent, by Chuck Long, at its
Peninsula facility, bypassed the Union and dealt directly with employees concerning a change to
their work hours.
Before the third shift was recalled to work at the Peninsula facility, Chuck Long, the die
cast superintendent, testified he approached employees on the first and second shifts and
asked them about their shift preference when the third shift returned. Long indicated that he
tried to speak to each employee and that the information obtained from the employees was later
taken into account when Respondent made decisions about what shift employees would work.
(Tr. 1918.) Several employees confirmed they were asked by Long if they wanted to move to a
different shift. Long explained that the reason for soliciting the views of employees regarding
shift preference was that some employees had been moved to different shifts when the layoffs
occurred in March 2009.
Stewart and Kepler testified, without contradiction, that the Union was not notified in
advance that the Respondent wished to directly discuss with employees changing shifts. Kepler
testified, again without contradiction, that after he found out about Long’s discussions with
employees, he informed the Respondent at a bargaining session that it had an obligation to
bargain over shift changes.
The Board has held that a change in the number of shifts is a mandatory subject of
bargaining Georgia-Pacific Corp., 275 NLRB 67 (1985). The Board has also held that seeking to
determine employee sentiment regarding a proposed change in employees’ schedules prior to
giving notice to the union and opportunity to bargain is direct dealing in violation of Section
8(a)(5) and (1) of the Act. Harris-Teeter Super Markets Inc., 310 NLRB 216 (1993). In the
context of the instant case, where the Respondent was recalling employees to the newly
instituted third shift pursuant to the unilateral implementation of a recall procedure, I find that the
Respondent’s solicitation of the views of employees as to their shift preference was direct
dealing in violation of Section 8(a)(5) and (1) of the Act.
The Recall of Employees Pursuant to the Unilaterally Implemented Recall Procedure
Paragraph 12(P) of the complaint alleges that on or about September 15, 2009, the
Respondent resumed third shift operations at its Peninsula facility and recalled approximately
10 employees.
The Respondent began to recall employees to its resumed third shift operation on or
about September 17, 2009, pursuant to the procedure it unilaterally implemented on September
10, 2009. Fourteen employees were recalled in September and one was recalled in October
(GC Exh. 58). Since I have found that the recall procedure was unilaterally implement without
the parties reaching a valid impasse, I find that the Respondent violated Section 8(a)(5) and (1)
of the Act by recalling employees pursuant to this procedure.
Employing Temporary Employees While Unit Employees Were On Layoff
Paragraph 12(Q) of the complaint alleges that since on or about September 15, 2009,
the Respondent has secured the services of workers from employment agencies to work in
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bargaining unit positions at its Peninsula facility at a time when bargaining unit employees
remain laid-off from employment.
The Respondent’s primary defense to this allegation is that it had a practice of using
temporary employees before the Union was selected as the bargaining representative and it
merely continued that practice.
After the recall of employees in September 2009, approximately 20 unit employees
remained on layoff. After employees reported to Kepler that the Respondent was using
temporary employees, he sent a letter dated October 15, 2009, to the Respondent, which, inter
alia, objected to the use of temporary employees. The Respondent’s records reflect that
beginning on October 12, 2009, it used a limited number of temporary employees to perform
unit work (GC Exhs. 50 and 51). The record indicates that one of these employees, Terry
Carpenter worked as a quality assurance employee on a consistent basis for a number of
months afterwards.
At a bargaining meeting held on November 18, 2009, while Bornstein was the Union’s
chief negotiator, Kepler was also present. As usual, Mason was the Respondent’s chief
negotiator. At this meeting, Mason indicated that he wanted to talk about temporary employees
and added that he wanted to talk about this issue 6 weeks ago but the Union canceled and
“snuck out” of meetings. Bornstein, using derogatory language, objected to Mason’s claim.15
Mason indicated that at times, the Respondent needed someone to work for 1 day or on a short-
term basis. Bornstein indicated that the Union’s position was that if temporary employees were
needed, the Respondent should contact laid-off employees by seniority that were qualified to do
the work. When Bornstein asked how long the Respondent had been using temporary
employees, Mason responded by saying “on and off.” Bornstein then indicated that the Union’s
position was that for short-term work, the Respondent should contact the most senior qualified
employee and if the Respondent could not reach the employee or if the employee declined the
offer, the Respondent could then use temporary employees. Masson said he would take that
under advisement (R. Exh. 197).
The Board has held that a decision to employ temporary employees when unit
employees are laid off is a mandatory subject of bargaining, even though the employer had
occasionally used temporary employees in the past. Storall Manufacturing Co., Inc., 275 NLRB
220, 239 (1985); see also St. George Warehouse Inc., 341 NLRB 904, 924 (2004).
The evidence establishes that at least since October 12, 2009, the Respondent had
been utilizing a limited number of temporary employees. Even if I were to find that the Union
was given notice at the meeting scheduled for October 26, 2009, such notice would have been
after the fact and as such a fait accompli. The only evidence of clear and unequivocal notice
given to the Union occurred at the bargaining meeting held on November 18, 2009. It is clear
that there was no notice given to the Union prior to the Respondent’s reinstitution of the use of

15 The parties had a meeting on September 22, 2009, where the issue of temporary
employees was not discussed (R. Exh. 198). The parties held another meeting on October 26,
2009. The Respondent's bargaining notes (R. Exh. 196) indicate that Kepler was the Union’s
principal spokesman at this meeting. According to the bargaining notes, the Union refused to
meet face-to-face and insisted that all proposals be made through the mediator. The bargaining
notes further indicate that the Respondent asked the mediator to inform the Union that the
Respondent wished to discuss temporary employees. Mason objected to the Union's refusal to
meet face-to-face and after an argument ensued between the parties on this issue, the meeting
broke down and the parties left without discussing any substantive issues.
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temporary employees on October 12, 2009. Accordingly, by unilaterally employing temporary
employees while unit employees were laid-off, the Respondent violated Section 8(a)(5) and (1)
of the Act.
The Temporary Recall of Harry Lane
Paragraph 12(H) of the complaint alleges that on or about September 17, 2009, the
Respondent denied Harry Lane the opportunity to be temporarily recalled to work as a result of
a unilateral change described above in paragraph 12(G) (the March 16, 2009, change in the
work hours of the day shift unit janitor.)
On September 17, 2009, Hicks sent a letter to laid-off employee Harry Lane (GC Exh.
33). The letter offered Lane temporary employment as a janitor from 8 a.m. to 4 p.m. It further
advised him that he had 7 days from the date of the letter to return to work and report to his
supervisor. Finally, it indicated “Failure to do so results in General Die accepting your
permanent resignation, and forfeiture of your seniority”.
Lane testified that the day after he received the letter, he spoke to Hicks who informed
him that he would be working as replacement janitor for another employee, Casteel, who would
be off from work for approximately 30 days. Hicks also indicated the hours for the position were
from 8 a.m. to 4 p.m. The following Monday, Lane reported to the Peninsula facility at 7 a.m.,
but did not clock in. He spoke to Long who informed Lane that he spoken to Brian Lennon and
that the hours for the position were from 8 a.m. to 4 p.m. Lane replied that he could not do that
because he did not drive and getting to work at that time would be difficult.16 Long replied that
he could come in at 7 a.m. and wait until 8 a.m. to start work. Lane did not accept the offer of
temporary employment because of his transportation difficulties in getting to work at 8 a.m.
The Acting General Counsel contends that but for the unilateral change in Casteel’s
hours, Lane would have been able to replace him. The Acting General Counsel contends that
the unilateral change in Casteel’s work hours had the effect of denying Lane the opportunity for
temporary recall. Since I have found that the Respondent did not violate the Act as alleged with
respect to the change in Casteel’s hours, I do not find that the Respondent unlawfully denied
Harry Lane the opportunity to be recalled as a dayshift janitor.17
B. The Section 8(a)(3) and (1) Allegations Regarding the Work Assignments of Jerome Ivery;
the Suspension and Discharge of Willie Smith ; the Withholding of Wages from Emil Stewart;
and the Respondent’s Alleged Refusal to Consider Hiring Employees on Layoff
The Work Assignments of Jerome Ivery
Paragraph 7(A) and (B) of the complaint allege that on or about March 21, 2008, the
Respondent assigned more onerous job duties to employee Jerome Ivery in violation of Section
8(a)(3) and (1) of the Act.

16 At the hearing Lane explained that when he worked from 11 p.m. to 7 a.m. before his
layoff in March 2009, he paid coworkers to drive him to work. He explained that if he could have
started at 7 a.m., he could have made similar arrangements.
17 Since the record is unclear as to the basis for the Respondent’s statement in the
September 17, 2009, letter it sent to Lane that his failure to accept this offer would result in the
forfeiture of his seniority, I will leave to the compliance phase the determination of whether Lane
may have had a right to be recalled to another position without a loss of his seniority, by virtue
of the Respondent's unlawful implementation of its recall procedure on September 10, 2009.
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The Acting General Counsel specifically contends that after Ivery’s support for the Union
became known to the Respondent, it began to assign to him the setup of large dies on a more
frequent basis. The Respondent contends that such assignments were always a part of Ivery’s
duties and that his assignments were not changed because of his support for the Union.
Ivery has been employed by the Respondent at its Peninsula facility for 31 years. For
approximately 3 years in the 1990s Ivery was a supervisor but was demoted back to a unit
position. At the time of the hearing he worked as a cast trim developer. His duties included
writing programs for the robotics on various machines and performing setup work on die cast
machines.
The Respondent makes aluminum die castings. To make those castings it uses a die
cast die, which is a large steel mould. Setup work involves the placement of a die into a die cast
machine. After the die is properly set up in the machine, the production process can begin and
molten aluminum is placed into the die in order to make the particular casting.
As noted above, sometime in February 2008, Ivery admitted to Long and Brian Lennon
that he was a supporter of the Union. Ivery testified that soon after the union election held on
March 8, 2008, he noticed a change in some of his work assignments. Ivery indicated that
normally smaller dies are set up by one employee but that larger dies are typically set up by two
employees. Ivory estimated that some of the larger dies weigh approximately 11,000 pounds.
The record establishes that on the larger jobs the old die is removed from a die cast machine by
chaining it to an electrical hoist and carefully lifting it out. The new die would then be placed into
the die cast machine using the same equipment. When two employees are assigned to install a
large die, one can be on each side of the machine to ensure it is installed properly. Ivery
explained that when an employee sets up large die by himself, the employee has to go from one
side of the machine to the other in order to make sure the die is being inserted properly. Ivery
testified that the die is chained to the hoist with eye bolts and at times the die will swing on the
chain. Ivory testified that on occasion a die will tilt or even fall because of the failure of an eye
bolt.
Ivery testified that beginning in March 2008 and continuing until approximately
November 2009 he was more frequently assigned to set up larger dies by himself. Ivery spoke
to his immediate supervisor, Mike Jordan, about these assignments. According to Ivery, Jordan
told Ivery that he would see if he could assign another setup man to work with him, but never
did make such an assignment. Ivery also spoke to plant superintendent Chuck Long, who told
Ivery he would look into it but that Ivery had to follow the instructions of his immediate
supervisor. When Ivery still received assignments to set up larger dies by himself he spoke to
plant manager Brian Lennon , who responded in the same fashion as Long. Ivery also testified,
however, that at times during this period, Jordan did assign a second setup man to work with
him. Ivery further indicated that at times, the second set up man would be given another
assignment and be taken off the machine before the setup was complete. Ivory indicated “And
every time this went on, you know, I make sure—I make sure somebody knew in case
something happened, where I was at, and what I’m doing” (Tr. 210).
Ivory testified in approximately November 2009 he told Long that he no longer supported
the Union. According to Ivery, after this another employee was assigned to work with him when
he was assigned to set up larger dies. Mark Albright, who also works at Peninsula facility,
testified that after the union election in March 2008 until near the end of 2009, he observed Ivery
doing setup work by himself on a number of occasions.
Brian Lennon testified that Ivery spoke to him in March 2008 about doing setup work
alone. Lane testified that he told Ivery that, with his long experience, Ivery knew what jobs
required two employees and what could be safely performed by one person. Lennon told Ivery
that if he needed help, he should ask his supervisor and that he would get help. Lennon
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explained that very large dies, those that are more than 10,000 pounds, often require two
employees to maneuver it into a machine. He indicated that most setups can be done by one
employee, although it takes longer than if two employees perform the setup. If a setup is
needed to be done quickly, two employees would be assigned to it. On the first shift at the
Peninsula facility, in addition to Ivery, employees Marshal Hamrick and Mark Cooper also
perform setup work. Lennon testified, without contradiction, that these employees also perform
setup work by themselves as a regular part of their duties. Lennon explained that the first line
supervisor make a determination as to whether to assign one or two employees to set up a
machine, depending upon the size of the die and other production requirements. Lennon denied
that Ivery was given certain work assignments because of his support for the Union.
Long has been the Respondent’s diecast superintendent at Peninsula plant for
approximately 5 years. Long testified that he has worked with Ivery for approximately 12 years
and that he is a very skilled and capable employee. He recalls Ivery speaking to him in
approximately 2008 about concerns Ivery had in performing some setup work by himself. Long
indicated that over the years, Ivery has varied in his opinion about doing setup work alone. He
testified that the other setup men on the first shift also perform setup work alone. Finally, Long
indicated that Ivery’s support for the Union had no role in work assignments that were given to
him. He said setup assignments are based on efficiency and safety.
The Acting General Counsel presented a prima facie case under Wright Line, supra,
regarding the assignment of more onerous duties to Ivery. In this regard, early in the Union’s
campaign, Ivery became a supporter of the Union. According to his credited testimony on this
point, he indicated his support for the Union to both Long and Brian Lennon in February 2008.
As I noted above, shortly after learning of the Union’s campaign in January 2008, the
Respondent’s top officials, Mathias and Tom Lennon held meetings with employees in which
they expressed their opposition to the Union. As I will discuss later, there is additional evidence
of the Respondent’s animus toward the Union. Thus, the burden shifts to the Respondent to
establish it made work assignments to Ivery without regard to his support for the Union. I find
that the Respondent has met that burden and I shall therefore dismiss this complaint allegation.
The Acting General Counsel’s complaint allegation is based on an alleged increase in
frequency of sole assignments to set up larger dies, as the record establishes that, prior to the
advent of the Union, Ivery was at times assigned to perform setup assignments by himself,
including those involving larger dies. Thus, the allegation turns on the degree of frequency of
such assignments. This is not a matter of Ivery having been assigned more difficult work that he
had never performed before. Ivery admitted that during the period question, March 2008 to
November 2009, his immediate supervisor, Jordan did at times assign another employee to
work with him in setting up larger dies. Ivery claimed, however, that on occasion the second
employee would be reassigned before the completion of the job. Given the frequently changing
production demands of the Respondent’s operation, this does not appear to be an unusual
circumstance. Importantly, there is no objective documentary evidence to establish that Ivery
was assigned to work on the larger dies by himself with greater frequency during this period. I
find Ivery’s testimony to be unclear with respect to the alleged increase of frequency of solo
assignments on the larger dies. Albright’s testimony was in the nature of anecdotal observations
while he was performing his own work and has limited value. The Respondent’s undisputed
evidence establishes that two other employees also perform setup work by themselves as a
regular part of their duties both before and after the advent of the Union. Under all the
circumstances, I am satisfied that the solo assignments given to Ivery from March 2009 to
November 2009 were done in the normal course of the Respondent’s business and were not
discriminatorily motivated. Thus, I find that the Respondent has rebutted the prima facie case of
the Acting General Counsel. Accordingly, I find that the Respondent did not violate Section
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8(a)(3) and (1) of the Act with respect to the work assignments made to Ivery and I therefore
dismiss this allegation of the complaint.
The Suspension and Discharge of Willie Smith
Smith was hired by the Respondent in December 1980. He was employed as a
supervisor from 2000 to 2004. From 2003 to 2008 he worked at the Twinsburg plant but was
then transferred to the Peninsula facility. At the time of his October 17, 2009, discharge he was
working at the Peninsula facility on the first shift as a sander and blaster. This job entailed
standing the rough edges from cast parts.
In March 2008, while still working at the Twinsburg facility, Smith became an active
union supporter. From that time forward he attended all of the union meetings. He also spoke to
other employees in the plant about the benefits of a union. After the election in March 2008, he
wore a Teamster hat and badge to work. Smith appeared in the photograph of union supporters
that was taken in May 2008 and appeared in July/August 2008 edition of Teamsters magazine.
On October 9, 2009, Smith was informed by the Respondent that he was suspended for
threatening Daniel Owens and on October 16, 2009, was informed he was discharged for the
same offense. (GC Exh. 35.)
Smith testified that he had known Owens for 29 years and had a friendly relationship
with him. Smith testified that he spoke to Owens daily while they both worked at Peninsula
facility. According to Smith, on October 8 at about 2 pm he was speaking to employee Robert
Jay Quarterman when Owens approached Smith and spoke to him. Smith testified he could not
remember specifically what was said in the conversation between him and Owens, but it was
“just regular shop talk.” Smith indicated that his typical conversations with Owens involved cars,
sports or topics in the news. Smith recalled this conversation lasted about 5 minutes. Smith
recalled Quarterman speaking during his conversation but could not recall what he said. Smith
specifically denied he threatened Owens on that day or any other day.
Owens had distinctly different recollection of the October 8, 2009, conversation that he
had with Smith. According to Owens, he spoke to Smith in the sanding area as Owens was
going to the restroom. Owens also did not recall the specifics of the initial conversation they had
before he entered the restroom. On the way out of the restroom, Smith told Owens that he had
heard something that he did not like. When Owens asked him what he had heard. Smith told
Owens that he had heard that Owens was passing around a petition to decertify the Union.
Owens responded that he did not know what Smith was talking about, but that Owens had
signed such petition. As Owens started to walk away, Smith said “That’s not healthy”. Owens
responded by asking “What?” Smith replied, “That’s not healthy. Me and my union brothers will
mess you up.” (Tr. 1738). Owens replied that Smith knew his position on the Union and stated
“why wouldn’t I sign a petition”. Owens then walked away from the conversation. Owens did not
recall anyone else being present during the conversation.
Owens testified that he reported Smith’s statements to Brian Lennon. Owens was asked
to write down the report of the incident. Owens’ statement (R. Exh. 145), which he testified was
written the day the incident occurred, indicates:
On 10/08/09 at approximately 1:50 PM I was walking to the restroom, Willie Smith called
me over to his work area (He was working in the sanding area sanding some Dana parts
and putting them in a steel basket). At this time the conversation was normal chit chat
and I then continued to the restroom. After a few minutes, I came out the restroom
heading back to my office. This time Smith called me over to the area and said to me “I
HEARD SOMETHING I DID NOT LIKE.” I said “what”. He said “I HEARD THAT YOU
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(DanOwens) WAS ASKING PEOPLE TO SIGN A PETITION TO GET RID OF THE
UNION”. I said “I don’t know what you are talking about but I did sign a petition” Willie
then said to me “THAT’S NOT HEALTHY’. I asked him “What did you say? He said
“THAT’S NOT HEALTHY, ME AND MY UNION BROTHERS WILL MESS YOU UP”. I
said to him, “You know my stance, why wouldn’t I sign it” and left for my
office.(Capitalization in the original)
Owens testified that after he reported the incident to Lennon, Owens told Smith that
“someone heard him threaten me and that Mr. Lennon knew about it” (Tr. 1739). When asked at
the hearing why he did not tell Smith that he was the individual who had informed Lennon,
Owens replied “because he just threatened me, and I didn’t want him coming after me for—for
turning him in.” (Tr. 1739.)
According to Owens, the next morning he again spoke to Smith near the supply cage.
Smith approached Owens and said “anything that was said between us stays between us. And
that he did not have to remind me of the last man that he killed that did not.”18 Owens testified
that he also reported this conversation to Tom Lennon. He was again instructed to write down
what occurred during the incident. This statement (R. Exh.144) states:
Friday morning 10/9/09, In the cage at approx. 7:00 am Willie Smith came up to the cage.
He said with reference to the incident on 10/8/09, and I don’t remember exactly all the words
but remember this statement. He said “anything that was discussed between the two of us is
to be kept between the two of us”. I should tell anyone else to keep their nose out of it. Then
he went on and stated about the last man he killed that didn’t, which is something he always
says. I felt it added something to the statements on the previous day or else why did he feel
he had to say anything. He rarely comes to the cage in the morning.
Smith testified that while he and Smith were friendly at work, he took Smith’s statements
seriously, based primarily on his demeanor, and thus reported Smith’s statements to
management.
Current employee Quarterman also testified regarding the conversation between Owens
and Smith on October 8. As a stockman and towmotor driver, Quarterman delivered needed
materials and equipment to employees. Quarterman testified that he was in the sanding area of
the plant and asked Smith if he needed anything when Owens approached them. Quarterman,
who wears a hearing aid, did not hear any of the comments made by Smith in his conversation
with Owens. He only heard Owens make a reference to a “big fat cow” and that Smith and
Owens were laughing.
As part of the Respondent’s investigation into this incident, Hicks interviewed Smith.
Hicks’ notes of the interview reflect that it took place on the afternoon of October 9 (GC Exh.
140). During this interview, Smith admitted that he spoke to Owens in the sanding area the
previous day but denied making any threatening statements to Owens. According to Hicks’
uncontroverted testimony, when he asked Smith about approaching Owens at the supply cage
on October 9 and making threatening statements toward Owens, Smith denied being at the
supply cage. At the end of this meeting Hicks gave Smith a corrective action form (R. Exh. 96)
and a memo (R. Exh. 143) informing Smith he was indefinitely suspended pending further
investigation of the statements he made to Owens.
Pursuant to Smith’s request, on the following Monday, October 12, Hicks also
interviewed Quarterman regarding the conversation between Owings and Smith that occurred

18 On cross-examination, Smith denied that on October 9, 2009, he told Owens that the
conversation that they had the previous day was just between the two of them. He also denied
that he ever made a statement to Owens about a man that he killed.
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on October 8. At the trial, Quarterman testified that he told Hicks at this interview that during the
time he was present during the conversation he saw Owens and Smith laughing and that he
heard Owens make a comment about a “big fat cow”. Hicks testified that at this interview,
Quarterman claimed that he did not hear anything and did not know anything about the incident.
Hicks’ notes of his interview with Quarterman reveal that Quarterman made mention of the
comment noted above that he overheard Owens make. I find that Hicks’ notes of the interview
are consistent with Quarterman’s testimony, and are more reliable than Hicks’ testimony
regarding his interview with Quarterman. (GC Exh. 141) Even though I credit Quarterman’s
testimony, I find that he had little to add to the investigation of this matter since he heard only
one brief statement that was made by Owens and did not hear what Smith said.
Hicks testified that as part of his investigation he also reviewed videotapes, without
sound, from the Respondent’s surveillance cameras which, in his view, supported Owens’
version of the conversations he had with Smith on October 8 and October 9.19
The record contains additional notes made by Hicks on October 13 (GC Exh. 142).
These notes reflect:
My concerns regarding terminating Willie:
Dan and Willie have a history of verbally teasing each other, how might this play out.
What course of action must I take if we get an outburst from union supporters alleging
that Company supporters/managers are harassing them.
Hicks testified that after he completed his investigation he concluded that Smith had
made threatening remarks to Owens. Hicks indicated that he then presented the information he
had gathered to Mathias, Mason, Brian Lennon, and Thomas Lennon. Hicks testified that it was
a collective decision to terminate Smith. The reason Hicks advanced for the termination was
that the punishment for threats to do bodily harm at the Respondent’s plant was immediate
termination as the foundry was a dangerous place to work. Finally, he testified that Smith would
have been terminated regardless of his support for the Union. Although, as discussed below,
Mathias was called as a witness to discuss another incident relevant to Smith’s discharge, he
was not questioned by the Respondent’s counsel about the reasons for Smith’s discharge. Brian
Lennon also did not testify regarding Smith's discharge.
I find that the evidence is sufficient to establish that the Respondent had a reasonable
belief that Smith made the statements attributed to him by Owens. With respect to the
conversations between Smith and Owens on October 8 and October 9, I credit Owens. Owens
testimony regarding statements made to him by Smith was detailed and plausible. In addition, it
was consistent with contemporaneous signed statements that Owens had prepared shortly after
the conversations occurred. I find it hard to believe that Owens made such detailed recitations
of these events out of thin air, particularly regarding someone he had been friendly with for 30
years. Smith’s denial of the statements attributed to him was terse and implausible under all the
circumstances. His demeanor was not impressive while testifying regarding these
conversations. Quarterman was present for only part of the conversation on October 8 and was

19 The parties entered into the following stipulation regarding the tapes that Hicks viewed:
Two videotapes were provided to counsel for the Acting General Counsel, one shows 2
separate conversations. One conversation was with Dan Owens, Jay Quarterman, and Willie
Smith. The second conversation on the same tape shows a conversation between Dan Owens
and Willie Smith alone. The second tape is one of the next day in the cage area where Dan
Owens works and shows Willie Smith talking to Dan Owens. The tapes were in fast-forward
mode and there was no audio recording.
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able to hear only a portion of what Owens said and nothing that Smith said. I find his testimony
to be of extremely limited value in resolving the conflicting testimony.
The Acting General Counsel contends that an incident involving former employee
Dennis Ormsby and another employee, Michael D. Williams established disparate treatment
regarding the discharge of Smith. Ormsby testified that in 2007, while he was employed at the
Respondent’s Twinsburg facility, Michael D. Williams would play computer games on the
computer. On one occasion, Williams forgot to take the game off of the computer and another
employee reported to Ormsby that “they couldn’t get the computer off, and they looked on the
camera and seen Mike had been playing the games.” (Tr. 480.) When Ormsby saw Williams he
told Williams about what had been reported to Ormsby. Later Williams spoke to Ormsby at his
machine and told him that if he “lost his job, that he knew where people lived. He didn’t care
about them, their wives or their kids.” (Tr. 481.) Another employee, who was being trained for
supervision, overheard Williams’ statement to Ormsby and told Ormsby that he would speak to
the plant manager, Keith Kish, about it. Ormsby testified that a couple of days later, Ormsby met
with Kish, Mathias and Williams in Mathias’ office. Ormsby told Mathias about the threat that
Williams had made to him about what would happen if he lost his job over the incident involving
the computer. Ormsby also complained about arguments that Williams would have with his
girlfriend over the phone while he was at work. After hearing Ormsby’s complaints about
Williams, Mathias told Ormsby that Williams was “young and learning” and that Ormsby and
Williams needed to shake hands and get along (Tr. 486). Ormsby testified that Williams was not
disciplined for the threat that he had made to him.
Mathias also testified regarding the incident between Ormsby and Williams. Mathias
testified that the Twinsburg plant manager, Keith Kish, had reported to him that Ormsby and
Williams were “trading accusations at each other” (Tr. 2097). Mathias testified that he told Kish
“well, you’re the plant manager. And -and then he said, well, I - I think you just need to hear
what they have to say, and blah, blah, blah.” (Tr. 2098). Mathias, however, agreed to meet with
Kish, Ormsby, and Williams. Mathias testified that at the meeting Ormsby told him Williams was
“playing games at the computer at the CNC machine” and that he was on the phone all the time
arguing with his wife or girlfriend (Tr. 2099). According to Mathias, at some point during the
meeting Ormsby said “you know, I don’t like something about threats.” According to Mathias,
when he asked Ormsby who was threatening him, he never identified Williams. Mathias testified
he then asked Ormsby “I said, well, have you been directly threatened or not? He said no. And
then he goes on and on.” (Tr. 2099.) Mathias testified that at the end of the meeting he asked if
Ormsby and Williams could work together and they both replied they could. Mathias then stated
they could shake and to get back to work. According to Mathias, at the end of the meeting he
stated “if anyone is making direct threats on anybody, they will be terminated.” (Tr. 2100).
I credit the testimony of Ormsby regarding this matter. His demeanor while testifying was
forthright and sincere. He testified consistently regarding both direct and cross-examination. On
cross-examination he was confronted with a pretrial statement that he had given to the
Respondent’s counsel that indicated “the statement that Williams made was a general
statement not directed only to me.” On cross-examination, Ormsby denied that the statement
made by Williams was not directed only to him. I find Ormsby’s pretrial statement to be of little
consequence. Even if Williams’ statement was not directed only to Ormsby, the threat was
made in a conversation between Williams and Ormsby alone and Ormsby could reasonably
construe the statement of Williams as a threat against him and his family. I do not find any
material inconsistency between Ormsby's trial testimony and his affidavit.
On the other hand, Mathias testified in a manner that convinces me that he was
attempting to bolster the Respondent’s defense. In the first instance he seemed dismissive of
the fact that as the Respondent’s CEO, he would have to be involved in the matter that, in his
view, could and should have been handled by a plant manager. Thus, his testimony regarding
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this matter is somewhat generalized. In addition, it does not strike me as plausible that having
gone as far as having a meeting with the Respondent’s CEO regarding his dispute with
Williams, Ormsby would deny that any threatening statements were made to him. Accordingly, I
credit the testimony of Ormsby to the extent it conflicts with that of Mathias.
I find that the Acting General Counsel has established a prima facie case regarding the
discharge of Smith under Wright Line, supra. Smith was an active and open supporter of the
Union and the Respondent’s investigation of the conversations between Collins and Smith
establishes that the Respondent was aware of his support for the union before he was
discharged. Accordingly, the burden then shifts to the Respondent to establish that it would
have discharged Smith even if he had not been a supporter of the Union. I find that the
Respondent has not met its burden to establish that it would have discharged Smith for
statements he made to Owens, absent his union activity. In this connection, there was no
evidence that the Respondent has discharged or even disciplined another employee for making
threats of physical harm against another. I find that the credible evidence establishes that prior
to the advent of the Union, Ormsby brought to the attention of Mathias, a threat of harm that
was made not only to him but included his spouse and children. While the threat made by
Williams was not as explicit as that made by Smith, it was broader in that it included Ormsby’s
spouse and children. In addition, the Respondent discharged Smith even though he had a
friendly relationship with Owens for 30 years and the Respondent’s own investigation revealed
that they were known to have a teasing relationship with each other. In order to meet the Wright
Line burden, an employer must establish that it has consistently and evenly applied its
disciplinary rules. Septix, Waste, Inc. 346 NLRB 494, 495–496 (2006). Rather than a consistent
application of its disciplinary rules, I find that the Respondent has applied them in a disparate
fashion to Smith as opposed to the manner in which they were applied to Williams. Since the
Respondent has not established that it consistently applied its disciplinary rules regarding a
threatening statement made by one employee to another, I find it has not rebutted the Acting
General Counsel’s prima facie case with respect to the discharge of Smith. Accordingly, I find
that the Respondent’s discharge of Smith violates Section 8(a)(3) and (1) of the Act.
The Withholding of Wages from Emil Stewart
Steward works at the Respondents Peninsula plant as a trimmer. Steward was active in
the Union’s organizing campaign and regularly served on the Union’s negotiating committee
since its inception in October 2008.
In early November 2009, the Respondent had a meeting with two representatives from
OSHA to discuss fines that had been levied against it after an inspection. Shortly before the
meeting took place, Brian Leonard instructed Stewart to attend the meeting as the Respondent
needed a representative from the Union to be present. When Stewart received his paycheck for
the payroll period ending November 8, 2009, 45 minutes of pay was conducted from his check
(GC Exh. 34). When Stewart asked about the shortage of pay, Brian Lennon told him that the
wages were deducted because of the time he spent attending the OSHA meeting. However,
Brian Lennon and Owens, who also attended the meeting with OSHA, were paid for the time
they spent attending the meeting. At a later bargaining session the Union objected to the
Respondent instructing Stewart to attend a meeting and then refusing to pay him for the time he
spent attending. The Respondent refused to reconsider, relying on its position that it would not
pay employees for performing “union business” on “Company time”. In its brief, the Respondent
continues to rely on that position in defending the allegation of the complaint (Respondent’s
brief, p. 89–90).
Since Brian Lennon and Owens were paid for attending the meeting, it is clear that
Steward was treated differently by the Respondent because he supported the Union. Under
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these circumstances I find it is appropriate to determine whether the Respondent’s action in
assigning a prounion employee to attend a meeting and failing to pay him for attending, when
the other participants were paid, is inherently destructive of Section 7 rights within the meaning
of the Supreme Court’s decision in NLRB v. Great Dane Trailers, 388 U.S. 26 (1967). In
International Paper Co., 319 NLRB 1253, 1267 (1995) the Board indicated that in Great Dane
Trailers, the Supreme Court expressed the following principles to determine whether conduct
that facially discriminates against employees who exercise their Section 7 rights violates the
Act:
First, if it can be reasonably concluded that the employer’s discriminatory conduct was “
“inherently destructive” of important employee rights, no proof of antiunion motivation is
needed and the Board can find an unfair labor practice even if the employer introduces
evidence that the conduct was motivated by business considerations. Second, if the
adverse effect of the discriminate conduct on employee rights is “comparatively slight”
in antiunion motivation must be proved to sustain the charge if the employee has come
forward with evidence of legitimate and substantial business justifications for the
conduct. Great Dane Trailers, 388 U.S. at 34.
In the instant case, since the adverse effect of the discriminatory conduct, a loss of 45
minutes in pay, is “comparatively slight” it is necessary to determine if the employer was
motivated by legitimate business considerations. The Respondent’s defense for failing to pay
Stewart is based upon the fact that it made it clear to the Union in negotiations that it would not
pay employees for conducting union business on “company time. “The most salient example is
Respondent’s refusal to pay employee members of the negotiating committee for time spent at
bargaining meetings. There is a critical difference, however, between an employee serving on
the bargaining committee and one being assigned to perform a specific task by an employer.
The Respondent’s employees who served on the bargaining committee chose to do so, they
were not compelled to do so by the Respondent. Stewart was given a work assignment to
attend a meeting. He did not volunteer. The Union did not seek to have a representative present
at the meeting. When the Union was informed, after the fact, of what occurred, it demanded that
Steward be paid for the time he spent at the meeting. I find that the Respondent’s position of
refusing to pay employees who voluntarily conduct union business during working time, such as
engaging in collective-bargaining negotiations, is not a legitimate business, justification to refuse
to pay Stewart for performing an assigned task. Assigning employees to perform work and not
paying them because of the employee’s status as a union supporter clearly interferes with
Section 7 rights. It sends a clear signal to employees that the exercise of such rights could cost
them economically. Accordingly, I find that the Respondent violated Section 8(a)(3) and (1) of
the Act by refusing to pay Stewart for attending the OSHA meeting.
The Alleged Discriminatory Refusal to Hire Employees on Layoff
Paragraphs 11(A) and (B) of the complaint allege that since about January 1, 2010, the
Respondent has used workers at its Peninsula facility provided by employment agencies while
at the same time refusing to consider hiring former bargaining unit employees for those
positions, including those that were laid off since the Union was certified in violation of Section
8(a)(3) and (1) of the Act.
The Acting General Counsel’s brief limits this Section 8(a)(3) and (1) allegation to
employees on layoff 20 who were not considered for hire by the Respondent for the 3 die cast

20 As amended at the hearing, paragraph 11 alleges the following laid off employees to be
Continued
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operator positions that were filled in January 2009. (Acting General Counsel’s brief, p. 93, fn.
51). Accordingly I will consider only the complaint allegation as amended in the Acting General
Counsel’s brief.
The Acting General Counsel correctly asserts that the test used by the Board in
determining whether an employer has violated Section 8(a)(3) and (1) of the Act for refusing to
hire, or consider for hire, employees is set forth in FES, 331 NLRB 9 (2000) supplemented 333
NLRB 66 (2001), enfd. 301 F.2d 83 (3d Cir. 2000). As noted above, under Wright Line the
General Counsel has the burden of establishing that employees were supporters of the Union
and that the employer had knowledge of that support. In FES the Board indicated that in order
to establish a discriminatory refusal to hire or consider for hire, the General Counsel must,
under the allocation of burdens set forth in Wright Line, supra, also establish the following:
(1) [T]hat the respondent was hiring, or had concrete plans to hire, at the time of the
alleged unlawful conduct; (2) that the applicants had experience or training relevant to
the announced or generally known requirements of the position for hire, or in the
alternative, that the employer has not adhered uniformly to such requirements, or that
the requirements were themselves pretextual or were applied as a pretext for
discrimination; and (3) that antiunion animus contributed to the decision not to hire the
applicants. Once this is established, the burden will shift to the respondent to show that it
would not have hired the applicants even in the absence of their union activity or
affiliation. If the respondent asserts that the applicants were not qualified for the
positions it was filling, it is the respondent’s burden to show at the hearing on the merits,
that they did not possess the specific qualifications the positions required or that others
(who were hired) had superior qualifications and that it would not have hired them for
that reason even in the absence of their union support or activity. FES, 331 NLRB at p.
12 (footnotes omitted).
In January 2009, the Respondent hired three employees as die cast machine operators
who had been working as temporary employees. Brian Lennon testified that when the
Respondent made the decision to fill those positions, it considered laid off employees, but there
were not any die cast operators there that were still on layoff. On February 15, 2010, the
Respondent sent letters to all of the remaining laid-off employees advising them of available
positions at the Respondents Peninsula facility. Consistent with its position that the recall rights
of laid-off employees expired 7 months after their layoff, the letter was addressed to “Former
Employees of General Die Caster.”
Applying the principles of Wright Line and FES, supra, to the three die cast machine
operator positions that the Respondent filled at its Peninsula facility in January 2009, I find there
is no evidence in this record to establish that the laid-off employees whose names were listed in
paragraph 11 of the complaint as amended were supporters of the Union, except for Arthur
Brown. I am not willing to adopt the Acting General Counsel’s theory that merely because these
employees were represented by the Union, the Respondent refused to recall them for a
discriminatory motive. With respect to Brown, while he was a known union supporter, there is
no evidence that he had experience or training relevant to a position as a die cast operator.
Accordingly, I find that the Acting General Counsel has failed to establish a prima facie case of
_________________________
discriminatees: Christopher Long, Maurice Caldwell, Evan Parker, Clarence Marshall, Paul
Kucinic, George Guthrie, Rashad Evans, Houston Bass, Melvin Yates, J. W. Watkins, Mike
Moody, Arthur Brown, Nora Hammons, Craig Greczek, Terrance Hemphill, Raymond Ferry,
Brandon Asberry, Walter Wood, Jerry Durenda, and Nathan Holland. (GC Exh. 1 RRRR).
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a discriminatory refusal to hire or consider for hire, the employees named in paragraph 11 of the
complaint, as amended. Accordingly, I shall dismiss the Section 8(a)(3) and (1) allegations
contained in that paragraph.21
C. The Refusal to Provide Information Allegations in Violation of Section 8(a)(5)and (1).
Paragraphs 13(A), (E) and (F) of the complaint allege that since April 22, 2009, the
Respondent has failed to provide the Union with the following requested information: for those
employees laid off from employment, copies of their personnel records relating to discipline,
attendance, training, skill levels and work histories; the work history for employees who are
displaced due to the layoff and names and titles of any managerial, supervisory, clerical or
others who are affected by layoff from employment that occurred in 2009.
Paragraphs 13(B), (C), (E), and (G) allege that from May 6, 2009, to June 9, 2009, the
Respondent delayed in providing the Union with requested information regarding the addresses
of all laid-off employees and the letter the Respondent provided to employees at the time of
their layoff.
Paragraphs 13(D), (E) and (H) allege that since June 2, 2009, the Respondent has failed
to provide the Union with information it requested on May 26, 2009, regarding the names of
bargaining unit employees who had received vacation pay and the names of those employees
who did not receive vacation pay.
On April 22, 2009, Kepler submitted a written request seeking, inter alia, information
regarding laid-off unit employees, set forth above in more detail, and the names and titles of
nonbargaining unit employees who are affected by the layoffs that occurred earlier in April 2009
(R. Exh. 9). On May 6, 2009, Kepler sent another letter to the Respondent requesting that it
provide a “complete list, including addresses of all laid-off employees, including any managerial
employees at both the Twinsburg and Peninsula worksites.” The letter also requested any
correspondence that the Respondent had given to laid-off employees. Finally, the letter also
explained that the Union needed “the total number (including non-bargaining unit) of laid-off
employees” so that the Union could determine if the Respondent had complied with the
requirements of the WARN Act regarding layoffs (R. Exh. 14). On May 26, 2009, Kepler sent
another letter to the Respondent in which he repeated his request for some of the information
sought in his April 22 and May 6 letters. In addition he made a new request for a list of every
laid-off employee who was given vacation pay and a list of those laid-off employees who were
not given vacation pay (GC Exh. 121.).
On June 9, 2009, Mason sent a letter to Bornstein indicating that six individuals who
were not members of the bargaining unit had been laid off. The letter also indicated that
attached to it was the correspondence that the Respondent had given to all employees at the
time of the layoff and a new list of bargaining unit employees and their current addresses.
Mason’s letter concluded by stating “We are preparing for you copies of the personnel files of all
the employees in the bargaining unit that were laid off. With the production of the personnel
files, this should bring us up to date with all the documents and information you have requested.
If there are any other documents you have requested or information you have sought that we
have not provided, please let me know what it is.” (R. Exh. 24).

21 This finding has no effect on any remedy these employees may be entitled to by virtue of
the Respondent’s unilateral implementation of its recall procedure in violation of Section 8(a)(5)
and (1) of the Act.
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On July 9, 2009, Mason sent a letter (R. Exh. 29) to Bornstein which states, in part:
This is a follow-up to my letter to you dated June 9, 2009, with respect to your request
for information. In that letter, I stated to you that we were going to copy all the personnel
files of the bargaining unit members and provide these to you. We have now copy all
these documents and reviewed them and Bate stamped them. Enclosed is a CD disk
with all this information on it. There are 5,489 documents on this disk.
Mason’s letter further indicated that the Respondent had not provided the specific names
of the individuals who had been laid off that were not in the bargaining unit and the personnel
files for those individuals because the Respondent did not believe that information was relevant
to collective bargaining.22
Mason testified that in a later negotiation session a union representative stated that the
Union needed the names of the nonbargaining unit personnel that were laid off in order to verify
the number of such individuals that the Respondent had given them. Mason indicated that after
receiving this explanation, the Respondent later gave the Union the names of the nonunit
personnel who had been laid off. Mason testified he believed that this information was contained
in the latter to the Union from his then associate, Matt Austin (Tr. 1998–1999).
Kepler denied that the Union had received the names of the nonunit personnel who had
been laid off. I find that the Respondent did not, in fact, provide the names of the nonunit
personnel who had been laid off to the Union. More than Kepler’s denial, I rely on the fact that
the record contains no letter from Austin submitting that information to the Union and the
Respondent’s other submissions regarding requested information were always accompanied by
such a letter. Without objective evidence establishing that the names of the nonunit individuals
laid off were submitted, I believe Mason’s recollection on this point was faulty.
At the hearing, Mason testified that, through inadvertence, the Respondent had not
furnished to the Union the information it had requested on May 26, 2009, regarding laid-off
employees and their vacation pay.
Mason also testified regarding the reason for the delay between the Union’s May 6
request for the names and addresses of all laid-off employees and the letter that the
Respondent gave to employees at the time of their layoff, and the June 9 submission of that
information. Mason testified that the Respondent had just finished furnishing 1000 pages of
documents that were responsive to a substantial portion of the Union’s April 22, 2009, request
for information. He also indicated that the Respondent had a substantial layoff on May 1, and
that this event had consumed a substantial portion of time for the Respondent’s managers. He
further indicated that the human resources manager was the sole individual responsible for
preparing the responses to the Union’s request for information. Mason testified that the human
resources manager left during this period and that Hicks did not replace her until June 14 (Tr.
2010).
It is clearly established that an employer is obligated to provide the collective-bargaining
representative of its employees, on request, with information that is necessary and relevant to
the union’s function as the collective-bargaining representative. The obligation exists not only for

22 At the hearing Kepler testified that the Union had not received the personnel files of
bargaining unit members. I do not credit this testimony. I doubt that Mason’s letter would have
the specificity of the number of documents included on the CD disk, if such a disk was not in
fact submitted. At the hearing Mason also testified regarding the practice of his office in mailing
such letters. I find that the evidence is sufficient to establish that the Union did, in fact, receive
the information Mason's July 9, 2009, letter indicates was sent to it. I also note that there is no
evidence that the Union continued to seek the production of the personnel files after that date.
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the purpose of contract negotiations but also for the purpose of administering a collective-
bargaining agreement. Relevancy is determined by broad discovery type standard and is
necessary only to establish the probability that the information sought would be useful to the
union in carrying out its statutory duties. NLRB v. Acme industrial Co., 385 U.S. 432 (1967);
NLRB v. Truitt Manufacturing Co., 351 U.S. 149 (1965). The Board has long held that
information concerning unit employees’ terms and conditions of employment is deemed to be
presumptively relevant to a union’s duty to represent the employees. Pavilion and Forestal
Nursing & Rehabilitation, 346 NLRB 458, 463 (2006); Atlanta Hilton & Tower, 271 NLRB 1600,
1602 (1984); Cowles Communication, Inc., 172 NLRB 1909 (1968).
A union seeking information from an employer regarding individuals outside of the
bargaining unit must demonstrate the relevancy and necessity of such information to its
representation of unit employees before an employer is obligated to provide it. Frito-Lay Inc.,
333 NLRB 1296 (2001).
It is clear that the information requested by the Union on May 6 regarding the addresses
of all unit employees and the letter of the Respondent given to the employees at the time of the
layoffs was presumptively relevant. As noted above, this information was provided to the Union
on June 9, but the Acting General Counsel argues that there was delay in providing this
information that constitutes a violation of Section 8(a)(5) and (1) of the Act. In support of this
position, the Acting General Counsel relies on Association of D. C. Liquor Wholesalers, 300
NLRB 224, 229 (1990); (delays of 7 and 8 months); Postal Service, 308 NLRB 547, 550 (1992)
(delay of 7 weeks); Postal Service, 308 NLRB 530, 536 (1993) (delay of 2 months).
In determining whether an employer has unlawfully delayed in responding to an
information request, the Board has noted that it considers the totality of the circumstances and
that there is no per se rule regarding a time period for production. The Board requires that an
employer make a reasonable good faith effort to respond to the request as expeditiously as
possible. West Penn Power Co., 339 NLRB 585, 587 (2003); Good Life Beverage Co., 312
NLRB 1060, 1062 fn. 9 (1993). In the instant case, unlike the cases relied on by the Acting
General Counsel, the Respondent had a legitimate explanation for the time it took to produce
the requested documents. In this regard, the Respondent was in the process of complying with
a voluminous request for information that had been made on April 22. The Respondent also
points to the fact that the human resources manager was involved in issues associated with the
layoff that occurred in early May. In the circumstances of this case, I find that the Respondent’s
explanation for the 4-week time period it took to comply with the Union’s request was
reasonable. I find the cases relied on by the Acting General Counsel are distinguishable and I
shall therefore dismiss the allegation in paragraphs 13(B), (C), (E) and (G) of the complaint that
the Respondent violated Section 8(a)(5) and (1) of the Act by not providing the requested
information until June 9, 2009.
With respect to the information requested on April 22, 2009, I find that the Respondent
did supply all of the requested information to the Union regarding unit employees on July 9,
2009. Thus the issue is once again whether the Respondent violated Section 8(a)(5) and (1) of
the Act by not providing until that date. I find that the Respondent has a reasonable explanation
for producing the information on that date. As noted above, the Respondent had complied with
other parts of the Union’s information request earlier and the information produced on July 9
involved over 5000 pages of documents. Importantly on June 13, Mason had written to the
union indicating that the Respondent was in the process of preparing copies of the personnel
files of all the employees laid off. There is no evidence that the Union objected to the pace of
the production of documents at that point. Under all the circumstances, I find that the
Respondent’s production of the personnel files on July 9 was based on a good faith effort and I
shall therefore dismiss that portion of the complaint.
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I find, however, that the Union established that it was relevant and necessary for it to
receive the number and names of nonunit individuals laid off by the Respondent in April and
May 2009. While the Union received the number of such individuals, I find that it did not receive
the names of such individuals. Accordingly, I find that the Respondent violated Section 8(a)(5)
and (1) of the Act in this respect.
With respect to the information sought in the Union’s letter of May 26, regarding those
employees who received vacation pay and those that did not, I find that this information is
presumptively relevant and that the Respondent was obligated to provide it. Given the
Respondent’s admission that this information was not provided, I find that it violated Section 8
(a)(5) and (1) of the Act as alleged in paragraphs 13(D), (E) and (H) of the complaint.
D. The Alleged Conduct Undermining Employee Support for the Union
The Allegations Regarding John Norton
The complaint alleges that John Norton is a supervisor and agent of the Respondent
within the meaning of Section 2(11) and 2(13) of the Act. Paragraph 15(A) of the complaint
alleges that since about April 26, 2010, Respondent, by John Norton, at its Peninsula facility,
solicited employees to sign a decertification petition and threatened them with plant closure
and/or sale of the plant. The Respondent contends that Norton is neither a supervisor nor agent
within the meaning of the Act and that any conduct he engaged in regarding a decertification
petition is not attributable to it.
In April 2010, approximately 20 to 25 employees worked on the third shift at the
Respondent’s Peninsula facility. The hours of this shift were from 11 p.m. to 7 a.m.
Approximately 15 employees worked as diecast operators and trimmers, while the remaining
employees worked as setup men, a tow motor operator referred to as a “metal man”,
maintenance employees and tool room employees. Brian Ohler was the supervisor on the third
shift while John Norton was the third shift leader. The third shift operated 6 nights a week. Ohler
does not typically work the Friday/Saturday shift. Norton is always present on the
Friday/Saturday shift if Ohler is not and is also present on other nights when Ohler is not
working.
One night in late April, 2010, on a Sunday/Monday shift, Ohler was not present but
Norton was. Third-shift employees have a break at 1 a.m.. On this particular night, Norton
approached every employee on the third shift and told them that he wanted to have a meeting at
the 1 a.m. break in the lunchroom. All of the employees working on the third shift that night
attended the meeting. There is no evidence that Norton spoke to any acknowledged supervisor
about this meeting before it was held.
Several witnesses testified about this meeting. Current employees Samuel Tomsello and
Michael Masl testified on behalf of the Acting General Counsel. Norton, Dennis Lemon, Edward
Deckerhoof, Walter Wood, Daniel Petrocini, Dave Wiggins, Frank Kovach, Arthur Diecheck, and
Jim Hawley testified on behalf of the Respondent. While some of the facts regarding the
meeting are undisputed, there is a conflict in the testimony regarding what Norton said during
the meeting. I credit Tomsello and Masl to the extent that their testimony conflicts with that of
the Respondent’s witnesses. In addition to the fact that Tomsello and Masl are current
employees who testified against the interests of their Employer, their testimony regarding what
Norton said was detailed and their demeanor reflected no hesitancy regarding what was said.
The testimony was also mutually corroborative on critical points. When testifying about this
meeting, Norton’s testimony was generalized and lacked detail.. The testimony of the other
employees called by the Respondent was vague and lacking in detail.
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At the beginning of the meeting, Norton used a broom to push a surveillance camera up
and said that this was “between them” and he did not want the “Company” looking in. He stated
that anybody who did not want to participate in the meeting was free to leave and take their
break, but only one employee left. Norton stated that he was holding the meeting to talk about
the Union and how things had gotten better in the shop. Norton said that he wanted to keep
food on the table and keep his job and that he wanted to make sure that everything stays the
same. During the meeting, Norton mentioned that employees may have “seen the stakes
outside on the ground of the facility, stating that the shop may be up for sale or sold already.”
Norton then stated that the machines would be sold and the plant would not stay intact. Other
employees at the meeting spoke against the Union, while some employees, including Masl,
spoke in favor of the Union. At the end of the meeting Norton told employees that he had a
petition for them to sign to get rid of the Union because it was not negotiating or doing the
employees any good. Norton placed a petition on the table in front of him, and, except for 4 or 5
employees, the employees present at the meeting signed the petition. The meeting lasted
between 45 minutes and 1 hour.
The next day, Norton told Long about the meeting that he had held. On April 30, 2010,
the Respondent issued a verbal, written warning to Norton for holding the April 26, 2010,
meeting. The warning states that Norton overstepped his authority by holding an unauthorized
meeting with the third shift employees, without permission. (R. Exh. 78). There is no evidence
that the Respondent communicated to employees that it disavowed Norton’s meeting.
Whether Norton is a Supervisor and/or Agent Within the Meaning of Sections 2(11) and 2(13)
of the Act.
The Acting General Counsel’s brief contends that Norton is a supervisor within the
meaning of Section 2(11) of the Act based on his authority to assign work and responsibly direct
employees and that he is a 2(13) agent based upon his apparent and actual authority to act on
the Respondent’s behalf . The Respondent contends that while Norton is a lead man, he has no
supervisory or agency authority and is a member of the bargaining unit.
Section 2(11) of the Act defines “supervisor” as
Any individual having authority, in the interest of the employer, to hire, transfer, suspend,
lay off, recall, promote, discharge, assign, reward, or discipline other employees, or
responsibly to direct them, or to adjust their grievances, or effectively to recommend
such action, if in connection with the foregoing the exercise of such authority is not of a
merely routine or clerical nature, but requires the use of independent judgment.
This provision is to be read in the disjunctive; thus any of the enumerated powers is
sufficient to confer supervisory status, so long as the authority is held in the “interest of the
employer” and exercised with the use of “independent judgment.” NLRB v. Kentucky River
Community Care, 532 U.S. 706, 713 (2001). The burden of proving supervisory status rests on
the party asserting it. Id. at 711–712.
Norton was hired as a trimmer by the Respondent 2007. After working as a die cast
operator he became a “shift lead” at Peninsula plant in late 2008.23 The job description for the
“shift lead” position (GC Exh. 6) reflects that such an individual:

23 Although "shift leads" are included in the stipulated unit, the ballots of "shift leads" were
challenged by the Union at the election, based on their alleged supervisory status. The
challenged ballots were not determinative, however, and thus the status of “shift leads” was not
resolved at that time.
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Plans, coordinates, and assist with their assigned shift operations of the Die Casting
plant by ensuring that the quality production of products consistent with established
standards by performing the following duties through the Shift Supervisor, Plant
Manager and/or Die Cast Superintendent”
The essential duties and responsibilities set forth in the job description include:
Understands Die Casting machine fundamentals and process operations.
Educates and/or trains coworkers with Die Casting, quality and process operations
Communicates w/Shift Supervisor, Plant Manager and Die Cast Superintendent and
other operators on the status of the job running
Keeps the machines running efficiently and communicates any operation problems to
the Shift Supervisor, Plant Manager and Die Cast Superintendent.
Norton is an hourly paid employee. He punches a timecard, and receives the same
benefits as unit employees. He wears the blue uniform that unit employees wear, rather than the
light brown uniforms of knowledged supervisors. Norton spends a substantial part of his time
working with the newer die cast operators on the third shift. He also testified that he facilitates
the work of the experienced diecast operators, but there are no specific examples of how he
may do that.
The record establishes that Long, Brian Lennon, and the production scheduler determine
the order of priority for die cast jobs to be performed on the third shift. At the beginning of the
third shift, Ohler consults with the second shift supervisor regarding the status of production or
whether any particular problems exist. Ohler will similarly impart the status of production to the
first shift supervisor at the conclusion of the third shift. When Ohler is not present, Norton
performs this task.
The record contains an example of the production schedule that Ohler, or, when he is
not present, Norton uses to assign diecast employees to particular machines. (R. Exh. 42.) This
particular example is dated December 7, 2010, and was used for the third shift from 11 p.m. on
Monday, December 6, 2000 to 7 a.m. Tuesday, December 7, 2010. Ohler was not present the
entire week of December 6, 2010, so Norton was the individual who utilized the production
schedule in making assignments for that week. He testified, without contradiction, that he
utilizes the form in the same manner on all occasions when he fills in for Ohler. As noted
above, this normally occurs once a week. On the left side of the form is a printed listing of
machines in descending order, according to the priority of the work being performed on that
machine. This printed portion of the production schedule is prepared as a result of the meeting
held by Long, Brian Lennon, and the production scheduler. In the middle of the form is an entry
labeled “status”. Norton testified that in this area he writes notes regarding information about
particular machines. Under the column entitled “operator” Norton places the names of
employees next to a particular machine number. At the hearing, when Norton was asked how
he determined which employee would work on a particular machine, he indicated that he was
familiar with “which casters run which jobs” he also considers, when making this decision, the
fact that experienced employees can perform any of the work and that less experienced
employees are not able to do so. He also considers the physical condition of employees since
some of the work is more physically demanding than other work. (Tr. 1841, 1854–1856.) Some
of the jobs on the production schedule for December 7, 2010, required a trimmer to assist the
operator of the diecast machine. Norton wrote the name of the trimmer on the line of the
machine number that he would be working on. On this particular shift, two trimmers were also
assigned to work on machine 16. Norton testified the supervisor on the previous shift told him
that the operator on machine 16 would need help during the shift because the robot on that
machine was not working properly.
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When Ohler is present, he will make the assignments of diecast operators and trimmers
to particular machines using the same production form described above. After the list is
prepared he writes the names of employees on a large dry erase board which is a larger version
of the production sheet. When employees arrive in the production area, they look at the board to
know which machines they are assigned to. When Ohler is not present, Norton writes the
information on the dry erase board.
When machines break down during a shift and Ohler is not present, Norton will reassign
employees to different machines based on his knowledge of the experience and capabilities of
the various diecast operators and trimmers.
There is no evidence that Norton has the authority to require third shift employees to
work overtime or to transfer employees to another shift.
The other employees on the third shift include toolroom employees, setup employees
and maintenance employees. These employees perform their work by the order of priority of
particular machines as they are listed on the printed portion of the production schedule that, as
noted above, is prepared by acknowledged supervisors and the scheduler. Norton has no role in
the assignment or direction of the regular work of these employees. I credit Samuel Tomsello’s
uncontroverted testimony, however, that if setup employees complete their regular tasks and
have no other work to do, when Norton is filling in for Ohler, Norton, can assign a setup man to
do production work on a machine. There is no evidence, however, regarding how often this
occurs.
Ohler testified, without contradiction, that if difficulties arise on the third shift, Norton can
call him, but there are no specific examples of this occurring.
There is no evidence that Norton exercises any supervisory authority within the meaning
of Section 2(11) of the Act, other than his role in the assignment and direction of work as set
forth above. There is no evidence that he is held accountable, in any way, for an employee’s
mistakes or has been told by an acknowledged supervisor that he could be held accountable for
the errors of others.
In Oakwood Healthcare, Inc. 348 NLRB 686, 689 (2006) the Board noted that with
regard to the meaning of the term “assign” in Section 2 (11) of the Act:
[W]e construe the term “assign” to refer to the act of designating an employee to a place
(such as a location, department, or wing) appointing an employee to a time (such
as a shift or overtime period), or giving significant overall duties, i.e., tasks, to employee.
That is, the place, time, and work of an employee are part of his/her terms and
conditions of employment.
The assignment of an employee to a certain department (e.g., housewares) or to a
certain shift (e.g., night) or to certain significant overall tasks (e.g. restocking shelves)
would generally qualify as “assign” within our construction. However, choosing the order
in which the employee will perform discrete tasks within those assignments (e.g.
restocking toasters before coffee makers) would not be indicative of exercising the
authority to “assign.”
In Croft Metals, Inc. 348 NLRB 717, at 721 (2006) the Board summarized the definitions
of “responsibly to direct” and “independent judgment” as they were set forth in its decision in
Oakwood Health Care, supra, as follows:
The authority “responsibly to direct” is “not limited to department heads,” but instead
arises “[i]f a person on the shopfloor has ‘men under him,’ and if that person decides
‘what job shall be undertaken next or who shall do it,’ . . . provided that the direction is
both ‘responsible,’ . . . and carried out with independent judgment.” “[F]or direction to be
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‘responsible,’ the person performing the oversight must be accountable for the
performance of the task by the other, such that some adverse consequence may befall
the one providing the oversight if the tasks performed are not performed properly.” “
Thus, to establish accountability for purposes of responsible direction, it must be shown
that the employer delegated to the putative supervisor the authority to direct the work
and the authority to take corrective action, if necessary. It must also be shown that
there is a prospect of adverse consequences for the putative supervisor if he/she
does not take the steps.” (Internal citations omitted).
“[T]o exercise ‘independent judgment,’ an individual must at a minimum act, or
effectively recommend action, free of the control of others and form an opinion or
valuation by discerning and comparing data.” “[A] judgment is not independent if it is
dictated or controlled by detailed instructions, whether set forth in company policies or
rules, the verbal instructions of a higher authority, or in the provisions of a collective-
bargaining agreement.” “On the other hand, the mere existence of company policies
does not eliminate independent judgment from decision-making if the policies allow for
discretionary choices.” Explaining the definition of independent judgment in relation to
the authority to assign, the Board stated that “[t]he authority to effect an assignment . . .
must be independent [free of the control of others], it must involve a judgment [forming
an opinion or valuation by discerning and comparing data], and the judgment must
involve a degree of discretion and arises above the ‘routine or clerical.’ “ (Internal
citations omitted).
In Alstyle Apparel, 351 NLRB 1287 (2007) the Board found that a shift leader did not
possess the authority to assign work within the meaning of Section 2(11) under circumstances
very similar to those present here. In Alstyle Apparel, the employer’s general manager prepared
a preprinted form entitled “Machine Assignment Form” which listed the machines that were to be
used on a shift. The shift leader in dispute used the form and his knowledge of employees’
capabilities to assign an employee to work on a particular machine. The judge, whose opinion
was adopted by the Board, found that the shift leader’s machine assignments were analogous
to the rotation of different tasks described in Croft Metals, supra, and more closely resembled
ad hoc instruction rather than a work assignment and thus did not reflect the authority to
“assign” as described in Oakwood Healthcare and Croft Metals, supra.
In determining that Norton’s status as a supervisor within the meaning of Section 2(11)
of the Act, it is important to note that there is no evidence that Norton exercises any supervisory
authority when acknowledged supervisor Ohler is present on the third shift. The Acting General
Counsels argument rests on whether Norton exercises supervisory authority on the 1 day a
week he fills in for Ohler and the authority he exercised during Ohler’s absence of the week of
December 6, 2010 and other sporadic occasions. With respect to Norton’s authority to assign
work, there is no evidence that Norton has any role in assigning employees to a certain
department or a particular shift. With respect to his authority to assign significant overall tasks,
Brian Lennon and Long determine which machines are to be used on the third shift and the
relative priority of the work done on each machine. This is done by virtue of the printed
production sheets. Norton utilizes the production form and his knowledge of the capability of the
employees to determine which employees work on which machine. However, the evidence
establishes that certain employees operate a particular machine on a regular basis. In my view,
the various die cast machines used on the third shift are discrete components of the overall
work assignment of an employee. Directing an employee to perform a discrete task within an
overall assignment does not establish the authority to assign work under Oakwood Healthcare,
supra, at 689–690. Accordingly, I find that Norton’s assignment of employees to individual
machines does not reflect the authority to “assign” employees as that term has been defined in
Oakwood Healthcare, supra and utilized in Croft Metals and Alstyle Apparel, supra. I further find
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that Norton may, on occasion, direct a setup employee to work on a die cast machine, if all of
the setup work is completed, is also merely assigning a discrete task in the production process.
I next must consider whether Norton “responsibly directs” employees through the use of
“independent judgment.” As noted above, Norton makes the original assignment of die cast
employees and trimmers to a particular machine when Ohler is not present. When machines
breakdown during a shift, Norton will also direct employees to other machines pursuant to the
priority established by the production sheet and his knowledge of employee capabilities. Thus,
he clearly directs employees in the determination of “what job shall be undertaken next or who
shall do it.” Oakwood Healthcare, supra, at 691. The question then becomes whether such
direction is responsible and whether it is carried out with independent judgment. With respect to
his direction being responsible, there is no evidence that Norton is held accountable for his
actions in directing other employees. In the first instance, there is no evidence that Norton has
experienced any material consequence, either positive or negative, as a result of his
performance in directing die cast employees.24 There is also no evidence that the Respondent
ever informed Norton of any material consequences that might result from his performance in
directing die cast employees. The Board has found that the lack of evidence establishing that a
lead person is held accountable for his/her direction of other employees precludes a finding of
responsible direction. Alstyle Apparel, supra; Golden Crest Healthcare Center, Inc., 348 NLRB
727, 730–732 (2006). Accordingly, I find that Norton does not responsibly direct employees
within the meaning of section 2(11) of the Act.25
The Acting General Counsel also asserts that Norton should be found to be a statutory
supervisor because, if he is not, the third shift has no statutory supervisor present when Ohler is
absent. In this regard, the Board has noted that being the highest ranking employee on-site
during the shift falls within the secondary indicia of supervisory authority and that where an
alleged supervisor is not shown to possess any of the primary indicia of supervisory status
under Section 2(11), secondary indicia are insufficient to establish supervisory status. This
factor is given even less weight when acknowledged supervisors are available for consultation
after hours. Golden Crest Healthcare Center, supra, at 730, fn.10 and cases cited therein. In the
instant case, as noted above, Norton can contact Ohler if the need arises. Accordingly, on the
basis of the foregoing, I find that the Acting General Counsel has not established that Norton
possesses supervisory authority within the meaning of Section 2(11) of the Act.
The Acting General Counsel also contends that Norton is an agent of the Respondent
within the meaning of Section 2(13) of the Act. In the D & F Industries Inc., 339 NLRB 618, 619
(2003), which is relied on by the Acting General Counsel, the Board reiterated its policy that in
determining whether an employee is an agent of an employer, the Board applies common law
agency principles. The Board held that:
If the employee acted with the apparent authority of the employer with respect to the
alleged unlawful conduct, the employer is responsible for the conduct. ‘Apparent
authority results from manifestation by the principal to a third party that creates a

24 I do not find that the verbal written warning given to Norton on April 30, 2010, for
conducting a meeting regarding a decertification petition was related to his performance in
directing the diecast employees. This warning was for exceeding his authority by conducting
such a meeting and not because of a deficiency in the manner in which he directed employees
in the performance of their production duties.
25 In view of my finding that Norton does not responsibly direct employees within the
meaning of Section 2(11), I do not reach the issue of whether he uses independent judgment in
his direction. The Board has taken this approach in both Alstyle Apparel and Golden Crest
Healthcare Center, supra.
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reasonable basis for the latter to believe that the principal has authorized the alleged
agent to perform the acts in question.’ Id. at 619, internal citations omitted.
The Board also noted that an employer may be responsible for employee’s conduct if the
employee is “held out as a conduit for transmitting information [from the employer] to the other
employees.” Id. at 619, internal citation omitted.
In D & F Industries, Inc., the employer, on a daily basis relied on the two employees
alleged to be agents to convey information and decisions pertaining to production work to
employees. The employees were told repeatedly by an acknowledged supervisor that one of the
individuals was their supervisor. The two individuals also administered the employer’s policies
regarding overtime and time off for use in emergencies. They also enforced the employer’s rules
regarding attendance. In this connection, the two employees informed their supervisor of rules
infractions and responded to his inquiries regarding employee work performance. Under these
circumstances the Board found that the two employees acted as agents of the employer in
interrogating employees about their union activities and engaging in other conduct violative of
Section 8(a)(1) of the Act.
In the instant case, there is no evidence that Norton had any involvement in employee
discipline or the enforcement of any of the Respondent’s work rules. While he gives direction to
employees as discussed above, he is certainly not held out generally as an individual who
transmits information from the employer to the other employees. Under the circumstances
present in this case, I do not find that employees would reasonably believe that Norton was
speaking and acting for management in his solicitation of employees to sign a decertification
petition. I find the evidence insufficient to conclude that he is an agent of the Respondent within
the meaning of Section 2(13) of the Act. Accordingly, on the basis of all of the foregoing, I
conclude that Norton’s conduct at the meeting of April 27, 2010, cannot be attributed to the
Respondent and therefore I shall dismiss this paragraph of the complaint.
The Allegations Regarding Daniel Owens
The complaint alleges that Owens is a supervisor and agent of the Respondent within
the meaning of Section 2(11) and 2(13) of the Act. Paragraph 15 (B) of the complaint alleges
that in April and May, 2010, the Respondent, through Owens, at its Peninsula facility, solicited
employees to sign a decertification petition and coercively informed employees that the
Respondent would be more willing to negotiate with employees over wage increases if they did
not have Union representation. The Respondent denies that Owens is a supervisor or agent
within the meaning of the Act and contends that it is not responsible for his conduct regarding
the circulation of a decertification petition or any statements he made to employees.
In April and May 2010, Owens solicited employees to sign a decertification petition he
prepared. Acting General Counsel witnesses Ivery, Chuck Smith, Dave Smerk, Leonard Redd,
Jess Kreinbrook, and Jay Quarterman all testified that Owens approached them to sign the
petition. Owens admitted that he solicited employees to sign a decertification petition during this
period (Tr. 97, 1748–1749). He contends that he asked employees on both the first and second
shifts at the Peninsula facility to sign the petition either before the start of their shift or after they
had punched. However, I credit the testimony of current employees Smith, Kreinbrook, and
Quarterman that Owens approached them while they were working and asked them to sign a
decertification petition.
Smith testified that Owens first approached him to sign the petition in late April 2010
while Smith was working in the foundry. At that time Smith declined to sign it. About 2 or 3 days
later, Smith testified that, after he had punched in, Owens approached him in the supply cage
and again asked him to sign the petition. Smith again refused to sign. A day or two later, Owens
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again asked Smith to sign the petition and on this occasion Smith signed it. On one of these
occasions, testified that Owens told him that Mathias would be more willing to negotiate wages
with employees if the Union was not there (Tr. 829).26
Whether Owens is a supervisor and/or agent within the meaning of Sections 2(11) and 2(13)
of the Act.
The Acting General Counsel contends that Owens is a 2(11) supervisor because he has
the authority to discipline and effectively recommend the discipline of employees. As noted
above, the Acting General Counsel also contends that Owens is also an agent of the
Respondent.
Owens is the Respondent safety coordinator with responsibility for both the Peninsula
and Twinsburg facilities. He has held this position for approximately 15 years, but has worked
for the Respondent for over 30 years. As the safety coordinator, Owens performs no production
work and shares an office with the production scheduler. Owens punches a time clock and is
hourly paid and receives the same benefits as unit employees. The job description for the safety
coordinator dated October 9, 2007, indicates that an essential duty of safety coordinator is to
“ensure and enforce safety and health standards.” The job description also indicates, however
that there are no supervisory responsibilities in this position (GC Exh. 5.).27
Owens regularly conducts safety training for both new and experienced employees. In
2009, Owens conducted mandatory training sessions for employees on lockout/tag out (safety
procedures for working on the diecast machines); towmotor safety and use of fire extinguishers.
The Respondent’s employee handbook advises employees that safety rules are governed by its
disciplinary policy (GC Exh. 4, Bates no. 00081).
Current employee Chuck Smith testified that he attended a mandatory meeting on
towmotor safety for the entire first shift in the Peninsula facility in 2009. Plant manager Brian
Lennon, casting superintendent Long, and first shift supervisor Mike Jordan attended the
meeting but Owens conducted it. During the meeting, Owens told employees that if they were
not wearing a seatbelt while operating a towmotor, he would write them up.28
In 2009 Owens conducted a lockout/tag out safety meeting with first shift employees at
Peninsula at which, Brian Lennon, Long, and Jordan were again present. After reviewing the
new safety procedures with employees, Owens stated that employees would be disciplined if
they failed to follow the safety procedures he outlined. Owens also conducted a lockout/tag

26 On direct examination Chuck Smith testified that he had a conversation with Chuck Long
during the same period and that Long had stated that Mathias would be more willing to
negotiate wages if the Union was not present. On cross examination, however, he corrected
himself and recalled that it was Owens who had made this statement. I find that, in this instance,
Chuck Smith's testimony on cross-examination is the more reliable recollection. In crediting this
testimony I note that it is uncontroverted as Owens did not testify regarding the statement
attributed to him.
27 The position of safety coordinator is included in any unit stipulated to by the parties.
However Owens ballot was challenged at the election by the Union. Since the challenged
ballots were not determinative his status remained unresolved.
28 Owens denied making this statement. I credit Chuck Smith's testimony over that of
Owens. Chuck Smith is a current employee who has no motive for testifying untruthfully and his
demeanor was forthright when testifying about this matter. As will be further noted, Owens
tended to downplay his authority when testifying about his duties as safety coordinator, and I do
not find his testimony on this issue to be reliable.
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meeting for the third shift employees Peninsula in 2009. Brian Lennon, Long, and all third shift
employees were present. After reviewing the new procedures, Owens told employees that
failure to follow the new procedures would result in discipline including termination, depending
upon the severity of the violation.
Owens is also responsible for auditing employee performance and safety procedures
and reporting the results to management. Indicative of his responsibility in this area is an email
that Owens sent to Brian Lennon and Long on March 5, 2010 (GC Ex. 76). In the email, Owens
reported that the lockout audit he performed on March 4, 2010 was satisfactory; in this regard
he reported he viewed several actual lockouts and interviewed all the operators regarding safety
procedures.
In fulfillment of these important responsibilities regarding safety in both plants, Owens
patrols the plans in order to monitor employee safety procedures. In this regard on July 9, 2008,
Owens sent the following email to SeAnna Huberty, the human resources administrator,
indicating the following:
Jerome Ivery was issued a verbal warning 7/9/08for PPE Not wearing his safety glasses.
He was observed by me at 11:45 AM in the foundry standing at the term cell (#6) talking
to Emil Stewart with his safety glasses off, he was informed along with Mike Jordan of
this verbal warning.29
The record also contains documents reflecting a written notice of a violation of safety
rules and a verbal warning that were issued to employees Jason Sallaz on August 19, 2008,
(GC Exh. 40); Joanne Cutright on July 18, 2008 (GC Exh. 48); and Leonard Redd on August 26,
2009 (GC Exh. 49). On all three documents Owen signature appears next to the printed word “
supervisor” and there are no other signatures on the document other than the employee who
received the warning. These documents were submitted to the human resources department
and were placed in the employee’s personnel file. A verbal warning constitutes the first step of
the Respondent’s progressive discipline policy as set forth in its employee handbook. (GC Exh.
2, p. 16). At the hearing, Owens attempted to explain that these documents were not what they
appeared to be. In this regard, when questioned with respect to the warning given to Sallaz (GC
Exh. 40), he testified generally he fills out the information as to the nature of the violation and
gives the document to the employee’s supervisor without a recommendation as to what should
be done regarding corrective action. When Owens was asked if he knew what the supervisor
did with it, Owens testified:
He takes whatever corrective action that it says there. Now on this one, I’m assuming he
just told me that he gave him a verbal warning. So I kind of wrote, “yes” and then I wrote
that he gave him a verbal warning.” (Tr. 107)
Owens gave a similarly unpersuasive testimony in trying to explain that he did not issue
the warnings to Culright and Redd, even though only his signature and not that of any other
supervisor appears on the form. I do not credit Owens implausible explanation regarding how
these warnings were filled out and find that they are exactly what they appear to be, a written
verbal warning given to the employees by Owens. In making this finding, I note that no other
supervisor testified to corroborate Owens explanation as to how these warnings were filled out.
Chuck Smith credibly testified that in 2009 Owens observed him without his safety
helmet on him while he was operating a machine. When Owens asked him where his helmet
was, Smith replied that it was in his locker. Owens told him he was “in trouble”. Approximately

29 Even though the clear language of the email establishes that Owens issued a verbal
warning to Ivery, at the hearing Owens denied that he had ever done so and testified it was up
to Huberty to take any disciplinary action. (Tr. 100, 102.)
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an hour later, Owens handed Smith a written warning for safety violation. Smith testified that no
one in management had questioned him in the period between when Owens observed him not
wearing his helmet and his receipt of the warning from Owens.30
The mutually corroborative testimony of Ivery and Albright establish that in August 2008,
Ivery’s safety glasses fell off, hit the floor and got grease on them. While Ivery was wiping his
glasses off, Owens came by the area and observed Ivery holding his safety glasses. Shortly
thereafter supervisor Ohler approached Ivery and informed him that Owens had told him to give
Ivery a warning for not wearing his safety glasses. Ivery told Ohler what happened and that
Albright was a witness to it. Ohler spoke to Albright, who corroborated that Ivery was merely
cleaning the grease from his safety glasses when Owens observed him. Ivery testified that, after
speaking to Albright, Ohler said that he had returned the warning to Owens. According to Ivery,
Ohler told him that he had informed Owens that another witness had confirmed the reason that
Ivery had taken off his safety glasses and that if Owens wanted to give Ivery a warning, he
would have to do it himself. Later in the day, Brian Lennon approached Ivery and asked him if
he was going to sign the warning. Ivery attempted to explain that the glasses had fallen off but
that Owens had not asked him what had happened. Lennon indicated he still wanted Ivery to
sign the warning, but Ivery refused.31
Finally, Ivery testified that in October 2011, employee Jim Pruney, cut a hydraulic line
while operating a towmotor, spraying hydraulic oil on Ivery. Afterwards, Owens told Ivery that he
had directed engineer Gail Stansbury to issue a warning to Pruney for this accident.32
Owens is also responsible for investigating all accidents in both plants in reporting to
management regarding the circumstances of the accident and his view as to how and why it
occurred. Owens also makes recommendations to the plant manager Brian Lennon regarding
the appropriate action for him to take regarding the accident.32
An example of Owens role in the handling of accidents is contained in the Respondent’s
investigation into an accident involving employee Dennis Ormsby and the discipline that was
issued to him as a result of the accident (GC Ex. 9). On March 3, 2009, Ormsby was hit in the
ankle by a towmotor. Both Ormsby and his supervisor, John Walter, filled out incident report
forms. Consistent with written constructions contained in the supervisors incident report form,
both reports were submitted to Owens. On March 4, 2009, Owens completed an “Accident
Analysis Report” and submitted it to Brian Lennon (GC Ex. 9, Bates nos. 00188-00191). After a
detailed analysis, Owens indicated the following in his report:
1) Dennis should not have been in the area
a) S.O.P. safety rule states, Do not reach more than 3 hooks to clear parts
b) Dennis was walking past 10 hooks to get parts
2) Even though backup alarm was functioning, Dennis did not yield and fork lift truck
operator did not look before backing

30 I do not credit the cursory denial of this incident by Owens. Objective evidence
establishes that he was not a credible witness when testifying regarding his alleged supervisory
authority.
31 I do not credit Ohler's testimony that he gave the warnings to Ivery after Owens reported
the incident to him. The testimony of Albright and Ivery has the detail associated with truthful
testimony and I find it more reliable than Ohler's version of this event. Owens and Brian Lennon
did not testify regarding this incident.
32 I credit Ivery's testimony over Owens denial of this incident. As I have indicated, I find
Owens testimony to be generally unreliable with regard to his alleged supervisory authority.
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With respect to the part of the report that asks what additional action should be considered,
Owens wrote:
1. Violation of Safety Rules-To Dennis Ormsby
2. Violation of safety rules-To Dave Earlwine
On March 4, 2009, Brian Lennon issued a written warning to Ormsby reflecting the
following violations:
a. Not abiding by the Standard Operating Procedures (removing parts from the carousel
beyond the safety/work rule “Do Not Reach Beyond 3 Hooks”)
b. Safety Rule # 5(u) Pedestrian traffic shall yield to lift trucks in a dominant lift truck
area.
Lennon testified that he relied on Owens’ report in issuing the discipline to Ormsby (Tr.
57–58). I note that the warning issued to Ormsby by Brian Lennon is precisely in accord with the
recommendation made by Owens in his report.
I find that the evidence establishes that Owens possesses the authority to issue verbal
warnings and to effectively recommend disciplinary warnings and that he exercises such
authority through the use of independent judgment. Accordingly, I find that he is a supervisor
within the meaning of Section 2(11) of the Act.
The record establishes that the Respondent has a progressive disciplinary system and
that verbal warnings are the first step in that process. Owens possesses and exercises the
authority to issue verbal warnings regarding safety matters. This is demonstrated by his email to
Huberty in July 2008 advising her of the verbal warning he had issued to Ivery. In his email,
Owens indicated that Ivery’s supervisor, Mike Jordan, was informed of the warning, thus
establishing that Jordan had no role in the decision to issue it. In addition, Owens issued verbal
written warnings to employees Sallaz, Cutright, and Redd, without any credible evidence of the
involvement of any other supervisor. These documents establish that Owens possesses the
authority to issue this discipline by the use of independent judgment. His authority in this regard
is further established by Chuck Smith’s testimony that he received a written verbal warning from
Owens in July 2009.
Owens’ authority to effectively recommend the issuance of discipline is established by
the written recommendations he made regarding the warning Brian Lennon issued to Ormsby.
Lennon admitted he relied on Owens recommendation in issuing the discipline and there is no
evidence that Lennon independently investigated the incident. Owens’ authority to effectively
recommend discipline is also shown by the warning that Ivery was issued in August 2008, by
Brian Lennon for not having his safety glasses on. According to the credited testimony, Owens
recommended a warning be given to Ivery, but after Ohler spoke to Albright about the incident,
Ohler returned the warning to Owens. Later that same day, Ivery was issued the warning by
Brian Lennon. The only reasonable inference to be drawn is that Owens recommended to
Lennon that the discipline be issued and Lennon followed that recommendation.
I find that the authority to issue verbal warnings to employees and to effectively
recommend the imposition of discipline establishes the authority of Owens as a supervisor
within the meaning of Section 2(11) of the Act. Progressive Transportation Services, Inc., 340
NLRB 1044 (2003); Venture Industries, 327 NLRB 918, 919–920 (1999).
I do not agree with the Respondent's argument that the "Notice of Safety Rules and/or
Procedures" issued by Owens to employees are merely reportorial and do not reflect true
supervisory authority. All of the notices of safety violations introduced into evidence reflect that a
verbal warning was given to the employee, as does the email sent by Owens to Huberty
regarding the verbal warning Owens issued to Ivery in July 2008. As noted above, there is no
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credible evidence of any other supervisor being involved in the issuing of these warnings, which
are kept in employees’ personnel files and are consulted with respect to the imposition of later
discipline. Without question, the effective recommendation to discipline Ormsby, which Owens
submitted to Lennon was much more than merely a report of the accident. Under these
circumstances I find the cases relied on by the Respondent to be distinguishable. In Vencor
Hospital-Los Angeles, 328 NLRB 1136 (1999); Ten Broeck Commons, 320 NLRB 806 (1996);
and Passavant Health Center, 284 NLRB 87 (1987) the purported supervisors’ reports regarding
employee conduct were independently reviewed by acknowledged supervisors before discipline
was imposed.
In addition to finding that Owens is a supervisor within the meaning of the Act, applying
the test utilized by the Board as set forth above in D & F Industries, supra, I also find that he is
an agent of the Respondent within the meaning of Section 2(13) of the Act. In so finding, I have
also considered NLRB v. Thermon Heat Tracing Services, Inc., 143 F.3d 181 (5th Cir. 1998)
enfg. 320 NLRB 1035 (1996). In that case the court found that the employer's "safety
professional" whose "duty was to assist in promoting, providing and maintain a safe work
environment", was reasonably seen by employees as the employer's agent, and thus the
employer was responsible for the safety professional’s actions. 143 F.3d at 186.
In the instant case, the Respondent relies on Owens as a conduit for transmitting
information regarding safety issues to employees. Given the nature of the Respondent's
business, attention to safety matters is of critical importance as serious injuries can occur if
proper safety procedures are not followed. The Respondent places great importance on
following safe procedures and Owens is a critical part of that program as he coordinates the
entire effort. The Respondent's safety handbook specifically states that Owens acts as the
representative of the plant manager for purposes of implementing the Hazard Communication
Program, which deals with the manner in which employees should handle hazardous
chemicals(GC Exh. 4, p. 19).
Owens often conducts safety training meetings for both experienced and new
employees. He has informed employees at the lockout/tagout and towmotor safety meetings
that they were subject to discipline for failing to comply with the proper safety procedures.
Owens performs no production work and when not in his office, patrols the plant to ensure that
employees are adhering to the mandated safety procedures. Owens writes detailed reports
regarding plant accidents and will recommend that an employee be disciplined if he determines
that an employee did not follow safety procedures in causing the accident. As noted above,
Owens is involved in disciplining employees who have violated the mandated safety
procedures. Owens has also told employees that he has recommended to supervisors that
employees be disciplined for violating safety procedures and causing an accident.
Under the circumstances, I find that employees have a reasonable basis to believe that
Owens acts with the apparent authority of the Respondent. I find that Owens is an agent of the
Respondent within the meaning of Section 2(13). In sum, I find the Acting General Counsel has
carried his burden of establishing that Owens is a supervisor within the meaning of Section
2(11) of the Act. I also find that the evidence is sufficient to establish that Owens is a Section
2(13) agent of the Respondent. It is well established that a supervisor's solicitation of signatures
for a decertification petition violates Section 8(a)(1) of the Act. Sociedad Espanola De Auxilio
Mutuo y Benificia de P.R., 342 NLRB 458, 459 (2004); Fritz Companies, Inc., 330 N.L.R.B.
1296, 1300 (2000). It is also well-established that an employer is responsible for the actions of
its agent. Uniontown Hospital Association, 277 NLRB 1298, 1299 (1985). Accordingly, I find
that the Respondent, through Owens, violated Section 8(a)(1) of the Act by soliciting employees
to sign a decertification petition.
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The Respondent also violated Section 8(a)(1) of the Act by Owens’ statement to Smith
that Mathias would be more willing to address issues such as wages with employees if the
Union no longer represented the employees. Del Ray Tortilleria, Inc., 272 NLRB 1106, 1113
(1984) enfd. 787 F.2d 1118 (7th Cir. 1986).
The Alleged Threat Made by Chuck Long
Paragraph 15(C) of the complaint alleges that in April and May, 2010, the Respondent,
through Chuck Long, at its Peninsula facility, threatened employees with unspecified reprisals,
plant closure and/or the sale of the plant if the Union continue to represent the employees.
Chuck Smith testified that in late April 2010 he was working on machine 15 in the
afternoon when Long approached him and told him that Mathias was "getting mad" about
spending money for his lawyer and that hopefully Long and the employees would not lose their
jobs. (Tr. 811–812). Without specific reference to speaking to Smith, Long generally denied
making any statements of job loss to employees. I credit Chuck Smith's detailed testimony over
Long’s general denial. As noted above, he is a current employee testifying against the interest
of his employer and I was impressed with his demeanor while testifying.
Current employee David Smerk testified on behalf of the Acting General Counsel
pursuant to a subpoena. Stewart testified that he has been employed by the Respondent for 30
years and works as a tool and die maker at the Peninsula plant. According to Smerk, in late
April 2010, he and Chuck Long were walking down an aisle between the production office in the
supervisor's office. Long was shaking his head and then said "it's unbelievable." When Smerk
asked him what was going on, Long replied "don’t people realize that Jim Mathias said he close
the doors before he let the Union in?" When Smerk asked Long is that what the surveyors
stakes were for, Long replied "it very well could be." (Tr. 118).
According to Long, Smerk approached him and initiated the conversation. Long testified
that Smerk stated that if the Union gets in, Jim Mathias would shut the plant down. Long merely
responded that he had no idea what Mathias would do. Long also testified that when Smerk
asked him what the surveyors stakes were for, Long replied that he had no idea.
I credit Smerk's testimony over Long regarding this conversation. Smirk as a long-term
current employee, has no motive to be untruthful. He testified in a clear and concise manner
regarding this conversation. Long's testimony was somewhat rambling and his demeanor did
not impress me when testifying about this incident.
Based on the credited testimony, I find that the Respondent, through Long, threatened
employees with the closure of the plant and the loss of jobs in violation of Section 8(a)(1) of the
Act. Shearer’s Foods, Inc., 340 NLRB 1093, 1094 (2003).
The Letters From Mathias
Paragraph 15(D) of the complaint alleges that on or about April 15, 2010, and May 21,
2010, the Respondent through correspondence from James Mathias to employees, at its
Peninsula facility, solicited employees to support the decertification effort and informed
employees that it supported and encouraged the decertification effort.
On April 15, 2010, Mathias issued a document entitled "Negotiations Update". (GC Exh.
14 B). This document was posted at both plants and mailed to the homes of unit employees. In
this document Mathias expressed the opinion that the Union was not living up to its obligation to
negotiate a contract. He indicated that the Union's objective appeared to be an attempt to make
the Respondent’s "costs so high that continuing in operation is no longer an option. In doing so,
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the Union hopes that we will capitulate to it as a last resort to keep the doors open. The Union
wants us to kneel down before it and give it whatever he wants."
After indicating that the Respondent would not give in to those types of "extortion
tactics", Mathias closed the document with the following:
Therefore I say to you, what we have said to the Union, if you want a
contract, then the Union is going to have to do something that to date it has failed
to do. The Union must actually negotiate for a contract.
To those employees who want the Union to be decertified and who signed the
decertification petition, we will continue to support you and encourage your
efforts to convince the undecided voters that the employees have given the
Union two years to get a contract and it has failed miserably.
Therefore, the only real option left is to throw the Union out.
On May 21, 2010, Mathias issued another "Negotiations Update." Once again this
document was posted at both facilities and mailed to the homes of unit employees. In this
document Mathias claimed that union supporters were telling employees that the Respondent
was going to 12-hour shifts and/or closing the plant. Mathias denied such rumors. The
document also set forth the Respondent’s proposal regarding the shift hours of work. The
document closed by indicating:
Therefore, it is quite clear to us that the Union is running scared about the
petition that is circulating and the Union supporters are now trying to spread
lies to you in order to generate support that does not exist through fear and lies.
You now know how desperate to the Union is getting, when they know they can
be so easily proved to be lying to you, and yet, they tell you these lies anyway.
We fully support the decertification of this Union and hope that in an NLRB election you
will all be given a chance to vote the Union out.
Relying on the Board's decision in Armored Transport, Inc., 339 NLRB 374 (2003) the
Acting General Counsel contends that the two "Negotiations Update" letters issued by a Mathias
solicited and encouraged employees to decertify the Union and thus violate Section 8(a)(1). The
Respondent contends that it is entitled to communicate with its employees concerning its
position in collective-bargaining negotiations and that the two letters are protected by Section
8(c) of the Act.
In Armored Transport, the employer issued several letters disparaging the union and
invited the employees to rid themselves of the union. In its decision, the Board noted at 377:
The law is clear that an employer may not solicit its employees to circulate or
sign decertification petitions and may not threaten employees in order to
secure their support for such petitions. An employer may not provide more than
inisterial aid in the preparation or filing of the petition. The decision regarding
decertification and the responsibility to prepare and file a decertification petition
belongs solely to the employees. "Other than to provide general information
about the process on the employees’ unsolicited inquiry, an employer has no
legitimate role in the activity either to instigate or to facilitate it." Harding Glass
Co., 316 NLRB 985, 991 (1995), and cases cited therein.
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The Board found that by questioning the union's intentions and inviting its employees to
get rid of the union, the employer interfered in the relationship between the employees and their
representatives in violation of Section 8(a)(1). In so finding the Board noted that;
Although the letters did not expressly advise the employees to get rid of the
Union, such express appeals are not necessary to establish that an employer
effectively solicited decertification and thereby violated Section 8(a)(1) of the
Act. (Citation omitted.) Id. at 378.
In Process Supply Inc., 300 NLRB 756 (1990) the Board found that an employer violated
Section 8(a)(1) by sponsoring and assisting in the circulation of a decertification petition. In its
decision the Board noted at 758:
The law is clear that an employer must stay out of any effort to decertify an
incumbent union. After all, the employer is duty-bound to bargain in good faith
with that union. Although an employer may answer specific inquiries regarding
decertification, the Board has found unlawful an employer's assistance in the
circulation of such petition where the employees would reasonably believe that it
is sponsoring or instigating the petition.
In the instant case, Mathias did, in fact, expressly encourage employees to decertify the
Union and made it clear that the Respondent was completely and unequivocally supportive of
the decertification effort and therefore sponsored it. Applying the principles expressed above, I
find that by actively encouraging employees to decertify the Union and thus sponsoring the
effort, the Respondent violated Section 8(a)(1) of the Act. In so concluding I find that United
Technologies Corp., 269 NLRB 1069 (1984), relied on by the Respondent, to be distinguishable.
In that case, the employer issued bulletins to employees criticizing the union's demands and
tactics and setting forth its own version of the progress of negotiations. In finding that the
employer’s bulletins were protected by Section 8(c) the Board expressly noted that there was
nothing in the bulletins which indicated an attempt to bargain directly with employees or
encouraging them to abandon their representation. The Board further noted that the employer
acknowledged the union's rightful role as the employee's representative by urging them to
discuss the course of negotiations with union representatives. United Technologies Corp.,
supra, at 1074. In the instant case, the Respondent's letters contained much more than merely
the employer's version of what was occurring at bargaining, but rather also included an express
appeal to employees to rid themselves of union representation.33
E. The Alleged Johnnie’s Poultry Violations
Paragraphs 16(A through G) the complaint allege that the Respondent, through its
attorney, Ronald Mason, and supervisors Douglas Hicks, Chuck Long, and Brian Lennon
engaged in a series of actions from September 17, 2010 through September 22, 2010, which
violated Section 8(a)(1) of the Act. In summary, the Acting General Counsel alleges that the
Respondent's conduct did not comply with the Board's policy regarding the interrogation of
witnesses as set forth in the seminal case of Johnnie's Poultry Co., 146 NLRB 770 (1964) enf.

33 The Acting General Counsel has alleged the conduct in paragraph 15 of the complaint to
violate Section 8(a)(5) of the Act, in addition to violating Section 8(a)(1). As I have noted above,
I have found that the Respondent’s conduct in paragraphs 15(B), (C) and (D) violate Section 8
(a)(1) of the Act. The cases I have cited in finding those violations make it clear that the Board
traditionally views such conduct to violate only Section 8(a)(1). Accordingly, I dismiss the
complaint allegations that such conduct also violates Section 8(a)(5).
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denied 344 F.2d 617 (8th Cir. 1965) and its progeny. The Respondent contends that its conduct
complied with the safeguards of Johnnie’s Poultry.
In July and August 2010, Jerome Ivery had four or five conversations with Doug Hicks
regarding the Union and the ongoing unfair labor practice investigations. According to Hicks, on
these occasions Ivery approached him and complained about the Union and the lack of
progress in negotiations. Ivery also mentioned that statements in affidavits that he had given to
the NLRB Regional office were false and inaccurate. According to Hicks, Ivery told him that he
had come to realize he had not been treated unfairly by the Respondent. Long also testified in
the months before September 2010, Ivery told him that he had made false statements in
affidavits that he had given to the NLRB (Tr. 1903).
Ivery testified that he did not tell Hicks in these conversations that the affidavits he had
given to the NLRB were not true. Ivery indicated that he told Hicks that he felt different about
things at that time as compared to when he had given the affidavits and also stated "maybe I
could have handled things differently." Ivory also denied telling Long and he made statements
that were not true in his affidavits. Ivery admitted telling Long that he could have handled things
differently. When asked about his conversations with Long on cross-examination, Ivery stated:
You know, maybe some of the things that I, you know, that I said, you know,
didn't take place as far as you know, as far as being discriminated, when I looked
back at, you know when I looked back at it now, to back then. (Tr. 254-255)
I credit the testimony of Hicks and Long regarding these conversations to the extent that
their testimony conflicts with that of Ivery. In reaching this conclusion, I rely on the fact that an
audio recording of a meeting held between Brian Lennon, Hicks, Long, and Ivery on September
17, 2010, establishes that Ivery admitted that some of the information contained in his NLRB
affidavits was not true (R. Exh.19, pps.3–4). In addition, as noted above, on cross examination
Ivery gave rambling testimony that appears to indicate that during his conversations with Long,
Ivery admitted that some of his claims of discrimination "didn't take place."
After speaking with Long and Brian Lennon about what Ivery had said regarding his
NLRB affidavits, Hicks asked Ivery to attend a meeting with the three supervisors on September
17, 2010. As noted above, an audio recording of this meeting was made by Hicks.34 According
to the transcript of the recording, Hicks began the substantive part of the meeting by telling
Ivery:
All right I'll tell you what we asked you in here for. And I'll be straight forward to
you about it. It would like to meet with Ron Mason. Um, he's got some questions
he would like to ask you. And, um, you can pick the day, if you want it and we will
do it during the day – um, aah off-site. We will pay you for the day as if you were
here working. Um, and are you willing to do that.
Ivery then indicated that he had received a subpoena and did not even want to talk to
Susan Fernandez, the NLRB attorney. Hicks stated that if Ivery agreed to meet with Mason,
Ivery did not have to answer certain questions if he chose not to. Hicks also stated that Ivery
could end the meeting anytime he wanted to. Ivery expressed concerns about meeting with
Mason and making conflicting statements. Specifically Ivery stated:

34 A copy of this recording was given to counsel for the Acting General Counsel. The
Respondent prepared a transcript of the recording and the parties stipulated to the accuracy of
the transcript that was introduced into evidence as R. Exh. 19. The tape recording was also
introduced into evidence as R. Exh. 20.
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But what I am saying is what I said on, what I said in the affidavit and what they
are going to ask me on the stand, or whatever, I mean. You know cause like I
said, some of the stuff like I said, honestly, I mean you know, it wasn't true. You
know what I'm saying. Like I said I was kind of - that is going to kind of like put
me into a spot as far as perjury or something, isn't it?
Hicks indicated that he could not answer that. Ivery then asked if he could think about
their request that he meet with Mason.. All three supervisors agreed that Ivery could give some
thought to their request. Long stated:
And I think one being important thing to remember I think what the whole thing is
what I said are not going to be forced to answer anything. You know what I
mean. As far as if you do meet with him and he has a question if it is something
that you want to write it down or think about it or something and answer later or
something like that or whatever, you know that kind of thing. I mean, obviously
you are not obligated to do any, do anything. I mean it's not that your, you know,
this is, this is all voluntary from your end. You know what I'm saying, so, um, one
thing you know if he has a question that you're just not comfortable with
answering then, like Doug said, you know, you just say hey, you know I don't
know if I want to get into that, and you know, whatever, think about it or whatever
until a later date or something, you can always do that, so . . . (R. Exh. 19, p.4)
Hicks indicated that Ivery could take the weekend to think about it and let him know the
following Monday. Ivery replied "I really don't even want to deal with none of this crap. Man.”
Near the conclusion of the meeting Brian Lennon stated:
It’s, it's important, Jerome, we've all been here a long time. We all worked really
hard. We have all put a lot of work into this place and made at one of the best
diecast shops in the world. You know, and uh we want to keep going in that
direction, you know. So we want to we want to make this, want to make this a
good place. But, it's important, you know I'm not going to lie to you we obviously
certainly want you to do it, but um, you know it's your decision but it's, it's an
opportunity for you to definitely make a difference in all this. (R. Exh. 19, p.6)
On the following Monday, September 20, 2010, Ivery met with Long in his office.
According to Ivery, Ivery asked if he did not want to speak to Mason whether it would be held
against him. Ivery testified that Long replied "no, I wouldn't hold it against you personally, but I
don't know- don't know what other people would do, you know." (Tr. 152) Ivory then told Long
that he would meet with Mason.
Long confirmed that when Ivery spoke to him on September 20, Ivery asked him if it
would be held against him if he did not meet with Mason. According to Long, he told Ivery that it
would not be held against him.
On this particular point I credit Ivery. Thoroughout this decision, I have found the
testimony of both Ivery and Long to be credible regarding certain incidents and not credible
regarding others. On this point, however I find Ivery's version more believable. The transcript of
the September 17 meeting reflects the substantial desire of the participating Respondent
supervisors, particularly Lennon, to have Ivery cooperate with their request to meet with Mason.
I find it more plausible that Long answered Ivery's question about whether there would be any
repercussions if he refused to meet with Mason, in the manner in which Ivery relayed it. In
addition, Ivery’s demeanor while testifying on this point reflected certainty. Long’s demeanor
while testifying regarding this issue was not as impressive.
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Later in the afternoon on September 20, 2010, Ivery met with Mason, Mason’s associate
Aaron Tulencik, and Hicks at the Akron Municipal Airport.35 At the beginning of the meeting,
Mason read to Ivery his "Johnnie’s Poultry’s” rights. Mason then gave Ivery a document entitled
"Johnnie's Poultry Assurances" (R.Exh. 115) which set forth the following:
1. It was communicated to the witness that Mr. Mason and Mr. Tulencik were
conducting a fact-finding investigation on the employer’s a behalf and in preparation
to defend against the unfair labor practice charge(s) filed against the employer.
2. It was communicated to the witness that the witness did not have to talk to Mr.
Mason and Mr.Tulencik if he/she did not want to, and if the witness chose to talk,
he/she could refrain from answering any particular question if he/she did not want to
answer that question.
3. It was communicated to the witness that answering questions and engaging in
dialogue with Mr. Mason and Mr. Tulencik was strictly voluntary.
4. It was communicated to the witness that no reprisal would occur to the witness if
he/she chose not to answer any of the questions.
5. It was communicated to the witness that the questioning must occur, and that it is
both Mr. Mason's and Mr. Tulencik’s intent that questioning occurs in a context free
from employer hostility to union organizing and that said questioning cannot be
coercive in nature.
6. It was communicated to the witness that the questions by Mr. Mason and/or
Mr.Tulencik cannot exceed the necessities of the legitimate purpose of the
investigation by prying into other union matters, eliciting information concerning an
employee's subjective state of mind, or otherwise interfering with the statutory rights
of the employees.
Ivery signed and dated the document after the acknowledgment section indicating that
he had read and understood the assurances and had been given an opportunity to discuss
them. Before Mason began taking an affidavit from Ivery, Mason told Ivery that this was not the
first time that he had taken an affidavit from an employee who had recanted previous testimony
and that, in his experience, three things could occur.36 The first possibility would be that counsel
for the Acting General Counsel could possibly decide not to call Ivery as a witness. The second
was that Ivery may be called as a witness only to introduce the affidavits he had already given
and the third was that Ivery may be asked to give another affidavit.
While giving his affidavit, Ivery had some difficulty recalling dates. Mason told Ivery that
he could not ask him for his prior affidavits, but that he asked Ivery to review those affidavits in
order to verify dates. Ivery volunteered to give Mason his NLRB affidavits.37

35 Tulencik, Mason, and Hicks all testified in a mutually corroborative manner regarding this
meeting and I credit their testimony to the extent it conflicts with Ivery's. In particular, I found
Tulencik’s testimony to be persuasive. He testified in a concise and straightforward manner and
his demeanor was forthright and sincere. On the other hand, Ivery's testimony regarding this
meeting was somewhat disjointed and, while I believe he made a sincere effort to be truthful, I
find the recollection of the Respondent’s witnesses to be more reliable.
36 Mason testified that prior to the meeting he had listened to the audio tape of the
September 17 meeting and was aware that Ivery was concerned about the truthfulness of some
of the statements in his prior NLRB affidavits.
37 Ivery’s testimony confirms that he volunteered to produce his prior NLRB affidavits to
Mason.
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Ivery's affidavit of September 20, 2010, ( R. Exh. 115) covered some circumstances
regarding his work assignments after March 2009. The affidavit concludes with the following two
paragraphs:
There were many people put in other jobs just to try to help get the work done.
In reflection upon all these other people who were doing different assignments, I
no longer believe that I was singled out or treated differently than any other
employee. I no longer believe that these changes to my work were in any way
related to the Union
After Ivery finished his affidavit, he asked Mason what the NLRB could do with the
petition that Dan Owens was circulating. Mason told Ivery that it did not matter what the NLRB
did with Owens petition because there was already a decertification petition that had been filed
with the NLRB. Mason added that the Respondent could not stop employees from circulating a
petition. Then Ivery stated "not me” and laughed. Ivery also mentioned that he had heard a
rumor that the Union was going to "pull out" after the trial because support had died. Mason said
that the Respondent had heard the same rumor but had no direct knowledge of it. Mason told
Ivery that at the last negotiation session, Bornstein had laid some union hats on the table and
said employees would no longer wear them and that support was dying.
Mason also told Ivery that because he had given conflicting affidavits, Mason strongly
suggested that Ivery retain an attorney to represent him before the NLRB as an attorney would
"stand in between" Ivery and the NLRB. Ivery replied that he was sick and tired of all of this and
he did not want to speak with anyone, including counsel for the Acting General Counsel.
After Ivery left, Tulencik reviewed the complaint in this proceeding and determined that
the dates in Ivery's affidavit did not match the complaint allegations regarding more onerous
work being assigned to him. Hicks called Ivery and then handed the phone to Mason. Mason
told Ivery that a review of the complaint revealed that the dates in his affidavits and those in the
complaint did not match. Ivery again offered to give Mason his prior NLRB affidavits. Mason
asked Ivery to give the NLRB affidavits to Hicks who would then furnish them to Mason.
According to Ivery's uncontroverted testimony, on September 21, 2011, Hicks asked
Ivery if he had brought in his NLRB affidavits. Ivery replied that he was unable to find them. On
Wednesday, September 22, 2010, Long advised Ivery that Mason wished to speak to him again.
When Ivery asked "what's wrong" Long said Mason wanted to verify the dates. Ivery agreed to
meet with Mason again. Ivery testified he left work at 2:30 p.m. before the end of his shift at 3
p.m. Long told Ivery that the Respondent would pay him for the rest of the shift.
Ivery met again with Mason on September 22, 2010, at the Akron Municipal Airport at
approximately 3 p.m. Tulencik and Hicks were present at this meeting but neither of them
testified at the hearing regarding what occurred; rather only Ivery and Mason testified regarding
this meeting. It is uncontroverted that at the beginning of the meeting, Mason again read Ivery
his "Johnnie's Poultry rights" and Ivery again signed a written form that recited those rights.
Mason then took another affidavit from Ivery regarding the allegation in the complaint regarding
more onerous work duties being assigned Ivery.
Mason testified that while taking the affidavit, he learned from Ivery that Fernandez had
spoken to Ivery after the September 20 meeting between Ivery and Mason. According to Mason,
Ivery told him that Fernandez asked Ivery whether he had spoken to Mason and Ivery indicated
to her that he had spoken to Mason on the phone. Mason further testified that Ivery relayed to
him that Fernandez had asked whether Mason had given him his “rights” and Ivery had told her
"no". Mason testified that Ivery told him that when Ivery was asked by Fernandez if he had a
conversation with Mason before he was called on the telephone by Hicks, Ivery told Fernandez
that he had not.
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Ivery testified that while Mason was taking his statement, Mason asked him how he now
felt about the unfair labor practice charge regarding his work assignments. Ivery testified that he
told Mason that at the time the charge was filed he felt that he was being assigned harder work
duties, but that at the present time, he felt that "maybe they was just trying to run the company,"
(Tr. 178.). Ivery testified that Mason had asked him whether he had spoken to Ms. Fernandez
since the September 20 meeting between Ivery and Mason, and Ivery indicated that he had.
Ivery testified on cross-examination at the hearing that he has spoken to Fernandez about both
the in-person meeting between Mason and Ivery on September 20 and the phone conversation
that he had with Mason shortly after the meeting.
With regard to the conflict in the testimony between Ivery and Mason regarding the
September 22 meeting, I credit Ivery for the most part. His testimony on the major parts of this
meeting was consistent on both direct and a vigorous cross examination.38 Importantly, his
testimony is more inherently plausible. As noted above, Mason testified that Ivery relayed to him
that Ivery had told Fernandez that Mason had not given him his “Johnnie’s Poultry rights” at the
September 20 meeting. Ivery struck me as being a reasonably intelligent individual and I simply
do not believe that he told Mason that he denied to Fernandez that he had been apprised of
those rights, when he had signed a document where those rights were clearly set forth the day
before.
In Johnnie’s Poultry Co., 146 NLRB 770 (1964) enf. denied 344 F.2d 617 (8th Cir. 1965) the
Board noted that despite the inherent danger of coercion, the Board and the courts have
permitted an employer the privilege of interrogating its employees on matters involving their
Section 7 rights. As germane here, this right is limited to the investigation of facts regarding
issues raised in the complaint when it is necessary in preparing an employer's defense. Id. at
774–775. In Johnnie's Poultry the Board established the following specific safeguards to
minimize the coercive impact of such employer interrogations:
[T]he employer must communicate to the employee the purpose of the
questioning, assure him that no reprisal will take place, and obtain his
participation on a voluntary basis; the questioning must occur in a context
free from employer hostility to union organization and must not be itself
coercive in nature; and the questions must not exceed the necessities of
the legitimate purpose by prying into other union matters or eliciting
information concerning an employee's subjective state of mind, or
otherwise interfering with the statutory rights of employees.
In defining the area of permissible inquiry the Board has generally found
coercive, and outside the ambit of privilege, interrogation concerning
statements or affidavits given to a Board agent. (Citations omitted) Id. at
775.
Applying these principles to the instant case, I find that at the September 17, 2010,
meeting held between Hicks, Long, Brian Lennon, and Ivery, the Respondent coercively
requested Ivery to meet with Mason regarding Ivery's upcoming testimony. A review of the
transcript of this meeting reveals that the Respondent supervisors did not comply with some of
the basic provisions of the Board's decision in Johnnie's Poultry. At this meeting it was not

38 On direct examination, Ivery testified that Mason mentioned the possibility of retaining a
lawyer at the September 22 meeting. On cross examination, however, Ivery indicated this
discussion had taken place on September 20. Since his cross-examination testimony is in
accordance with that of all three of the Respondent’s witnesses, I find, as indicated above, that
this discussion took place at the meeting held September 20.
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clearly communicated to Ivery that the purpose of requesting him to meet with Mason was
because it was necessary for the preparation of the Respondent's defense at trial. In addition,
the transcript of the meeting does not reflect that Ivery was specifically advised that no reprisals
would take place if he refused the request to cooperate. In Freeman Decorating Co., 336 NLRB
1, 14 (2001) the Board noted that it has generally taken a bright-line approach in enforcing the
requirement of Johnnie's Poultry that an employee be assured that no reprisals would take
place for refusal to cooperate. Finally, since by the time this meeting took place in September
2010, the Respondent had committed a number of violations of Section 8(a)(5), (3) and (1) of
the Act as set forth earlier. Thus, the interview with Ivery did not occur in a context free of
employer hostility to the Union. The record in this case establishes that the Respondent
harbored substantial animosity toward its employees’ exercise of their Section 7 rights.
Accordingly, I find that the Respondent's September 17, 2010, request for Ivery to meet with
Mason violated Section 8(a)(1) of the Act as alleged in paragraph 16(A) of the complaint.
As noted above, I have found that Long told Ivery on September 22, 2010, in response
to Ivery's question regarding what would happen if he did not cooperate with the Respondent's
request, that Long would not personally hold it against him, but he did not know what other
people would do. It is clear that by the statement, Long implied that he could not be sure that
Brian Lennon or Hicks would not hold a refusal to cooperate against Ivery. Accordingly, I find
that the Respondent, through Long, violated Section 8(a)(1) of the Act, as alleged in paragraph
16(B) of the complaint, by impliedly threatening Ivery with retaliation if he did not accede to the
Respondent's request that he meet with Mason.
Paragraph 16(C) of the complaint alleges that on September 20, 2011, Respondent
violated Section 8(a)(1) of the Act by coercively interrogating an employee (Ivery) "about his
current views of his unfair labor practice charge with the Board compared to his view at the time
he filed a charge." It is clear from the portion of Ivery's affidavit quoted above that he was asked
about his subjective state of mind about the events in question during the interview. Johnnies
Poultry specifically precludes questions that elicit information concerning an employee's
subjective state of mind. In addition, Mason’s interrogation of Ivery also did not occur in the
context free from employer hostility to union organization. In Johnnie's Poultry, the Board used
mandatory language in describing this particular safeguard by stating "the questioning must
occur in the context free from employer hostility to union organization . . ." Accordingly, I find
that the Respondent violated Section 8(a)(1) of the Act in conducting the September 20, 2011,
interrogation of Ivery.
Paragraph 16(D) of the complaint alleges that the Respondent, through Mason, at the
September 20, 2010, meeting sought to create a sense of futility about the Union and the
employee's testimony before the Board by falsely stating that the Union's president told Mason
that the Union intended to disclaim its interests in the unit once the hearing was over.
According to the credited testimony, at the September 20, 2010, meeting Ivery
mentioned that he had heard a rumor that the Union was going to "pull out" after the trial
because support had died. Mason replied that the Respondent had heard the same rumor but
had no direct knowledge of it. Mason added that at the last negotiating meeting, Bornstein had
laid some union hats on the table and said that employees were no longer wearing them and
that support was dying.
I find that Mason’s statements did not violate Section 8(a)(1) of the Act and I shall
dismiss this allegation of the complaint. Mason’s statement is neither a threat nor promise. At
most, it is a misrepresentation of a statement made by Bornstein and misrepresentations do not
violate the Act.
Paragraph 16(E) and (F) of the complaint allege that the Respondent coercively
requested that an employee (Ivery) provide the Respondent with a copy of the affidavit that he
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provided to the Board. It is an undisputed fact that Ivery was not asked to provide his Board
affidavit to the Respondent but rather volunteered to do so. Accordingly, I shall dismiss this
allegation of the complaint.
Paragraph 16(G) of the complaint alleges that "on or about September 22, 2010,
Respondent, by its attorney, Ronald Mason, at the Akron Municipal Airport, coercively offered to
arrange for an employee to have legal counsel with respect to the administrative hearing in
these matters by stating that the employee need not speak with counsel for the General
Counsel and implying that the employee might not be called as a witness by counsel for the
General Counsel if he did not retain independent counsel.
Based on the credited testimony, I find that it was at the meeting held on September 20,
2010, that Mason suggested to Ivery that he retain an attorney to represent him before the
NLRB because of the conflicting statements in his affidavit. I find that Mason's suggestion to
Ivery did not violate the Act. At the time Mason’s statement was made, Ivery appears to have
given somewhat conflicting statements regarding his work duties and had clearly indicated
concerns regarding his differing accounts. Under these circumstances, I do not find Mason’s
suggestion to be coercive. I find S. E. Nichols, Inc., 284 NLRB 556 (1987), relied on by the
Acting General Counsel, to be distinguishable. In that case, one of the employer's managers
told employees that a Board agent might want to interview them and that if they needed
protection, he would get his lawyer to sit in on the meeting. The Board noted that the action of
the employer created the implication that employees might need protection. The Board noted
that there was no way that the interview could result in any legal detriment to any employee.
The Board found that the employer's indication that the employees might need counsel would
tend to dissuade them from cooperating with the Board's investigation. The Board also noted
that the employer offered the services of its own attorney. Under these circumstances, the
Board found the employer's action to be a violation of Section 8(a)(1). Id., at 580–581. In the
instant case, Ivery himself had indicated some concerns about conflicting statements he had
made and whether or not this would cause him some form of legal jeopardy. In addition, Mason
did not offer to represent Ivery himself but merely advised him that he may want to secure
independent counsel. Accordingly I shall dismiss this allegation of the complaint.
F. Additional Allegations Regarding the September 2010 Meetings with Ivery.
Paragraph 15(E) of the complaint alleges that on September 20, 2010, the Respondent,
through Mason, violated Section 8(a)(5) and (1) by coercively seeking to induce an employee to
assist in the campaign to decertify the Union.
According to the credited testimony, on September 20, 2010, Ivery asked Mason what
the NLRB would do with the petition that Dan Owens was circulating throughout the plant.
Mason stated to Ivery that it did not matter what the NLRB did with Owens’ petition as a prior
petition had been filed. Mason added that the Respondent could not stop employees from
circulating the petition. Ivery stated "not me” and laughed. I find that Mason's statement, viewed
objectively, is insufficient to base a conclusion that he was seeking to induce Ivery to assist in
decertifying the Union. Accordingly I shall dismiss this allegation of the complaint.
Paragraph 15(F) alleges that on September 22, 2010, the Respondent violated Section
8(a)(5) and (1) by prematurely ending the bargaining session so that the Respondent could
engage in conduct that interfered with an employee's Section 7 rights.
The parties’ September 22, 2010, bargaining meeting began at approximately 10:30
a.m. and was scheduled to last until 5 p.m. At approximately 2:30 p.m. Mason advised
Bornstein that something had come up and he would not be able to stay until 5 p.m. (R. Exh.
198). Mason left the meeting to meet with Ivery to take a second affidavit in preparation for the
upcoming trial.
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The parties have had over 60 bargaining meetings. There is no evidence of the
Respondent canceling meetings or leaving meetings early on a regular basis. Mason's leaving
one meeting early to take another affidavit from Ivery does not constitute a separate violation of
the Act. The Board has held that the cancellation of one meeting during the course of lengthy
negotiations does not establish a violation of Section (8)(a)(5) and (1) of the Act. SCA Services
of Georgia, Inc. 275 NLRB 830, 834 (1985). Accordingly, I shall dismiss this allegation of the
complaint.
Conclusions of Law
1. The Union is, and at all material times, was the exclusive bargaining representative
of the employees in the following appropriate unit:
All full-time and regular part-time production and maintenance employees,
including all cast set-up employees, cast operators, re-melt employees, trim set-
up and stock employees, trim and utility process technicians, toolroom
employees, quality assurance employees, truck drivers, janitorial employees,
machine operators, sanders/blasters, shippers, safety coordinators, and all shift
leads employed by the Employer at its facilities located at 2150 Highland Rd.,
Twinsburg, OH, and 6212 Akron Peninsula Road, Peninsula, Ohio, but excluding
all office clerical employees, professional employees, and all guards and
supervisors as defined in the Act.
2. The Respondent has engaged in unfair labor practices in violation of Section 8(a)(5)
and (1) of the Act by:
(a) unilaterally ceasing merit wage increases from February to December 2009;
(b) unilaterally delaying the granting of wage increases;
(c) unilaterally laying off employees at its Twinsburg Ohio facility on or about March
9,2009;
(d) unilaterally shutting down its Twinsburg, Ohio facility on March 5 and April 10, 2009
and its Peninsula facility on April 10, 2009;
(e) unilaterally implementing an expansion of its work rule on the defacement/destruction
of company property on April 3, 2009;
(f) enforcing the unilaterally expanded work rule regarding the defacement/destruction of
company property, including discharging Kevin Maze pursuant to this rule;
(g) unilaterally implementing a new work rule which required all machine operators to
rotate working on different machines;
(h) unilaterally recalling employees in June 2009;
(i) unilaterally establishing terms and conditions of employment regarding the payment of
health insurance premiums;
(j) unilaterally implementing its proposal on recalling employees on September 10,
2009in the absence of a lawful impasse;
(k) bypassing the Union and dealing directly with employees regarding shift schedules;(l)
unilaterally recalling employees on or about September 15, 2009, in the absence of a
lawful impasse;
(m) unilaterally employing temporary employees while unit employees were laid off;
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(n) failing to provide relevant and necessary information to the Union regarding the
names non-unit employees who were laid off in April and May 2009, and the names
of the laid-off employees who received vacation pay and those that did not.
3. The Respondent has engaged in unfair labor practices in violation of Section 8(a)(3)
and (1) of the Act by:
(a) enforcing the expanded work rule on defacement/destruction of company property by
discharging Kevin Maze, because Maze and other employees engaged in union
activity and in order to discourage employees from engaging in that activity;
(b) discharging Willie Smith because Smith and other employees engaged in union
activity and in order to discourage employees from engaging in that activity;
(c) failing to pay Emil Stewart for attending a meeting during working hours that the
Respondent directed him to attend because Stewart and other employees engaged
in union activity and in order to discourage employees from engaging in that activity.
4. The Respondent has engaged in unfair labor practices in violation of Section 8(a)(1)
of the Act by:
(a) soliciting employees to sign a petition to decertify the Union;
(b) informing employees that it would be more willing to address wages with the
employees if the Union no longer represented them;
(c) threatening employees with plant closure and the loss of jobs because of their
support for the Union;
(d) sponsoring and actively encouraging employees to decertify the Union;
(e) coercively interrogating employee witnesses in upcoming NLRB proceedings in
violation of their rights guaranteed by Section 7 of the Act;
(f) impliedly threatening employees with retaliation if they did not accede to its request to
meet with the Respondent's attorney regarding an upcoming NLRB proceeding.
5. The above unfair labor practices affect commerce within the meaning of Section 2(2),
(6) and (7) of the Act.
6. The Respondent has not otherwise violated the Act.
Remedy
Having found that the 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.
Since the Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally
withholding wage increases from approximately February to December 2009 and by delaying
the granting of wage increases from the date of a merit review until a time approximately 2
months afterward, the Respondent must make whole the affected employees in the bargaining
unit described above for the increases they would have received, by payment to them of the
difference between their actual wages and the wages they would have otherwise received. The
amount shall be computed on a quarterly basis in the manner set forth in F. W. Woolworth Co.,
90 NLRB 289 (1950); with interest at the rate prescribed in New Horizons for the Retarded,
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Inc., 283 NLRB 1173 (1987); compounded daily as prescribed in Kentucky River Medical
Center, 356 NLRB No. 8 (2010).
Since the Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally laying off
employees, including, but not limited to Terrance Hemphill, Raymond Ferry, Brandon Asberry,
Walter Wood, Jerry Duenda, and Walter Holland at its Twinsburg, Ohio facility, on or about
March 9, 2009, it must offer those employees immediate and full reinstatement to their former
jobs, or if those jobs no longer exist, to substantially equivalent positions, without prejudice to
their seniority or other rights. The Respondent shall also make whole these employees for any
loss of earnings and other benefits they may have suffered by reason of its unilateral action.
Backpay shall be computed in the manner set forth in F. W. Woolworth Co., 90 NLRB 289
(1950); with interest at the rate prescribed in New Horizons for Retarded, Inc., 283 NLRB 1173
(1987); compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB No. 8
(2010).
Since the Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally shutting
down its Twinsburg Ohio facility on March 5 and April 10, 2009, and the Peninsula facility on
April 10, 2009, the Respondent must make employees whole for any loss of earnings and other
benefits they may have suffered by reason of its unilateral action. Backpay shall be computed in
the manner set forth in F. W. Woolworth Co., 90 NLRB 289 (1950); with interest at the rate
prescribed in New Horizons for Retarded, Inc., 283 NLRB 1173 (1987); compounded daily as
prescribed in Kentucky River Medical Center, 356 NLRB No. 8 (2010).
Since the Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally recalling
employees in June and September 2009, it must make whole any adversely affected employees
for any loss of earnings or other benefits they may have suffered by reason of its unilateral
action. See Allen W. Bird II, Caravelle Boat Co., 227 NLRB 1355 (1977). Backpay shall be
computed in the manner set forth in F. W. Woolworth Co., 90 NLRB 289 (1950); with interest at
the rate prescribed in New Horizons for Retarded, Inc., 283 NLRB 1173 (1987); compounded
daily as prescribed in Kentucky River Medical Center, 356 NLRB No. 8 (2010).
Since the Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally
establishing the terms and conditions of employment with regard to the payment of health
insurance premiums for the three employees recalled in June 2009, the Respondent must void
payroll deductions forms that those employees executed in June 2009. In addition the
Respondent shall reimburse the employees for any amounts they paid pursuant to the execution
of such forms. The reimbursement to employees shall be as set forth in Kraft Plumbing & and
Heating, 252 NLRB 891 (1980) enfd. 661 F.2d 940 (9th Cir. 1981); with interest at the rate
prescribed in New Horizons for Retarded, Inc., 283 NLRB 1173 (1987); compounded daily as
prescribed in Kentucky River Medical Center, 356 NLRB No. 8 (2010).
Since the Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally
employing temporary employees while unit employees were laid off, it must make whole any
adversely affected employees for any loss of earnings and other benefits they may have
suffered by reason of which unilateral action. Backpay shall be computed in the manner set
forth in F. W. Woolworth Co., 90 NLRB 289 (1950); with interest at the rate prescribed in New
Horizons for Retarded, Inc., 283 NLRB 1173 (1987); compounded daily as prescribed in
Kentucky River Medical Center, 356 NLRB No. 8 (2010).
Since the Respondent violated Section 8 (a)(5) (3) and (1) by unlawfully and
discriminatorily discharging employee Kevin Maze and violated Section 8(a)(3) and (1) of the
Act by discriminatorily discharging employee Willie Smith, I shall order it to offer them full and
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immediate 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 and privileges
previously enjoyed, and to make them whole for any loss of earnings and other benefits suffered
as a result of the unlawful discrimination against them. Backpay shall be computed in the
manner set forth in F. W. Woolworth Co., 90 NLRB 289 (1950); with interest at the rate
prescribed in New Horizons for Retarded, Inc., 283 NLRB 1173 (1987); compounded daily as
prescribed in Kentucky River Medical Center, 356 NLRB No. 8 (2010).
Since the Respondent violated Section 8(a)(3) and (1) of the Act by discriminatorily
refusing to pay employee Emil Stewart for attending an assigned meeting, it must make him
whole for any loss of earnings or other benefits he may have suffered by reason of its
discriminatory action. Backpay shall be computed in the manner set forth in F. W. Woolworth
Co., 90 NLRB 289 (1950); with interest at the rate prescribed in New Horizons for Retarded,
Inc., 283 NLRB 1173 (1987); compounded daily as prescribed in Kentucky River Medical
Center, 356 NLRB No. 8 (2010).
In both the complaint and the brief, the Acting General Counsel seeks the additional
remedy “that any Notice to Employees issued in this matter that addresses paragraph 15 of the
Complaint be read to employees by Respondent’s president.” (Acting General Counsel’s brief,
p.93, fn.52.) While the Respondent’s unfair labor practices are serious, the Board has typically
ordered that the notice be read by an employer's president when that individual was directly and
personally involved in many of the unfair labor practices. Homer D. Bronson Co., 349 NLRB
512, 515 (2007); Domsey Trading Corp., 310 NLRB 777, 779–780 (1993). In the instant case,
the record establishes that the Respondent's president during the material time, Thomas
Lennon, retired in August 2010. There is no evidence of his involvement in any of the unfair
labor practices I have found were committed based on the allegations contained in paragraph
15. The only unfair labor practice that he was personally involved with was the discharge of
Willie Smith. I further note that the record does not indicate who presently occupies the position
of the Respondent's president. The allegations of paragraph 15 of the complaint involve
principally the Respondent's involvement in the decertification petition that was circulating at its
facilities in April and May 2010. The Board utilizes the traditional remedies to address violations
of this type. Armored Transport Inc., 339 NLRB 374 (2003); Process Supply Inc., 300 NLRB 756
(1990); Fritz Companies, Inc. 330 NLRB 1296 (2000). After considering all the circumstances, I
find that the Board's traditional remedies are sufficient to address the violations found in this
case. See Alstyle Apparel, 351 NLRB 1287 (2007). Accordingly, I deny the Acting General
Counsel's request.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended
ORDER
The Respondent, General Die Casters Inc., its officers, agents, and representatives,
shall
1. Cease and desist from
(a) Unilaterally ceasing merit wage increases.
(b) Unilaterally delaying the time period for the granting of wage increases after a merit
review.
(c) Unilaterally laying off unit employees.
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(d) Unilaterally shutting down its facilities for 1 day.
(e) Unilaterally implementing an expansion of its work rule on the
defacement/destruction of company property.
(f) Enforcing the unilaterally expanded work rule regarding the defacement/destruction
of company property by discharging or otherwise disciplining employees pursuant to
this rule.
(g) Unilaterally implementing a new work rule requiring all machine operators to rotate
among different machines.
(h) Unilaterally recalling employees in the absence of a lawful impasse.
(i) Unilaterally establishing terms and conditions of employment regarding the payment
of health insurance premiums for recalled employees.
(j) Bypassing the Union and dealing directly with employees regarding shift schedules.
(k) Unilaterally employing temporary employees while unit employees are laid off.
(l) Failing to provide relevant and necessary information to the Union regarding the
names of nonunit employees who were laid off in April and May 2009, and the
names of the laid-off unit employees who received vacation pay and those that did
not.
(m) Discharging or otherwise discriminating against employees for engaging in union or
other protected concerted activities.
(n) Refusing to pay employees for attending an assigned meeting because they
engaged in union or other protected concerted activities.
(o) Soliciting employees to sign a petition to decertify the Union.
(p) Informing employees that it would be more willing to address wages with employees
if the Union no longer represented them.
(q) Threatening employees with plant closure in the loss of jobs because of their
support for the Union.
(r) Sponsoring a decertification petition by posting, and mailing to employees, letters
encouraging a decertification effort.
(s) Coercively interrogating employee witnesses in NLRB proceedings in violation of
their rights guaranteed by Section 7 of the Act.
(t) Impliedly threatening employees with retaliation if they do not agree to its request to
meet with the Respondent's attorney regarding an upcoming NLRB proceeding.
(u) In any like or related manner, interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Give notice and an opportunity to bargain to the Union regarding the cessation of
wage increases and any delay in the time period for granting wage increases after a merit
review. The appropriate unit is:
All full-time and regular part-time production and maintenance employees,
including all cast set-up employees, cast operators, re-melt employees, trim set-up and
stock employees, trim and utility process technicians, toolroom employees, quality
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assurance employees, truck drivers, janitorial employees, machine operators,
sanders,/blasters, shippers, safety coordinators, and all shift leads employed by the
Employer at its facilities located at 2150 Highland Rd., Twinsburg, OH, and 6212 Akron
Peninsula Road, Peninsula, Ohio, but excluding all office clerical employees,
professional employees, and all guards and supervisors as defined in the Act.
(b) Make whole employees for any loss of pay suffered by them by reason of the
Respondent's unilateral action in ceasing wage increases from February to December 2009,
and delaying the time period for granting wage increases after a merit review in the manner set
forth in the remedy section of the decision.
(c) On request, bargain with the Union regarding the decision to lay off employees,
including but not limited to Terrance Hemphill, Raymond Ferry, Brandon Asberry, Walter Wood,
Jerry Durenda, and Walter Holland at its Twinsburg, Ohio facility, who were laid off on or about
March 9, 2009.
(d) Within 14 days from the date of the Board's order, offer employees including, but not
limited to, Terrance Hemphill, Raymond Ferry, Brandon Asberry, Walter Wood, Jerry Durenda,
and Walter Holland 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.
(e) Make whole employees, including but not limited to, Terrance Hemphill, Raymond
Ferry, Brandon Asberry, Walter Wood, Jerry Durenda, and Walter Holland for any loss of
earnings and other benefits suffered as a result of the unilateral action against them, in the
manner set forth in the remedy section of the decision.
(f) Make whole employees for any loss of pay or other benefits suffered by them by
reason of the Respondents unilateral action in shutting down its facilities for 1 day, in a manner
set forth in the remedy section of the decision.
(g) Rescind the April 3, 2009, expansion of its work rule on the defacement/destruction
of company property, and bargain with the Union about any future implementation of any such
rule.
(h) On request by the Union, rescind the work rule requiring all machine operators to
rotate among different machines, and bargain with the Union about any future implementation of
any such rule.
(i) On request by the Union, bargain with the Union regarding the employees recalled in
June and September 2009.
(j) Make whole adversely affected employees for any loss of pay or other benefits they
may have suffered by reason of the Respondent's unilateral action in recalling employees in
June and September 2009, in the manner set forth in the remedy section of the decision.
(k) Notify and, on request, bargain with the Union regarding collecting money from
recalled employees on any outstanding balance for insurance premiums.
(l) Void the payroll deduction forms that recalled employees executed in June, 2009,
regarding the payment of health insurance premiums.
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(m) Make whole the three employees recalled in June 2009, for any money they paid for
health insurance premiums pursuant to the payroll deduction form they executed, in the manner
set forth in the remedy section of the decision.
(n) Give notice and an opportunity to bargain to the Union before employing temporary
employees while unit employees are laid off.
(o) Make whole any employees adversely affected for a loss of pay or other benefits they
may have suffered by reason of the Respondents unilateral action in employing temporary
employees while unit employees were laid off in October 2009, in the manner set forth in the
remedy section of the decision.
(p) Provide to the Union the information it requested regarding the names of nonunit
employees who were laid off in April and May 2009, and the names of the laid-off employees
who received vacation pay and those that did not.
(q) Within 14 days from the date of the Board’s Order, offer Kevin Maze and Willie Smith
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.
(r) Make Kevin Maze and Willie Smith whole for any loss of earnings and other benefits
suffered as a result of the discrimination against them, in the manner set forth in the remedy
section of the decision.
(s) Within 14 days from the date of the Board’s Order, remove from its files any
reference to the unlawful discharges of Kevin Maze and Willie Smith, and within 3 days
thereafter notify the employees in writing that this has been done and that the discharges will
not be used against them in any way.
(t) Make Emil Stewart whole for any loss of earnings and other benefits suffered as a
result of the discrimination against him in the manner set forth in the remedy section of the
decision.
(u) 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”.
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(v) Within 14 days after service by the Region, post at facilities in Peninsula and
Twinsburg, Ohio, copies of the attached notice marked “Appendix.”39 Copies of the notice, on
forms provided by the Regional Director for Region 8 after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent and maintained for 60
consecutive days in conspicuous places including all places where notices to employees are
customarily posted. In addition to physical posting of paper notices, notices shall be distributed
electronically, such as by email, posting on an intranet or an internet site, and/or other electronic
means, if the Respondent customarily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or closed any facility involved in these
proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed by the Respondent at any time since
February 1, 2009.40
(w) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
(x) IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.
Dated, Washington, D.C., May 2, 2011.
____________________
Mark Carissimi
Administrative Law Judge

39 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.”
40 See J. Picini Flooring, 356 NLRB No. 9 (2010).
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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 unilaterally cease merit wage increases and delay the granting of wage
increases after a merit review. The appropriate unit represented by Teamsters Local 24 a/w
International Brotherhood of Teamsters (the Union) is:
All full-time and regular part-time production and maintenance employees,
including all cast set-up employees, cast operators, re-melt employees, trim set-up and
stock employees, trim and utility process technicians, toolroom employees, quality
assurance employees, truck drivers, janitorial employees, machine operators,
sanders/blasters, shippers, safety coordinators, and all shift leads employed by the
Employer at its facilities located at 2150 Highland Rd., Twinsburg, OH, and 6212 Akron
Peninsula Road, Peninsula, Ohio, but excluding all office clerical employees,
professional employees, and all guards and supervisors as defined in the Act.
WE WILL NOT unilaterally lay off employees.
WE WILL NOT unilaterally shut down our facilities for one day.
WE WILL NOT unilaterally expand our work rule on the defacement/destruction of company
property.
WE WILL NOT enforce the unilaterally expanded work rule regarding the
defacement/destruction of company property by discharging employees pursuant to this rule.
WE WILL NOT unilaterally implement a new work rule requiring all machine operators to rotate
working on different machines.
WE WILL NOT unilaterally recall employees in the absence of a lawful impasse.
WE WILL NOT bypass the Union and deal directly with employees regarding shift schedules.
WE WILL NOT unilaterally employ temporary employees while unit employees are laid off.
WE WILL NOT fail to provide relevant and necessary information to the Union.
WE WILL NOT discharge or otherwise discriminate against employees for engaging in union
activity.
WE WILL NOT fail to pay employees for attending assigned meetings because they engaged in
union activities.
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WE WILL NOT solicit employees to sign a petition to decertify the Union.
WE WILL NOT inform employees that we would be more willing to address wages with them if
the Union no longer represent them.
WE WILL NOT threaten employees with plant closure and the loss of jobs because of their
support for the Union.
WE WILL NOT sponsor a decertification petition by posting, and mailing to employees, letters
encouraging a decertification effort.
WE WILL NOT coercively interrogate employee witnesses in NLRB proceedings in violation of
their rights guaranteed by Section 7 of the Act.
WE WILL NOT impliedly threatened employees with retaliation if they do not agree with our
request to meet with our attorney regarding an NLRB proceeding.
WE WILL NOT in any like or related manner restrain or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL give notice and an opportunity to bargain to the Union regarding a cessation of wage
increases and any delay in the time period for granting wage increases after a merit review.
WE WILL, on request, bargain with the Union regarding the decision to lay off employees,
including, but not limited to Terrance Hemphill, Raymond Ferry, Brandon Asberry, Walter Wood:
Jerry Durenda, and Walter Holland at the Twinsburg facility, who were laid off on or about
March 9, 2009.
WE WILL within 14 days from the date of the Board's order, offer employees including, but not
limited to Terrance Hemphill, Raymond Ferry, Brandon Asberry, Walter Wood: Jerry Durenda,
and Walter Holland immediate and 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.
WE WILL make whole employees including, but not limited to Terrance Hemphill, Raymond
Ferry, Brandon Asberry, Walter Wood: Jerry Durenda, and Walter Holland for any loss of
earnings and other benefits suffered as a result of our unlawful action against them, with interest
WE WILL make whole employees for any loss of pay or other benefits suffered by them by
reason of our unilateral action in shutting down our facilities for one day, with interest.
WE WILL rescind the April 3, 2009 expansion of our work rule on the defacement/destruction of
company property, and bargain with the Union about any future implementation of any such
rule.
WE WILL, on request by the Union, rescind the work rule requiring all machine operators to
rotate among different machines, and bargain with the Union about any future implementation of
any such rule.
WE WILL, upon request by the Union, bargain with it regarding the employees unilaterally
recalled in June and September 2009.
WE WILL make whole any adversely affected employees for any loss of pay or other benefits
they may have suffered by reason of our unilateral action in recalling employees in June and
September 2009, with interest.
WE WILL notify and, on request, bargain with the Union regarding collecting money from
recalled employees for an outstanding balance for insurance premiums.
WE WILL void the payroll deduction forms that recalled employees executed in June 2009,
regarding the payment of health insurance premiums.
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WE WILL make whole the employees recalled in June 2009 for any money they paid for health
insurance premiums pursuant to the payroll deduction forms they executed, with interest.
WE WILL give notice and an opportunity to bargain to the Union before employing temporary
employees while unit employees are laid off.
WE WILL make whole any employees adversely affected for any loss of pay or other benefits
they may have suffered by reason of our unilateral action in employing temporary employees
while unit employees were laid off in October 2009, with interest.
WE WILL provide to the Union the information requested regarding the names of non-unit
employees who were laid off in April and May 2009, and the names of the laid-off employees
who received vacation pay and those who did not.
WE WILL within 14 days from the date of the Board's Order, offer Kevin Maze and Willie Smith
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.
WE WILL make whole Kevin Maze and Willie Smith for any loss of earnings and other benefits
suffered as a result as a result of our discrimination against them, with interest.
WE WILL within 14 days from the date of the Board's Order, remove from our files any
reference to the unlawful discharges of Maze and Smith, and within 3 days thereafter notify the
employees in writing that this has been done and the discharges will not be used against them
in any way.
WE WILL make Emil Stewart whole for any loss of earnings and other benefits suffered as a
result of the discrimination against him, with interest herein
GENERAL DIE CASTERS, 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.
1240 East 9th Street, Federal Building, Room 1695
Cleveland, Ohio 44199-2086
Hours: 8:15 a.m. to 4:45 p.m.
216-522-3716.
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, 216-522-3740.