KINGSPAN INSULATED PANELS, d/b/a KINGSPAN BENCHMARK

National Labor Relations Board - Administrative Judge Opinions

Jun 8, 2012

09-CA-072906 (N.L.R.B. Jun. 8, 2012)

JD–31–12
Columbus, OH
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
KINGSPAN INSULATED PANELS, D/B/A
KINGSPAN BENCHMARK
and Case 9–CA–072906
Case 9–RC–069754
SHEET METAL WORKERS INTERNATIONAL
ASSOCIATION, LOCAL UNION NO. 24
Catherine Terrell, Esq.
for the General Counsel.
Todd Sarver, Esq. (Steptoe & Johnson, Columbus, Ohio)
for the Respondent.
Julie Ford, Esq., (Doll, Jansen, Ford & Rakay, Dayton, Ohio)
for the Petitioner/Charging Party.
DECISION
STATEMENT OF THE CASE
ARTHUR J. AMCHAN, Administrative Law Judge. This case was tried in Columbus,
Ohio on April 30, and May 1, 2012. The Charging Party Union, Sheet Metal Workers
International Association, Local Union No. 24, filed charge 9–CA–072906 on January 30, 2012.
The General Counsel issued the complaint on February 29, 2012.
The Union also filed a representation petition with the Board on November 29, 2011. A
representation election was conducted on January 13, 2012. Thus the “critical period” for
purposes of the objections to the conduct of this election filed by the Union on January 20, 2012,
runs from November 29, 2011 to January 13, 2012.
Several of the objections were later withdrawn by the Union. In the January 20 election,
20 bargaining unit employees voted in favor of the Petitioning Union; 19 voted against union
representation and 3 ballots were challenged by the Union.1 The Regional Director consolidated
the challenges and the objections that had not been withdrawn with the unfair labor practice case
for hearing. After the hearing in this matter, the Petitioner/Charging Party withdrew its
challenges to the ballots of the three employees in question. When the 3 ballots were counted, the
Union failed to obtain a majority of the votes cast.

1 The unit generally includes all full-time and regular part-time production and maintenance
employees at Respondent’s Columbus, Ohio facility.
JD–31–12
2
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and Respondent, I make the following
FINDINGS OF FACT
5
I. JURISDICTION
Respondent Kingspan is an international company with headquarters in Ireland and
facilities in many different countries. In 2008, Kingspan purchased 5 factories in North
America, including the Columbus, Ohio Benchmark facility at issue in this case. Kingspan’s 10
North American headquarters is located in Deland, Florida. At the Columbus facility,
Respondent manufactures insulated panels used in the building trades. The Columbus
Benchmark facility was operated by a company named Metecno from about 1997 to 2008 and by
Lamit Industries prior to 1997.
15
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 PRACTICES20
Complaint paragraph 5(a) and (b)/Objection # 3: Alleged unlawful interrogation
Complaint paragraph 5(a)(i): On about November 1, 2011, Roger Wood, a maintenance
electrician and bargaining unit member, rode from Respondent’s plant to an off-premises garage 25
with Respondent’s Chief Executive Officer, Jeff Irwin. Wood testified that during the ride, Irwin
asked him if he had heard anything about the Union and had Wood spoken to anybody about the
Union. Wood responded that he had not heard anything, Tr. 16-17. Irwin testified that he drove
Wood to the garage on the day in question, but denied that he had any discussion with Wood
about the Union or union activity, Tr. 335.30
I credit Wood and find that the conversation occurred as Wood testified. The Union had
an organizing drive in 2010 which culminated in a representation election in October 2010,
which the Union lost. Wood was a prominent union supporter and had been the Union’s election
observer in 2010. Respondent’s management was well aware that under Section 9 of the Act, a 35
representation election could not be conducted until a year had expired since the October 2010
election, Tr. 283. On October 8, 2011, Patrick Harris, the acting production manager at the
Columbus facility, sent an email to Andrea Lackemacher, Respondent’s human resources
manager in Deland, Florida and Gabor Tovari-Nagy, the Operations Manager at the Columbus
plant. The subject of the email was “Union Meetings.” Harris stated, “I hear the guys have been 40
meeting and discussing another union attempt and just wanted to keep you guys informed,” GC
Exh. 11. Lackemacher responded to Harris and Tovari-Nagy on October 10, “Thanks Patrick.
Keep me informed.”
Harris admitted that he did keep Lackemacher “informed.” To the extent that Harris 45
suggests that he had no further communication about the Union with Lackemacher or Tovari-
Nagy until November, I discredit his testimony. Respondent was obviously very interested in
JD–31–12
3
whether or not there would be another organizing drive at least as early as October 8. I infer this
information was shared with all the top managers, including Irwin. I thus discredit his testimony
at Tr. 336 that he first became aware of renewed union activity at the plant on November 18,
2011. Given his lack of credibility on this point and the unlikelihood that Wood would conjure
up his story out of whole cloth, I credit Wood’s testimony concerning Irwin’s inquiry of 5
November 1.2
Complaint paragraph 5(a)(ii): Terry Whitehall, Respondent’s senior maintenance
technician, testified that he encountered CEO Irwin somewhere near the plant breakroom on or
about December 5, 2011. Whitehall testified that Irwin asked him who was in charge of getting 10
the Union in. Whitehall replied that there was no one lead in-plant organizer, but rather a
committee of about 5 or 6 employees, Tr. 85-86. Irwin testified that he did not recall any
discussions with Whitehall about union activity or asking Whitehall who was in charge of getting
the Union in, Tr. 336. I credit Whitehall not only for the same reasons that I credit Wood, but I
also rely on the fact that Irwin did not categorically deny asking Whitehall this question.15
Complaint paragraph 5(b): Roger Wood testified that on or about November 18, 2011 he
went to lunch with Patrick Harris, Mike Holden, another manager, and Cory Dimmerling, a
leadman. According to Wood, at lunch, Harris asked him, “how I thought the progress was
going, and what might be involved at the Union,” Tr. 19. Wood testified that he replied that he 20
was not sure, that “we haven’t talked yet.” Wood, later in his testimony, could not recall
whether this conversation occurred in November or December, after the representation petition
was filed, Tr. 79-80. Harris recalled the lunch in question as taking place prior to Thanksgiving
on November 24. I credit Harris. This conversation would have made no sense after the Union
gave the demand letter to Respondent on November 29. Harris testified that Wood brought up 25
the subject of the Union and that he inquired as to the progress of the drive only afterwards, Tr.
274-75, 286.
No later than November 19, Harris knew that Wood was talking to Cory Dimmerling, an
admitted agent of Respondent, about the renewed organizing drive, GC Exh. 14. The General 30
Counsel has not alleged that Respondent, by Dimmerling, violated the Act in interrogating
Wood. I therefore infer that Wood was talking to Dimmerling about the organizing drive
voluntarily and at his own initiative. Thus, by the time of the November lunch, Wood had
disclosed his support for the Union to Respondent.
35
Complaint paragraph 6(a); Objection 2(a): November 29, 2011 pay increase for Roger
Wood.
Roger Wood started working at the Benchmark facility for Metecno as a maintenance
technician in May 2007 at a wage of $11 per hour.3 Sometime in 2008, Kingspan purchased the 40
plant, along with 4 other facilities in North America. Eighteen months after Wood was hired, his

2 I also rely on the fact that Wood is a current employee of Respondent. As such his testimony is
particularly reliable in that it is adverse to his pecuniary interest, a risk not lightly undertaken, Gold
Standard Enterprises, Inc., 234 NLRB 618, 619 (1978); Flexsteel Industries, 316 NLRB 745 (1995).
3 R. Exh. 6 lists Woods hire date as May 28, 2003, but the hire dates on this exhibit appear to be
inaccurate for a number of employees.
JD–31–12
4
wage rate went up to $11.50. In January 2011, Respondent raised Wood’s wage rate to $12.09
per hour. During 2011, Wood repeatedly asked Pat Harris, the production manger, who was also
a personal friend, for another raise. Prior to June 2011, Harris reported to Wood that then
Operations Manager Steve Gross told Harris that Respondent could not afford to give Wood
another raise.5
In June 2011, Respondent transferred Gabor Tovari-Nagy from a plant in Hungary to the
Columbus facility. Although, he was technically a consultant, Tovari-Nagy acted as Operations
Manager soon after his transfer. Tovari-Nagy was permanently assigned to Columbus as
Operations Manager on October 10, 2011.10
On October 5, 2011, Respondent hired David Simons as Manufacturing Engineer. The
maintenance technicians have reported to Simons since he was hired. Between June and October
2011, the maintenance technicians reported directly to Tovari-Nagy.
15
Shortly after Simons was hired, Wood asked Simons to speak to Tovari-Nagy about
getting Wood a raise. Simons told Wood that, “he spoke to Gabor, and the answer at the time
was that he had no intention of giving me a raise,” Tr. 13-14.4
On November 29, 2011, the Union presented Respondent with a letter demanding 20
recognition between 8:30 and 9:00 a.m. Michelle Robinson, the office manager at the Columbus
facility, emailed the letter to Jeff Irwin, Gabor Tovari-Nagy, her boss, HR Director Lackemacher
and Andrew Hamer, VP for Operations, at 9:16 a.m., GC Exh. 18.5 Forty-five minutes to an
hour later, Tovari-Nagy and Simons summoned Wood to a meeting and informed him that he
was getting a wage increase. On November 29, neither Tovari-Nagy nor Simons told Wood the 25
amount of the raise. The next day, November 30, Simons told Wood that his raise would be
$1.50 per hour. Effective December 1, 2011, Wood’s wage rate went up by $1.41 per hour. The
fact that Respondent did not tell Wood the amount of the raise on November 29, and that Simons
gave him an incorrect figure on November 30, is evidence that the decision to raise Wood’s
wage rate was made hurriedly and in response to the demand for recognition. I infer that this in 30
fact was the case.

4 Wood’s testimony regarding this conversation with Simons is uncontradicted. I therefore credit it.
Simons did not testify. Moreover, Tovari-Nagy testified that he told Terry Whitehall in August or
September 2011 that Wood needed to come to him personally if he wanted a raise, Tr. 193. Tovari-Nagy
also testified that Simons came to him later to tell him that Wood has asked Simons for a raise several
times. Tovari-Nagy testified that this led him to consider the request and compare Wood’s compensation
with that of Whitehall and Larry Strong, another maintenance technician, Tr. 194-198. Tovari-Nagy did
not specifically deny making the statements to Simons that Wood testified Simons relayed to him.
Respondent at page 15 of its brief, note 7, incorrectly characterizes Wood’s testimony regarding what
Simons told him as hearsay. In its Answer to the Complaint, Respondent admitted that Simons and
Tovari-Nagy are supervisors and agents within the meaning of the Act. Pursuant to Rule 801(d)(2) of the
Federal Rules of Evidence, Wood’s testimony as to what Simons said to him is not hearsay. Under Rule
805, Wood’s testimony as to what Tovari-Nagy said to Simons is also not hearsay.
5 Tovari-Nagy reports directly to Hamer, who is located in Deland.
JD–31–12
5
Complaint paragraph 6(b)/Objection 2(b): the shift differential
Since late July 2011 Respondent’s employees have been working two shifts.6 Six to eight
employees currently work on the second shift, which normally operates between 3:00 p.m. and
midnight. However, both the starting and finishing time for this shift varies.7 At a meeting on 5
November 22, 2011 Operations Manager Tovari-Nagy informed employees that effective
December 1, 2011, Respondent would be paying second shift employees one dollar per hour
more as a “shift differential.” An extra dollar per hour for second shift employees first appeared
in employees’ paychecks on December 9, 2011. Prior to that time Respondent’s employees had
not been receiving any extra pay for working the second shift. For several months prior to 10
November 22, second shift employees had been inquiring of management about a shift
differential, Tr. 106-09,115, GC Exh. 2. Pat Harris, then Respondent’s production manager,
suggested paying a shift differential to human resources manager Lackemacher on August 1,
2011 in an email on which Tovari-Nagy was copied, R. Exh. 9.
15
Tovari-Nagy testified that he began to work with Pat Harris on instituting a shift
differential prior to November 1. There is no evidence documentary or otherwise that
corroborates his testimony. I decline to credit it. When Tovari-Nagy arrived in Columbus in
June 2011, it was immediately brought to his attention that the plant did not have a second shift
premium, Tr. 181. In June he prepared an action list, R. Exh. 3, which does not mention 20
implementing a shift differential or shift premium.
Pat Harris’ testimony at Tr. 252 indicates he did nothing about obtaining a shift
differential after sending the August 1 email. Chaz Vallette’s testimony at Tr. 108, 115-16 also
suggests Respondent did nothing towards implementing a shift differential until late November. 25
He asked Harris about a shift differential at least twice in September. William Groce asked
Harris and second shift supervisor James Latham about the shift differential repeatedly. They
were never given any indication that Columbus management was in the process of getting
approval for one from corporate headquarters.
30
Tovari-Nagy testified further that he received no response on this matter from Ralph
Mannion, who was Respondent’s President prior to November 1.8 Mannion was in the process
of transferring to Ireland and on November 1, Joseph Brash, a transfer from Europe, succeeded
Mannion as President. Tovari-Nagy testified that institution of the shift differential was
approved by Brash at a meeting in Columbus on November 17, 2011. At this meeting, Tovari-35
Nagy testified Brash also approved the $1.41 wage increase for Roger Wood.
Respondent’s position appears to be that the implementation of the shift differential and
the wage increase for Wood which were effective on December 1, have nothing to do with the
union organizing drive. It suggests that it is mere coincidence that Wood received his increase 40

6 There had been a second shift prior to late July, but Respondent did not operate a second shift
continuously until July 2011, R. Exh. 9.
7 However, 11 employees were apparently paid the shift differential on December 9, the first check in
which it appeared, R. Exhs. 10 and 13.
8 According to G.C. Exh. 5, Mannion’s position was General Manager, Kingspan Insulated Panels
North America.
JD–31–12
6
the day that the Union gave its demand letter to Respondent. Tovari-Nagy testified that he does
not have authority to raise employee’s wages without approval from Respondent’s North
American headquarters in Deland.
I find to the contrary, that the timing of both Wood’s December 1 increase and the 5
implementation of the shift differential were hasty management decisions made in late
November 2011 which were motivated by a desire to discourage employees from organizing.
Respondent raised the wages of several employees in the summer/fall of 2010 and has
demonstrated no credible explanation as to why the Wood’s increase or implementation of the
shift differential could not have been instituted in the same time frame.910
Employee Orlando Mitchell received a wage increase on July 5, 2011; Calvin Stewart
received one on August 1; Robert Edington also received a wage increase in this time frame, as
did Hicham Benghalen. There is no evidence as to the procedure followed in raising these
employees’ wages, see Tr. 233-34. In fact, Tovari-Nagy testified that he did not know what 15
procedure was followed to raise these employees’ wages. Harris testified that he filled out some
forms, had Tovari-Nagy sign them and then sent the forms to Andrea Lackemacher, Tr. 265, 282.
He did not know what happened to raise these employees’ wages afterwards. There is no
documentation of any consideration of a wage increase for Wood prior to November 29, R. Exh.
5, Tr. 197 or a plan to institute a shift differential prior to November 22.20
Furthermore, there is no evidence regarding Tovari-Nagy’s November 17 meeting with
Brash, other than Tovari-Nagy’s testimony. On the other hand, it is clear that Respondent’s
management was aware of the possibility of a renewed union drive in early October and knew
that such a drive was almost certain on November 19. By the evening of November 21, it 25
retained a labor consultant, Frank Ashcraft, to assist it in opposing the organizing drive, GC Exh.
24.
It is also clear that Respondent very much wanted to nip such a drive in the bud. As
CEO Irwin noted, an organizing drive was “exactly what we do not need,” GC Exh. 16. I infer 30
that the announcement of the shift differential and the December 1 raise for Wood were part of
the “charm offensive” that Tovari-Nagy was advised to undertake by Brash on November 19, to
thwart the organizing drive, GC Exh. 17.10
35

9 Respondent in its brief argues that discriminatory motive cannot be drawn from corporate-wide pay
initiatives. The violative conduct herein is not the result of any corporate-wide initiative. Shift premiums
apparently had been implemented at other Kingspan facilities prior to April 2011, Tr. 296, R. Exhs. 14
and 15. The plant specific shift premium initiative in this case is further evidence that its implementation
was motivated by the organizing drive.
10 I note that the November 19 emails do not mention either the decision to implement a shift
differential or a decision to raise Wood’s wage rate substantially.
JD–31–12
7
Analysis
Interrogations
The lead Board case regarding the legality of interrogations is Rossmore House, 269 5
NLRB 1176 (1984), affd. 760 F.2d 1006 (9th Cir. 1985). Pursuant to the Rossmore test,
Under Board law, it is [well established] that interrogations of employees are not per se
unlawful, but must be evaluated under the standard of “whether under all the
circumstances the interrogation reasonably tended to restrain, coerce, or interfere with
rights guaranteed by the Act.”10
In making that determination, the Board considers such factors as the background, the
nature of the information sought, the identity of the questioner, the place and method of
interrogation, and whether or not the employee being questioned is an open and active union
supporter, Norton Audubon Hospital, 338 NLRB 320, 320-321 (2002).
Applying this test to the instant case, I find that Respondent violated Section 8(a)(1) as 15
alleged in complaint paragraphs 5(a)(i) and (ii) and that Irwin’s inquiry to Terry Whitehall
constitutes objectionable conduct since it occurred during the “critical period”.
Jeff Irwin, the questioner in both instances is a very high ranking official, the chief
executive officer of Respondent. The nature of information sought, particularly in seeking from
Whitehall the identity of the in-house leaders of the organizing drive, is extremely coercive. 20
Although Whitehall may already have openly demonstrated his support for the Union at the time
Irwin questioned him, the inquiry is violative because Irwin was seeking the identity of other
union supporters.11 He obviously did not know who they were, because otherwise he would not
have asked Whitehall for this information.12
The place of the November 1 interrogation of Wood, Irwin’s vehicle, would tend to make 25
that inquiry more coercive. There is no evidence that Wood was openly supporting the renewed
union drive as of November 1.
I decline to find that Respondent, through Pat Harris, violated the Act when questioning
Wood on or about November 18. The record indicates that Wood was discussing the Union with
other of Respondent’s agents prior to that date. Moreover, it is unclear whether Harris or Wood 30
raised the subject of the Union first.
Wood’s Wage Increase and the Shift Differential
An allegation that an employer has violated Section 8(a)(1) by promising and/or 35
implementing beneficial changes in employees’ wages, hours and/or working conditions in
response to union organizational activity is analyzed under NLRB v. Exchange Parts, 375 US
405 (1964). Unlike other alleged Section 8(a)(1) violations, this analysis in motive-based,
Network Dynamics Cabling, 351 NLRB 1423, 1424 (2007).

11 Whitehall wore union paraphernalia and may have done so prior to his discussion with Irwin.
12 Respondent at page 42 asserts that by December 5, it knew who was behind the organizing drive.
However, as Patrick Harris testified, while he assumed some of the union supporters were the same
employees who had supported the Union in 2010, “it had changed. There had been a lot of new
employees,” Tr. 305.
JD–31–12
8
An employer which is aware of a union organizing drive violates Section 8(a)(1) in
granting unit employees benefits unless it proves that it had a legitimate business reason for the
timing and grant of the benefit, Jewish Home for the Elderly of Fairfield County, 343 NLRB
1069, 1087-90 (2004). Granting such a benefit violates Section 8(a)(1) regardless of whether or
not it occurs within the critical period between the filing of representation petition and the 5
representation election. The granting of benefits during an organizing drive is not per se
unlawful if the employer can show its actions were governed by factors other than the organizing
campaign, such as a showing that the benefit was granted pursuant to an already established
company policy, Mercy Hospital Mercy Southwest Hospital,338 NLRB 545 (2002).13
10
In the instant case, it is clear that Respondent was aware of the Union’s 2011 organizing
drive when it announced the shift differential on November 22, 2001 and when it raised Roger
Wood’s wage rate on November 29. Moreover, I find that Wood’s wage increase constitutes
objectionable conduct in that Respondent was aware that the Union filed its demand letter when
it raised Wood’s wages. As explained in a number of Board and court cases, such as NLRB v. 15
Exchange Parts, 375 US 405 (1964), the message implicit in such increases is that they
constitute a reward for eschewing union representation whose continuation may depend on
employees continuing to sacrifice their Section 7 rights (“a fist inside a velvet glove,” in the
words of Justice Harlan).
20
With regard to the timing of Wood’s increase, the testimony of Scott Hammond, the
Union’s business agent, is uncontradicted that he delivered the Union’s demand letter to
Respondent between 8:45 and 9:00 a.m. on Tuesday, November 29, 2011. Respondent’s office
manger Michelle Robinson emailed the letter to Irwin, Tovari-Nagy, HR Director Lackemacher
and VP Hamer at 9:16. Roger Wood’s testimony is uncontradicted that he was called into a 25
meeting with Gabor Tovari-Nagy and David Simons between 10:00 and 10:30 the same day to
be informed of an unspecified wage increase, which turned out to be $1.41 per hour. Jeff Irwin,
to whom the demand letter was directed, did not testify as to when he was first aware of the
demand letter.
30
The burden of proof is on Respondent to establish that despite Hammond’s testimony and
Robinson’s email, neither Irwin nor Tovari-Nagy was aware of the letter when Tovari-Nagy met
with Wood an hour to an hour and a half later. I find to the contrary and I discredit that
testimony of Tovari-Nagy that he was unaware of the letter when he met with Wood.
Respondent was very concerned about the organizing drive and I infer all members of 35
management became aware of the demand letter very soon after it was delivered and emailed to
them.

13 Respondent’s discussion of the absence of evidence of anti-union animus is irrelevant in the context
of an alleged Section 8(a)(1) violation. Proof of animus is not an element of the General Counsel’s prima
facie case, Post Tension of Nevada, Inc., 352 NLRB 1153, 1161 (2008). Moreover, actions which do not
violate the law may be relied upon is establishing animus, Gencorp, 294 NLRB 717, n1 (1989). Finally,
there is plenty of evidence from which I infer anti-union animus including the timing of the wage increase
for Wood, the timing of the implementation of the shift differential and CEO Irwin’s expressed opinion
that unionization was “exactly what we don’t need.”
JD–31–12
9
Respondent has not met its burden of showing that either the wage increase for Wood or
the implementation of the shift differential was not in large part motivated by a desire to
discourage support for the Union. There is absolutely no documentation to show that the
granting of these benefits and timing of these benefits was solely the result of a legitimate
business decision unrelated to organizing drive. Moreover, the ad hoc aspect of Wood’s wage 5
increase, suggests anti-union motivation as well as the timing of the increase, Huck Store
Fixture, Co., 334 NLRB 119, 123 (2001).
Finally, I conclude that Pat Harris’ testimony at Tr. 306-07 provides the most likely
explanation for Wood’s wage increase. Harris testified that Wood made it clear that he no longer 10
supported the Union after the 2010 representation election. By November 2011 Harris was
aware that Wood was supporting the Union anew. I infer this was known by everybody in
Respondent’s management of the Columbus plant. Thus, I infer that Respondent hoped that by
giving Wood a substantial pay increase, it would wean him from his union support. Moreover,
since Respondent knew that Wood had been a leader of the 2010 organizing campaign, I infer 15
that it hoped and believed that if Wood stopped supporting the Union, other employees would
also do so.
Respondent Employer’s objectionable conduct warrants setting aside the results
of the January 13, 2012 election20
Given that counting of the three challenged ballots results in a majority of employees
voting against union representation, I conclude that Respondent’s objectionable conduct warrants
setting aside the January 13, 2012 election and remanding this case to the Regional Director to
conduct a second election.25
Usually, the Board considers only pre-petition conduct in determining whether to set
aside an election, Ideal Electric and Manufacturing Company, Inc., 134 NLRB 1275 (1962).
However, it may consider prepetition conduct where it adds meaning and dimension to related
post-petition conduct, Dresser Industries, Inc., 242 NLRB 74 (1979). In the instant case, I 30
conclude that the sudden wage increase to Roger Wood and the interrogation of Terry Whitehall
were part a continuing plan by Respondent to thwart unionization. which included the
announcement of the shift differential 7 days prior to the filing of the representation petition.
Moreover, the implementation of the shift differential took place during the “critical period,”
which is further reason to consider it in determining whether to set aside the results of the 35
election, Wis-Pak Foods, 319 NLRB 933 n. 2 (1995) enfd. 125 F. 3d 518 (7th Cir. 1997). The
shift differential only began to show up in employees’ paychecks after the start of the critical
period. Finally, the violative conduct manifested itself each and every time a second shift
employee received a paycheck during the critical period. The weekly receipt of the shift
differential served as a constant reminder to each employee that a benefit granted to discourage 40
support for the Union could just as easily be withdrawn for the same reason.
It is well-settled that conduct in violation of Section 8(a)(1) that occurs during the critical
period prior to an election is “a fortiori, conduct which interferes with the exercise of a free and
untrammeled choice in an election.” The Board will thus set aside an election unless the Section 45
8(a)(1) violation is so minimal or isolated that it is virtually impossible to conclude that the
misconduct could have affected the election results, e.g., Iris U.S.A., Inc., 336 NLRB 1013
JD–31–12
10
(2001). I conclude that the misconduct properly considered in the instant case was not so
minimal to prelude an affect on the outcome of the election.
In determining whether to set aside election results the Board considers a number of
factors, such as (1) the number of incidents of misconduct; 2) the severity of incidents and 5
whether they were likely to cause fear among unit employees; 3) the number of employees in the
unit subject to the misconduct; 4) the proximity of the misconduct to the election; 5) the degree
of persistence of the misconduct in the minds of unit employees; 6) the extent of dissemination
of the misconduct; 8) the closeness of the vote and 9) the degree to which the misconduct can be
attributed to the party, Cedar-Sinai Medical Center, 342 NLRB 596, 597 (2004). 10
In the instant matter, factors 3, 4, 5, 6, 8 and 9 above weigh in favor of setting aside the
election. The vote was close and the illegal benefits were announced either just before or at the
start of the critical period. They were effectuated during the critical period. Respondent’s
highest level of management was responsible for this conduct. A sufficient number of 15
employees (up to 10 of the 44 employees eligible to vote, including Wood) were directly affected
by the misconduct to tip the balance in the election and it is most likely that many unit members
who did not work second shift became aware of the shift differential and the substantial raise for
Wood prior the election.14
20
CONCLUSIONS OF LAW
1. Respondent, Kingspan Benchmark, by CEO Jeff Irwin violated Section 8(a)(1) of the
Act on or about November 1, 2011, by interrogating Roger Wood about employees’ union
activities.25
2. Respondent, by CEO Jeff Irwin, violated Section 8(a)(1) on or about December 5,
2011, by interrogating Terry Whitehall about employees’ union activities.
3. Respondent violated Section 8(a)(1) by increasing the wage rate of Roger Wood on 30
November 29, 2011 in part to discourage employees from supporting Sheet Metal Workers
International Association, Local Union 24.15
4. Respondent violated Section 8(a)(1) by announcing the implementation of a shift
differential on November 22, 2011 and implementing this shift differential in early December 35
2011 in part to discourage employees from supporting Sheet Metal Workers International
Association, Local Union 24.

14 Of the 11 employees who received the shift differential according to R. Exh. 10, the credible
evidence establishes the two of these employees were temporary employees who were not eligible to vote
in the January 13, 2012 election. Respondent’s evidence is insufficient to prove that employees Edington,
Latham, Chris Holcomb and Eric Holcomb were ineligible to vote.
15 The wage increase for Wood and implementation of the shift differential may also have violated
Section 8(a)(3), Clock Electric, Inc., 338 NLRB 806 (2003); Koons Ford of Annapolis, 282 NLR B 506,
525-528 and n.2 (1986), but I find it unnecessary to make this determination.
JD–31–12
11
REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I shall
order it to cease and desist therefrom and to take certain affirmative action designed to effectuate
the policies of the Act.5
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended16
ORDER10
The Respondent, Kingspan Insulated Panels, Inc. d/b/a Kingspan Benchmark, Columbus,
Ohio, its officers, agents, successors, and assigns, shall
1. Cease and desist from15
(a) Coercively interrogating any employee about his or her union support or union
activities, or that of any other employee.
(b) Announcing and implementing improved working conditions or benefits in order to 20
discourage employees from selecting union representation.
(c) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
25
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days after service by the Region, post at its Columbus, Ohio facility copies
of the attached notice marked “Appendix.”17 Copies of the notice, on forms provided by the
Regional Director for Region 9, after being signed by the Respondent’s authorized 30
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, the 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 35
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 the facility involved in these proceedings, the Respondent

16 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted
by the Board and all objections to them shall be deemed waived for all purposes.
17 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice
reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
Board.”
JD–31–12
12
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 November 1, 2011.
(b) 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 5
the Respondent has taken to comply.
IT IS FURTHER ORDERED that the Regional Director for Region 9 shall set aside the
representation election conducted in Case 9-RC-069754 and that a new election be held at a date
and time to be determined by the Regional Director.10
Dated, Washington, D.C., June 8, 2012.
____________________15
Arthur J. Amchan
Administrative Law Judge
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT coercively question you about your support or activities on behalf of Sheet
Metal Workers International Association, Local Union No. 24, or any other union, or about the
union support and activities of other employees.
WE WILL NOT announce and/or implement improvements in your wages, hours and working
conditions in order to discourage you from selecting union representation.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
KINGSPAN INSULATED PANELS, D/B/A
KINGSPAN BENCHMARK
(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.
550 Main Street, Federal Building, Room 3003, Cincinnati, OH 45202-3271
(513) 684-3686, Hours: 8:30 a.m. to 5 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (513) 684-3750.